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SP Paper 701



16th Report, 2006 (Session 2)

Volume 1: Report



Annex A – Report from the Finance Committee

Annex B – Report from the Subordinate Legislation Committee

Annex C – Extracts from the Minutes

Volume 2: Evidence

Remit and membership


To consider and report on matters relating to the administration of civil and criminal justice, the reform of the civil and criminal law and such other matters as fall within the responsibility of the Minister for Justice, and the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigations of deaths in Scotland.


Mr David Davidson (Convener)
Jackie Baillie
Bill Butler (Deputy Convener)
Colin Fox
Maureen Macmillan
Michael Matheson
Jeremy Purvis

Committee Clerking Team:

Clerk to the Committee

Tracey Hawe

Senior Assistant Clerk

Anne Peat

Assistant Clerk

Steven Tallach

Stage 1 Report on the Custodial Sentences and Weapons (Scotland) Bill

The Committee reports to the Parliament as follows—


1. The Custodial Sentences and Weapons (Scotland) Bill was introduced on 2 October 2006 by Cathy Jamieson, the Minister for Justice.  On 4 October 2006 the Parliament designated the Justice 2 Committee as lead Committee for this Bill.  Under Rule 9.6 of the Parliament’s standing orders, it is for the lead committee to report to the Parliament on the general principles of the Bill.

2. The Justice 2 Committee received reports from both the Finance and Subordinate Legislation Committees following their respective scrutiny of the Bill.  These reports are attached as Annexes to this report and are referred to as appropriate in the body of this report.

3. All evidence provided to the Justice 2 Committee is included at Annexes D and E to this report.

4. The Committee observes that the timetable within which the Committee was required to issue its call for evidence, consider the evidence received, set up and hold the necessary oral evidence sessions and then draft and consider this report, was tight in the extreme and afforded the Committee little flexibility in terms of evidence sessions.  The Committee notes that legislation, particularly recent legislation, can require quite significant development during the course of its parliamentary passage. 

5. It is important that Committees and potential witnesses are given sufficient time to consider proposals in Bills at stage 1.  The Committee is aware that some stakeholders did not feel in a position to make submissions due to the short timescales and that the speed at which the legislative process moved had created difficulties for others.  The Committee notes that the Minister for Parliamentary Business is presently undertaking a review of the legislative process and welcomes the Convener’s involvement in this process.


6. The Bill’s policy memorandum states that the objectives of parts 1 and 2 of the Bill are twofold; to end the current system of automatic unconditional release and replace it with a new system of combined custodial and community sentences.   For the first time, all offenders will be under restriction for the full sentence.1

7. The new system is intended to “provide a clearer, more understandable system for managing offenders while in custody and on licence in the community, take account of public safety by targeting risk and have victims’ interests at heart.”  In turn this is expected to enhance public protection, reduce re-offending and increase public confidence in the justice system.  The Bill’s policy memorandum states that the new arrangements are not intended to change the range of disposals available to the courts.  Notwithstanding this, the provisions of the Bill will affect every offender admitted to prison and could also make significant changes to the processes and procedures undertaken in prisons and in the community.

8. Existing sentencing and release arrangements have been criticised as lacking in clarity.  The current statutory regime is contained in the Prisoners and Criminal Proceedings (Scotland) Act 1993, most recently amended by the Management of Offenders (Scotland) Act 2005.  Amongst other things, the 2005 Act ended unconditional early release for sex offenders serving sentences of six months or more and introduced a scheme known as Home Detention Curfew for certain categories of offender.

9. In general terms, early release is dictated at present by sentence length.  For those serving short sentences (i.e. those sentenced to less than four years), with the exception of sex offenders as mentioned in the preceding paragraph, Scottish Ministers are under a duty to release the prisoner after one half of the sentence has been served.  Though no supervision requirements are currently applied to this group, a released offender may be returned to custody if convicted of an imprisonable offence before expiry of the original sentence and so ordered by the court. 

10. Long-term prisoners (those sentenced to four years or more) may be released on licence, if the Parole Board so decides, after serving one half of the sentence.  The Parole Board is currently responsible for setting licence conditions and the licence, unless previously revoked, expires at the end of the sentence imposed by the court.  If the Parole Board does not recommend release after one half of the sentence is served,  Scottish Ministers are obliged to release on licence after two-thirds of the sentence is served.  Some long-term prisoners are also entitled to be considered for earlier release on Home Detention Curfew.   

11. The Bill’s proposals derive from recommendations made by the Sentencing Commission for Scotland (the Sentencing Commission) in its report published in January 20062.  The Sentencing Commission is an independent judicially-led body set up by the Scottish Executive in November 2003.  Its report made a number of recommendations, including:

  • At the time when the custodial sentence is imposed the sentencer should explain what the sentence means in terms of time to be served in custody and time served in the community.
  • The overall sentence must be proportionate to the gravity of the offence.
  • It must be made explicit that the term of custody imposed should be the minimum period to be served to satisfy the criminal justice requirements of punishment and deterrence and the protection of the public.
  • Legislation for a new statutory regime should expressly provide that when having regard to sentences imposed under the previous regime, the court must also have regard to the rights of early release under that previous regime.
  • There should be separate regimes for those sentenced to terms of 12 months or less and those sentenced to more than 12 months.  For those sentenced to 12 months or less, the full term should be served in custody but offenders should be eligible for conditional release on Home Detention Curfew (HDC) after serving not less than one-half of the sentence. 
  • For those sentenced to 12 months or less who require more robust supervision than HDC, the courts should, when imposing the custodial sentence, be able to order a period of supervision, not less than 12 months and not more than 2 years, in addition to the term in custody. 
  • For those sentenced to more than 12 months, the sentence should be in two parts: a custodial sentence and a community sentence.  The custodial part of the sentence should be the minimum term considered by the court to be required for the purposes of punishment, deterrence and public protection and the community part should normally bear a fixed proportionate relationship to the custodial part.  In addition to this, it is recommended that the court should be given the power to order, at the time of sentencing, a longer community part (subject to a statutory maximum) where there is considered to be an ongoing risk of re-offending or alternatively that the court should have the power to order that there be no community part or that the community part should be shorter than the fixed proportion of the custody part. 

12. Given the Scottish Executive’s stated intention to reform the system of automatic unconditional early release and achieve greater clarity in sentencing and the Sentencing Commission’s comprehensive consultation prior to publication of its report, the Executive did not undertake further consultation before publishing its own legislative plans in Release and Post Custody Management of Offenders3. This Bill takes forward those plans.

13. This Committee was involved with the scrutiny of the Management of Offenders (Scotland) Act 2005 which has now been commenced.  The Management of Offenders (Scotland) Act 1995 created eight new Community Justice Authorities (CJAs) responsible for planning, co-ordinating and managing offender services in the community.  The 2005 Act created an obligation on Scottish Ministers (through the Scottish Prison Service (SPS)), CJAs and local authorities to co-operate with each other in order to carry out their respective functions relating to the management of offenders.  CJAs have an important role to play in establishing local partnerships to provide the services, supervision and opportunities envisaged by this Bill. 

14. Part 3 of the Bill contains two new measures in relation to weapons. Firstly, the Bill provides for the introduction of a mandatory licensing scheme for the commercial sale of non-domestic knives swords and similar items.  Secondly, the Bill seeks to further restrict the availability of swords by enabling Ministers to specify a number of legitimate purposes for which swords can be bought when adding swords to other weapons which cannot be bought and sold.  The Executive believes that the Bill puts in place safeguards to help prevent potentially dangerous weapons from falling into the wrong hands.4

15. The Policy Memorandum notes that these provisions form part of the Executive’s reform of knife crime law and are a component of a wider range of measures designed to tackle knife crime and violence more generally.5 The provisions supplement existing provisions contained in the Restriction of Offensive Weapons Act 1959, the Criminal Justice Act 1988, the Criminal Law (Consolidation) Scotland Act 1995 (as amended by the Police, Public Order and Criminal Justice (Scotland) Act 2006) and the Knives Act 1997. 

16. The provisions build on a review of knife crime law which was undertaken by the Executive earlier in this Parliamentary session.  The review formed the basis of a five-point plan on knife crime, announced by the First Minister in November 2004.  The five-point plan involved doubling the maximum sentence for possession of a knife, strengthening police powers of arrest for the carrying of knives or offensive weapons, increasing the minimum purchasing age for non-domestic knives from 16 to 18, introducing a licensing scheme for the sale of non-domestic knives and banning the sale of swords.  The first three of these measures were implemented by the Police, Public Order and Criminal Justice (Scotland) Act 2006, and the last two measures are taken forward by the current Bill.6

17. This Committee was also involved with the scrutiny of Police, Public Order and Criminal Justice (Scotland) Act 2006 which introduced the first three measures in the five-point plan.


18. The Committee issued a call for evidence and received 40 written submissions split evenly between those addressing the custodial sentences parts of the Bill (parts 1 and 2) and those relating to knives and swords (part 3 of the Bill). 

19. The Committee took oral evidence as follows:-

24 October 2006

Jane Richardson, Annette Sharp, Brian Cole and Charles Garland, Justice Department, Scottish Executive, and Rachel Gwyon, Scottish Prison Service;

Gery McLaughlin, Paul Johnston and Andrea Summers, Justice Department, Scottish Executive.

7 November

Alan Baird, Convener, Criminal Justice Standing Committee, Association of Directors of Social Work; and Lindsay MacGregor, Policy Manager, Councillor Eric Jackson and Councillor Alison Hay, COSLA;

Superintendent William Manson and Detective Superintendent James Cameron, ACPOS; Clive Murray, National President, Association of Scottish Police Superintendents; and Detective Chief Superintendent John Carnochan and Will Linden, Senior Intelligence Analyst, Violence Reduction Unit, Strathclyde Police;

Derek Turner, Assistant Secretary for Scotland, and Kenny Cassels, Vice Chair, Prison Officers Association.

14 November

Neil Paterson, Director of Operations, Victim Support Scotland; and

Susan Matheson and Donald Dickie, Scottish Consortium on Crime and Criminal Justice;

Cyrus Tata, Co-Director, Centre for Sentencing Research, The Law School, University of Strathclyde; Richard Sparks, Professor of Criminology, Law School, University of Edinburgh; and Bill Whyte, Director, Criminal Justice Social Work Development Centre.

21 November

Fiona Moriarty, Director, Scottish Retail Consortium;

Professor Alexander Cameron, Chairman, and Niall Campbell, Member, Parole Board for Scotland; Professor Roisin Hall, Chief Executive, and Robert Winter, Convener, Risk Management Authority; and

Dr Andrew McLellan, HM Chief Inspector of Prisons, and John McCaig, HM Deputy Chief Inspector of Prisons.

28 November

Ian Gunn, Governor, HMP and YOI Cornton Vale and Bill McKinlay, Governor, HMP Barlinnie;

Johann Lamont MSP, Deputy Minister for Justice, Tony Cameron, Chief Executive, Scottish Prison Service, Valerie MacNiven, Head, Criminal Justice Group, and Charles Garland, Legal and Parliamentary Services, Scottish Executive; and

Mark Hodgkinson, Chief Officer, Northern Community Justice Authority, and Chris Hawkes, Chief Officer, Lothian and Borders Community Justice Authority.

20. The Committee would like to express its thanks to all those who gave us their views.  In addition to the written and oral evidence received, the Committee is grateful for the assistance provided by its advisers Fergus McNeill and Susan Wiltshire, both of the Scottish Centre for Crime and Justice Research at the University of Glasgow.

Parts 1 and 2 - issues considered by the Committee


21. The policy objectives of the Bill; to provide a clearer, more understandable system for managing offenders while in custody and on licence in the community, to take account of public safety by targeting risk and to have victims’ interests at its heart were welcomed by all from whom the Committee heard.  However there were concerns about:

  • the Bill’s provisions potentially leading to the misdirection of limited resources which would run counter to the aim of reducing re-offending7 and that the very wide range of offenders to be encompassed might mean resources being diverted away from those who do present a serious risk of harm8
  • the problems in risk assessing those on very short sentences9
  • whether there will be sufficient space in Scotland’s prisons for the additional numbers of prisoners anticipated10
  • the adequacy of funding for criminal justice social work services11 and  the resource and workforce implications for the prison service arising from the extension of Integrated Case Management (ICM) to a much greater number of prisoners and ex-prisoners requiring post-release supervision and
  • the increase in workload for the Parole Board for Scotland.

The need for change

22. The Committee agrees with many of the criticisms of the existing regime of unconditional early release based on length of sentence and reductions in sentences for guilty pleas.  The system has been criticised as being complex, not meaning what it says and having a lack of clarity about the true length and effect of custodial sentences thus producing public mistrust and being weighted in favour of the offender.12 

23. These are potent arguments for change and in line with the witnesses from whom we heard, the Committee supports the policy objectives of the Bill including an end to automatic unconditional early release.  However, the Committee notes the evidence it has received from many expert witnesses (in relation to sentencing, risk assessment and management, imprisonment and prisoner resettlement) which calls into question whether the measures in the Bill, as currently constituted, can achieve the stated objectives.

24. The Committee has therefore carefully considered the Bill’s proposals with a view to determining its own view of the extent to which the proposals meet the stated objectives and what the likely impact and resource implications will be, having regard to all evidence received. 

Gender impact

25. The Committee was interested to know what analysis had been undertaken of likely gender impact of the Bill’s proposals.  The Bill’s policy memorandum states that the policies will apply across all of Scotland and there is no intention that they will have any differential or discriminatory impact.  The Committee was advised that no specific research on gender impact had been carried out for the purposes of this Bill.13  In its evidence, COSLA and ADSW state that there are specific gender issues not addressed by the proposed legislation, that many of Scotland’s short-term prisoners are women and COSLA/ADSW are not currently well-equipped to work with women offenders. 14 

26. The Committee draws the Minister’s attention to this evidence on gender issues and recommends that the Minister considers what work might be required to address this gap. 

Parole Board for Scotland

27. Part 1 and schedule 1 of the Bill make provisions relating to the Parole Board for Scotland.  Section 2 extends the powers of the Board to cite witnesses to appear before a hearing of the Board to give evidence or to provide documents.  The Board welcomed this extension of its powers particularly in relation to oral hearings to consider re-release of recalled determinate sentence prisoners.   The Board also welcomed inclusion amongst its membership of a person with knowledge and experience of the way in which and the degree to which offences perpetrated against members of the public affect those persons.

28. Not included in the Bill, but mentioned at paragraph 151 of the Financial Memorandum to the Bill, is the proposal that Parole Board Rules be amended to require a Tribunal to reach a unanimous decision in every case and for Tribunals to consist of 2 Board Members (as opposed to the current 3).  

29. The Board stated that it was concerned at the proposal to reduce Tribunal numbers as this seemed to contradict the provision to expand the Board membership and breadth of experience, the latter being the primary strength of the Board. 15  It was also concerned with the requirement for unanimity of Tribunal decisions.  Existing arrangements allow for a majority decision to be made when required.  In the view of the Board, membership of three for a tribunal (as the name suggests) is a consistent position for tribunals and the uneven number allows for majority decision.  This was also the view of the Scottish Consortium on Crime and Criminal Justice (SCCCJ).16  A further concern of the Board was that the requirement for unanimity might not be compatible with the right to a fair trial under Article 6 of ECHR, as the need to reach the same decision may pressure decision makers to come to a common view. 17

30. The Executive confirmed that the issue of tribunal numbers and unanimity would be one for Parole Board Rules.  Consultation and involvement of the Parole Board in discussions on rule changes would take place with the objective of creating the best structure to ensure that the Board is able to undertake its business in the most efficient and effective way.  The intention in relation to decision-making is for release to be directed by a Tribunal only where both members are in agreement.  Where there is no unanimous agreement on release, the prisoner must remain in custody.18 The Committee notes that the Executive’s opinion, based on legal advice, is that the Bill is ECHR compliant and the requirement for unanimity would not conflict with ECHR.

31. The Committee has been advised that work on revision of the Parole Board Rules is being undertaken in parallel with the passage of this Bill in order to ensure that the new rules are operational around the time the Bill is implemented.  Other changes to the Board’s responsibilities are discussed later in this report under the heading of Breach and recall

32. Given the range of issues to be discussed and decided upon in the context of the Parole Board Rules, the Committee welcomes the Deputy Minister’s undertaking to provide a first draft of the proposed rule changes by February 2007.  The Committee expects to be kept involved of the development of the rules as they progress through the consultation process.                   


33. The Bill provides that all offenders sentenced to a term of less than 15 days will spend the entire sentence in prison and thereafter be released unconditionally.  For sentences of 15 days or more there will be a combined sentence management structure comprising a custody and a community part.  The custody part of any such sentence will be a minimum of 50% of the sentence up to a maximum of 75% and the courts will be required to set the custody part when passing sentence.  A number of issues arose in evidence and occurred to the Committee in relation to clarity of sentencing.

34. Some witnesses drew attention to what might be described as the perverse logic of the proposed regime whereby those sentenced to 14 days or less will spend the entire sentence in custody but those sentenced to more than 14 days need only spend 50% of the sentence in custody. 

35. Someone sentenced to 20 days might only spend 10 days in prison (4 days less than someone sentenced to 14 days) albeit that the remainder of that 20 day sentence will be served on licence in the community.  One written submission stated that this provision could affect how a sheriff might determine the length of a shorter sentence, for example in the circumstances where an offender has already spent 10 days on remand, a lawyer may argue for a sentence of more than 2 weeks to ensure immediate release on licence.19 It was thought that this provision could give rise to unequal and disproportionate treatment as “a person sentenced to 14 days in custody will often serve more time in custody than a person given a supposedly longer headline sentence of 21 days”.20

36. In evidence21, officials stated that the advice available to ministers when formulating this policy was that a period of 15 days in the community was the minimum amount of time required to begin to engage practically with someone.  Less than 15 days would be too short a time to engage, although it would still be possible to provide signposting (referral to a relevant agency).  In 15 days, some start could be made to help people reduce their risk of re-offending through practical measures. 

37. Whatever cut-off point is chosen for custody and community sentences to apply, an anomaly will exist for sentences nearest to that point.  However decisions on thresholds must be based on a clear rationale.  The Committee therefore seeks a clearer explanation of why the 15 day cut-off has been chosen. 


38. As a preliminary point and as noted in paragraph 11, the Sentencing Commission recommended that for any new regime, in order to avoid any increase in the length of time most offenders would serve in custody, it would be appropriate for sentencers to recalibrate the sentences imposed under any new scheme.  Recalibration should be downwards to reflect the entitlement to early release of a person who had been sentenced for a comparable offence under the present regime and in terms of proportionality, to take account of the additional burdens of post-release supervision. 

39. Cyrus Tata asked what the rationale was for omitting this provision in the Bill as someone sentenced to 18 months under present sentencing arrangements could currently be released unconditionally after 9 months (having served 50% of the sentence) but under the Bill’s proposals, the same sentence will be imposed but the court could set the effective custody period at 75% - in effect 3 months longer.  In his view this raises issues of proportionality and will lead to a rise in the prison population.22 

40. The Bill does not make provision for recalibration.  As advised by the Deputy Minister “nothing in the Bill requires judges to change their sentencing practice.”23  Bill Whyte stated that in his view, judges will in fact recalibrate sentences so as to ensure that prisoners spend exactly the same length of time in prison.24  The Committee was told that Ministers have taken the view that it would not assist clarity of sentencing if the future legislation tried somehow to merge the two regimes…that the sentencing regime should be left as it is for the time being and that further recommendations on consistency in sentencing are still be considered by ministers.25  

41. The Committee understands that the Bill is not intended to alter the setting of headline sentences and notes the Minister’s comments in relation to the potentially confusing effect of merging sentencing regimes.  However the Bill’s provisions are likely to alter sentencing practice by requiring, for the first time in determinate sentences, the setting of the custody part.  The Committee is of the view that the implications of this significant change in sentencing practice require further consideration in the light of the evidence received in relation to recalibration.  The Minister is therefore invited to consider this and revert to the Committee prior to commencing Stage 2.

Setting the Custody Part

42. The intention is not to alter the means by which overall or headline sentences are set.  The Bill’s provisions only concern the way in which sentences are managed once they have been decided by the courts.26  For the sentencer, the only change proposed is a requirement to set a custody part for all determinate sentences of more than 15 days.27  In light of the evidence received, it did not appear to the Committee that this had been particularly clearly stated in the Bill.

43. In later correspondence, the Deputy Minister sought to clarify the provisions by stating that “the new regime will only apply to those cases where a judge has decided (in the same way as s/he would now), in light of all the circumstances of the offence and the offender that firstly, a term of imprisonment is the most appropriate disposal and, secondly, what the length of that term will be.”28

44. Section 6 of the Bill states that the custody part of a sentence is “that part of the sentence which represents an appropriate period to satisfy the requirements for retribution and deterrence.”  The custody part of a sentence must be one-half of the overall sentence, unless the court considers it appropriate to specify a greater proportion of the sentence to be spent in custody (up to a maximum of three-quarters of the total sentence). 

45. Subsection 6(4) sets out the three matters to be taken into account by the court when making a decision to increase the proportion to be spent in custody beyond one-half of the sentence;

  •  the seriousness of the offence or of other relevant offences,
  • previous convictions and
  •  the timing of any guilty plea. 
  • and subsection 6(5) states “in specifying a custody part the court must ignore any period of confinement which may be necessary for the protection of the public.” 

46. Sheriff Fiona Reith stated that the three factors to be taken in to account are “very restricted” and that it appeared that the court can proceed to fix a custody part with reference simply to these three restricted matters.29  She questioned whether that was really the intention of the Bill.  The Sheriffs’ Association stated that “protection of the public is a factor to which sentencing judges have customarily attributed high importance in determining the appropriate sentence to impose” and asked whether it is the intention to remove that factor from the judicial sentencing process.30

47. Cyrus Tata questioned the rationale for allowing individual sentencers to increase the custody part of a sentence to 75% stating that no reason had been given for this.   The Committee notes that if individual sentencers set a custody component of more than 50%, then this has the potential to seriously impact upon the costs contained in the Financial Memorandum. 

48. The Committee did not receive a clear explanation of why the 75% maximum had been chosen. The Sheriffs’ Association also commented that in considering whether to impose an increased custody part it would appear that there would be double application of the same factors already taken account of when setting the overall ‘headline’ sentence in the first place.    

49. The Minister re-stated that section 6 of the Bill applies once a sentence is passed i.e. once the sentencer has decided, as they do now, that having regard to all the information available at the time of conviction (including an offender’s risk as it presents at that time) imprisonment is the most appropriate disposal. 

50. Executive officials advised that the restriction on sentencers not to consider the protection of the public when specifying an increase to the minimum custody part was because this would be considered at the end of the custody part allowing “real-time factors to be taken into account in deciding about release”.31  In other words, the minimum custody part imposed by a court is intended to have the effect of punishment, as opposed to protection of the public (albeit that whilst someone is imprisoned, the risk to the public is reduced).  At a later stage, public protection is considered through the risk assessment to be undertaken prior to decision-making about release.   

51. Given the evidence received by the Committee there appears to be confusion about the rationale behind and the effects of section 6 of the Bill and that there is the potential for unintended consequences such as sentencers being required to apply the same factors twice.  The Committee welcomes the Minister’s undertaking32 to consider the evidence with a view to deciding whether any clarifying amendments are required at stage 2.   The Committee requests a response to this particular point prior to the commencement of stage 2. 

Ministers powers to vary the proportion of the custody part

52. Subsection 6(10) makes provision for Scottish Ministers to vary by order, subject to negative procedure, the one-half proportion that the statutory minimum custody part is of the total sentence.   This power was of considerable concern to the Subordinate Legislation Committee.  It was of the view that there was ambiguity in this unlimited provision which could be interpreted as allowing Ministers, by this route, to increase the custody part of a sentence beyond three-quarters. 

53. In its response to the Subordinate Legislation Committee, the Executive stated that the power is not intended to extend to increasing the maximum custody proportion of the sentence and advised that it would amend the Bill to ensure that any use of this power would be subject to affirmative resolution.  The Subordinate Legislation Committee welcomed the use of the affirmative procedure but stated that “the power was at the boundary of what was appropriate by way of delegated power.  The ambiguity relates to a power of considerable significance and the Committee considered that it was preferable for it to be removed.”33  The Subordinate Legislation Committee asked us to examine this ambiguity and the possible removal of the provision by way of amendment.

54. Given the concerns of the Subordinate Legislation Committee the Committee recommends that the Minister looks again at subsection 6(10), its ambiguity and risk of future re-interpretation and reverts to the Committee prior to the commencement of stage 2. 

Post sentencing reports

55. There was concern that the Bill’s provisions concerning decision-making about release would give rise to an increased routine requirement for reports by sentencers.  This would be “an unacceptable additional burden to the work of sheriffs and would be quite disproportionate to what would be likely to be the actual need for reports”34 In the view of the Parole Board however it would be difficult for it to make a judgment when dealing with those on very short sentences without a trial judge or sheriff’s report.35

56. The Committee is not clear to what extent there will be additional burdens for reports from sentencers.  From evidence given to the Finance Committee it appears that there is recognition that additional work may be required in respect of indictment cases.  What is not clear however is whether sheriffs sitting in summary cases (in 2001, 63% of all criminal cases in Scotland were heard in sheriff courts on summary procedure36) will be required to provide such reports.  If there is such a requirement, this will clearly have resource implications.  The Committee understands that this is one of the issues being looked at by the Custodial Sentences Planning Group on which the Sheriffs’ Association and the Parole Board are both represented. 

57. The Committee draws attention to the concerns regarding the additional burdens that could be placed on sentencers and requests that these are considered by the Planning Group.

Efficacy and effects of short-term sentences

58. The threshold for triggering the combined sentence is 15 days, although in terms of section 4(2) Scottish Ministers may by order amend the definitions of “custody and community sentence” and “custody-only sentence” by substituting a different term.  In evidence to the Subordinate Legislation Committee the Executive stated that its reason for this power was that “post-implementation evaluation might show custody and community sentences are more effective for sentences longer than 15 days.”37 

59. As the proposals in the Bill stand, for sentences under 15 days, the entire period will be spent in custody.  For sentences of 15 days or more a combined custody / community sentence will be imposed.  By common consent there will be an adverse effect on prisoner numbers.  The Bill’s Financial Memorandum makes reference to a likely increase of between 700 and 1100 prisoners.  The Memorandum states that the main cost of continued imprisonment beyond the court imposed custody part is the difference between the current prison projections and the new population estimates arising from the assumptions made about breach rates.  The proposals in the Bill could result in 8,600 offenders per annum serving part of their sentences on licence in the community (whereas under existing arrangements, such offenders are likely to be released unconditionally without any form of licence). 

60. As there will be more offenders released on licence, as a result of this Bill, there will inevitably be more breaches of licence / supervision conditions which will result in a return to custody, thereby increasing the prison population.  The Committee was told that this projected increase in prison numbers could lead to Scotland having the highest imprisonment rate in Western Europe, more than double that of Finland, Sweden, Denmark and Norway and even more than Hungary and Bulgaria.38

61. Prison numbers in Scotland are already at an all-time high and the problems of over-crowding in Scotland’s prisons have been highlighted by many observers.  In evidence to us, Dr Andrew McLellan, HM Chief Inspector of Prisons, drew attention to his annual report39 and his observations about the effects of overcrowding; for example making it easier to get drugs into prison, prisoners being locked up for long periods and the difficulties for prisoners to access work and education or training opportunities.  He stated that the impact of the Bill could be enormous and “whatever the merits of the Bill, the increase in overcrowding that the Scottish Prison Service estimates will be a significant cost.  There may also be a cost in public safety.”40

62. Over-crowding in prisons impacts on the ability to provide and meaningfully undertake rehabilitative work in custody designed to address and reduce risk.  The Committee is aware that many staff working with offenders are over-stretched but that they are most effective when able to work jointly with other agencies, prioritise their workloads and target the skills and resources where the greatest need or risk lies.  Efforts to join up services, for example through the Community Justice Authorities (CJAs) and the Prison Service, could quite possibly be undermined by the numbers coming in and leaving prisons as a result of this Bill.

63. When considering how best to target resources and to manage public expectations in terms of the management and appropriate supervision of  offenders, the  Committee was told by the SCCCJ “that the threshold could screw it all up, to put it bluntly, by putting the resources in the wrong places and thereby depriving people who need more resources”.41  They suggested that if the threshold for post-release supervision was increased to 6 months, some 7 - 8000 offenders would be taken out of the system.  The RMA stated their preference would be for a cut-off point of sentences of one-year.  In addition to questioning the low threshold for post-release licences and supervision, several witnesses and written submissions suggested that rather that requiring post-release licences for those serving short sentences, more strenuous efforts should be made to replace such short sentences with more robust community proposals.42The SCCCJ, COSLA, ADSW and the CJA chief officers all drew attention to the workforce and resource pressures that could be exacerbated by the Bill’s provisions.  These concerns underline a rationale to limit the numbers of very short-sentence, low risk-of-harm prisoners coming into custody, in order that efforts can be focussed on those prisoners who pose a greater risk.

64. Much research43 has been conducted into the usefulness or otherwise of short-term custodial sentences.  The Committee was told by ADSW that the Bill would not make an impact in relation to short-term sentences and that “if we want to make an impact, we would be better to take those currently serving short-term sentences – a massive number of people – out of the prison system and work with them in what are known as community link centres.”44

65. Councillor Jackson stated on behalf of COSLA and ADSW that “the majority view is that people given short-term sentences could be better served by community disposals”45 SCCCJ said that it “would like sentences of less than 6 months to be phased out,”46 ACPOS said that it “would probably agree that short sentencing does not work, but a short sentence can sometimes be the only means of respite for a community.”47 The Prison Officers Association said that it was not productive to send someone to prison to serve a very short sentence and that all that can be done is to patch them up, stabilise them and put them back in the community.48 Richard Sparks stated that in order not to create additional expectations or further demand for prison service resources, a relatively high threshold for the provision of this bill will be required.

66. Many studies have shown the significant cost of incarceration as compared to the costs of community disposals.  The Scottish Executive published the following information for the year 2003-0449: the cost of 6 months in prison is £16, 342, the average cost of a probation order50 is £1157, the average cost of a community service order is £1432, the average cost of a supervised attendance order is £410 and the average cost of a restriction of liberty order is £9000. 

67. In their evidence, the CJA chief officers said that “the thresholds are wrong and the proportionality is wrong…we need a clearer threshold that is arrived at more rationally”51 and called for an examination of effective practice both nationally and internationally asking “why pass a Bill that has ineffectiveness built in?”  A high threshold, along the lines of the Finnish model, could result in people who would otherwise serve custodial sentences being subject to longer community disposals which would mean them being taken out of the system altogether52. Currently in Finland, prisoners given sentences of less than two years are supervised in the community with appropriate safeguards.

68. The Committee notes that in the view of the Executive “conditional imprisonment is not presently a sentencing option for the courts and so to introduce such a measure would amount to a new sentencing option.  Such a move would be outwith the scope of this Bill.”53 Notwithstanding this, the Committee asks the Minister whether conditional sentences could be considered as a form of early release.  The Committee would be grateful for a response prior to the commencement of stage 2.

69. The Committee shares the apprehensions of a number of those who gave evidence about the likely effects of the thresholds currently set out in the Bill and whether these thresholds provide for the most effective targeting of resources. 

70. The Committee notes that the Finance Committee has serious concerns in relation to the provision of accommodation for the additional prisoners proposed. In its report to us, the Finance Committee stated that it is very concerned that the planning process to consider the impact of the additional anticipated prisoners is as such an early stage. 

71. Given the expected operational impact on prisons, the Committee was very disappointed that the prison governors invited to give evidence appeared unable to comment on the areas under their respective operational responsibilities likely to be affected by the Bill. 

Clarity and transparency of sentencing

72. Clarity of sentencing is an important consideration for reasons of public confidence and for informing witnesses and offenders.  Most of our witnesses, including Victim Support Scotland, welcomed the principle of combination sentences and, referring to the set of principles within which it will operate, stated “the public will find it easier to comprehend than those under which the present system operates.  However if victims are to understand how the system works, the sentencer will have to give in court an appropriate and clear explanation of how the custody and community components of the sentence will work.”54  Further, in order to assist offenders in understanding the effect of a sentence, Victim Support Scotland recommended changing the entry point for the victim notification scheme downwards from the current 4 years to around 12 months.

There was also support from the SCCCJ for combination sentences however because of the various contingencies that might significantly alter the effect of the sentence after it had been passed, they were of the view that any explanation of the sentence would be too complex; a view shared by the Sheriffs Association and ADSW.  Both the SCCCJ and the Sheriffs’ Association provided examples of the statements they envisaged having to be made in court by sentencers when attempting to explain the effects of the sentence imposed.55  Cyrus Tata stated that in order to improve clarity and transparency, sentences themselves must be looked at as opposed to sentence management.56

73. In response, the Minister stated that “there are two separate issues: there is the stage at which the sentence is announced and there is the process by which it can be shifted.  There is a separate discussion about the extent to which the general public should be engaged and involved in the movement of individual sentences and how that is dealt with.  We know with some certainty that the minimum amount of time that the offender can expect to spend in custody will be stated at the first stage.  That is significant, because at present one thing is said but something entirely different happens.”57

74. The Committee notes that the Bill is not intended to do anything to change sentencing practice.  However, our evidence did not necessarily support this assertion.  Our evidence suggested that the Bill might result in more short-term prison sentences.  For example in the view of Mark Hodgkinson “at present, sheriffs have a stark choice between a community sentence and a custodial one, but under the bill, there will be a much more softened system in which sheriffs can combine both…it is clear that the Bill will mean that more people will spend longer in prison.”58 None of the witnesses from which the committee heard expressed the view that more short-term sentences would be a good thing. 

75. Victim Support Scotland commended the innovative work being done to demystify the workings of criminal justice in England and Wales and said that in Scotland there was a need for something like that and for the “system as a whole to be more transparent in engaging with communities to build confidence…not just sentencing information but a wider process of engagement .59 

76. The Committee draws attention to the research commissioned in 2002 by the Parliament’s Justice 1 Committee into Public Attitudes Towards Sentencing and alternatives to imprisonment60 and particularly its conclusions about the need to restore public confidence by providing better information about constructive alternatives to prison and the need to address public expectations of what sentencing and punishment can achieve.  The Committee notes that in 2004-5 the number of community disposals imposed by the courts exceeded, for the first time, the number of custodial sentences imposed.  However the Committee would invite the Executive to re-consider this research and what work still requires to be done to create greater public confidence in Scotland’s justice system and in the benefits of disposals other than custodial sentences

Procedures and resources for assessment of needs and or risk

77. The current process of assessment in prisons is community integration planning.  At present, every prisoner who comes through the door is assessed on a needs basis which could include housing, drugs or alcohol services and mental health provision.61  Those with sentences of under 31 days are signposted but not placed on any specific programme; those serving sentences of 31 days or more also receive an initial assessment but are expected to leave prison with a Community Integration Plan62 and those serving sentences of more than 4 years come into the relatively new ICM System. 

78. The ICM system currently applies to around 3000 offenders a year, those subject to post-release supervision i.e. those sentenced to 4 years or more, sex offenders sentenced to 6 months or more, offenders on extended sentences or those serving life sentences.63  The ICM system uses information relating to offending history, risk and needs of the offender, assessment, interviews with each prisoner, social work input and integrated case conferences for each offender and, where appropriate, psychological reports. 

79. As stated in the Financial Memorandum “the proposals in the Bill will require a similar system to apply to all those whose sentences will be managed through custody and community – in effect 9241 admissions to custody.” 64  Each 1,000 extra offenders receiving ICM will require around 18 staff (using the predictions in the Bill, the proposals will require a further 175 staff) with associated costs.  SPS estimates that the costs from these proposals are likely to be around £5-6m a year.


1 Letter from Deputy Minister for Justice, 6 December 2006

2 Early Release from Prison and Supervision of Prisoners on their Release

4 Official Report, 24 October 2006, cols 2884-2885

5 Policy Memorandum, para 59

6 Policy Memorandum, paras 73-77

7 ADSW, Official Report, 7 November 2006, col 2925 and Mark Hodgkinson, Official Report, 28 November 2006, col 3096

8 Risk Management Authority written evidence and Andrew Coyle, International Centre for Prison Studies, King’s College London written evidence

9 The Parole Board for Scotland, Official Report, 21 November 2006, cols 3001-3002

10 Prison Officers Association, Official Report, 7 November 2006, col 2948, Scottish Parliament Finance Committee

11 Scottish Parliament Finance Committee

12 Early Release from Prison and Supervision of Prisoners on their Release – Sentencing Commission for Scotland

13 Letter from Scottish Executive Justice Department, 30 November 2006

14 COSLA/ADSW, written evidence

15 Official Report, 21 November 2006, col 3003

16 Official Report, 14 November 2006, col 2966

17 Parole Board for Scotland, written evidence

18 Letter from Scottish Executive Justice Department, 30 November 2006

19 Professor Sheila Bird, written evidence

20 Cyrus Tata, written evidence

21 Official Report, 28 November 2006, col 3074

22 Cyrus Tata, written evidence

23 Official Report, 28 November 2006, col 3061

24 Official Report, 14 November 2006, col 2986

25 Scottish Executive official, 28 November 2006, cols 3061and 3062

26 Official Report, 28 November 2006, col 3061

27 Official Report, 28 November 2006, col 3067

28 Letter from Deputy Minister for Justice, 6 December 2006

29 Sheriff Fiona Reith QC, written evidence

30 Policy Memorandum, para 7

31 Scottish Executive official, Official Report, 28 November 2006, col 3068,

32 Letter from Deputy Minister for Justice, 6 December 2006

33 Report of the Subordinate Legislation Committee, para 22

34 Sheriffs’ Association, written evidence

35 Official Report, 21 November 2006, cols 3006-3007

37 Report of the Subordinate Legislation Committee, para 9

38 SCCCJ, written evidence


40 Official Report, 21 November 2006, col 3025

41 Official Report, 14 November 2006, col 2973

42 for example SCCCJ, Official Report, 14 November 2006, col 2974, Chris Hawkes, Official Report, 28 November 2006, col 3097, Bill Whyte, Official Report, 14 November 2006, col 2981

43 See ‘A Comparative Review of Alternatives to Custody: Lessons from Finland, Sweden and Western Australia’: para 2.2.1;  Eley. S et al: Justice 1 Committee Report, April 2005

44 Official Report, 7 November 2006, col 2925

45 Official Report, 7 November 2006, col 2927

46 Official Report, 14 November 2006, col 2970

47 Official Report, 7 November 2006, col 2939

48 Official Report, 7 November 2006, col 2954

49 cp(s)a section 306: Costs, Sentencing Profiles and the Scottish Criminal Justice System 2004/05, Scottish Executive, November 2006

50 This figure covers only “standard” Probation Orders and not those which include participation in intensive projects

51 Official Report, 28 November 2006, col 3097

52 Official Report, 14 November 2006, col 2987

53 Letter from Scottish Executive Justice Department, 15 December 2006

54 Official Report, 14 November 2006, cols 2962-2963

55 SCCCJ, written evidence and Sheriffs’ Association, written evidence

56 Official Report, 14 November 2006, col 2978

57 Official Report, 28 November 2006, cols 3064-3065

58 Official Report, 28 November 2006, col 3096

59 Official Report, 14 November 2006, col 2965

61 Bill Mckinlay, Official Report, 28 November 2006, col 3049

62 Scottish Prison Service Business Plan 2006 para 6

63 Financial Memorandum para 157

64 Ibid