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18th Report, 2009 (Session 3)

Stage 1 Report on the Criminal Justice and Licensing (Scotland) Bill

CONTENTS

Remit and membership

Report

Introduction

Background and consultation

Evidence received by the Committee

Part 1 – Sentencing

Sections 1 and 2: Purposes and principles of sentencing
Sections 3-13 and schedule 1: The Scottish Sentencing Council
Section 14: Community payback orders
Section 16: Short periods of detention
Section 17: Presumption against short periods of imprisonment or detention
Section 18: Amendment of the Custodial Sentences and Weapons (Scotland) Act 2007
Section 24: Voluntary intoxication by alcohol – effect in sentencing

Part 2 – Criminal Law

Sections 25-28: Serious organised crime
Section 34: Extreme pornography
Section 35: People Trafficking

Part 3 – Criminal Procedure

Section 38: Prosecution of children
Sections 58-60: Retention and use of samples etc

Part 4 – Evidence

Section 62: Witness statements: use during trial
Section 63: Spouse or civil partner of accused a compellable witness
Section 66: Witness anonymity orders

Part 5 – Criminal Justice

Section 68: Upper age limit for jurors
Section 70: Data matching for detection of fraud etc
Section 82: Compensation for miscarriages of justice

Part 6 – Disclosure

Background
Fairness, certainty and clarity
Sections 86 to 88: Solemn cases: schedules of information
Sections 94-95: Defence statements
Sections 102-106: Applications to court: orders restricting disclosure
Section 107: Special counsel
Section 115: Acts of Adjournal

Part 7 – Mental Disorder and Unfitness for Trial

Part 8 – Licensing Under Civic Government (Scotland) Act 1982

Introduction
The 1982 Act and the Task Group recommendations
Section 121: Conditions to which licences under 1982 Act are to be subject
Section 123: Licensing of metal dealers
Section 124: Licensing of taxis and private hire cars
Sections 125 and 126: Licensing of market operators and licensing of public entertainment
Section 127: Licensing of late night catering
Section 128: Applications for licences

Part 9 – Alcohol Licensing

Introduction
Sections 129 and 140
Wider issues relating to the 2005 Act
Section 130: Premises licence applications: notification requirements
Section 131: Premises licence applications: modification of layout plans
Section 132: Premises licence applications: antisocial behaviour reports
Section 133: Sale of alcohol to trade
Section 134: Occasional licences
Section 135: Extended hours applications: variation of conditions.
Section 136: Personal licences.
Section 137: Emergency closure orders
Section 138: False statements in applications: offences
Section 139 and schedule 4: Further modifications of 2005 Act

Additional Issue: Non-Invasive Post-Mortem.

Conclusion

Recommendation

Annexe A: Subordinate Legislation Committee Report

Annexe B: Finance Committee Report

Annexe C: Extracts from the minutes

Annexe D: Index of oral evidence

Annexe E: Index of written evidence

Remit and membership

Remit:

To consider and report on (a) the administration of criminal and civil justice, community safety, and other matters falling within the responsibility of the Cabinet Secretary for Justice and (b) the functions of the Lord Advocate, other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Bill Aitken (Convener)
Robert Brown
Bill Butler (Deputy Convener)
Angela Constance
Cathie Craigie
Nigel Don
James Kelly (Member from 05/11/2009)
Paul Martin (Member from 13/06/2007 until 04/11/2009)
Stewart Maxwell

Committee clerking team:

Andrew Mylne
Anne Peat
Andrew Proudfoot
Christine Lambourne

Stage 1 Report on the Criminal Justice and Licensing (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction

1. The Criminal Justice and Licensing (Scotland) Bill was introduced in the Parliament on 5 March 2009 by Kenny MacAskill, Cabinet Secretary for Justice. The Parliament designated the Justice Committee as the lead committee to consider and report on the general principles of the Bill.

2. The Subordinate Legislation Committee (SLC) considered the delegated powers proposed in the Bill and reported to the Parliament on 4 June 2009.1 The SLC report refers to 14 provisions in relation to which it raised concerns with the Scottish Government. The outcome was that it accepted in eight of those instances the Scottish Government’s response – which, in five cases, included a commitment to bring forward amendments at Stage 2 to address the Committee’s concerns. In relation to two of the provisions identified by the SLC, the Scottish Government is committed to lodging Stage 2 amendments to remove entirely the sections in which they arise (sections 129 and 140). The remaining four provisions are drawn to the attention of the Justice Committee and the Parliament as raising more substantial issues, or issues that the Subordinate Legislation Committee does not consider to have been satisfactorily resolved. These outstanding issues are considered in this report in the context of those sections to which they relate. The report of the Subordinate Legislation Committee is contained in Annexe A to this report.

3. The Finance Committee considered the Bill’s Financial Memorandum and reported to the Justice Committee on 21 May 2009.2 The Committee afforded this Bill “level three” scrutiny, that is, it considered written and oral evidence from affected organisations3 and from the Scottish Government before finalising its report.4 The Finance Committee’s recommendations and observations are considered in this report in the context of those sections to which they relate. The report of the Finance Committee is contained in Annexe B.

4. Standing Orders require the lead committee to consider and report on the Bill’s Financial Memorandum, taking into account any views submitted to it by the Finance Committee, and to consider and report on the Policy Memorandum. The Committee has no general comments to make on these documents at this stage, although there are some specific points (for example, on the figures relating to anticipated take-up of community payback orders) that are addressed at relevant points later in this report.

background and consultation

5. In his statement to the Parliament on 3 September 2008 on the Scottish Government’s programme, the First Minister announced the Scottish Government’s intention to introduce the Bill as follows—

“The criminal justice and licensing bill will ensure that prison remains the correct disposal for serious and violent offenders and will ensure that they are dealt with firmly and effectively in prison. Building on the recommendations of the Scottish Prisons Commission, it will reform the community punishments that are available to the courts and reform criminal law and criminal court procedures. Consolidated by the creation of a sentencing council, the bill will ensure that there is public confidence in sentencing decisions.

“As members know, we are consulting on a wide range of measures to challenge Scotland's relationship with alcohol. The consultation, which ends later this month, outlines proposals in several key areas: to prohibit off-sales to under-21s; to set a minimum price for alcoholic drink; and to introduce a social responsibility fee. We will reflect on the results of the consultation and use the bill to effect those proposals which require primary legislation.”5

6. Following this announcement, the Government published Revitalising Justice – Proposals to Modernise and Improve the Criminal Justice System6which summarised theproposals to be included in the Bill as “measures to improve criminal law; take forward sensible sentencing reforms; modernise criminal procedures; develop licensing laws; and assist victims and witnesses.” A total of 66 measures were listed, of which ten were described as “major reforms”. For each one, the document outlined the main proposal and indicated where consultation was already underway or about to commence.

7. By the time the Bill itself was finalised, further measures had been added, beyond those outlined in Revitalising Justice. The Bill, as introduced, consists of 148 sections and five schedules, grouped into 11 parts, the main ones covering sentencing, criminal law, criminal procedure, evidence, criminal justice, disclosure, mental disorder and unfitness for trial, licensing under the Civic Government (Scotland) Act 1982 and alcohol licensing.

8. In all, the Bill implements more than eighty distinct policy proposals. Some of these – most notably the establishment of a Scottish Sentencing Council and the creation of a statutory presumption against short-term prison sentences – are Scottish National Party manifesto commitments. Others originate from the work of independent bodies or take forward reforms initiated by the previous administration. The opportunity has also been taken to make a number of technical changes such as repealing spent enactments or correcting errors in existing statutes.

9. The principal non-governmental sources for the proposals implemented in the Bill are:

  • Professor James Fraser’s review of police powers in relation to forensic data taken from adults prosecuted for sexual or violent offences but not convicted, and from children who have committed similar offences;

  • Lord Coulsfield’s review of the law and practice of disclosure in criminal proceedings;

  • the report of the Scottish Prisons Commission, chaired by Henry McLeish;

  • various reports by the Sentencing Commission for Scotland;

  • reports by the Scottish Law Commission, including on a Crown right of appeal in criminal cases, on the age of criminal responsibility and on insanity and diminished responsibility;

  • a joint Scottish Executive and Home Office consultation on the possession of extreme pornographic material.

EvIDENCE RECEIVED BY the COMMITTEE

10. With such a wide-ranging Bill it has been impossible, in the time available to the Committee, to take evidence and consider in detail each and every proposal. It has also become clear from the written and oral evidence that there is a much more limited number of proposals that raise particularly complex issues or have generated significant controversy, and to which the Committee has therefore devoted most attention.

11. The Committee issued its call for written evidence on the Bill in March 2009 and has since received more than 90 submissions.7

12. The Committee took oral evidence over eight meetings in May, June and August. The principal individuals and organisations who attended were—

  • the Lord President of the Court of Session and Lord Justice General (Lord Hamilton) and the Lord Justice Clerk (Lord Gill)

  • the Sheriffs’ Association

  • the Scottish Justices Association

  • the Royal Society of Edinburgh

  • Henry McLeish (chair of the Scottish Prisons Commission)

  • representatives of three Community Justice Authorities (Fife and Forth Valley, North Strathclyde, Lanarkshire)

  • the Association of Directors of Social Work

  • Howard League for Penal Reform

  • the Scottish Consortium on Crime and Criminal Justice

  • the Association of Chief Police Officers in Scotland

  • the Scottish Crime and Drug Enforcement Agency

  • Victim Support Scotland

  • the office of Scotland’s Commissioner for Children and Young People

  • Children 1st

  • Children in Scotland

  • the Law Society of Scotland

  • the Faculty of Advocates

  • Professor Jim Fraser (Centre for Forensic Science, University of Strathclyde)

  • Scottish Police Services Authority

  • Lord Coulsfield (author of the independent review of the law and practice of disclosure in criminal proceedings in Scotland)

  • the Centre for Sentencing Research (University of Strathclyde)

  • James Chalmers, School of Law, University of Edinburgh

  • Dr Sarah Armstrong, Faculty of Law, University of Glasgow

  • the Scottish Prison Service

  • the Convention of Scottish Local Authorities

  • the Lord Advocate (Elish Angiolini QC) and Solicitor General for Scotland (Frank Mulholland)

  • the Scottish Licensed Trade Association

  • Noctis (which represents night clubs and other late-night venues)

  • the Scottish Late Night Operators Association

  • the Scottish Beer and Pub Association

  • City of Edinburgh and City of Glasgow Licensing Boards

  • Fife Council

  • the Cabinet Secretary for Justice (Kenny MacAskill).8

13. As always, the tight timescale for the Committee’s Stage 1 scrutiny resulted in a relatively short deadline, particularly given the breadth of this Bill, for those interested to give their views. The Committee is very grateful to those who were able to contribute to the process.

14. The Committee would also like to thank the staff at Alloa Town Hall and the members of the public who attended the Committee’s meeting there on 19 May 2009, as well as the witnesses who gave evidence on that occasion. This meeting enabled the Committee, amongst other things, to gain a local perspective on some of the changes proposed in the Bill. The Committee is also grateful for the assistance provided by its two advisers, Professor Peter Duff of Aberdeen University (on the criminal procedure aspects of the Bill) and Robert Millar, principal solicitor at City of Edinburgh Council (on the licensing provisions).

part 1 – sentencing

15. Part 1 of the Bill covers issues relating to sentencing including the purposes and principles of sentencing, the creation of a Scottish Sentencing Council, community payback orders, and a presumption against short periods of imprisonment.

Sections 1 and 2: Purposes and principles of sentencing

Background

16. The Sentencing Commission for Scotland (the Commission) recommended that, as a useful step to promoting consistency in sentencing, the purposes of sentencing should be enshrined in statute. In its report, the Commission stated that the purposes of sentencing “commonly accepted by most jurisdictions are punishment or retribution, protection of the public or incapacitation, deterrence and rehabilitation or reform. To these are sometimes added denunciation, reparation, crime reduction and economy of resources”.9

17. Section 1 sets out the purposes of sentencing as: the punishment of offenders, the reduction of crime (including its reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public, and the making of reparation by offenders to persons affected by their offences.

18. Section 1(3) lists other matters to which a court must have regard in sentencing an offender, namely the seriousness of the offence, any information before the court about the effect of the offence on any person (other than the offender), the range of sentences available to the court in dealing with the offence, the desirability of ensuring consistency in sentencing in respect of the same type of offence, and any other information before the court about the circumstances and attitude of the offender.

19. By setting down the purposes of sentencing, Scottish Ministers intend—

“that the public has a much clearer understanding of what sentencing is actually for and is clear on the key factors that every sentencer must have regard to when making decisions in individual cases.”10

Evidence received

20. Victim Support Scotland agreed with the Bill’s proposals in this regard and said—

“We believe that the introduction of a statutory definition of the aim of sentencing will help create more consistency in sentences … More consistency will subsequently make the criminal justice process more transparent, enabling parties to foresee and understand why a particular verdict is given.”11

21. The Law Society of Scotland was broadly supportive of the purposes and principles as set out in the Bill, but suggested that—

“the purpose as outlined at section 1(1)(b) should be the deterrence of crime as opposed to the reduction of crime (including its reduction by deterrence). The Society also believes that one of the main principles of sentencing is to serve the interests of justice and that should be reflected in the Bill.”12

22. Both the Faculty of Advocates and the Judges of the High Court of Justiciary flagged up a concern about section 2(2), according to which a court need not comply with the purposes and principles of sentencing where they are inconsistent with sentencing guidelines. As Lord Hamilton put it—

“If the principles are to be recognised as being applicable in the criminal justice system, they should also be applicable to the sentencing council. It should not be free to deal with the matter without regard to those principles.”13

23. The High Court judges, the Sheriffs’ Association and the Scottish Centre for Criminal Justice Research all questioned why (under subsection (5)(a) of section 1), the purpose and principles of sentencing (subsections (2) and (3)) do not apply to offenders under the age of 18. The judges recognised that it would be necessary to take account of a child’s age, but suggested that “the considerations referred to in subsections (2) and (3) appear to be equally apt for the sentencing of any person who has attained the age of criminal responsibility”.14

24. The Sheriffs’ Association accepted that the principles set out in section 1(3) are not intended to be exclusive or exhaustive, but suggested denunciation (the expression of “society’s abhorrence of a particular crime”) as an additional purpose of sentencing and the nature or character of the offence (in addition to its seriousness) and local circumstances as additional matters to be taken into account. It also questioned section 1(3)(d), which provides that a court must have regard to “the desirability of ensuring consistency in sentencing in respect of the same type of offence”—

“Consistency in sentencing is not stated in the Bill as a purpose of sentencing. This provision assumes a purpose that is not stated. Under the proposal, if the court considers that consistency is not desirable, it may be ignored. How is a court to ascertain what the consistent sentence is if there is no guideline published? … This provision should be removed as containing no principle that can be applied in practice.”15

25. Overall, the Association’s view was summarised by Sheriff Nigel Morrison QC—

“The purpose of setting out the principles in the Bill was not simply to set them out. As the policy memorandum indicates, the purpose was to achieve consistency, transparency and confidence. However, we do not think that that purpose has been achieved.”16

26. In its written submission, the Royal Society of Scotland (RSE) said that the purposes of sentencing are already well known and there is no need for them to be embodied in statute. In the RSE’s view, the extent to which any of the purposes listed in the Bill would apply depends on the nature and circumstances of the case and hence on the judgement of the sentencer, and that listing the purposes in statute “serves no practical purpose”.17

27. In later oral evidence, Lord Cullen for the RSE was asked whether there was anything that should be added to the list, were it to remain in the Bill. He replied—

“The trouble is that that would be like adding one unnecessary thing to a lot of other unnecessary things. However, I can think of a few additions. For example, we mention in our submission the absence of any reference to the significance of a guilty plea, which is a potent factor.”18

28. Professor Neil Hutton (Centre for Sentencing Research, University of Strathclyde) drew attention to the English sentencing guidelines which included “overarching principles of seriousness” and advocated a similar approach for Scotland, consistent with the recommendations of the Scottish Prisons Commission. This would involve the level of penalty being set by reference to the seriousness of the offence, both in terms of the culpability of the offender and the harm caused to the victim, while the precise amount and form of penalty would be decided by the judge according to the facts and circumstances of the offence and the offender. In this way, fairness would take priority over other purposes of sentencing—

“Arguably, fairness is one thing that a systematic approach to sentencing can deliver and fairness is valued by the public. It is not so easy to make this claim about other purposes.”19

29. The Scottish Consortium on Crime and Criminal Justice (SCCCJ) welcomed a statutory statement of the purposes of sentencing, but believed it could go further. In particular, it could include reference to the larger purpose of making society more just and safer for its citizens, thus providing some basis for choosing between the stated purposes and principles when they conflict—

“The difficulty with the way in which the bill is drafted is that it simply lists a range of purposes that sentences might serve. The list is familiar, covering exactly what is found in similar legislation or in the relevant textbooks in various jurisdictions. It provides no coherent rationale that a sentencer might employ when thinking about which principles should apply or have priority in particular circumstances, or how to choose between different purposes of punishment or sanctioning that might conflict in certain ways.”20

30. Professor Fergus McNeill of the SCCCJ rejected the idea that reducing reoffending could be regarded as an overarching principle—

“It is a laudable objective for the system to pursue, but if adhering to the principle allowed disproportionate sentences – perhaps even incapacitating sentences of a duration that was not merited by the gravity of the crime – to be applied, that would be contrary to the interests of justice. … A better approach than putting the reduction of reoffending first is to try to approximate to fairness and justice in the first instance, before thinking about the specific outcomes that we might pursue through a properly proportionate penalty.”21

31. The SCCCJ also suggested that the first purpose listed in section 1(1), “the punishment of offenders”, could be omitted on the grounds that punishment would serve no purpose if it did not secure any of the other purposes listed. Instead, it advocated a principle of “parsimony”, namely “that any sentence should be the least oppressive and intrusive consistent with the other aims of sentencing”.22

32. This approach was strongly supported by the Scottish Centre for Crime and Justice Research, which also wanted the Bill to—

“make it explicit that each of the stated purposes of sentencing should serve a larger purpose, i.e. the production of a more just and safer society for all of its citizens.”23

33. The Cabinet Secretary was not convinced that any overarching purpose was needed—

“We think that sections 1 and 2 are clear and easy to understand. They set out the purposes and principles of sentencing, and we think it essential to do that. Sentencing does not have just a single purpose – that of punishment – and the lack of hierarchy in section 1 is quite deliberate. In trying to get the balance right, fairness is important, and setting out purposes and principles will contribute to achieving that.”24

Committee conclusions

34. The Committee believes that the purposes or principles of sentencing, as established by common law, are already well understood by the courts. The common law has the advantage that it can more easily evolve and develop in response to changes in social attitudes; fixing this common-law understanding in statute carries a risk of unintended consequences, and may also lose some of the nuances of case-law jurisprudence. What is more, it is generally understood to be a principle of legislative drafting to make provision only where it is necessary to do so – and, indeed, this has often been articulated by Ministers (both of the current and previous administrations) as a reason to resist backbench amendments.

35. Considering section 1 in isolation, therefore, we are not convinced that a sufficiently good case has been made for its inclusion. However, we recognise the Scottish Government’s view that an opening section setting out in broad terms what sentencing is for may be a useful preliminary to the creation of a Scottish Sentencing Council. Accordingly, we invite the Scottish Government both to justify the necessity for setting out the purposes and principles of sentencing in the Bill and to provide assurance that the provisions in sections 1 and 2 do not inadvertently change the law. Without adequate justification and assurance, we are liable to conclude that retaining these sections in the Bill may be problematic.

36. We acknowledge that all the purposes listed in subsection (1), and the “other matters” to which the courts must have regard listed in subsections (3) and (4), have a part to play in sentencing decisions. We believe it is important that, if these are to be listed in statute, they are regarded as non-exhaustive and unranked lists, with the order not implying any general priority of earlier items over later ones. We also note that, while the section title refers both to “purposes” and “principles”, only purposes are actually listed. In our view, principles of fairness, justice and proportionality are at least as important as the purposes already included, and we therefore invite the Scottish Government to consider including these principles within the section (or removing reference to “principles” from the section title).

37. The Committee is also uncertain as to why subsections (2) and (3) of section 1 are disapplied in relation to persons under the age of 18. Our presumption would be that the matters listed in subsection (3) are still relevant in that context, albeit in a context where the offender’s age is also a significant factor. We are also unclear what status subsection (1) is meant to have in relation to a young offender – it is not disapplied, but the court is under no obligation to have regard to it in sentencing that offender. We would invite the Scottish Government either to provide a better justification for its drafting approach here, or to bring forward amendments to clarify the application of section 1 to under-18 offenders.

38. The Committee has also found difficulty with the relationship between the purposes of sentencing in section 1 and the sentencing guidelines to be issued by the Scottish Sentencing Council (SSC). Specifically, the SSC does not appear to be required to reflect the purposes in preparing guidelines, but the courts are obliged to give precedence to the guidelines should they and the purposes of sentencing come into conflict (section 2(2)). We do not see the logic of creating a statutory Sentencing Council and, at the same time, setting out the purposes of sentencing in statutory form if that Council is not itself made subject to those purposes in carrying out its work. That way, there should be no question of the council issuing guidelines that are inconsistent with the purposes of sentencing. We recognise that the Scottish Sentencing Council is likely, in practice, to follow the purposes in any event, and there may also be reasons for not having this as a statutory obligation on the Council. Nevertheless, we believe the Scottish Government needs to do more to explain its thinking on these matters, so that the Committee can either satisfy itself that the relationship is an appropriate one, or consider how it might be amended at Stage2.

Sections 3-13 and schedule 1: The Scottish Sentencing Council

Background

39. At present, sentencing mainly operates on a case-by-case basis in the criminal courts, supplemented by the power of the Appeal Court to issue guideline judgements under the Criminal Procedure (Scotland) Act 1995, a power that has so far been little used.

40. The Sentencing Commission for Scotland, set up by the previous administration in 2003, was tasked with considering what scope there was for improving consistency in sentencing, and reported on this topic in 2006.25 The report recommended that the Appeal Court should consider making greater use of its power to issue guideline judgements and that a sentencing advisory body, to be known as the Advisory Panel on Sentencing in Scotland (APSS), should be set up. with members from each level of the judiciary, the law enforcement agencies, the prosecuting authorities, the legal profession, offender management services and organisations working with victims and the wider community. The APSS would be responsible for drafting guidelines for consideration by the Appeal Court on general topics related to sentencing, on new sentencing disposals introduced by legislation and on particular categories of crimes and offences. The Appeal Court would then approve the draft guidelines, refer them back to the APSS for further consideration, or decline to approve them.26

41. The Scottish Prisons Commission, in its report Scotland’s Choice, published in July 2008, supported the establishment of a body to develop clear sentencing guidelines applicable nationwide to aid consistency and improve the effectiveness of sentencing.27

42. The Scottish Government agreed that there was a need for a statutory body to produce sentencing guidelines and in September 2008 its proposals for a Scottish Sentencing Council were published for consultation. Over 40 responses were received and, although the majority were in favour of the proposals, some concerns were raised about the proposed relationship between the Sentencing Council and the Appeal Court. In particular, the High Court Judges said that the proposed relationship between the Sentencing Council and the Appeal Court was unsatisfactory, unworkable and unacceptable. In the Judges’ view the proposals would have significant impact on the independence of the judiciary and would fundamentally alter the position of the Appeal Court in its role of controlling the development and application of sentencing policy.28

The proposals

43. Section 3 of the Bill establishes a Scottish Sentencing Council (the Council). Its functions, under section 4, are to prepare and publish sentencing guidelines and, in doing so, promote consistency in sentencing practice, assist the development of policy in relation to sentencing, and promote greater awareness and understanding of sentencing policy and practice.

44. Section 5 provides that sentencing guidelines may relate to the principles and purposes of sentencing, sentencing levels, the particular types of sentence that are appropriate for particular types of offence or offender and the circumstances in which the guidelines may be departed from. Guidelines must include an assessment of the relevant costs and benefits and an assessment of the likely effect on the number of persons detained in prisons or other institutions, the number of persons serving sentences in the community, and the criminal justice system generally.

45. The Scottish Government’s overall policy objective in creating the Council is—

“to help ensure greater consistency, fairness and transparency in sentencing and thereby increase public confidence in the integrity of the Scottish criminal justice system.”29

46. Before publishing any sentencing guidelines, the Council is required to publish a draft and consult the Scottish Ministers, the Lord Advocate and such other persons as the Council considers appropriate. When finalising a guideline, the Council must have regard to any comments made on the draft.

47. Courts must have regard to any final guideline which is applicable to a case before them. If the court decides not to apply any relevant guideline, it must state its reasons for not doing so.

48. The Council will comprise twelve members: the Lord Justice Clerk, as chairing member, four other judicial members (one other High Court judge, two sheriffs or sheriffs principal and one JP or stipendiary magistrate), four legal members (one prosecutor, one constable, one advocate and one solicitor) and three lay members (one of whom must have knowledge of the issues faced by victims).

49. The Lord Justice General, after consulting the Scottish Ministers, will be responsible for appointing the judicial and legal members. The Scottish Ministers, after consulting the Lord Justice Clerk, will be responsible for appointing the lay members.

Evidence received – general comments

50. Most witnesses from whom the Committee took evidence were supportive of the aims behind the proposals for the Council – to contribute to greater consistency, fairness and transparency in sentencing and thereby increase public confidence. Many witnesses also recognised that a sentencing council could contribute to a greater knowledge base, the development of public policy and better research into public attitudes to sentencing.

51. In support of the proposals, Professor Neil Hutton commented —

“The Council provides an institutional space for judges to work with others to develop sentencing policy. Crime and punishment have become such sensitive political issues that many jurisdictions have found it helpful to develop an institution which provides an opportunity to develop a more rational, evidence-based approach to policy-making which can be pursued away from the media glare of the world of electoral politics. Guidelines will provide a clear and transparent structure within which judges can exercise their discretion at the level of the individual case. This will help the public to understand sentencing decisions and, over time, lead to enhanced public confidence in the courts.”30

52. Victim Support Scotland also expressed support and said—

“It is about the need to build public confidence in our sentencing processes, so that there is demonstrably a greater understanding of consistency in sentencing. That is required in the 21st century. The sentencing guidelines will be an important tool for judges and other sentencers. The proposal is a win-win for communities, victims and the criminal justice system.”31

53. The Scottish Police Federation (SPF) said it supported the establishment of the Council and its aim of ensuring greater consistency in sentencing. It considered however that the requirement on the Council to include in any guidelines “an assessment of the likely effect of the guidelines on the number of persons detained in prisons or other institutions” was incompatible with the principle of the punishment fitting the crime.32

54. The Scottish Centre for Crime and Justice Research said that the Council had the potential to make sentencing practice more consistent and just, although that would depend on its powers and how it was organised.33

55. The Scottish Consortium on Crime and Criminal Justice (SCCCJ) was unable to reach a consensus view on the merits of the Council as proposed, saying “the case for and likely effects of a Sentencing Council are far from clear”.34 It drew attention to some of the arguments it had considered: that retaining judicial control over sentencing provides a necessary independence from political intervention; that prison populations have risen in most US states which have developed sentencing guidelines; that guidelines can reduce judicial discretion and can carry the risk of unjust sentences being imposed in individual cases; but that on the other hand it is legitimate for governments to set a sentencing policy to make the most effective use of scarce criminal justice resources and that the current system of individualised sentencing does not make provision for consistency in sentencing.35

56. Professor Spencer, representing the SCCCJ, said—

“the proposal for a sentencing council is a case of using a sledgehammer to crack a nut. I am not sure that I completely favour a sentencing council, because we have to get the number of people in prison down, and judges have to fit in to that framework.”36

57. Other witnesses, most particularly sentencers, did not feel they could support the Sentencing Council as proposed in the Bill.

58. Lord Gill, the Lord Justice Clerk, agreed that there was a role for a sentencing council in Scotland but not the role as envisaged in the Bill. He said—

“We need hard research to establish the effects of sentencing. The courts have before them a wider range of disposals than they have had at any stage in history. We need to know how to measure the success of those disposals and, if a criterion exists for their success or failure, to know what is happening out there in the field. Useful research could be done on that.”37

59. For those who did not feel able to support the creation of a Sentencing Council as envisaged in the Bill, four main areas of concern were expressed in evidence: firstly, that the proposals were founded on an unproven claim of inconsistency in sentencing; secondly, that the Sentencing Council as proposed would undermine the independence of the judiciary by taking decision-making away from the Appeal Court; thirdly, about the composition of the Council and in particular its lack of a judicial majority; and, fourthly, about cost in a time of budget pressures.

Inconsistency in sentencing

60. One of the main policy objectives behind the proposal to create a Sentencing Council is to improve consistency in sentencing. The question of what evidence exists of a lack of consistency was one that arose repeatedly throughout the evidence taking.

61. In his foreword to the Sentencing Commission’s report, Lord McFadyen (the Commission chairman) had concluded—

“While there is little research evidence measuring the extent to which there is inconsistency in sentencing in the courts in Scotland, there is a public perception that such inconsistency exists, and the Commission has concluded that that perception is in some measure well founded.”38

62. The Lord Advocate endorsed this view, saying that—

“it can be difficult to assess whether there is inconsistency in the sentencing process because of the absence of data and, indeed, of a system that is open to examination. I have been a practitioner in the courts over the years and I can tell you that there is anecdotal evidence across the board that some sentences surprise practitioners and that in certain circumstances it is difficult to predict what the sentence will be … On days when a particular judge is known to be on duty, there might be a queue of enthusiastic guilty pleas, but on other days the court can be a veritable desert as far as guilty pleas are concerned.”39

63. Henry McLeish, the Chair of the Scottish Prisons Commission, said that there was sufficient evidence from various sources to suggest that there are inconsistencies in sentencing throughout Scotland. He cited publicly recorded cases that generate public debate, court decisions and anecdotal evidence.40

64. Community Justice Authorities (CJAs) also felt that there was inconsistency in sentencing. Tony McNulty of Lanarkshire CJA referred to court statistics and said—

“in some courts 22 per cent of the sentences that are imposed are custodial, whereas in other courts custodial sentences account for 11 per cent of sentences. There seems to be no rhyme or reason for such variations in sentencing.”41

65. However Dr Cyrus Tata of the Centre for Sentencing Research at the University of Strathclyde cautioned against drawing such inferences directly from “bald statistics”, since they did not take account of possible differences in the cases that come before different courts. As he put it, the statistics “do not control for input. If you do not control for input, you are unable to control for output.” Nevertheless, Dr Tata cited a range of studies which had been carried out which together provided some limited evidence of inconsistency, together with evidence of consistency: “The overall picture is rather like a bell curve, with a lot of consistency and some variation.”42

66. Professor Fergus McNeill of the Scottish Consortium on Crime and Criminal Justice agreed that it was impossible to establish conclusively whether there was inconsistency through research. However, he believed there was “variance in sentencing that seems to be beyond what is defensible”. He based this view on statistical evidence, research studies and anecdotal evidence, including the fact that—

“At intermediate diets, some people will plead guilty instantly if the judge whom they are going to appear before is deemed to be a relatively lenient sentencer. If a harsher or more punitive sentencer is on the bench, the person will not plead guilty in the hope that, when they return to court later, they will face a different judge. Judges know that this happens. It is called judge shopping and … it goes on to a significant degree in our system.”43

67. Victim Support Scotland said that in its view, there was little evidence of inconsistency, but even less evidence of consistency and added—

“People have the right to understand why a particular sentence was given in a particular case. That is what sentencing guidelines can do for us.”44

68. For Professor Neil Hutton of the Centre for Sentencing Research at the University of Strathclyde, demanding evidence of inconsistency got things the wrong way round—

“The onus is on the judiciary to tell us what they mean by consistency, and to explain that in a transparent way to the public. They do not have a language – that is a criticism not of judges but of the structure in which they work – that enables them to talk about consistency. That is why we need guidelines, and the sentencing council.”45

69. The judiciary, however, was not convinced. Lord Hamilton said that he was not aware of, and no one had brought to his attention, any empirical evidence to suggest that there is inconsistency of sentencing in Scotland. He offered access to court records to allow an empirical exercise to be carried out, saying that—

“we should want to know that there is truly an inconsistency in sentencing before undertaking the very expensive exercise of setting up a body of the kind envisaged in the Bill, with operating funds that have been identified of more than £1 million a year.”46

70. This view was supported by Ian Duguid QC, of the Faculty of Advocates, who said that he had not seen “an inconsistency in sentencing to the point at which another body would be required to set guidelines.”47

71. Bill McVicar from the Law Society of Scotland questioned whether consistency in sentencing is, in fact, desirable—

“We are concerned to understand what is meant by consistency in sentencing. Two apparently similar cases may attract different sentences for reasons that are particular to those cases; that is the difficulty in applying strict guidelines. The question is whether we want uniform sentences or consistent sentences – and what is meant by consistent sentences. It seems to me that such matters are not properly dealt with in the Bill.”48

72. The Lord Justice Clerk felt that a definition of consistency was essential if sentencing was to be a stated aim of the legislation—

“The consultation paper started off by talking about inconsistency and then spoke about a perception of inconsistency, which is rather a different thing. It is not quite clear yet what the legislation seeks to achieve. There is no definition of consistency in the draft, and it seems to me that those who would form a sentencing council would find some difficulty in knowing exactly what they were trying to do unless the legislation gave them a clear definition by which to judge their own views and decisions.”49

73. The Cabinet Secretary for Justice explained the rationale for the provisions in the Bill as follows—

“We have founded our approach on the conclusions of the Sentencing Commission for Scotland, which was an august body that contained senior figures, including senior members of the judiciary. We are building on their comments. … Factors other than inconsistency are involved. However, we think that there is disquiet among the public about inconsistency in sentencing, which must be tackled, whether it is based on anecdotal evidence or reality.”50

The powers of the Council and the independence of the judiciary

74. While most witnesses were generally supportive of sentencing guidelines, there was significant disagreement on whether a new Sentencing Council was needed and whether its role should be more than advisory.

75. In their written submission, the High Court judges observed that the Council will prepare guidelines “which will have direct legal effect thus restricting the sentencing discretion and power not only of all courts, including the High Court sitting as a court of appeal (section 7(1)(a)), but also of that court when carrying out its other function of issuing guideline judgments (section 7(1)(b)).” The Council will also have the power to prescribe when its guidelines may (and presumably may not) be departed from (section 5(3)(d)).

76. In the judges’ view, the Bill’s proposals—

“strike directly at the independence of the judiciary (and in particular of the High Court) as the arm of Government essentially responsible for the setting of sentencing policy. The proposals (as framed) are fundamentally unacceptable both on domestic constitutional grounds and because mandatory directions to the court by a non-judicial body undermine the judicial independence required of courts by Article 6 of the European Convention on Fundamental Rights and Freedoms.”51

77. In his oral evidence, Lord Hamilton expanded on these objections—

“One has to recognise the radical difference between the proposals now made and the proposals that were made by the Sentencing Commission for Scotland, chaired by Lord Macfadyen. The commission recognised the importance of the High Court of Justiciary, as the senior criminal court in Scotland, being the ultimate body responsible for laying down sentencing guidelines. It saw the advantage in there being an advisory body with a research facility for undertaking exercises and putting matters before the appeal court for endorsement or otherwise. However, I think a situation in which an outside body that is not itself elected and which comprises, as the present proposals indicate, a majority of non-judicial office-holders impinges on the independence of the judiciary, if that body is to lay down what are, in effect, prescriptive guidelines.”52

78. While Lord Hamilton accepted that any guidelines published by the Sentencing Council would not be binding, the requirement on the court to “have regard to” them would be “constraining to a significant extent, as I think it is intended to be”. This would not be welcome in the context of guidelines laid down by a sentencing council as opposed to the Appeal Court.53

79. The Royal Society of Edinburgh (RSE) pointed out that, while the Policy Memorandum cited the Sentencing Commission as the origins of the proposals in the Bill, it did not mention that the Commission had only been in favour of an advisory body and against a sentencing guidelines council; nor did the Memorandum explain why the Scottish Government had taken a different view. In the Society’s view—

“the purpose of the Sentencing Council is open to grave objection on constitutional grounds. Sentencing policy is, and should remain, a matter for the Parliament on the one hand and the Appeal Court on the other, following, we may say, a public hearing. It is fundamentally wrong that sentencing policy should be determined by a Sentencing Council, for which it appears that the executive have disproportionate influence on the procedure for appointment of members.”54

80. However Professor Neil Hutton did not accept that a Sentencing Council undermined judicial independence—

“Judicial independence means that a judge makes a decision in an individual case. It is entirely appropriate for a body such as a sentencing council to develop a broader sentencing policy or to decide what sentencing should be for particular types of cases. I do not think that interferes with judicial independence at all.”

81. Indeed, he suggested, well-crafted guidelines, by “giving judges something to argue about” would bolster judicial independence—

“If they decide to depart from the guidelines in a particular case, they can set out the range of penalties for the crime and then give a clear reason in public for their decision. Unlike the present situation, such a move blends consistency and individualised sentencing in a way that is transparent to the public.”

82. Nor, in his view, did judicial independence require the sentencing council to have only an advisory role—

“If we have a sentencing council whose task is to devise guidelines, it is appropriate that it should have final authority. That preserves judicial independence at a sufficient level, as it allows the appeal court to make decisions in individual cases.”55

83. Dr Cyrus Tata agreed that “in principle, a sentencing council can … be a way of buttressing the judicial independence rather than detracting from it”, but it depended on the detail. He had some concerns that the council as proposed in the Bill “appears to report mainly to the Scottish Ministers and, to some extent, the Lord Advocate. I would want it to be more distanced from the Executive and perhaps a little more accountable to the Parliament.”56

84. John Scott, representing the SCCCJ and the Howard League for Penal Reform, was concerned that the Council might be exposed to undue political pressure, or pressure from the media. He was not wholly opposed to such a body, suggesting that it could play a useful role if it was an advisory body rather than one that issues guidelines.57

85. However, David McKenna of Victim Support Scotland was opposed to a Sentencing Council that was purely advisory—

“I am not sure whether that arrangement would be as effective in demonstrating sentencing consistency to the public as the approach that is set out in the Bill. An advisory group might just disappear into the background and never be heard from again.”58

86. Henry McLeish downplayed the significance of a sentencing council, suggesting that the arguments on both sides were in danger of becoming polarised. He saw no threat to the independence of the judiciary, described the establishment of a sentencing council as “a modest measure that should not get too many people too excited” and said that he had no strong views on how it operated. His only concern was—

“that the sentencing council should not appear as an ultra-quasi-legal body that looks like it is imposing its individual judgments on the work of the courts.”59

87. James Chalmers (Edinburgh University) said that, as the Bill makes clear that the final decision on sentencing is still left to judges, he did not see how independence would be undermined.60 Similarly, the Lord Advocate said it was “quite clear that it will not be the council’s role to provide prescriptive mandatory guidelines or to interfere with judges’ independence in individual cases.”61

88. The Cabinet Secretary for Justice explained why he felt there was no substance to fears that the Sentencing Council would undermine the independence of the judiciary. He pointed to the fact that the Parliament had only recently enshrined the independence of the judiciary in statute and that there was no intention to go against this—

“We have made it as clear as we can do that we will not interfere with the ultimate responsibility of each sheriff or judge to make the decision that they think is appropriate to the specific offence of the individual offender who appears before them. … I just cannot see the basis on which the sentencing council could be viewed as unconstitutional. It will not interfere with the independence of the judiciary and it is clearly intra vires.”62

89. He also argued that—

“the sentencing guidelines must be more than advisory. The judiciary will have the opportunity to say that the guidelines do not fit in the particular circumstances of an individual offender or individual offence. … However, in the main, the guidelines will apply.”63

90. On a related point, a number of witnesses expressed concerns about section 5(3)(d) of the Bill, which allows the Sentencing Council to specify the circumstances in which sentencing guidelines may be departed from. The Sheriffs’ Association described this as “an unwarranted restriction on sentencing in individual circumstances” and suggested it ran counter to section 7(2) of the Bill, which allows a court not to follow guidelines (so long as it states its reasons for doing so).64 Lord Cullen, speaking for the RSE, agreed that section 5(3)(d) enabled the Sentencing Council to restrict the scope of the court to depart from its guidelines, noting that the court in turn could not force the Council to review guidelines: “We are dealing with a constitutional point – whether the court remains in charge of its original and proper constitutional responsibility to determine sentences”.65

91. The Sheriffs’ Association also expressed concerns about section 5(5), which requires the sentencing guidelines to include “an assessment of the costs and benefits to which the implementation of the guidelines would be likely to give rise, and an assessment of the likely effect of the guidelines on the number of persons detained in prisons or other institutions, the number of persons serving sentences in the community and the criminal justice system generally”. According to Sheriff Fletcher, it would be inappropriate for sentencers to take such matters into account—

“We think that the person who is being sentenced is entitled to be sentenced by someone whose attention is not directed at whether there is a place available for them”.66

Sentencing Council – membership

92. A closely related issue was about the composition of the Council and, in particular, the fact that it is to have only a minority of judicial members. The High Court judges, the Sheriffs’ Association, the Scottish Justices Association, the Faculty of Advocates and the Royal Society of Edinburgh all argued that the Council should have a judicial majority – particularly if it was to have more than a purely advisory role.

93. Lord Hamilton set out the changes in membership he would like to see—

“It would be inappropriate merely to have the Lord Justice Clerk as the chairman and one other judge – in effect, a first-instance criminal judge – as the only senators on the council. I would be minded to double that to four senators. I would leave the number of sheriffs and justices the same, but I would remove the constable, because I do not recognise the function of the constable in that regard. I would reduce the provision in paragraph 1(5)(b) in schedule 1 from “two other persons” to “one other person” which would mean council membership of 12, with judicial office-holders being seven of the 12.”67

94. The Sheriffs’ Association said that it would be difficult for sheriffs, or the public, to have confidence in a body that did not have a judicial majority.68 The RSE said it could not support a Council with only a minority of people having experience of sentencing. John Scott said he would “lean towards having a majority of judges on the sentencing council, if it were going to be more than just advisory”.69

95. Professor Fergus McNeill was less concerned about an overall judicial majority than with the balance among the judicial members, arguing that the focus should be on including more sheriffs rather than senior judges.70

96. There were also some specific concerns about the drafting of the provisions for judicial members of the Council. The Sheriffs’ Association was concerned that the drafting could allow there to be two sheriffs principal and no sheriffs, given that sheriffs principal have no active role in sentencing. Similarly, the Scottish Justices Association questioned the provision requiring one Council member to be either a justice of the peace or a stipendiary magistrate. Pointing out that there were hundreds of JPs doing a great deal of criminal work across Scotland and only a handful of stipendiary magistrates, all based in Glasgow, the Association said it would be “extremely concerned if we did not have a say or a place on the sentencing council”.71

97. There were also arguments about the legal and lay membership of the Council. The Scottish Justices Association questioned the need for the police or the legal professional bodies to be represented and suggested that, if they were to be represented, so too should the Scottish Prison Service and perhaps COSLA.72 The Joint Faiths Advisory Board on Criminal Justice said that it would be preferable to draw membership of the Council from a wider range of professions involved in the justice system, and suggested additional lay members from the Scottish Prison Service, criminal justice social work teams and community justice authorities.73 Action for Children Scotland suggested that the membership should include a representative from an agency working directly in the rehabilitation of offenders.74

98. However Mike Ewart, Chief Executive of SPS did not agree that his organisation should be represented on the Council, for two reasons—

“First, we are required to discharge the lawful warrant that is the outcome of a sentence. Secondly, unlike some other organisations that take part in such discussions, we are part of Government and could be seen to be directed by ministers. I do not think that such a position would be helpful for us or for the sentencing council.”75

99. The Community Justice Authorities said they were relaxed about the proposed membership of the Council so long as lay people and victims were represented.76 But Professor McDonald of the Royal Society of Edinburgh disagreed—

“There is very little point to involving non-experts in making expert decisions. If the problem is public perception, and we then involve members of the public without improving public perception, perhaps we need to educate our masters, if such they are to be.”77

100. The Cabinet Secretary for Justice explained the rationale for the composition that was proposed in the Bill—

“The council will be judicially led. We accept that that is important. We are open to persuasion, but our view is that it is important that the council also has representatives of broader society … it is important that we take into account others who have an interest, such as the police, the prosecution service or Victim Support Scotland.”78

Sentencing Council – cost and resourcing

101. The Bill’s Financial Memorandum states that establishing the Scottish Sentencing Council is one of the proposals in the Bill that carries a significant financial impact and estimates the annual budget at between £1 million and £1.1 million, plus one-off set-up costs of £0.45 million. These costs are to be met entirely by the Scottish Government as part of its funding of the Scottish Court Service.

102. The Judges of the High Court of Justiciary questioned whether this cost could be justified—

“We are profoundly concerned that, at the present time of financial stringency, when the justice system has other very pressing demands for funding – not least of judicial training and of the provision of judicial manpower – the Government is promoting and the Parliament is contemplating such expenditure on such a Council.”79

103. Similar doubts were expressed by the Faculty of Advocates and by the Scottish Consortium on Crime and Criminal Justice (SCCCJ), who suggested that, “given the pressures on the criminal justice budget, the sum required for the establishment of a Sentencing Council could be spent more effectively in other ways.”80

104. Asked to expand on this in oral evidence, Professor Fergus McNeill pointed out that the estimated £1 million annual running cost of the Council could buy 25 prison places for a year, or nearly 1,000 community penalties. However, his personal view was that—

“investing £1 million in producing a coherent and rational approach to sentencing would be an excellent use of taxpayers' money—as long as a coherent and rational approach was indeed the outcome.”81

105. In its report, the Finance Committee notes that the Scottish Court Service agreed that cost estimates for the Scottish Sentencing Council were “in the right ballpark” but that it could not be expected to meet the costs of running the Council without receiving additional funding from the Government. The Finance Committee’s report also draws attention to the £97,000 costs associated with the post of the Sentencing Council’s chief executive, and to ongoing discussions about the extent to which support services for the Council could be provided by the body that will shortly replace the Scottish Court Service.

Committee conclusions

106. The Committee recognises that some degree of inconsistency in sentencing is probably inevitable in any system that respects the independence both of the judiciary as a whole and of individual sentencers. We also accept that there is a perception, both among people working in the justice system and among the wider public as well, of at least a degree of inconsistency in the sentences given out by different judges or in different locations for similar offences. We have not been convinced that there is clear objective evidence – as opposed to anecdotal and circumstantial evidence – to substantiate this perception, no doubt partly because of the inherent difficulties involved in comparing individual sentencing decisions on a like-for-like basis.

107. We regard any actual – or indeed perceived – inconsistency as a problem, in that it runs counter to the principle of fairness that must be central to any justice system. We therefore support the aim of minimising inconsistency in sentencing. However, that aim cannot be an over-riding one, and must clearly be balanced against other considerations – including cost, and the potential for compromising other principles of justice. A majority of the Committee is not yet convinced that a Scottish Sentencing Council, as proposed in the Bill, can be justified in terms of its capacity to reduce inconsistency beyond what might be achieved using existing mechanisms (such as the existing power of the Appeal Court to issue guideline judgments). On the other hand, we are also conscious that there are other aims for the Council, including the consideration of wider sentencing issues, and the promotion of relevant research. We accept that there may be a case for the setting of guidelines for sentencers, but recognise that there are issues as to how such guidelines are approved and promulgated. Overall, taking account of the other aims that it may serve, which we support, we recognise that there could be merit in a Sentencing Council.

108. A Sentencing Council will inevitably have some influence on judicial discretion (indeed, there would be little point in having it if it did not), and there is a tension between that and the principle of separation of powers.

109. There was no consensus view in the Committee on how that tension is best addressed. A majority of members would prefer a structure in which sentencing guidelines developed by any Sentencing Council would take effect only after formal endorsement by the Appeal Court. These members argue that such endorsement would no doubt be forthcoming in the large majority of cases, but such a structure would also enable there to be a constructive dialogue in cases where the Court questioned some aspect of the guidelines proposed. These members also believe that having any guidelines issued with the authority of the Court itself is the best means of resolving the constitutional concerns about the role of the Sentencing Council that some witnesses have raised.

110. An alternative view within the Committee is that, to the extent that any adjustment to the provisions of the Bill is needed to address those concerns, it would be preferable to adjust the composition of the Council to provide a judicial majority. On this view, any structure that leaves the courts with the final say on sentencing guidelines would not represent a sufficient advance over the present arrangements.

111. In that context we regard the safeguard in the Bill – that any court can decide not to follow a sentencing guideline so long as it states its reason for doing so – as essential, and the minimum necessary to preserve judicial independence. We will keep an open mind during Stage 2 as to whether further such safeguards are necessary, particularly whether the Council’s composition should be adjusted to ensure there is a judicial majority.

112. On other aspects of the Council’s composition, we can be more definite. We do not believe that a constable should be included among the “legal members” (although it will of course be important for the police to have a proper input in other ways to the Council’s deliberations). We also think there is at least a question whether a prosecutor should be included. We do not support any of the various suggestions made to us for additional members (such as a representative of the Scottish Prisons Service, or of local authorities). We do, however, have sympathy with concerns made in evidence that the Bill would allow – at least in principle – the appointment of two sheriff principals but no sheriff, or two stipendiary magistrates but no JP – thus unbalancing the judicial composition of the Council. This may be unlikely in practice, but we suggest that some redrafting would address these concerns – perhaps by amalgamating what are currently separate requirements into a single requirement for three judicial members holding (any of) the offices of sheriff, sheriff principal, JP or stipendiary magistrate, of whom at least one must be a sheriff and at least one a JP.

113. We note the concerns of some witnesses as to the costs of establishing a Sentencing Council, and ask the Scottish Government to consider further whether this cost is still a priority for the use of scarce Justice Department resources at a time of financial stringency.

Section 14: Community payback orders

Background and proposals

114. The Scottish Government’s 2007 report Reforming and Revitalising: Review of Community Penalties82 recommended a single community sentence to replace the existing probation orders, community service orders, supervised attendance orders and community reparation orders.

115. The Scottish Prisons Commission recommended that prison “should be reserved for those people whose offences are so serious that no other form of punishment will do and for those who pose a threat of serious harm to the public.” Accordingly, “to move beyond our reliance on imprisonment as a means of punishing offenders”, the Commission recommended that “paying back in the community should become the default position in dealing with less serious offenders”. The Commission wanted there to be a single community sentence, with judges provided with a wide range of “payback” options through which offenders could make good to the victim and/or the community whether by unpaid work, engaging in rehabilitative work that benefited both victims and communities by reducing re-offending, or some combination of these and other approaches.83

116. Taking forward these recommendations, section 14 of the Bill inserts 37 new sections into the Criminal Procedure (Scotland) Act 1995 in order to provide the statutory basis for community payback orders (CPOs). These orders (CPOs) are intended to be easy to understand in contrast to “the unnecessarily complex range of sentencing options currently available which are not readily understood by the public.” However, CPOs will not replace two existing orders – Drug Treatment and Testing Orders (DTTOs) and Restriction of Liberty Orders (RLOs), which the Policy Memorandum anticipates will continue to be used for around 10% of community disposals.84

117. A CPO is defined (by inserted section 227A(2)) as an order imposing one or more of the following requirements on the offender: a supervision requirement, an unpaid work and activity requirement, a programme requirement (a course or planned set of activities designed to address the behavioural needs of the offender), a residence requirement, a mental health treatment requirement, a drug treatment and testing requirement, and an alcohol treatment requirement.

General response of witnesses

118. Many witnesses were broadly supportive of the proposed new CPOs.85 For example, the Scottish Consortium on Crime and Criminal Justice welcomed them as implementing recommendations of the Scottish Prisons Commission that put the emphasis on “flexibility, reparation and ‘problem solving’ sentencing”, and as an effective approach to reducing imprisonment.86 But many witnesses argued that for these proposals to be effective, they would need to be properly resourced. Many also emphasised the importance of ensuring that the nature of the community payback work needed to be properly explained to the public.

119. The Wise Group said that it supported the new CPOs and advocated a more holistic approach to addressing offenders’ needs and reducing reoffending. In its experience, programmes to support offenders are better provided in the community than in prisons.87

Terminology

120. Some witnesses were critical of some of the terminology used in relation to the new orders. The Faculty of Advocates said that it would be “particularly inappropriate” to describe those requiring mental health treatment or alcohol treatment as undertaking community payback, suggesting that a more general title such as “community involvement orders” would be preferable.88

121. The Scottish Children’s Reporter Administration pointed out that the term “supervision requirement”, used in section 14 for one of the requirements of a CPO, is also the name given to an order made by a children’s hearing under section 70 of the Children (Scotland) Act 1995—

“As it is possible that both types of supervision requirement might apply to an individual child or young person, SCRA suggests that another name is found for the order created under section 14 to avoid confusion.”89

Consequences of non-compliance

122. For Yvonne Robertson of the Association of Directors of Social Work (ADSW), a particular advantage was that—

“The new order will also provide an opportunity for the imposition of electronic monitoring, if someone is taken back to court for breach. … If an offender is in breach currently, the court either allows the order to continue or considers sending them to prison. The imposition of electronic monitoring, with the support that the community payback order will provide, may be sufficient to help some offenders to move away from non-compliance towards compliance.”90

123. Victim Support Scotland also supported the CPO provisions, but wanted greater clarity from the outset about the consequences of non-compliance. It therefore suggested that—

“an alternative (suspended) sentence should be set out by the court alongside the community payback order, which would announce what sentence would be given if the offender breaches the payback order”.91

124. Challenged on how compliance with CPOs would be managed, the Cabinet Secretary pointed to local monitoring mechanisms that were in place, the introduction of progress courts and the option of electronic monitoring. He also argued that it was—

“not simply about keeping people on a tight leash and berating them; sometimes it is about encouraging them, and saying how well they have done. We are giving sheriffs the flexibility to encourage people who are doing well to overcome their addictions, to become less of a nuisance in their communities and to contribute as net taxpayers who function manageably in our communities, rather than their being a drain on taxpayers.”92

Drug treatment and testing orders

125. Drug Treatment and Testing Orders (DTTOs) are generally used as a high tariff disposal for drug-misusing offenders who might otherwise receive a custodial sentence. They have two objectives: to reduce the amount of acquisitive crime to fund drug misuse, and to reduce the level of drug misuse itself. A DTTO includes a requirement for regular reviews by the court to enable sentencers to monitor progress and a requirement that the offender consent to regular, random drug tests during the period of the order.

126. Although the Bill does not replace DTTOs, it includes a drug treatment requirement as one of the options available to the courts when imposing a CPO.

127. Cosla saw a potential difficulty with this, suggesting there was “potential for confusion” between DTTOs and CPOs that included a drug treatment requirement. A similar point was made by the Community Justice Authorities.93

Resourcing

128. The Financial Memorandum estimates that CPOs, together with the presumption against short periods of imprisonment or detention and reports about supervised persons, will cost £10.67 million per year (the mid-point figure between the costs associated with a 10% or 20% increase in community sentencing) plus one-off costs of £50,000. The majority of these additional costs will fall to be dealt with under the existing ring-fenced funding arrangements for local authority criminal justice social work services.94

129. The Financial Memorandum explains that, as it is difficult to predict sentencing practice, it is difficult to forecast what the take-up of the new CPO will be, when compared to existing sentences and against the backdrop of the new presumption against the use of prison sentences of six months or less. For indicative cost purposes therefore, the memorandum uses two assumptions – an increase of 10% and an increase of 20% in community sentences or community payback orders. In oral evidence, Wilma Dickson of the Criminal Justice Directorate explained that although around 12,000 sentences of less than six months were imposed each year, this translated into only around 6,000 individuals entering prison each year. A 10% increase in community sentences, representing 1,931 CPOs, was therefore equivalent to 31% of the current number of short-term prison receptions, while a 20% increase in community sentences was equivalent to 62% of those receptions.95

130. Councillor McGuigan of COSLA argued that, in order to make the new CPOs effective, there needed to be—

“a willingness to redistribute resources between the set of agencies – not just the Scottish Prison Service, but local authorities and the national health service … I simply do not think that the bill will work if the necessary resources are not in place. Local authority budgets are not as abundant as you might believe, and we are making considerable efficiency savings – cuts, if you like – in many services. … The provisions for community payback orders, which involve reviews, putting in place responsible officers and meeting other responsibilities, will cost the local authority a fair amount, which I cannot quantify at the moment.“96

131. Henry McLeish said that, in its report, the Prisons Commission had—

“made it clear that no one should be under the impression that the proposed changes could be made without considerable input of new resources – the statement was as bald as that. There must be new resources. If we are successful in the long term, there could conceivably be a transfer of resources from prisons to the community, but that cannot happen in the short term.”97

132. Mike Ewart, Chief Executive of the Scottish Prison Service, agreed that greater use of community penalties would not necessarily result, at least in the short term, in a significant reduction in prison populations or expenditure—

“During the period in which effective community disposals and interventions are built up and crucial confidence in them is developed, so that we collectively feel that that is the appropriate route, we will still have to maintain the required resource for keeping more or less the current population running through the prison system. There will not be a major shift of population until that confidence is established.”98

133. Victim Support Scotland presented a different perspective, arguing that there were “plenty of resources” in the system; the challenge was to find new ways of thinking about them. It wanted to see more use made of compensation orders to victims or, where no individual victim is discernible, to pay for improvements to the communities that suffered from the offending behaviour. 99

134. Many witnesses drew particular attention to the resource implications for criminal justice social work. For example, the view of Aberdeenshire Council was that—

“Whilst both elements of the new community payback orders have positive elements, their introduction is likely to have a significant impact on criminal justice social work resources; in particular, the need to identify, and supervise, additional work placements. There will also be an increase in the number of reports that will be required by Progress Courts.”100

135. The Association of Directors of Social Work (ADSW), while supporting CPOs “as an alternative to expensive and ineffective short sentences of imprisonment”, said it was necessary to acknowledge “that this will place increased demands on a range of specialist and mainstream services including local authority social work, housing and education services; health; Jobcentre Plus and others.”101

136. In evidence to the Finance Committee, Community Justice Authorities—

“expressed concern about the assumption in the Financial Memorandum that current funding for probation, social enquiry reports (SERs), community service orders and supervised attendance orders is adequate. They indicated that six of the eight authorities have this year asked for approval to move money from non-core funding to core funding, citing this as evidence that existing core funding is not sufficient for purpose and told the Committee, ‘we are concerned that, if we have a large increase in the number of CPOs, we may have to vire further moneys from non-core to core funding’.”102

137. The Finance Committee also heard concerns that Scottish Government funding for local authority core criminal justice functions had not kept pace with inflation, and that the funding formula was sometimes based on out-of-date activity levels and did not take account of the additional costs of service delivery in rural areas. Perth and Kinross Council made specific reference to the unit cost used for probation orders, saying that it is unrealistic and does not take account of people who require ever-higher levels of support and supervision if they are to escape the cycle of reoffending. The Community Justice Authorities suggested that the Financial Memorandum might underestimate the number of additional social enquiry reports (SERs) that would be required; in response, the Scottish Government confirmed that costings for additional SERs had not been included and that this would need to be kept under careful review.

138. In its report, the Finance Committee notes that funding for full implementation of the Bill has not been confirmed. It also notes that it has not received any evidence “to allow it to understand whether the estimated uptake of CPOs, of between 10 and 20 per cent, is accurate or whether this figure is likely to increase year-on-year, along with the cost implications” and drew attention to “the apparent disconnect” between the creation of a statutory presumption against short-term custodial sentences and the assumptions in the Financial Memorandum concerning the expected uptake of CPOs.103

139. The Cabinet Secretary said that the Scottish Government had already invested an additional £2 million in community service – “£1 million to get orders under way and completed more quickly, and a further £1 million in recognition of underlying workload pressures”. He said this represented a 15% increase between 2008-09 and 2009-10.

140. Mr MacAskill agreed that resources were required, for local authorities, for courts in respect of progress hearings and for the additional electronic monitoring capacity in order to deliver the approach envisaged by the Bill, and he announced that he would make a further £5.5 million available over the next two years – £1.5 million this year and £4 million the next.104 Wilma Dickson, for the Scottish Government, added that all of the £1.5 million going out this year would be distributed to local authorities on the normal distribution formula so that they could begin to clear current backlogs, and it was hoped that by the end of the second year, some funds could be redirected into CPOs.105

Availability of programmes and timescales for commencement and completion

141. For Raymund McQuillan of ADSW, one of the big advantages of the new CPO was that—

“It provides for a substantial tightening of timescales, which sends an important message from the courts to the public and to offenders about the commencement of new orders. We support the view that orders should be started and should finish quickly. The current arrangements provide for the work to commence within three weeks; under the new arrangements, that period would be reduced to one week. Current legislation allows one year for completion of a community service order; the new guidelines suggest that orders should be completed within three to six months.”106

142. The Cabinet Secretary confirmed in evidence that the target was “that unpaid work should start within seven days”.107

143. Victim Support Scotland wanted to tighten the legislation to make such a timescale enforceable. In its view, a CPO should not be made unless the relevant treatment or activity “is available at the time of sentencing. This will ensure that the offender will start the disposal straight away, instead of for instance waiting several months to begin a particular treatment, which gives a signal to the victim that nothing has happened.”108

144. But for Professor Neil Hutton, this was not the most important consideration relating to timing—

“If punishment is to be effective, the important issue is probably not immediacy after the decision to punish but immediacy after the commission of the offence, which is a different story altogether. How long do people have to wait before they come to court? That is a resource issue.”109

145. For Turning Point Scotland, the availability of programmes was crucial—

“When a Community Payback Order is made, and an offender is subject to its requirement, it is clear that the appropriate services must be in place if the goals of the Order are to be achieved. When they are not, or when the offender is forced into the wrong services, it is far more likely that they will be unable to address their issues, or even comply with the requirements. In this case they would be seen as having failed to meet the requirements under the order, when in reality the system has failed them”.110

146. However, when Councillor Harry McGuigan of COSLA was asked about current availability of existing community programmes, he said—

“I doubt very much whether there are sufficient programmes available for community sentences, especially if we move towards an increased demand or call on services that are to be delivered locally. The quality of such programmes is another matter, too. We need to question whether current resources are sufficient to enable quality, effectiveness and credibility in community sentences.”111

Progress reviews

147. An important element of the new regime is the option for courts to require periodic “progress reviews” of CPOs, which the offender must attend. On conclusion of a progress review, the court may vary, revoke or discharge the CPO (inserted section 227W).

148. The Association of Directors of Social Work supported the introduction of progress reviews, but said they should be “targeted rather than universally applied to all offenders”.112 The Community Justice Authorities and COSLA also welcomed the provision, but suggested that in order to ensure consistency in the operation of the reviews, further guidance on the purpose and practice for reviews should be issued, following consultation with stakeholders.113

149. The Scottish Centre for Crime and Justice Research was critical of the fact that, under the Bill, progress reviews would be optional rather than mandatory, and would be conducted by the mainstream criminal courts rather than by specialised “progress courts”—

“In our view this represents a missed opportunity. The Prisons Commission, based on clear evidence, highlighted that because the business of desisting from crime (and complying with both community supervision and the law in general) is complex and challenging for offenders, the management of that process might be better remitted to a court in which specially trained judges and court social workers could better support it. In our view, removing that function from already busy generic criminal courts and placing it within a more specialised progress court made considerable sense and merits re-examination.”114

150. But the decision to make progress reviews optional was greeted “with some relief” by the Sheriffs’ Association, who said that “for them to be mandatory would be unduly burdensome to the system financially and take up already precious court time.”115

Other suggestions in relation to community payback orders

151. The Scottish Centre for Crime and Justice Research said that for the new CPO to be effective, changes to the Bill would be required to take account of existing research on effectiveness—

“As a disposal, its effectiveness will be improved by acting on the research evidence about how to increase both public support for community penalties and behavioural change in offenders. The two key factors are clarity (as to what a community punishment is) and speed (with which the order is made and fulfilled). This evidence suggests careful consideration and some re-drafting is required of provisions on conditions (to prevent ‘condition loading’), progress reviews, the role of Responsible Officers, and continuing to have separate community orders (like RLOs and DTTOs).”116

152. Victim Support suggested that the existing requirement to explain in ordinary language the purpose of the CPO requirements, and the consequences of non-compliance, to the offender should also be extended to the victim (unless he or she did not wish to receive this information).117

153. On a similar theme, Sacro suggested that individual victims or communities affected by offenders’ behaviour should be given a direct input into the nature of community payback activity undertaken (“reparative tasks”). Without such a facility, the Bill would—

“miss an important opportunity to gain widespread support for a refocussing of the objectives of our criminal justice system to give increased attention to repairing the harm caused by offending together with reducing the likelihood of re-offending”.118

154. The Joint Faiths Advisory Board on Criminal Justice said that it would like to see restorative justice included as part of the community sentencing, with a focus not just on the offender but on the victim and the community.119

Mental health treatment requirement

155. The Scottish Association for Mental Health (SAMH) noted that instead of imposing a sentence of imprisonment, a court may instead impose a CPO which could include a “mental health treatment requirement”. They said—

“SAMH has long argued that people who have mental health problems should receive treatment rather than being imprisoned, and we hope that this Bill might present a mechanism for this. However, we are unsure about how this system would work in practice and specifically seek clarification about the role of judges.”

156. SAMH sought clarity on who would make the decision to seek the view of a medical practitioner, how this regime would relate to the existing Mental Health Tribunal and asked whether there was a risk of a parallel system being set up. It also questioned whether the new regime would be subject to the same principles as underpin the Mental Health (Care and Treatment) Act 2003, without which there could be “an unfair disparity which would cause SAMH great concern”.120

157. The Mental Welfare Commission for Scotland (MWC) said that it had significant concerns about the provision for a “mental health treatment requirement” in a CPO (under inserted section 227R), and that it was not clear what status an individual subject to such a requirement would have in the context of hospital or outpatient treatment. The MWC highlighted some specific concerns, including that there does not appear to be any requirement for a report from a Mental Health Officer or a social work report to assist with decisions; that there does not appear to be any consideration of the individual’s ability to consent to treatment; and that the individual would have no automatic recourse to independent or statutory review or to the safeguards that are available to people who are otherwise subject to compulsion in respect of mental disorder.121

Committee conclusions

158. The Committee broadly supports the creation of community payback orders (CPOs) on the grounds that they should simplify and strengthen the current range of community sentences, allowing more focus on offenders’ needs.

159. However, we are also convinced that CPOs will not deliver the benefits envisaged for them unless they are adequately resourced – and we find it difficult or impossible to be sure at this stage whether sufficient funds have been or will be made available.

160. We are conscious that the level of take-up of CPOs will be closely linked to the views of sentencers on their effectiveness and the impact of any new statutory presumption against short-term custodial sentences, and that the Scottish Government itself cannot forecast with any confidence how many CPOs are likely to be made. What does seem clear is that there is very little prospect of any significant savings being made, in the short to medium term, in the largely fixed costs of running Scotland’s prisons even if the Bill succeeds in its aim of diverting a substantial number of offenders from custodial to community disposals. Therefore, even though community sentences are generally cheaper than imprisonment, there will be a need for additional resources to make this approach work. (We also recognise, however, that if nothing is done to address rising prison populations, it will at some point become necessary to increase prison capacity, and that this will also have significant resource implications.)

161. We strongly believe that, if CPOs are to gain credibility with the public, and with the victims of crime in particular, they must begin (and be seen to begin) very shortly after sentence is declared – either on the day of sentence or (where this is not practicable, as we accept will sometimes be the case) as soon as possible thereafter. This is on the same principle that judgment should be given as soon as possible after an offence is committed – namely that justice delayed is justice denied.

162. The Cabinet Secretary has already announced some additional resources for existing community sentences, but until we know what the level of take-up will be, it is difficult or impossible to say whether current budgets will be sufficient. It is clear that many witnesses are concerned about this issue, and equally clear that an increased take up of CPOs of 10% or 20% (as postulated by the Scottish Government in the Financial Memorandum) will require additional resources. We welcome the additional resources already committed, but note that they require to be used both to eliminate barriers to the speedy commencement of the orders, and to address issues of quality. There may also be issues about the adequacy of the unit cost calculation used in this context. Further, it is evident that the programme, residence, mental health treatment, drug treatment or alcohol treatment requirements that may be applied to the new orders will require additional resourcing. The Committee asks the Scottish Government to provide further assurance as to how such costs are to be met. Thereafter we need a commitment by Ministers to keep the level of take-up under review, and to bring forward additional funding as required.

163. In this connection, we are conscious that, while the main impact will be felt by criminal justice social work services, there will be resource implications for other areas. For example, there will be additional costs for the Scottish Court Service as a consequence of the progress reviews, and for voluntary sector bodies involved in the delivery of the new CPOs. Appropriate consideration must be given to these wider resource implications.

164. We do not agree with those witnesses who argued that progress courts should have been established as specialist courts, as the Prisons Commission recommended. We believe this should be a matter for individual sheriffs principal to consider in the light of local circumstances. We also believe the Bill gets it right in making progress reviews optional, so that the resources involved in them can be targeted to where they are most needed.

165. The Committee also recommends that the Scottish Government reconsider some of the terminology used in the Bill, specifically whether an alternative name might be considered to avoid confusion over the term “supervision requirement”. We also invite the Scottish Government to consider making the rehabilitative element in community payback orders clearer.

Section 16: Short periods of detention

Background and evidence received

166. Section 16 repeals section 169 of the Criminal Procedure (Scotland) Act 1995 which permits summary courts to detain an offender at a court or police station until 8 pm instead of imposing imprisonment. As the provisions have not been used for a number of years they are considered no longer to be of any practical use.

167. This section also extends the current minimum period of imprisonment that can be imposed by a summary court from five to 15 days and repeals the provision whereby the summary courts can sentence an offender to be detained in a certified police cell or similar place for up to four days. According to the Explanatory Notes, this provision is redundant as there are no certified police cells in Scotland and have not been for some time. However, the Scottish Police Federation said that certified police cells are still used in the Orkney, Shetland and Western Isles and are essential, when, for example, severe weather conditions prevent transfer to mainland Scotland.122

Committee conclusions

168. There is clearly uncertainty from the evidence about whether there are, in fact, any police cells in remote parts of Scotland that are certified for use for short-term detention. The Committee invites the Scottish Government to provide clarification on this point, and also to explain more fully how the process of certification operates. We would also suggest that further consideration be given to whether, even if no police cells are currently certified, this is a sufficient basis to repeal the provision that enables them to be so certified. We can envisage circumstances in which the facility to detain people in such cells, as an alternative to a long journey to the nearest prison, could continue to be useful.

Section 17: Presumption against short periods of imprisonment or detention

Background

169. Section 17 amends the Criminal Procedure (Scotland) Act 1995 to create a presumption against prison sentences of six months or less, so that they may be imposed only where the court considers that no other method of dealing with the offender is appropriate. Where such a short sentence is imposed, the court must state its reasons for that opinion, and enter them in the record of proceedings.

Evidence received

170. Many witnesses expressed support for this proposal on the grounds that short-term prison sentences are generally regarded as expensive and ineffective, both in terms of protecting communities and in terms of rehabilitating offenders and reducing crime.123

171. In its written submission, Scottish Women’s Aid said that a presumption against short custodial sentences “may have a positive impact on certain offenders with chaotic lifestyles for whom prison is a ‘revolving door’”, but that perpetrators of domestic abuse do not fall into that category. The presumption could therefore “have a negative impact on women, children and young people experiencing domestic abuse”.124

172. Clydebank Women’s Aid Collective agreed, saying that a presumption against sentences of six months or less would be “gendered in its impact. For women facing sentencing themselves it is likely to be positive. However, women affected by crimes committed against them by men may be affected detrimentally.”125

173. Professor Alec Spencer of the Scottish Consortium on Crime and Criminal Justice said: “The use of short-term and very short-term sentences is complete eye-wash. It has no effect at all on reducing crime.”126 Indeed, he cited international research suggesting that where prison was used on its own, crime actually increases slightly.

174. Professor Spencer said that 81 per cent of prison sentences are for six months or less, and two-thirds of those are for three months or less; and that people sentenced to six months or less subsequently spend, on average, only around 23 days in prison. This did not allow time for prison staff to obtain the relevant information about the prisoner, assess them and arrange for appropriate interventions. As a result, he said, short sentences are a cause of frustration to prison staff, who have to spend a lot of time and effort accommodating people, but without the opportunity to help them address their offending behaviour.127

175. His colleague Professor Fergus McNeill added—

“three things help people to stop offending: getting older and becoming more mature; developing social ties that mean something to them; and changing their view of what they are about as a person. Short periods in prison do not help with any of those three things.” 128

176. Dr Sarah Armstrong (University of Glasgow) referred to the Scottish Prisons Commission’s finding that many people in prison are repeatedly serving short sentences, in effect completing a life term by instalments but without access to the programmes and services available to those who are given a life sentence. She drew attention to research suggesting that short prison terms are not only ineffective but can be counter-productive, since people are more likely to engage in worse offending after they have been imprisoned than before.129

177. Rona Sweeney, for the Scottish Prison Service, confirmed that for prisoners sentenced to a short period of custody, there was very little that could be done beyond meeting health care needs: “During those very short sentences we focus on undoing the harm that imprisonment has caused, because we know that many of the protective factors that support someone in not reoffending are damaged by imprisonment”.130

178. Representatitves of Community Justice Authorities said that while there were occasions when short prison sentences was justified they were being used “far too frequently” and sometimes only because sentencers felt they had no alternative disposals available.131

179. In its report, the Scottish Prisons Commission recommended a legislative presumption against custodial sentences of six months except where the judge is satisfied that a custodial sentence should be imposed having regard to one or more of the following: violent and sexual offences that raise significant concerns about serious harm; offences that constitute a breach of bail conditions; offenders already subject to a community sentence and/or with a significant history of failing to comply with community or conditional sentences; offenders subject to a release licence; offenders who do not consent to rehabilitative elements in a community sentence; and other sentences of imprisonment then being served by the offender.132

180. Henry McLeish said that the Bill aimed to strike the same balance that the Scottish Prisons Commission had done. The Commission had considered the option of a statutory ban on custodial sentences of less than six months but—

“to preserve the independence of the judiciary and to take a commonsense approach, we rejected that option. Of the people who go to prison for less than six months, a small group have committed what I would regard as serious offences, one of which is domestic violence.”133

181. Some witnesses questioned the basis upon which the six month dividing line had been selected. Cyrus Tata of the Centre for Sentencing Research (University of Strathclyde) said it was “not harmonious with the new summary powers for sentences of up to 12 months”, but that a more appropriate way to make the distinction would rely on the nature of the offence—

“If the argument behind the bill is that we should not imprison non-violent, non-dangerous offenders who might simply be feckless, we should focus on those types of cases. We should specify those cases, rather than a limit of six months, because the group of prisoners on sentences of six months or under will include—this will give the tabloids a field day—people who are convicted of dangerous and violent offences.”134

182. Similarly, the Scottish Police Federation described the six month cut-off as “arbitrary”, pointing out that there are many habitual offenders who have no desire to comply with any court disposal and hence that short periods of imprisonment may well be necessary for even minor offences.135

183. The experience of the High Court judges was that—

“under existing arrangements courts resort to short custodial sentences only where there is no realistic alternative … we doubt whether the proposed legislative changes will in practical terms achieve much.”136

184. The Sheriffs’ Association went further, saying that arguments about the ineffectiveness of short prison sentences misunderstood their point. A custodial sentence was unavoidable, whereas community disposals “without the option of custody for breach, would be rendered voluntary”. Noting that a 30-day sentence was to be an option for breach of a level 1 CPO, the Association concluded—

“As a means of dealing with breaches of court orders, as a sharp reminder to some offenders of the consequences of breaking the law for repeated offending when all else has been tried, or to give the public some measure of relief from their activities, short prison sentences have a purpose.”137

185. Mike Ewart of the Scottish Prison Service disagreed. In terms of giving relief to the community, his view was that a short-term sentence could do more harm than good in terms of recidivism and hence community safety. In terms of being the only alternative for offenders who have repeatedly breached community service orders or reoffended, he said that—

“if a community disposal was appropriate four or five times for a particular offender in particular circumstances, that disposal might still be appropriate if the only factor that has changed is the irritation of the criminal justice system with that character’s reappearance.”138

186. Henry McLeish said that the Scottish Prisons Commission had considered the argument about community respite but rejected it—

“What people want in communities throughout Scotland is a long-term future in which the crime figures go down and people are less afraid of crime and can have a sense of security. The respite approach is no more than a short-term consideration.”139

187. Dr Cyrus Tata also questioned the argument that custodial sentences are sometimes appropriate where a court has lost patience with an offender who has repeatedly breached the conditions attached to community sentences. Recent research challenged the assumption that such breaches were wilful, suggesting instead that many of those subject to such sentences had significant learning difficulties and simply failed to understand the conditions.140

188. The Scottish Justices Association noted that, whereas the Scottish Prisons Commission had listed six circumstances in which a short sentence could be justified, no such list was included in the Bill, and it suggested that these should at least be set out in sentencing guidelines.141 Sheriff Fletcher, speaking for the Sheriffs’ Association, suggested that, with a statutory requirement to state reasons for imposing a short sentence, “the unintended result might be to slow down the court system while the judge makes up the short statement that he has to make”.142

189. Professor Neil Hutton (Centre for Sentencing Research, University of Strathclyde) suggested that judges already recognise the need to impose custodial sentences only when non-custodial options are inappropriate. In his view, making it more difficult to impose prison sentences of six months or less could create a temptation for judges to impose sentences of seven months or more—

“This will produce the unintended consequence of a rise in the overall prison population. … A more appropriate way of reducing the use of short sentences would be to ask the Scottish Sentencing Council to develop a comprehensive inaugural set of guidelines which paid particular attention to defining the custody threshold in a way which reduced the overall use of short sentences of imprisonment.”143

190. The Scottish Consortium on Crime and Criminal Justice said that the only sure way to achieve a reduction in short sentences would be to cap the number of places available for sentences of less than six months, so that, when the cap is reached, those given short sentences would be placed on a waiting list and their sentences suspended until a place becomes available.144

191. The Cabinet Secretary for Justice said that Scottish Ministers would fully support any sheriff who feels it appropriate to use a short term prison sentence as a last resort. However, the problem of prison overcrowding had to be tackled, and he also wanted to “end the free-bed-and-board culture” in which “far too many people go to prison and sit there twiddling their thumbs” at taxpayers’ expense and to the frustration of the communities who have suffered from their behaviour. Through the Bill, he wanted to see people convicted of less serious offences given community payback orders in order to “free up our prisons to deal with the people who have to be there because they are a danger to our communities”.145

192. Asked for clarification of the term “less serious offenders” and the types of crimes such offenders would have committed, the Cabinet Secretary said that ultimately that would be left to the Sentencing Council given the variable nature of common-law offences in Scotland and the need for flexibility.146

Committee conclusions

193. The Committee agrees that there is a need to strike a proper balance between the imposition of short custodial sentences and effective community disposals. Additionally, the Committee agrees that there is a need to develop a range of community sentences in which the public can have confidence and which present the best chance of long-term rehabilitation of offenders. However, members were unable to agree on whether it was either necessary or desirable to create a statutory presumption against custodial sentences of six months or less in order to achieve that balance.

194. All Committee members recognise that the priority is to imprison offenders who (as the Prisons Commission said) commit offences so serious that no other form of punishment will do or who pose a threat of serious harm to the public. Committee members also recognise that those who have persistently failed to respond to non-custodial disposals may also have to be imprisoned. We acknowledge that this is, to a significant extent at least, what sentencers already aim to do, and that they do not lightly send people to prison if this is unlikely to benefit either them or those affected by their offending behaviour. We accept that short prison sentences do not normally achieve much by way of rehabilitation, that while they provide respite for victims and communities, this is only for a limited period, and that high re-offending rates tend to demonstrate that they have limited effect as a deterrent. Finally, we all recognise that the Bill, although undoubtedly intended to shift sentencing behaviour, leaves the final decision in any individual case to the court, thus allowing a short-term prison sentence still to be given where the court is convinced that that is the best option in the circumstances.

195. Where Committee members do not agree is on how far short-term custodial sentences should continue to be regarded as an appropriate disposal (other than in exceptional circumstances), and on whether they are currently being overused, or inappropriately used.

196. Some members point to the weight of evidence, particularly from academics, suggesting that short sentences involve only “warehousing” of offenders and provide no real opportunity to engage them in programmes to tackle their offending behaviour or address their other problems – and indeed that imprisonment itself may make those problems worse. These members also cite Scotland’s high incarceration rate, and the re-offending statistics, in support of the view that current sentencing policy is not working.

197. However, other members question that evidence, pointing out in particular that, since the people the courts imprison are likely to be the more persistent or serious offenders, it is hardly surprising that their re-offending rates are higher than those given community disposals. These members also cite examples referred to by witnesses, where a short prison sentence has had a salutary effect in persuading an offender to change his or her behaviour, even where previous community disposals had failed to do so. They also question the assumption that short-term sentences are currently given out where better alternatives exist, and hence doubt that a statutory presumption will make any real difference.

198. At least one member of the Committee questions whether, in the context of a provision aimed at discouraging sentencers from imposing short custodial sentences, a six-month threshold is the right one to use. On this view, reducing this to (say) three months, at least initially, would focus the provision on those cases where there is the least chance of rehabilitation in prison and which are least likely to involve serious or violent offences.

199. Overall, the Committee did not agree with the proposal in the Bill to create a statutory presumption against short-term custodial sentences.147


Footnotes:

1 Scottish Parliament Subordinate Legislation Committee. Report on the Criminal Justice and Licensing (Scotland) Bill at Stage 1. Available at: http://www.scottish.parliament.uk/s3/committees/subleg/reports-09/sur09-CriminalJusticeLicensing.htm

2 Scottish Parliament Finance Committee. Report on the Financial Memorandum of the Criminal Justice and Licensing (Scotland) Bill. Available at: http://www.scottish.parliament.uk/s3/committees/finance/reports-09/fir09-CriminalJusticeLicensingBill.htm.

3 Community Justice Authorities, local authorities, the Crown Office and Procurator Fiscal Service, the Scottish Police Services Agency, the Scottish Prison Service, and the Scottish Legal Aid Board.

4 An explanation of the three “levels” of Finance Committee scrutiny of Financial Memorandums is provided at: http://www.scottish.parliament.uk/s3/committees/finance/financialMemo.htm

5 Scottish Parliament. Official Report, 3 September 2008, Cols 10305-6: Available at: http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-08/sor0903-02.htm#Col10301.

6 Scottish Government. Revitalising Justice – Proposals to Modernise and Improve the Criminal Justice System. Available at http://www.scotland.gov.uk/Publications/2008/09/24132838/0

7 The written submissions are published on the Committee’s webpage. Available at: http://www.scottish.parliament.uk/s3/committees/justice/index.htm

8 Full details of oral witnesses are set out in Annexe C (extracts from the minutes of the Justice Committee) and Annexe D (index of oral witnesses).

9 The Scottish Sentencing Commission for Scotland. The Scope to Improve Consistency in Sentencing, paragraph 9.5. Available at: http://www.scottishsentencingcommission.gov.uk/docs/consistency/Consistency%20Report%20-%20Final.pdf

10 Criminal Justice and Licensing (Scotland) Bill. Policy Memorandum, paragraph 9. Available at http://www.scottish.parliament.uk/s3/bills/24-CrimJustLc/b24s3-introd-pm.pdf

11 Victim Support Scotland. Written submission to the Justice Committee.

12 The Law Society of Scotland. Written submission to the Justice Committee.

13 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1771.

14 Judges of the High Court of Justiciary, Sheriffs’ Association and Scottish Centre for Criminal Justice Research. Written submissions to the Justice Committee.

15 Sheriffs’ Association. Written submission to the Justice Committee.

16 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1774.

17 Royal Society of Edinburgh. Written submission to the Justice Committee.

18 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1797.

19 Professor Neil Hutton. Written submission to the Justice Committee.

20 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1866.

21 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1867.

22 Scottish Consortium on Crime and Criminal Justice. Written submission to the Justice Committee.

23 Scottish Centre for Crime and Justice Research. Written submission to the Justice Committee.

24 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2159.

25 Sentencing Commission for Scotland. The Scope to Improve Consistency in Sentencing.

26 Sentencing Commission for Scotland, paragraphs 9.16 – 9.17; recommendations 12, 13, 14, 15.

29 Policy Memorandum, paragraph 12.

30 Professor Neil Hutton. Written submission to the Justice Committee.

31 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1932.

32 Scottish Police Federation. Written submission to the Justice Committee.

33 Scottish Centre for Crime and Justice Research. Written submission to the Justice Committee.

34 Scottish Consortium on Crime and Criminal Justice. Written submission to the Justice Committee.

35 Scottish Consortium on Crime and Criminal Justice. Written submission to the Justice Committee.

36 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1870.

37 Scottish Parliament Justice Committee, Official Report, 12 May 2009, Col 1769.

38 Sentencing Commission for Scotland. The Scope to Improve Consistency in Sentencing.

39 Scottish Parliament, Justice Committee. Official Report, 9 June 2009, Col 2058.

40 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Cols 1816-7.

41 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1841.

42 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Cols 2010-12.

43 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1883.

44 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1933.

45 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2010.

46 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Cols 1761, 1764.

47 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1976.

48 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1977.

49 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1762.

50 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2161.

51 Judges of the High Court of Justiciary. Written submission to the Justice Committee, paragraph10.

52 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1761.

53 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1766.

54 Royal Society of Edinburgh. Written submission to the Justice Committee.

55 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Cols 2008, 2012, 2017.

56 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2008.

57 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1874.

58 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1934.

59 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Cols 1820-1.

60 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2009.

61 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2057.

62 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Cols 2162-3.

63 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2167.

64 Sheriffs’ Association. Written submission to the Justice Committee, para 2.15; Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1782.

65 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Cols 1801-2.

66 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1785.

67 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1767.

68 Sheriffs’ Association. Written submission to the Justice Committee.

69 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1879.

70 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1879.

71 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Cols 1786-7.

72 Scottish Justices Association. Written submission to the Justice Committee.

73 Joint Faiths Advisory Board on Criminal Justice. Written submission to the Justice Committee.

74 Action for Children Scotland. Written submission to the Justice Committee.

75 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2044.

76 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1842-3.

77 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1805.

78 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2164.

79 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

80 Scottish Consortium on Crime and Criminal Justice. Written submission to the Justice Committee.

81 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1881.

82 Scottish Government. (2007) Reforming and Revitalising: Review of Community Penalties Available at: http://www.scotland.gov.uk/Publications/2007/11/20142739/0

83 Scottish Prisons Commission. (2008) Scotland’s Choice Executive Summary, paragraphs 1, 2 and 11.

84 Policy Memorandum, paragraphs 43, 49.

85 Aberdeenshire Council, Dumfries and Galloway Council, Ayrshire Criminal Justice Social Work Partnership, Scottish Justices Association, Turning Point Scotland, Action for Children Scotland, Victim Support Scotland, The Sheriffs’ Association. Written submissions to the Justice Committee.

86 Scottish Consortium on Crime and Criminal Justice. Written submission to the Justice Committee.

87 The Wise Group. Written submission to the Justice Committee.

88 Faculty of Advocates. Written submission to the Justice Committee.

89 Scottish Children’s Reporter Administration. Written submission to the Justice Committee.

90 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1850.

91 Victim Support Scotland. Written submission to the Justice Committee.

92 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Cols 2191-2.

93 Convention of Scottish Local Authorities, Community Justice Authorities. Written submissions to the Justice Committee; Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col1848.

94 Financial Memorandum, paragraphs 675, 991.

95 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Cols 2193-4.

96 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Cols 2050, 2053.

97 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1825.

98 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2041.

99 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1942.

100 Aberdeenshire Council. Written submission to the Justice Committee.

101 Association of Directors of Social Work. Written submission to the Justice Committee.

102 Scottish Parliament Finance Committee. Report on Financial Memorandum on the Criminal Justice and Licensing (Scotland) Bill, paragraph 36.

103 Scottish Parliament Finance Committee. Report on Financial Memorandum on the Criminal Justice and Licensing (Scotland) Bill, paragraph 59.

104 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2158.

105 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2190.

106 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1850.

107 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2185.

108 Victim Support Scotland. Written submission to the Justice Committee.

109 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2023.

110 Turning Point Scotland. Written submission to the Justice Committee.

111 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2048.

112 ADSW. Written submission to the Justice Committee.

113 Community Justice Authorities and COSLA. Written submissions to the Justice Committee.

114 Scottish Centre for Crime and Justice Research. Written submission to the Justice Committee.

115 Sheriffs’ Association. Written submission to the Justice Committee.

116 Scottish Centre for Crime and Justice Research. Written submission to the Justice Committee.

117 Victim Support Scotland. Written submission to the Justice Committee.

118 SACRO. Written submission to the Justice Committee.

119 Joint Faiths Advisory Board on Criminal Justice. Written submission to the Justice Committee.

120 SAMH. Written submission to the Justice Committee.

121 Mental Welfare Commission for Scotland. Written submission to the Justice Committee.

122 Criminal Justice and Licensing (Scotland) Bill. Explanatory Notes, paragraph 86. Available at: http://www.scottish.parliament.uk/s3/bills/24-CrimJustLc/b24s3-introd-en.pdf Scottish Police Federation. Written submissions to the Justice Committee.

123 Association of Directors of Social Work, Ayrshire Criminal Justice Social Work Partnership, Association of Scottish Neighbourhood Watches, Joint Faiths Advisory Board on Criminal Justice, SAMH, Action for Children Scotland. Written submissions to the Justice Committee.

124 Scottish Women’s Aid. Written submission to the Justice Committee.

125 Clydebank Women’s Aid Collective. Written submission to the Justice Committee.

126 Scottish Parliament. Official Report, 19 May 2009, Col 1891.

127 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Cols 1889.

128 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1893.

129 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2018.

130 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2034.

131 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Cols 1861-2.

132 Scottish Prisons Commission. (2008) Scotland’s Choice, paragraph 3.36.

133 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1826.

134 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2019.

135 Scottish Police Federation. Written submission to the Justice Committee.

136 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

137 Sheriffs’ Association. Written submission to the Justice Committee. A level 1 unpaid work or other activity requirement involves up to 100 hours of work or activity (new section 227I).

138 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2035.

139 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1838.

140 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2019.

141 Scottish Justices Association. Written submission to the Justice Committee.

142 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1788.

143 Professor Neil Hutton. Written submission to the Justice Committee.

144 Scottish Consortium on Crime and Criminal Justice. Written submission to the Justice Committee.

145 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Cols 2176-7.

146 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Cols 2179-81.

147 This conclusion was reached by a division on the question whether to agree with the principle of a statutory presumption against short-term custodial sentences. The Committee divided Yes 4 (Robert Brown, Angela Constance, Nigel Don, Stewart Maxwell), No 4 (Bill Aitken, Bill Butler, Cathie Craigie, Paul Martin); the question was disagreed to on the Convener’s casting vote.
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