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 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 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