Midlothian Community Safety and Justice Partnership response to
consultation on proposals to strengthen the presumption against short
periods of imprisonment
CONSULTATION QUESTIONS
Question 1: Should the presumption against short periods of imprisonment of
three months or less be extended?
 Yes
☐ No
You may wish to provide information to support your views, for example, what do you
consider to be the key factors for or against the proposal?
Current analysis of available data suggests that despite the earlier introduction of
the presumption against short periods of imprisonment in 2010, there has not been
the anticipated or hoped for changes in sentencing practices as demonstrated by
the comparative analysis to the majority of other EU Member States.
We believe that a custodial sentence should only be used when an individual has
committed a serious offence or is assessed as posing a risk of serious harm.
Short term prison sentences have very poor outcomes, not least in relation to the
rate of reoffending which is significantly higher than after a Community Payback
Order.
As such we agree that the presumption against short term sentences should be
extended.
Question 2: If you agree that the presumption against short periods of
imprisonment should be extended, what do you think would be an appropriate
length?
☐ 6 months
☐ 9 months
 12 months
It would seem sensible to introduce a presumption against short term sentences in
all cases heard under summary procedure. This would effectively mean an
extension to sentences of 12 months and under.
This extension would be in line with the view that custody should be reserved for
more serious cases.
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Question 3: Do you have any specific concerns in relation to a proposed
extension of the period covered by the presumption against short sentences?
The proposal is limited by the ‘presumption principle’ against the use of short-term
prison sentences.
This may increase concerns and risks around the use of ‘up-tariffing’ by sentencers
to exceed the threshold in order to impose a custodial sentence. There is also a
risk that sentencers will increasingly use remand as an alternative to making a
short custodial sentence.
A major concern is the resourcing of the increase in community disposals that will
hopefully result from the extension. It is crucial that this issue is prioritised so that
community sentences can be credible and robust and contribute to the desired
change in sentencing culture in Scotland.
Question 4: Do you think there are any specific circumstances to which a
sentencing judge should be required to have regard when considering the
imposition of a custodial sentence?
We believe that custody should be reserved for individuals who pose a risk of
serious harm or where the index offence is so serious that there is no appropriate
alternative.
As such it would be helpful to make a requirement that sentencers should have
access to a risk assessment prior to making a custodial sentence, supplemented by
an assessment about whether the risk posed by the individual can be managed in
the community.
Question 5: Do you think there are specific offences to which the presumption
should not apply (i.e. offences which could still attract a short custodial
sentence)?
We do not consider that there are specific offences that should automatically attract
a short custodial sentence.
Non-compliance with community sentences can currently result in a custodial
sentence. However, we are unaware of evidence to support the use of short term
custodial sentences to increase future compliance and we know that reoffending
rates are high.
We believe that custodial sentences should only be used in the circumstances
outlined above.
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Question 6: Do you think that there are any circumstances in which a custodial
sentence should never be considered?
We believe there should be a presumption for the use of community sentences,
(rather than a use of short-term sentences) except in circumstances where there is
serious risk of harm.
As stated above, a presumption against the use of custody in cases heard under
summary procedure would be a straightforward way of achieving this.
Question 7: Do you think that the Scottish Government should also consider
legislative mechanisms to direct the use of remand? If so, do you have any
views on what such a legislative mechanism might include?
We believe that the same principles should be applied to the use of remand as to
the use of custodial sentences, that it should be used where there is a risk of
serious harm.
It is important that any extension to the presumption against short sentences does
not increase the use of remand.
Remand should be used only when there is a risk to the alleged victim(s) or other
members of the public.
Question 8: Do you have any additional comments on the use of short-term
imprisonment?
If the presumption against the use of short term sentencing progresses, it is
essential that funding arrangements are in place prior to its implementation in order
to ensure that the use of community alternatives is properly resourced.
The Scottish Government will know that the understanding of the effects of
imprisonment and the success of community alternatives is not well understood by
the general public and that this is supported by parts of the media. It would be
helpful to have a national debate about the issue of sentencing to increase public
awareness and understanding, not least of the fact that the more unequal a society
is, the higher its rates of imprisonment.
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