NATIONAL REPORT: ALTERNATIVES
TO IMPRISONMENT IN SCOTLAND
Davis Buls, Research Assistant
Ruth Freeman, Professor of Dental Public Health Research
Scottish Oral Health Improvement Prison Programme (SOHIPP)
Dental Health Services Research Unit (DHSRU)
University of Dundee, Scotland
This publication has been produced with the financial support of the Criminal Justice Programme of the European Union. The contents of
this publication are the sole responsibility of Davis Buls and Prof. Ruth Freeman, DHSRU, and can in no way be taken to reflect the views
of the European Commission.
Contents
Contents
1
1
The legal framework of alternatives to imprisonment in Scotland
3
1.1
The scope of the report
4
1.2
Criminal justice system in England and Wales: brief overview
1.2.1 The Courts in England and Wales . . . . . . . . . . . . . . . . . . . . . . . . .
1.2.2 The criminal process in England and Wales . . . . . . . . . . . . . . . . . . .
4
4
5
1.3
Criminal justice system in Northern Ireland: brief overview
1.3.1 The criminal process in Northern Ireland . . . . . . . . . . . . . . . . . . . . .
7
7
1.4
Criminal justice system in Scotland
1.4.1 Criminal procedure and the court system in Scotland . . . . . . . . . . . . . .
8
8
1.5
Pre-trial alternatives to imprisonment in Scotland
1.5.1 Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
10
1.6
Post-trial alternatives to imprisonment in Scotland
1.6.1 Community Payback Order (CPO) . . . . . . . . .
1.6.2 Restriction of Liberty Orders (RLO) . . . . . . . .
1.6.3 Drug Treatment and Testing Orders (DTTO) . . .
1.6.4 Home Detention Curfew (HDC) . . . . . . . . . . .
1.6.5 Release on parole . . . . . . . . . . . . . . . . . . .
12
12
16
16
17
17
1.7
Reference to EU Law
18
2
Political and social context of alternatives to imprisonment
20
2.1
Imprisonment statistics
21
2.2
Arguments for implementing alternatives
2.2.1 Remand (pre-trial) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.2.2 Community Payback Order (post-trial) . . . . . . . . . . . . . . . . . . . . . .
23
23
23
2.3
Offender programmes
24
2.4
Victim’s role in designing and implementing CPO
2.4.1 Entity of damages suffered by victims and the implementation of CPOs . . .
25
26
2.5
The role of civil society in debates about alternatives to imprisonment
26
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3
Cross-cutting and topical issues
27
3.1
Cost-benefit analysis
28
3.2
Psychiatric patients
28
3.3
Drug users
28
3.4
Foreigners
28
4
Conclusion: future for alternatives
29
References
31
2
Part 1
The legal framework of alternatives to
imprisonment in Scotland
3
1.1
The scope of the report
United Kingdom (UK) consists of 4 different countries - England, Wales, Scotland and Northern
Ireland. The criminal justice systems are different across UK countries (with the exception of
England and Wales who have the same system) and, given the scope and the limits of this report,
the main focus will be on a national level - the Scottish Criminal Justice system. A brief overview
of the criminal justice systems of England and Wales, and Northern Ireland are provided in the
next two sections.
1.2
Criminal justice system in England and Wales: brief overview
The criminal justice system in England and Wales is made up of the following institutions [1]:
• The Law Officers (Attorney General, the chief legal adviser to the government, manages
the main prosecuting authorities in England and Wales - CPS and SFO - see below)
• The Ministry of Justice (Has responsibilities to several parts of the system which encompasses criminal, civil and family justice, democracy, rights and the constitution.)
• The Home Office (The main governmental department dealing with immigration and passports, drugs policy, crime, counter-terrorism and police.)
• The Serious Fraud Office (SFO) (Is in charge of prosecuting serious/complex fraud,
corruption.)
• The Police
• The Crown Prosecution Service (CPS) (The principal public prosecution authority)
• The Courts (Provide administration of the civil, family and criminal courts)
• The National Offender Management Service (provides correctional services via Her
Majesty’s CPSI and Probation Service)
• Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) (An independent
organisation that inspects and reports on the operations of CPS).
1.2.1
The Courts in England and Wales
There are three courts in England and Wales that deal with criminal cases - the Magistrate’s Court,
Crown Court and High court. There are also two instances of appeals courts - Court of Appeal and
UK Supreme Court [2]:
• Magistrates’ Court
All criminal cases start in the Magistrates’ Court, but it deals mostly with the less
serious criminal cases (i.e., summary cases) [3]. Almost all of the criminal cases are
tried and completed (about 90% [4]) in the Magistrate’s Courts and are heard by 2 or
4
3 magistrates1 or a district judge [3]. For more serious crimes, like rape or murder, the
Magistrates’ Court passes the cases on to the Crown Court.
The Magistrates’ Court can impose fines (up to £5,000) [3], community sentence, probation orders or a custodial sentence of up to 6 months (for multiple offences - a maximum
of 12 months) [4].
• The Crown Court
The Crown Court deals with serious criminal cases that are passed on by the Magistrates’
Court. For all indictable offences and some of the either-way criminal offences a jury
trial is held. The Crown Court also deals with the appeals against conviction sentences
issued by the Magistrates’ Court [2].
• High Court
The High Court deals with appeals from other courts as well as with ‘first instance’
cases [2]. It is divided into three different divisions - Chancery, Queen’s Bench and
Family division [5].
• The Appeal Court (appeal only on points of law)
• UK Supreme Court (appeal only cases on points of law)
1.2.2
The criminal process in England and Wales
Figure 1 on page 6 illustrates the criminal process in England and Wales.
1 Trained
volunteers of the local community working part-time [4].
5
Figure 1: A diagram showing the path an offender can take through the criminal justice system in
England and Wales. Source: [6].
6
1.3
Criminal justice system in Northern Ireland: brief overview
The criminal justice system in Northern Ireland is made up of the main following institutions [7]:
• Police Service of Northern Ireland
• Public Prosecution Service
• Northern Ireland Courts and Tribunals Service
• Northern Ireland Prison Service
• Probation Board for Northern Ireland
• The Youth Justice Agency
The courts that deal with criminal cases in Northern Ireland are [8] [9]:
• Coroners’ Courts (investigate unexplained deaths)
• Magistrates’ Courts (less serious criminal cases and those involving juveniles, family and
civil matters)
• The Crown Court (all serious criminal cases)
• The Court of Appeal (appeals on points of law in criminal and civil cases)
• UK Supreme Court (appeals on points of law in cases of major public importance)
The following are the types of sentences that can be issued within the criminal justice system
of Northern Ireland [10]:
• Discharge
• Monetary (e.g., fines, compensation and confiscation orders)
• Imprisonment
• Community sentence (e.g., probation orders, community service orders, supervision orders
and attendance centre orders)
1.3.1
The criminal process in Northern Ireland
The Public Prosecution Service (PPS) decides whether to prosecute a case based on the evidence
gathered by the police. The criminal cases can be tried under the summary procedure (less serious
cases) and they are heard in the Magistrates’ Court. The more serious criminal cases (e.g., rape
and murder) are tried by a judge and a jury2 in the Crown Court on indictment. Offences that can
be tried ‘either way’, that is, either summarily or on indictment, are usually tried summarily unless
the district judge deems or the defendant asks that the case should be tried in the Crown Court
[11].
2 The jury is made of 12 members of public who are randomly selected from the Electoral Register. The jury is
independent and its task is to decide the questions of fact. The verdict options the jury can reach are either ‘guilty’
or ‘not guilty’.
7
1.4
Criminal justice system in Scotland
The criminal justice system in Scotland is made up of the following institutions and bodies [12]:
• The Police
• Crown Office and Procurator Fiscal Service (COPFS)
• Scottish Court Service
• Judiciary
• Scottish Prison Service
• Parole Board
• Criminal Justice Social Work (CJSW)
• Defence Solicitors
1.4.1
Criminal procedure and the court system in Scotland
The criminal procedure that determines the process of investigation and prosecution of criminal
offences is regulated by the Criminal Procedure (Scotland) Act 1995 [13].
In the Scottish criminal justice system, offences are tried under two procedures - solemn and
summary. Solemn procedure involves the most serious of crimes (e.g., rape, murder) and is dealt
within the High Court (before a judge and a jury3 ) or the Sheriff’s Court (before a judge and a
jury). Summary cases are dealt within the Sheriff’s court (only judge) or in the Justice of Peace
Courts. The majority of criminal offences are tried under summary procedure (94%)4 with the
solemn cases being less frequent (6%) [14].
Crown Office and Procurator Fiscal Service (COPFS) is the only public5 prosecution authority
in Scotland. The COPFS decides if the crime is to be prosecuted or not. Figure 2 on page 9
provides an overview of the criminal justice process in Scotland.
Scotland has three-tier court system consisting, in the hierarchical order, of the High Court, the
Sheriff Court and the Justice of Peace Courts.
The High Court
The High Court is Scotland’s supreme criminal court and it deals with the most serious crimes such
as murder, rape (and other serious sexual offences), culpable homicide and armed robbery. Cases
are presided over by a single judge and a jury.
3 The
jury in the Scottish criminal justice system consists of 15 men and women.
statistical data on the frequency of solemn and summary procedures are based on years 2013–14.
5 Although it is possible for a prosecution to be brought by an individual (private prosecution), virtually all cases
in Scotland are prosecuted by COPFS (as private prosecutions are extremely rare) [15].
4 The
8
Figure 2: Criminal justice system pathways in Scotland. Source: [16].
9
The Sheriff Courts
The cases tried in the Sheriff Courts can be both under solemn and summary procedure. Solemn
cases are presided over by a sheriff and tried by a jury. A custodial sentences of up to five years
can be imposed under solemn procedure.
Summary cases are decided by a sheriff who also presides over the trial and the sentencing.
The maximum custodial sentence for a summary case that can be imposed is up to one year; the
maximum fine that can be issued is £10,000.
The Justice of Peace Courts
At the Justice of the Peace Courts less serious criminal cases (such as driving offences, less serious
assault, breach of the peace, theft) are heard. Lay magistrates sit with a legally qualified adviser in
the Justices of the Peace Courts. They sit alone or on a bench of three and can impose a custodial
sentence of up to 60 days and a fine of up to £2,500 (or both); for driving offences they can also
disqualify drivers on a discretionary basis.
1.5
Pre-trial alternatives to imprisonment in Scotland
1.5.1
Bail
The only alternative to pre-trial detention (i.e., ‘remand’6 ) in Scotland is bail. The court decides
whether the accused person is granted bail and it has to provide reasons for either granting or
refusing bail [17]. The Scottish Criminal Law operates under the presumption in favour of bail,
which means that any person accused of crime should be given bail unless any of the following is
true [17]:
1. They are being tried under solemn proceedings for a crime involving personal violence or
sexual offence and they have been previously convicted on indictment with a violent or sexual
offence;
2. They are being tried for a drug trafficking offence and have a previous conviction on indictment
for drug trafficking offence;
3. There is a good reason to refuse bail in the public interest (including interests of public safety).
The grounds for refusing bail are when there is a substantial risk that the accused, if granted
bail, will do any of the following [17]:
• Abscond or fail to appear at any diet7 ;
• Commit a further offence;
• Interfere with witnesses or obstruct the course of justice;
6 The
term ‘remand’ refers to a person being held in custody (police cell or prison) before appearance at court.
‘diet’ in the Scottish Court system refers to a stage the case goes through. For example, ‘trial diet’ refers
to the stage when evidence is heard [16].
7 Term
10
• Or if there is any other substantial factor that appears to justify the refusal of bail to the
court.
The substantial risk is assessed taking into account all the material considerations, including
the accused person’s associations and community ties, which include [17]:
1. The nature and level of seriousness of the offences and the probable disposal of the case if
convicted;
2. Whether the offence was made while on bail, under any other court order, or was on licence
or parole or deferred sentence;
3. The nature of previous convictions, previous breaches of bail or any other court order or terms
of any release on licence or parole and whether the person is either currently serving or has
recently served imprisonment sentence for any matter that is related to the current matters.
Bail in the form of money is also at court’s disposal, however, the legislation’s intention is to
make this form of bail very exceptional [17].
Conditions of bail
When granting bail, the court, or the Lord Advocate8 , is obliged to impose the standard conditions and any other additional conditions that are deemed to be necessary in order to secure the
observance of the standard conditions [17]. The standard conditions are that the accused [17]:
(a) Appears at every diet (stage of case) as is required;
(b) does not commit an offence while on bail;
(c) does not interfere with witnesses or otherwise obstruct the course of justice whether
in relation to him-/herself or any other person;
(ca) does not behave in a manner which causes, or is likely to cause, alarm or distress
to witnesses;
(d) makes him-/herself available for the purposes of enabling enquiries or a report to be
made to assist the court in dealing with him/her for the offence with which he/she is
charged;
(e) For sexual offences, precognition9 of or statement by the complainer in relation to
the subject matter of the offence can be sought only by a way of solicitor.
For sexual offences an additional standard condition is applied [17]:
f) precognition of or statement in relation to the offence by the alleged victim can be
only sought by a way of solicitor.
8 The
Lord Advocate is head of the criminal prosecution system and investigation of deaths in Scotland.
in the Scottish legal system refers to a face-to-face interview of a witness for the purposes of
giving evidence at an upcoming criminal (not only) trial [18].
9 ’Precognition’
11
The court can include any other conditions that are considered necessary to achieve the statutory
purposes (e.g., surrender of a passport, living, or not living, at a particular address).
Once the bail is issued, the accused receives a copy of the document which spells out the
conditions that are imposed and notes that breaching any of the conditions is making the accused
liable to be subjected to arrest, prosecution or punishment [17].
1.6
Post-trial alternatives to imprisonment in Scotland
There are five alternatives10 to imprisonment in the post-trial phase in Scotland - Community
Payback Order (CPO), Restriction of Liberty Order (RLO), Drug Treatment and Testing Order
(DTTO), Home Detention Curfew (HDC) and release on parole. The last two alternatives - HDC
and parole - are applied to an offender who has already served a part of his/her sentence in prison.
Figure 3 on page 19 provides a visual overview of the post-trial sentence options and pathways in
the Scottish criminal justice system.
1.6.1
Community Payback Order (CPO)
Community Payback Order (CPO) was introduced in 2011 with legal effect starting on February
1st , 2011. CPO replaced three types of extant community sentences - Community Service Order,
Probation Order and Supervised Attendance Order.
The CPO is a community sentence that can be imposed by the judge and consists of one or
several requirements that are set depending on the nature of the crime committed and the issues
that underly the offending behaviour.
CPO requirements
CPO is a court order that sets out any of the following requirements (1 or more) for the sentenced
person as an alternative to custody [17]:
• a supervision requirement (a requirement that the offender attends appointments with
the specified responsible officer11 or another person indicated by the officer for a time period
between six months and three years; the appointments are meant to promote the rehabilitation
of the offender);
• a compensation requirement (of paying a compensation for personal injury, damage or
loss, or for any other matter, to a person in whose favour a compensation order can be made);
• a work requirement (unpaid work or unpaid work and any other activity determined by
the responsible officer for a specified number of hours between a minimum of 20 and a maximum of 300 hours. The work requirement needs to be completed within three months if the
10 The
court may also impose a money fine as an alternative to imprisonment.
imposing CPO, the court must specify the locality where the offender is to reside during the duration of
the CPO and, at the same time, require the specified local authority to nominate one of its officers as the ‘responsible
officer’. The responsible officer’s task is to make arrangements for the offender to comply with the requirements of
the CPO and to take any steps that are necessary to vary, revoke or discharge the order. The court also must require
of the offender to observe the responsible officer’s instructions, report to the officer in the manner specified by the
officer and notify the officer of any changes of address or times when offender is working or attending an education
establishment.
11 Upon
12
requirement is no more than 100 hours (level 1 requirement) or six months if it is more than
100 hours (level 2 requirement), or in the time period the court may specify);
• a programme requirement (participation for a specified number of days at a specified place
on a course or a set of activities that are aimed at addressing offending behaviours that have
been recommended by a local authority officer as suitable for the offender);
• a residence requirement (for the accused to reside in specified place for a specified period
of time);
• a mental health treatment requirement (if the court receives satisfactory written or oral
evidence from either a registered medical practitioner or a registered psychologist, or both,
that the accused suffers from mental health condition that is susceptible to treatment);
• a drug treatment requirement (This requirement can be imposed if the offender is dependent on or has a propensity to misuse the substance. The treatment is meant to reduce or
eliminate the dependency on the substance);
• an alcohol requirement (the same as ‘drug treatment requirement’);
• a conduct requirement (offender is required to do or refrain from doing specified things
during a specified period of time which is not longer than three years; this requirement is
meant to promote good behaviour or prevent further offending).
CPO provisions
The CPO can be currently imposed under 4 different provisions [17]:
1. As an alternative to an imprisonment sentence.
2. As an alternative to an offence punishable with a fine (which also may or may not be punishable with imprisonment) in the case when court decides not to issue a prison sentence or
CPO (as in the provision 1). In this case, instead of, or in addition to, issuing a fine, a CPO
can be imposed, but may only contain one or more of the following requirements:
• an offender supervision requirement,
• a level 1 work requirement,
• a conduct requirement.
3. It can be issued by a drugs court12 for breach of a drug treatment and testing order.
4. For default of payment of a fine (a special kind of community payback order).
CPO can be imposed by the so called ‘appropriate court’ which has the power to deal with
the variations, revocations, discharges and breaches of the CPOs. It can be the High Court, The
Sheriff’s Court or Justices of Peace Court. For the latter two courts, the ones in power will be the
ones that issued the CPO, however, if the offender lives in the area different to the court issuing
the CPO, the court of the offender’s residence will be in power of administering the CPO.
12 A drugs court is a court that has been given the power to issue drug treatment orders for offenders who might
be in need of them.
13
Sentencing considerations
In deciding what sentence to pass, the court must take into account the offender’s personal circumstances, criminal record (or lack of it) and the circumstances of the offence. General guidelines in
the Scottish criminal system are that, for a first offence of the kind, a maximum sentence is not
suitable even if the offender has been convicted for other type of offences in the past [17].
The court is statutorily obliged to consider [17]:
1. Age (if under 21).
2. The absence of any previous custodial sentence served by the offender.
3. The presumption against short sentences.
4. Any guidelines by the High Court.
5. Time spent in custody in the pre-trial phase.
6. A plea of guilty.
7. Statutory minimum sentence.
8. Racial aggravation.
9. Aggravation by religious prejudice.
10. Aggravation by disability or sexual prejudice.
11. Aggravation by terrorist connections.
12. Aggravation by connection with serious organised crime.
13. Anti-social behaviour orders.
14. Victim statements.
15. Assistance to prosecution.
16. Health and safety.
17. Child pornography.
18. Voluntary intoxication.
19. Historic cases.
The sentencing decision is strongly a matter of the individual judge and the circumstances of
the case and any mitigatory evidence, the jury does not have a say in deciding the sentence to be
imposed.
14
Breaching CPO
If the court concludes that the offender has failed to comply with the requirements of the CPO
without a reasonable excuse, the court may [17]:
• vary the CPO by imposing a new requirement (including a restricted movement requirement (see below);
• vary, revoke or discharge an already existing requirement of the CPO;
• revoke the order and deal with the offender as if the CPO was not issued (if the CPO was
issued as an alternative to imprisonment);
• revoke the order and impose imprisonment of not more than 3 months in Sheriff’s court or
60 days in Justice of Peace court (if the offence was not punishable by imprisonment or the
court decided not to impose imprisonment in favor of CPO)
• impose a fine (in any case).
Restricted movement requirement restricts offender’s movements by requiring the offender
to be, or not to be, in a specified place at a specified time (or time periods). This requirement
should be at least for 14 days but not more than 12 months [17].
If the offender is in the breach of the drug treatment requirement, the drugs court can
impose a custodial sentence that does not exceed 28 days [17].
In any case of breach the court may impose a fine not exceeding level 3 on the standard scale,
whether or not it also varies the order.
Progress Reviews
When imposing a CPO, the court may also impose an order of progress reviews administered in a
way specified by the court itself or by a specified appropriate court. The offender is obliged to be
present at all reviews and the progress reports are prepared by the responsible officer [17].
Examples of CPO
Unpaid work that can be carried out by offenders as part of CPO across Scotland can include [19]:
• Clearing snow or ice from pathways and gritting;
• Building eco-plant areas for schools;
• Improving community facilities;
• Cleaning beaches;
• Growing vegetables and distributing the produce to care homes and local charities.
• Landscaping
• Removing graffiti
15
1.6.2
Restriction of Liberty Orders (RLO)
Another alternative to imprisonment is restriction of liberty orders (i.e., ‘tagging’). This order can
be imposed as an alternative to custodial sentence for any person that has been convicted of any
offence (other than murder) that is punishable by imprisonment [17]. Under this order, the court
is entitled to restrict offender’s movements for a maximum of 12 months to the extent it deems
necessary; this order can also include the following additional requirements [17]:
a) to be in a specified place for a specified period/periods of time in each day/week;
and/or
b) not to be in a specified place/places, or such class/classes place, at a specified time
period/periods.
There is one limitation to a). Whether on its own or in conjunction with restricted movement
requirement or any other restriction of liberty order, a) may not require of the offender to be, or
not to be, in any place or places for more than 12 hours per day [17].
The restriction of liberty orders can be issued only in courts that have been prescribed for that
purpose by the Scottish Ministers who also prescribed the classes of persons to whom the liberty
restriction orders can be issued. The methods of monitoring are also prescribed by the Scottish
Ministers and the monitoring method specified for an offender is chosen by the court which may
not impose a restriction of liberty order if it deems that the monitoring method is sufficient for
tracking the compliance with the order [17].
1.6.3
Drug Treatment and Testing Orders (DTTO)
The Drug Treatment and Testing Order (DTTO) can be imposed on its own or in conjunction with
a CPO. DTTO can be imposed only by a specifically nominated drugs court which is prescribed,
under request by the Scottish Ministers, by the sheriff principal of a specified sheriffdom or a district
thereof [17].
DTTO can be imposed on any person who is 16 or older and is convicted of any offence except
murder if the court deems that DTTO is more appropriate than sentencing. The order can be
imposed only if the court believes that the offender is dependent on, or has a tendency to misuse
drugs, to the extent that requires treatment, is likely to be susceptible to treatment and is a suitable
person to be subjected to DTTO. In order to verify the aforementioned criteria, it is in the power of
the court to request samples indicating the presence/absence of drugs in the offender’s body [17].
The length of DTTO must be between 6 months and 3 years and must include:
• ‘treatment requirement’ (which specifies a sufficiently qualified and experienced person under
whose supervision and monitoring the offender will undergo the treatment);
• ‘testing requirement’ (which requires the offender to provide regular samples of drug presence/
absence).
DTTO also requires a nomination of a supervising officer from the local authority with whom
the offender will have to keep in touch, provide samples, notify of any change of address - all to the
extent is necessary in order for the supervising officer to provide offender’s progress reports to the
court [17].
16
1.6.4
Home Detention Curfew (HDC)
As of July 3rd, 2006, certain offenders who are on short term sentences and who are deemed at low
risk of reoffending can be released from prison on licence anywhere between 2 weeks and 4 months
early. The offenders released under HDC are subject to movement restrictions for up to 12 hours a
day until the end of their sentence and the movements are monitored using an electronic equipment
(tag). The aim of HDC is to facilitate the reintegration process of the offenders into the community.
All eligible prisoners undergo risk assessment process by the Scottish Prison Service (SPS) [20].
During the assessment of releasing the offender under HDC, consideration must be given to [20]:
• the protection of the public at large;
• the prevention of reoffending;
• ensuring successful reintegration of the prisoner into the community.
The following standard conditions must be included in the HDC [20]:
• be of good behaviour and keep the peace;
• not commit any offence;
• not tamper with or intentionally damage the electronic monitoring (i.e., ‘tagging’) equipment
or device(s) or knowingly allow these to be tampered with or intentionally damaged;
• allow the electronic monitoring (i.e., ‘tagging’) service provider access to install the electronic
monitoring equipment at a specified address.
Offenders who are excluded from HDC [21] are those who:
• are required to register as sex offenders;
• are subject to an Extended Sentence;
• are subject to a Supervised Release Order;
• are subject to a Hospital Direction (including Transfer for Treatment);
• are awaiting deportation;
• have previously been recalled to prison after having been released on licence.
1.6.5
Release on parole
Prisoners can be released from prison before the end of their sentence (on parole) and decisions on
parole are made by a special committee - the Parole Board for Scotland (the Board). The Board
is a Tribunal Non-departmental Public Body the members of which are appointed by the Scottish
Ministers [22]. The Board takes into account the crime, the offender’s behaviour in prison, the
potential risk of reoffending and their potential to reintegrate into the community. The Board
17
also decides what conditions (‘licence’13 ) the offender must agree to abide by until the end of their
sentence [23].
• Offenders who are on short-term sentences (less than 4 years) automatically get released at
1/2 point of their sentences without the consideration of the Board.
• Offenders who are on long-term sentences (more than 4 years) are entitled by law for parole
consideration when they have served half of their sentence. If parole is not granted at the first
opportunity, it will be re-considered at 12-month intervals until the offender has spent 2/3 of
the sentence in custody. At that point, the offender is released on licence into the community
until the end of the sentence end date [24].
• Offenders sentenced for life have a minimum time period (‘the punishment part’ of the sentence) they must spend in prison. Once the punishment part has expired, a Tribunal of the
Board will review the case as soon as possible. If the offender is not granted release at the
first review, the law requires a subsequent review within 2 years - any further reviews are set
by the tribunal [24].
Offenders who are on an extended sentence14 get two types of parole [24]:
1. Released on licence only (short-term offenders whose extended part of the sentence, in combination with the custodial part, exceed 4 years);
2. Released on parole the same way as determinate long-term offenders (i.e., offenders whose
custodial part exceeds 4 years).
Figure 3 on page 19 provides a visual overview of the post-trial sentence options and pathways
in the Scottish criminal justice system.
1.7
Reference to EU Law
In the Scottish Criminal procedure no explicit references to European Law or other international/
supranational norms are made in relation to using alternatives to imprisonment per se. The Scottish
criminal procedure refers to the European Law in the context of the conditions under which criminal
cases should be referred to the national (UK Supreme Court) or European Court as part of the
Treaties United Kingdom entered by the European Communities Act 1972 [17].
13 Licence is a legal document that permits an offender to be in the community outside prison and is produced on
behalf of the Scottish Ministers. It specifies the conditions offender has to abide by.
14 Extended sentence (introduced in 1998) allows judge to impose post-release supervision in addition to a custodial
sentence which is usually applied to sex offenders (with any length of custodial sentence) or violent offenders (with
4 or more years of custodial sentence) [23].
18
Figure 3: Sentencing options and pathways an offender can take in the Scottish criminal justice
system. Source: [12].
19
Part 2
Political and social context of alternatives
to imprisonment
20
2.1
Imprisonment statistics
Table 1. below presents the sociodemographic profile of current prisoners in custody across Scottish
Prisons.
Overall
Remand
(%)
Convicted
(%)
Total
(%)
1546
19.8
6279
80.2
7825
100.0
173
601
466
227
61
14
4
11.2
38.9
30.1
14.7
3.9
0.9
0.3
326
2172
1937
1156
497
155
36
5.2
34.6
30.8
18.4
7.9
2.5
0.6
499
2773
2403
1383
558
169
40
6.4
35.4
30.7
17.7
7.1
2.2
0.5
1454
33
22
14
12
11
94.0
2.1
1.4
0.9
0.8
0.7
6091
95
36
26
19
12
97.0
1.5
0.6
0.4
0.3
0.2
7545
128
58
40
31
23
96.4
1.6
0.7
0.5
0.4
0.3
1438
108
93.0
7.0
6082
197
96.9
3.1
7520
305
96.1
3.9
Age
16-20
21-30
31-40
41-50
51-60
61-70
Over 70
Ethnicity
White
Asian, Asian British
Caribbean or Black
African
Other
Mixed or Multiple
Nationality
British
Other
Table 1: The sociodemographic profile of offenders in Scottish prisons
in custody (on remand and convicted) as of August 11th , 2014. The
data were obtained directly from the Scottish Prison Service (SPS) as a
Freedom of Information Request.
Figure 4 on page 22 presents the sociodemographic profile of Scottish prisoners by gender.
21
22
1345
103
1360
31
20
14
12
11
160
569
436
207
58
14
4
1448
92.9
7.1
93.9
2.1
1.4
1.0
0.8
0.8
11.0
39.3
30.1
14.3
4.0
1.0
0.3
19.6
(%)
5756
186
5764
91
33
24
19
11
307
2051
1831
1095
470
152
36
5942
Convicted
96.9
3.1
97.0
1.5
0.6
0.4
0.3
0.2
5.2
34.5
30.8
18.4
7.9
2.6
0.6
80.4
(%)
7101
289
7124
122
53
38
31
22
467
2620
2267
1302
528
166
40
7390
Total
96.1
3.9
96.4
1.7
0.7
0.5
0.4
0.3
6.3
35.5
30.7
17.6
7.1
2.2
0.5
100.0
(%)
93
5
94
2
2
13
32
30
20
3
98
Remand
94.9
5.1
95.9
2.0
2.0
13.3
32.7
30.6
20.4
3.1
22.5
(%)
96.7
3.3
0.3
1
326
11
97.0
1.2
0.9
0.6
5.6
35.9
31.5
18.1
8.0
0.9
77.5
(%)
327
4
3
2
19
121
106
61
27
3
337
Convicted
Women
419
16
1
421
6
5
2
32
153
136
81
30
3
435
Total
96.3
3.7
0.2
96.8
1.4
1.1
0.5
7.4
35.2
31.3
18.6
6.9
0.7
100.0
(%)
Figure 4: The sociodemographic profile of offenders in Scottish prisons in custody (on remand and convicted) by gender as
of August 11th , 2014. The data were obtained directly from the Scottish Prison Service (SPS) as a Freedom of Information
Request.
British
Other
Nationality
White
Asian, Asian British
Caribbean or Black
African
Other
Mixed or Multiple
Ethnicity
16-20
21-30
31-40
41-50
51-60
61-70
Over 70
Age
Overall
Remand
Men
2.2
2.2.1
Arguments for implementing alternatives
Remand (pre-trial)
The main argument against imprisonment in the pre-trial phase is the cost of imprisonment, overcrowding of the prison facilities and the inappropriateness of imprisonment. Keeping (potential)
offenders in custody is very costly and its use as an appropriate pre-trial measure is questioned as
significant proportion of those in remand do not receive a custodial sentence in the end [25]. The
lack of information available to the judges that would allow them to ascertain the actual necessity of
remanding (potential) offenders waiting for the trial and the lack of alternative options to custody
are the main issues that needed resolution [26]. Alternatives such as electronic monitoring and
community-based housing are put forward as a potential solution to remand.
2.2.2
Community Payback Order (post-trial)
One of the main reasons for introducing community sentences was to reduce the prison population
in Scotland. The rationale behind current community sentence system in Scotland was developed
in 2008 by the Scottish Prison Commission [26] and was partly15 adopted in the legislation when
the Community Payback Order was introduced on February 1st , 2011 [27]. The general principle of
sentencing in the criminal justice policy adopted by the Scottish Government is that imprisonment
should be an appropriate form of punishment for serious offenders only - those for whom no other
form of punishment is suitable and who pose serious threat to public safety; for low-level offenders,
the default option should be appropriate alternatives to imprisonment (i.e., community sentences)
[26], [28].
The main arguments used to support the use of alternatives to imprisonment in Scotland include
- overuse of unnecessary imprisonment; the high cost of imprisonment and its lack of effectiveness
as a form of reducing reoffending; and the need for the punishment to be a way to repair the harm
done by the crime. Each of the arguments are summarised below.
Overuse of imprisonment
Scotland, like other countries in Europe, face a problem of increasing prisoner population despite
crime rates remaining stable over time [25]. The overuse of remand (i.e., pre-trial detention) and
short-term sentences is thought to be the biggest contributor to the growing prison population [25].
It is argued that the criminal justice system in Scotland is over reliant on unnecessary imprisonment
which does very little in reducing reoffending and may, in fact, increase the chances of future
offending [29], [26].
Cost and effectivenss of imprisonment
One of the main arguments against using short-term sentences (i.e., less than 6 months) is the cost
and the ineffectiveness of imprisonment as a form of punishment that reduces future reoffending.
Housing prisoners - whether during the pre-trial phase or while serving a short-term sentence - is
15 The Scottish Government did not legislate the proposed procedural suggestions of the Commission on how the
community sentences should be practically applied, however, it does not affect the general proposed framework that
was legislated.
23
financially and socially costly [26]. Financially, the cost is incurred by the need to provide prison
facilities and services. Socially, imprisonment excludes offenders from the community and, it is
argued, instead of preventing, it can actually increase the likelihood of reoffending in the future
[29]. The argument to support the latter assertion is that offenders are institutionalised within
the prison system which does very little in the way of addressing the underlying causes of the
offending behaviour and does very little towards promoting life and occupational skills that would
help the offender rehabilitate and reintegrate into the society after the sentence is served [26].
Statistical data, which show that reconviction rates are higher for former offenders and lower for
those offenders who have served a non-custodial sentence, are used to demonstrate the ineffectiveness
of imprisonment as a way of reducing future reoffending [25], [30]; also, evidence showing that
offender programmes are more effective and are better provided in the community than in custody
is also mentioned as an argument in favour of community sentences [26].
Community sentence as a reparative rehabilitation
In Scotland, community sentence (i.e., Community Payback Order (CPO)) is conceptualised as a
form of reparative punishment that is meant to be as a rehabilitative opportunity for the offender
to repay back to the community the harm that was done by the offending behaviour. The following
quote is from the Scottish Prisons Commission and it summarises the concept of the community
sentences in Scotland [26]:
“When issues of seriousness and dangerousness do not arise, the focus should be on
finding the most appropriate and constructive way to get the offender to payback to
the victim and/or society. In essence, payback means finding constructive ways to
compensate or repair harms caused by crime. It involves making good to the victim
and/or the community. This might be through financial payment, unpaid work, engaging
in rehabilitative work or some combination of these and other approaches. Ultimately,
one of the best ways for offenders to pay back is by turning their lives around. Perhaps
surprisingly, offender rehabilitation is often a major concern of crime victims who want to
make sure that no-one else suffers victimisation and who see the offender’s rehabilitation
as the surest way to secure this outcome.”
Offenders can pay back to the community in several different ways - via restorative justice, unpaid work, financial penalties, restriction of liberty (i.e., electronic monitoring) or via rehabilitation
(e.g., engaging in activities aimed at solving substance misuse, money and housing issues, mental
health problems etc.). Community sentences are designed to be tailored to the particular offence
and the offender and would be imposed based on the nature of the crime and the harm done, and
the underlying offending behaviour.
The main focus of CPO is on ‘paying back’ or reparation [27]; however, this notion also entails
the idea of rehabilitation as a way of reparation [27], [25].
2.3
Offender programmes
There are several different offender programmes across Scotland that help suspects or sentenced
individuals with different aspects of the criminal justice system, the offending behaviour and its
consequences. In general, each local authority has their own programme(s) that differ in terms
24
of the breadth of the offenders’ needs they address. Here are some examples of issues existing
programmes are designed to help offenders with:
• Restorative Justice process
• Alcohol related offences
• Bail supervision and services
• Supervision for offenders on CPOs
• Housing
• Domestic abuse issues
• Transport services (to help maintain ties with family and friends)
A more comprehensive list with examples of programmes can be found on the following webpage:
http://www.sacro.org.uk/services/criminal-justice.
2.4
Victim’s role in designing and implementing CPO
The current legislation (Victims and Witnesses (Scotland) Act 2014) [31] has addressed the rights of
victims in the criminal justice system. The main focus of the legislation is to ensure that the victim
is informed about the proceedings of the case and that they receive psychological and procedural
support during their involvement with the criminal justice system. The key aspects of the bill are
[32]:
• it provides victims with a right to specific information about their case;
• sets a duty on justice institutions to set clear standards of service for victims (e.g., giving
vulnerable victims a right to use special measures when giving evidence);
• requires the court to consider compensation to victims in relevant cases;
• introducing a victim surcharge so that offenders contribute to the cost of providing immediate
support and assistance to victims;
• allowing victims to give oral representations to the parole board in connection with the release
of prisoners sentenced for life;
• giving sexual assault victims the right to choose the gender of their interviewer.
The victim’s role seems to be limited in relation to the actual sentencing of Community Payback
Orders (CPO) - i.e., decisions as to, for example, the exact nature of what set of requirements of
the CPOs to impose on the offender. However, when the sentence is passed, the judge has to take
into account ‘victim’s statement’ which is a document explaining the physical, emotional and/or
financial impact the crime has had on the victim [33], [17]. Also, the court has to take into account
victim’s view when it is considering a compensation order [31].
25
2.4.1
Entity of damages suffered by victims and the implementation of
CPOs
The authors failed to find any published literature of research that has examined the relationship between the damage incurred to the victim and the particular assignment of the Community
Payback Orders in Scotland.
2.5 The role of civil society in debates about alternatives to
imprisonment
Within the context of this literature review, it is hard to assess the exact actual impact academic and
non-governmental organisations have on the decisions made with regards to reforming the criminal
justice system in Scotland. However, what is evident is that there seems to be an active dialogue
between the Scottish Government and several academic and non-governmental organisations who
do take part in the debates about reforming the criminal justice system. For example, the Scottish
Government has made calls for proposals on how to address a particular aspect of the criminal justice
system (see [34]) which is followed by a response paper that outlines the action plan resulting from
consulting the proposals received (see [35]). It appears that the Scottish Government actively seeks
the views and expertise of the academic research bodies and non-governmental organisations that
are involved in criminal justice system in one way or another. The Scottish Centre for Crime &
Justice Research (SCCJR) is one of the most prominent academic organisations that take part in
debates about criminal justice system.
There are organisations that collate news articles and research relating to criminal justice (e.g.,
CJScotland, http://www.cjscotland.co.uk; SCCJR, http://www.sccjr.ac.uk) and others who
provide services relating to various aspects of community justice system (e.g., SACRO, http:
//www.sacro.org.uk) both for victims and offenders such as conflict mediation and resolution,
addressing challenging behaviour and supporting offenders on release.
26
Part 3
Cross-cutting and topical issues
27
3.1
Cost-benefit analysis
Cost-benefit analysis does not seem to be explicitly used in order to support the design and implementation of Community Payback Orders in Scotland. As is described in the section 2.2 of this
report, the main arguments in relation to using CPOs instead of imprisonment is the high cost of
remanding suspects and that non-custodial sentences are more effective at reducing reoffending.
3.2
Psychiatric patients
According to the Scottish Criminal Law, a person a) cannot be tried under criminal charge if they’re
unfit for trial; b) they cannot be convicted of a crime if they are not criminally responsible for it;
c) they can be dealt with in accordance with the Mental Health (Care and Treatment) (Scotland)
Act 2003 as an alternative to getting sentenced according to the normal procedure [17]. The latter
allows for the treatment of people who are identified as having a mental disorder. The court can
issue, for example, a compulsion order that requires the person to undergo psychiatric/psychological
treatment either in the hospital or in the community.
Debates on the role of psychiatric patients16 in the context of the Scottish Criminal justice
system are very limited. Mental health issues are predominantly examined in terms of the high
prevalence rate of psychological disorders among the offender population and the lack of appropriate
care and attention in addressing offenders’ psychological needs [36], [37]. There is an acknowledgement that mental health problems in offenders are largely undetected and not addressed properly,
and that there is a lack of comprehensive information regarding the actual status of offenders with
mental health problems within the Scottish criminal justice system.
CPOs one of the requirements is the treatment requirement which allows for appropriate
provisions to be made for offenders who suffer from mental illness. The Scottish Government has
made a commitment to increase the use of CPO treatment requirement for offenders with a mental
health condition [38].
3.3
Drug users
Similarly to psychiatric patients, there seem to be no major debates regarding the status of offenders
who are dependent on drugs. Under CPOs, the treatment requirement can be issued and offenders
whose offending behaviour is directly connected to drug use, can be fast-tracked into treatment
[39].
3.4
Foreigners
The authors of this report failed to find any debates regarding the status of foreigners in the Scottish
criminal justice system in relation to alternatives to detention.
16 In this report, ‘psychiatric patients’ are taken to mean people who have any major mental health illness such
as depression, bi-polar disorder, szchizophrenia, any personality disorders etc.
28
Part 4
Conclusion: future for alternatives
29
The Community Payback Order (CPO) was introduced in Scotland at the beginning of 2011 and
since then very few, if any, studies have been carried out in order to assess the effectiveness of CPOs
in reducing the prison population and reoffending rates in Scotland. It is, therefore, premature to
make any conclusions as to the future viability of the CPOs at this point in time [12].
30
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33