The great Scottish prisons gamble

After a nine-month investigation of the country's penal system, the Scottish Prisons Commission yesterday urged ministers in effect to scrap jail sentences of less than six months, except for violent and sexual offenders who "raise significant concerns about serious harm", and some other cases.

Henry McLeish, the commission's chairman and a former first minister, outlined 23 recommendations that he said would reduce Scotland's record prison population by about one-third, and called on the government to seize a "once-in-a-generation" opportunity to cut crime and high reoffending rates.

But experts warned that, by calling for a major shift away from the use of prison and towards community sentences, Mr McLeish was asking the Scottish Government to take a massive gamble.

They said that, while greater use of enhanced community sentences may eventually cut reoffending, the reliance on non-custodial punishments could damage public safety if significant improvements were not put in place.

At the heart of the proposed changes is a radical shift away from the use of prison for so-called "low level" crimes and towards beefed-up community sentences, which would begin as soon as sentence was passed.

Kenny MacAskill, the justice secretary, welcomed the report and said its recommendations would be considered over the summer before proposals were announced.

But as the commission cautioned ministers against cherry-picking its proposed reforms, Mr MacAskill faces a dilemma over whether to accept the report's recommendation to legislate against short-term prison sentences.

Other key recommendations include scrapping home detention curfews – the controversial practice of releasing prisoners early with a tagging order – and giving sheriffs the option of imposing "conditional sentences", which would mean offenders only being sent to prison if they failed to meet certain conditions imposed by the courts.

Offenders on community sentences would also be forced to attend "progress courts" to ensure they do not escape punishment.

In a further shift away from imprisonment, the report says the Parole Board should be allowed to impose non-custodial penalties on serious, long-term criminals who reoffend after they are released from jail.

The commission is also urging greater use of supervised bail orders to reduce the number of remand prisoners and says special youth hearings should be set up to take offenders aged 16 and 17 out of the adult courts.

Setting out the recommendations in the commission's 82-page report, Mr McLeish said Scotland faced two possible futures.

One had fewer people in prison, with only those presenting a serious threat of harm behind bars, coupled with widely used, well-respected community sentences producing low re-conviction rates. The other, which he said Scotland was heading towards, had many more overcrowded prisons, low morale among prison staff and social workers, a continuing "cycle" of crime and "record levels" of public distrust in the system.

"We have to make a choice between these two futures," he said. "A negative future is not inevitable and a positive one is not unattainable. Both are possible. One requires us to do nothing at all; the other will require us to think differently about what we want punishment to do and to make some changes in how we go about achieving this."

After unveiling the report, Mr McLeish told The Scotsman: "I'm convinced that, in the future, we will not only have safer communities, but if the government follows these recommendations, we will rehabilitate more offenders and will also be looked upon across Europe and globally as a model of how we can tackle the worst excesses of crime."

He admitted the measures would require government investment "in the short term", but said the commission had not estimated the cost. However, it argues that vast amounts of money could be freed up in the longer run by reducing the prison population.

His criticism of the current penal system was echoed by David Strang, Chief Constable of Lothian and Borders, who sat on the commission.

He said the practice of sending large numbers of offenders to jail for less than six months was "not working".

But criminal justice experts warned that the proposed overhaul of the penal system could have disastrous results, unless community sentences were transformed.

Mike Nellis, professor of criminal and community justice at Strathclyde University in Glasgow, said: "This is a brave report.

The success of these measures depends on whether criminal justice social work departments can rise to the challenge."

Andrew McLellan, the Chief Inspector of Prisons, praised the report and told Mr McLeish at the launch: "I welcome almost all of this. A lot of it is just sensible. It's a moment that comes once in a generation."

But Bill Aitken, the Scottish Tories' justice spokesman, rejected much of the commission's work. "In the SNP's soft-touch Scotland, you have to be very unlucky to end up in jail. Where the report hits the mark is when it recommends the blindingly obvious," he said.

Offenders could be given another chance

UNDER the proposals outlined by Henry McLeish yesterday, many criminals will face a fundamentally different form of punishment to the one they currently receive.

Take the example of someone who commits, say, their fifth housebreaking.

After the first two, the sheriff imposes a fine. But that fails to deter him from reoffending, perhaps partly because the criminal has a drug problem.

So after the third and fourth break-ins, the offender receives 140 hours of community sentence and a probation order intended to address the causes of his offending.

But he fails to turn up at his work placement and goes on to commit his fifth offence.

That scenario, faced regularly by sheriffs, would probably result in him being sent to prison for a short period, perhaps four months.

The sentence would reflect social outrage over his continued offending, and the failure of other means to stop the cycle of crime.

But under the commission's plan, the criminals would probably be given another chance.

The four-month sentence the sheriff was minded to impose would have to be turned into a Community Supervision Sentence, which would require the offender to "pay back" for his crimes, by a combination of work in the community, a requirement that he attend a treatment centre for his drug problems, and meetings with his victims.

While offenders given community sentences are sometimes left alone for weeks before they start their work, this criminal would be taken straight from the dock to a team responsible for administering the punishment. The punishment would, in effect, start straight away.

Mr McLeish says he wants community sentences to be more visible, but says requiring offenders to wear special outfits to mark them out would be "degrading".

The commission's report indicates that prison could only be imposed if this tougher community sentence fails to stop him in his tracks.

But if Mr McLeish's brand of community sentences are ineffective, the result is likely to be more crime.

Judges hamstrung by report that lacks new ideas

Commentary: Ian Simpson

THE report of the Scottish Prisons Commission expresses noble aspirations, and constructive thought has gone into its preparation.

However, I have to question how the proposals to speed up the sentencing process will work in practice, and it is depressing to note that two new quangos have been conceived.

Both the proposed new National Sentencing Council and Community Justice Council will require premises, staff and money that would be better spent on making what we have better. If they come into being they will have overlapping functions, so there will be scope for turf wars.

I particularly dislike the erosion of judicial control of sentencing. There are to be guidelines. These will not come from the Appeal Court or from discussion with fellow judges, but from the new quango. Will it have enough people of real, practical experience on it? Sheriffs will also be hamstrung in imposing short sentences of less than six months (which will still mean only three months inside).

Before such a sentence can be imposed, regard must be had to a range of factors. It will, I suspect, be necessary to use some judicial ingenuity before jailing a bad second or third-time drink-driver or a disqualified driver who has similarly reoffended.

The remedy for short sentences is to be a new device called a "conditional sentence".

It is to be a non-implemented jail sentence ringed with conditions. The central buzz-word will be "payback". You can pay back by rehabilitating yourself, paying compensation, being tagged or doing unpaid work. If you do not comply, the jail sentence hanging over you will be imposed.

Almost all of this is already available more flexibly. We have probation orders, community service orders, restriction of liberty orders and compensation orders. If you do not comply you are brought back to court when custody may or may not be imposed, depending on all the circumstances. Apart from the vocabulary, what's really new?

The commission wants judges to discuss cases with social workers before deciding on "the best form of payback". This might save the social workers writing reports, but in a busy court this will waste much judicial time, and I wonder how long the social workers might have to hang around – probably longer than it takes to write a report. There will then be appearances at a "progress court" to check that all is well.

We need adequate resources for whatever procedures we have. As the report points out, we need secure places other than jail for those with mental-health problems.

The report also pays tribute to the success of drug treatment and testing orders. That makes my point: they are properly resourced. Probation and community service are not now adequately resourced. And hamstringing judges will not cure prison overcrowding.

• Ian Simpson is a former sheriff

COMMUNITY SUPERVISION

THE commission recommends that the government require courts, which would otherwise have imposed a sentence of six months imprisonment or less, to instead impose a community supervision sentence.

A sheriff would only be able to impose a short sentence if a limited set of circumstances applied.

These include if the case involved "violent and sexual offences that raise significant concerns about serious harm"; if the offence involved a breach of bail conditions; if the offender was already subject to a community sentence, and if the offender was subject to a release licence.

SENTENCING COUNCIL

THE setting up of a National Sentencing Council (NSC) Is recommended by the commission. This would develop clear guidelines for sentencing to applied across Scotland.

The commission says patterns of sentencing, including community sentences, vary greatly across the country. In order to command the support of the public the commission says sentencing and the management of sentencing must be more consistent and transparent as well as effective. The NSC would, the commission argues: "drive forward consistency and improve effectiveness."

TEENAGERS IN PRISON

THE report also addresses the detention of 16 and 17 year olds in adult prisons.

The commission argues young offenders may be negatively influenced by older inmates and suggests the Government explore options for placing the older teens in secure youth facilities, away from both older offenders and those under 16. It also recommends ministers re-examine the case for putting 16 and 17 year olds in front of Specialist Youth Hearings which would give a wider option for sentencing than presently available under the Children's Hearing System. This would place Scotland in line with international conventions.

JUSTICE COUNCIL

A NATIONAL Community Justice Council ( NCJC) would bring about improved services for ex-prisoners and help implement changes in a "diverse" criminal justice system, the commission claims.

It says such a quango should work alongside their suggested National Sentencing Council to enhance public understanding of, and confidence in, the credibility of both sentencing and the management of community sentences.

The NCJC should also work with the Scottish Prison Service and the Parole Board for Scotland to enhance the credibility of release and resettlement arrangements.

COMMUNITY SENTENCES

JUDGES should be provided with a wide range of options through which offenders can "pay back" to the community, the commission says.

There should be one single Community Supervision Sentence (CSS) with a wide range of possible conditions and measures, it recommends, to compensate or repair harms caused by crime. This might unpaid work or engaging in rehabilitative work.

The also Commission recommends the establishment of "progress courts" for swift and regular review of progress and compliance with community sentences – and that deal robustly with offenders who do not pay back.

HOME DETENTION

THE current Home Detention Curfew scheme – known as tagging – is used by prison governors to facilitate early release.

However, the commission claims conditional sentences – where the period of custody is suspended as long as the offender keeps to a strict set of requirements – are more appropriate and transparent.

The report is recommending that the current Home Detention Curfew scheme should now be terminated – subject to the full implementation of all its other recommendations on conditional sentencing.

HOW THE NUMBERS ADD UP ON CRIME