CONSULTATION QUESTIONS
Question 1: Should the presumption against short periods of imprisonment of
three months or less be extended?
× Yes
☐ No
You may wish to provide information to support your views, for example, what do you
consider to be the key factors for or against the proposal?
The Wise Group will work with just under 2,000 offenders and ex-offenders in 2015,
the majority of whom had custodial sentences of less than twelve months. We have
a number of programmes for different groups of prison leavers including the
Scotland wide New Routes Public Social Partnership (PSP) for which the Wise
Group is the lead partner.
Direct feedback from New Routes customers corroborates the literature evidence
that short-term prison sentences are ineffective in reducing reoffending. A short
time in custody does not facilitate rehabilitation as there is insufficient time for a
prisoner to either access or complete the relevant programmes available in
custody. The likely effects of custodial sentences, such as, breakdown of
relationships, loss of work, interruption of benefits and loss of housing, make it
difficult to maintain or re-establish community networks on leaving prison and
hinder rehabilitation. Those who serve short sentences have a high rate of
recidivism – six in ten of those sentenced to less than three months in prison were
reconvicted within a year. Short prison sentences often mean that offenders are in
a ‘revolving door’ relationship with prisons.
Scotland imprisons a higher proportion of its population than most other countries
in western Europe and we should be more innovative in how we use alternatives to
prison.
This radical change should be part of a wider move to improve the community
justice system in Scotland to ensure that community sentences are used more for
those offenders that the existing system currently would not consider appropriate
for community sentences. In particular, the presumption against short periods of
imprisonment must be balanced by a commitment to improve the scope, quality
and focus of community sentences. This could be achieved by diverting a portion
of the savings from reduced custody directly into transforming lives and making
communities safer.
There are two main elements of community sentences that should be improved:
1)
Community Payback Orders (CPO) need to be genuinely productive
experiences which balance punishment with activities that both benefit
communities and assist the offenders to avoid reoffending behaviours in the
1
future. This could be best achieved by linking community payback orders to
real opportunities for low income and workless offenders to receive relevant
job training and experience and support to enter or re-enter the labour
market.
2)
The same good quality holistic support available to prison leavers to reduce
their reoffending should be extended to those on community sentences. For
example, alongside a CPO, offenders should engage in programmes to
improve social skills as well as those skills needed to progress in life, such
as, literacy, numeracy and employability. This is above and beyond the
support available through Criminal Justice Social Work staff and is currently
not widely available to people on community sentences in Scotland.
This support should be based on a mentoring model which would involve
twelve months or more of consistent, holistic support based on positive role
modelling and on the establishment of a robust working relationship with a
mentor. The mentor may have been through the criminal justice system them
self but has left an offending lifestyle firmly in the past. Through the work on
New Routes we have secured excellent evidence that peer mentoring works
in reducing reoffending. It works particularly well in ensuring that someone
released from prison engages with agencies which can help, re-establishes
positive links with other family members and takes steps towards work. Such
mentoring would enhance and complement any support directed by the
courts or Criminal Justice Social Work.
The response above would also be applicable for women on short prison sentences
and we are hopeful that this will be recognised through the redefining custody for
women exercise that is currently being developed by SPS and Scottish
Government.
Question 2: If you agree that the presumption against short periods of
imprisonment should be extended, what do you think would be an appropriate
length?
☐ 6 months
☐ 9 months
☐ 12 months
The number of months for the extension should be based on existing evidence and
reviewed on the basis of newly gathered evidence during the implementation of the
new guidance.
There is strong evidence for an extension to at least six months. For example,
evidence in the Scottish Government paper, based on statistics published in March
2015 shows that individuals released from a custodial sentence of six months or
2
less are reconvicted more than twice as often as those given a Community
Payback Order. The figure of six months was also recommended by the McLeish
2008 Commission on the Future of Scotland’s Prisons. It is clear that prisons do
their best work protecting the public and rehabilitating and educating offenders with
long term prisoners.
Any presumption against a longer period should take into account the impact on
public perception of safety and manage to avoid a public backlash against these
positive steps to improve the system.
A prison sentence of a year, where warranted by the offence and the offender’s
background and previous record, can offer prison staff and agencies within the
prison the chance to do meaningful programmes. In addition, extending the
presumption against custody to those convicted of more serious offences may be
seen as tying the hands of sentencing judges by inappropriately restricting judicial
discretion.
Whatever the decision on this, Scottish Government should monitor carefully the
effect of any changes on the sentencing behaviour of the Scottish judiciary, the
impact on reoffending and the wider impact on communities and ex-offenders’ lives.
Question 3: Do you have any specific concerns in relation to a proposed
extension of the period covered by the presumption against short sentences?
New Routes, like the earlier Routes Out Of Prison project, is making a very
significant difference to the lives of many prison leavers by supporting them in
custody and then in the community. The holistic mentoring approach taken helps
individuals overcome the difficulties that lead them into offending behaviours. Over
60% of those on the New Routes programme had sentences of twelve months or
less. Therefore a reduction in short term custodial sentences would have an impact
on the programme. This could open the possibility of extending the New Routes
approach to those on community sentences eligibility for similar support which
makes communities safer and reduces reoffending.
There is a risk that reoffending will not be reduced as much as anticipated if
mentoring programmes are not extended to those on community sentences. There
is a further risk that there will be an increasing number of people on community
sentences who are in need of holistic support to avoid reoffending but are no longer
entitled to this as eligibility is currently dependent on a custodial sentence.
There is also an opportunity to divert the financial savings of reducing the prison
population into this support in the community which complements and greatly
extends the work of the Scottish Prison Service and Community Justice Social
Work. Investing in reducing reoffending is preventative spend that can and does
lead to savings to other public sector budgets and this policy change presents an
opportunity to invest to save.
A separate issue is that public perceptions need to be taken into account.
Community disposals for those offender who previously may have been in custody
3
should be presented and seen to be challenging for offenders and achieve
demonstrable outcomes in reducing reoffending. This change will be evidence-led
and the associated communication strategy should promote the good news that
Scotland is being ‘smart on crime’ and use real stories of people transforming their
lives.
There is an opportunity for the Wise Group community justice mentors to be
involved in this agenda. They can help communicate with communities about the
value to individuals and the public of offering genuine rehabilitation opportunities
which will allow offenders to achieve transformational changes in their lives,
attitudes and behaviours.
Our experience has shown that when the stories told by those with lived experience
that they have significant impact on the audience. It has been evidenced through
the Routes out of Prison evaluation in 2011 that mentors are felt to be credible and
it is a good opportunity to use the stories of the many individuals that have been
involved in the justice PSPs that can demonstrate that change is possible.
Question 4: Do you think there are any specific circumstances to which a
sentencing judge should be required to have regard when considering the
imposition of a custodial sentence?
There are many factors to consider:

The gravity of the offence

Previous offending behaviour - especially if there is a pattern of increasingly
serious offending which community disposals have not addressed

The need to deter such offending

The vulnerability of the victim and the effect of the offence on them

The most effective way of protecting the public

The offender’s family and other circumstances and the effect of a custodial
sentence on them

Any clear remorse shown

The level of ongoing danger posed to the public by this offender.
An additional consideration should be the availability of holistic support in the
community to avoid reoffending that will be available under either a community or
custodial sentence, especially where an individual has complex needs or is
experiencing crisis which needs addressing.
4
Question 5: Do you think there are specific offences to which the presumption
should not apply (i.e. offences which could still attract a short custodial
sentence)?
These decisions need to be evidence led and include careful input from sentencing
judges. The Wise Group does not have a response to this question.
Question 6: Do you think that there are any circumstances in which a custodial
sentence should never be considered?
We believe that there are some cases where it is appropriate to avoid custodial
sentence, for example, where there is no risk to public safety, such as, nonpayment of fines. The McLeish Report commented that, too often prison is used to
deal with ‘the troubling’ and ‘the troubled’, rather than with ‘the dangerous’ who
pose an ongoing risks to public safety.
Question 7: Do you think that the Scottish Government should also consider
legislative mechanisms to direct the use of remand? If so, do you have any
views on what such a legislative mechanism might include?
Remand is justified where there are perceived risks to public safety or where there
is a chance of the accused person avoiding trial.
Support for those on remand is extremely limited and where it is available the
uptake is poor.
It would make sense to extend alternatives and make the judiciary fully aware of
these: supervision and bail services across Scotland, including bail conditions
which can be electronically supervised and monitored. These services could and
should involve wrap-around support provided by non-statutory services.
Question 8: Do you have any additional comments on the use of short-term
imprisonment?
Imprisonment works best when it protects the public from serious offenders and
also attempts to rehabilitate serious offenders. By instituting a presumption against
some short term sentences opportunities can be created to carry out more
meaningful rehabilitative work with those in custody and in the community, while
reducing the obvious fiscal implications of short term sentences. This would also
release additional resources to facilitate the creation and development of robust
community disposals with enhanced holistic support through mentoring to tackle
the issues identified and prevalent among offenders and ex-offenders.
5
6