Prison population and penal reform: working towards sustainability consultation response from SASW

Question 1 – Please share any views you have on the proposal that justice social work reports should be mandatory in all cases where a short custodial sentence is being considered.

Justice Social Work Reports provide essential context for issues that underly offending behaviour and consideration for effective ways to reduce offending. Where a short custodial sentence is being considered, we believe a JSWR should be obtained, particularly giving consideration to why a custodial sentence might be appropriate along with community-based alternatives which improve potential for rehabilitation. This proposal will, however, require significant investment in justice social work to enable workers to have the capacity to complete reports in a timely way.

Question 2 – Please share any views you have regarding the most effective ways to improve judicial and public confidence in community sentencing options - including their content, local availability and outcomes.

It is essential that the public has confidence in the justice system, including community sentencing. The public needs to be assured that community sentencing is an effective way of reducing reoffending and maintaining public safety when it is well resourced, supported by strong justice social work practice and support systems which address criminogenic need. As such, we need to take a systemic approach to community sentencing encompassing housing, addiction services, employability services and social care support as the effectiveness of community sentencing is contingent on community monitoring and community-based supports.

A strong justice social work offer is central to this, to ensure assessment of need, coordination of services, and appropriate monitoring are in place. Ultimately, the most effective way of building confidence in community sentencing will be to resource it appropriately, thus ensuring its effectiveness in reducing offending behaviour.

Question 3 – Please share any views you have on the proposal that the legislative test in the presumption against short sentences should be strengthened.

We would support a legislative test that allowed for short custodial sentences in exceptional circumstances, with examples of what those circumstances may be. To create a legal test outlining the circumstances where short custodial sentences may be used risks being too prescriptive. Courts should assess the appropriateness of a short custodial sentence, measuring each case on its merits, in conjunction with a Justice Social Work Report which gives consideration to both custodial and a community-based sentence, outlining the potential impact of each.

Question 4 – What do you consider would be the most effective way to strengthen the legislative test?

We consider the most effective way would be to allow short custodial sentences in exceptional circumstances with case examples of where this may be appropriate.

Question 5 – Please share any views you have on the proposal that when sentencing a person to a short sentence, sentencers should have an obligation to set out in writing the specific details regarding what other options have been considered, and why they concluded these would not have been suitable.

Given the high proportion of short sentences currently utilised in the justice system, despite a presumption away from short custodial sentences, we consider it may be appropriate for sentencers to provide the reasons why other options have been considered unsuitable. This would create a degree of transparency in sentencing decisions which may also promote greater consistency in the justice system. In the case of a JSWR which recommends a community sentence, we consider sentencers should explain why they have made the decision to impose a short custodial sentence.

Question 6 - Do you have any other comments in relation to the potential impact on victims, equality or human rights of these measures to further strengthen and support the use of the presumption against short sentences?

The safety and protection of victims need to be central to any reduction of short-term custodial sentencing. While balancing the rights of offenders, providing supports needed to enable rehabilitation and the need to ensure safety in the community can be a challenge, it is an essential balance to strike. A systems approach can help ensure these often-competing rights are recognised and supports put in place.

We believe it is also important to consider the impact on family members, particularly children, when custodial sentences are imposed. Parental imprisonment can be traumatic for children and young people and can significantly impact financial security for families. As such, a move towards properly supported community sentencing can prevent significant harm to family members impacted by their loved ones’ offending behaviour. This has the potential to benefit families across generational lines and could help to break cycles of poverty and trauma.

Question 7 - Please share any views you have on the proposal that the presumption against short periods of imprisonment of 12 months or less be extended to 24 months or less.

An extension of the presumption against short sentences may create space for social workers and support services to effect change with individuals, supporting rehabilitation. Often the balance of a community sentence is simply too short to build the constructive relationships required to support lasting change, to achieve stability and to embed changes for individuals. This would however require adequate resources for services to be able to offer consistent support over the period of the community sentence, increasing community sentencing will increase the resource required. This cannot be considered a money-saving operation, instead it should represent a commitment to reducing offending, with the associated resources required. It should be recognised, however, that reducing prison populations and reoffending is likely to provide significant overall savings both in direct spend and citizen productivity.

Question 8 – Please share any views you have on the proposal that if the presumption against short sentences is extended to 24 months or less, summary sentencing powers should also be increased so that the maximum custodial sentence is also 24 months.

While this measure seems appropriate, we would have concern that vulnerable witnesses who need to give evidence currently don’t have access to the same protective measures in summary proceedings. This is particularly the case for children who are able to give pre-recorded evidence by video in solemn proceedings, we would ask that this measure be extended to summary proceedings.

Question 9 – Do you have any other comments in relation to the potential impact on victims, equality or human rights of the proposals related to extending the Presumption Against Short Sentences (PASS) from 12 to 24 months?

Question 10 – Please share any views you have on how effective CPOs are in their current form and whether the legislation underpinning them is appropriate.

The effectiveness of CPOs are significantly influenced by the support structures which surround the unpaid work element of the order. These support services are significantly underfunded currently and need investment. It is impossible to isolate one aspect of the wider system and comment on effectivness.

Question 11 - To what extent do you think the current framework allows sufficient flexibility to tailor CPOs to individual circumstances, including the roles of both sentencers and justice social workers?

The Sentencing and Penal Policy Commission recommendation to review Community Payback Orders is necessary work to understand the benefits of CPOs as they currently operate. It should be acknowledged that unpaid work orders alone do not create a framework that will support offenders in rehabilitation, again a systemic approach is needed to ensure stability in housing, finances, social supports, addiction services, mental health services and supports to address criminogenic need are in place, to support the effectiveness of CPOs. An inadequately resourced system will not be effective in reducing offending.

Question 12 – Please share any views you have on how the current CPO legislative framework could be improved to ensure CPOs are a credible alternative to custodial sentences.

You may wish to consider:

removing any unnecessary or ineffective requirements.
adding new or revised requirements.
addressing practical or legislative barriers to the use of existing requirements.
any other changes

To strengthen CPOs as a credible alternative to custody, reforms should focus on consistency of provision particularly in rural and remote areas where services may be harder to access. There should be robust monitoring and compliance arrangements with appropriate social work support and supervision, enabling direct work with offenders in conjunction with the CPO. Greater flexibility in sentence management will enable supports to meet individual need rather than a one size fits all approach that may not address needs in a consistent and effective way. Greater transparency in reporting of outcomes would bolster public support by both marking where CPOs have proved effective and evidencing barriers to effectiveness.

Question 13 – Please share any views you have on the extent to which CPOs provide sufficient support to address the underlying causes of offending behaviour and whether there are any barriers to ensuring support needs are met.

While CPOs form part of a package that can be very effective in addressing offending behaviour, there are simply too few supports that are inconsistently available across the country. Lack of consistent resource is a key barrier particularly in relation to effective mental health support, addiction services and secure housing, which are essential elements required to address criminality. Without an adequately resourced justice system which is multi-disciplinary the CPO process alone will not effectively address offending behaviour.

Question 14 – Please share any views you have on the introduction of an Enhanced Combination Order model in Scotland.

In your response, please consider which elements (for example, psychological assessment or restorative approaches) would be most valuable, and any potential benefits or challenges.

It is essential that we view justice responses to offending behaviour in a wholly systemic way. Psychological assessment can be very effective at identifying drivers for offending behaviour, however, this needs to be matched with accessible, appropriate psychological supports following assessment. All too often we identify need without having an effective way to address that need, which leaves the individual in the impossible position of trying to patch together supports from their existing resources. This in turn can create pressures which lead to offending behaviour, meaning that psychological assessment with no following support may act against rehabilitation.

Restorative practices again can be effective however, this needs to be centred in a process which does not retraumatise victims in the name of rehabilitation. Any restorative process must be entered into freely, with informed consent and consistent support before and after any restorative meetings or discussions. Again, such a process must be located within a package of supports that address the needs of the offender, their wider community and victims.

Question 15 – Please share any views you have on the proposal to amend how CPOs are set out in law, so they are clearly framed as a sentence that can be used where justice social work intervention could address the underlying causes of offending behaviour.

Clearer framing of CPOs may be helpful in creating a shared understanding of the purpose of the CPO and the important role of justice social work in addressing underlying causes of offending behaviour. Simply reframing will not help if justice social workers do not have the time, training and resources to work constructively with offenders on a consistent, long term, relational basis. This will require investment in justice social work to ensure the workforce can absorb the increase in work required.

Question 16 – Please share any views you have on what changes, if any, would be required to make CPOs suitable and effective for more serious offending behaviour.

The imposition of a CPO itself will not address serious offending behaviour, as stated previously, this requires a multi-agency approach which addresses the individual criminogenic need. We would also suggest that CPOs may not be appropriate for serious offending and may result in significant public concern where they are imposed for sexual or violent offences. Increasing the PASS to 24 months means community sentencing will encompass offences for which a custodial sentence would currently be considered appropriate, particularly in relation to sexual offences against children. These may fall under the definition of exceptional circumstances that merit a custodial sentence for public protection reasons.

Where CPOs are imposed for more serious offences, these need to be part of a clearly structured intervention which is centred on reducing offending behaviour and risk management.

Question 17 – Please share any views you have on the proposal that there should be more opportunities to incentivise good behaviour on CPOs through reductions in, or early discharge from, unpaid work or supervision requirements.

Please give reasons for your answer including any views for how this could be achieved in practice, as well as any alternative suggestions to enable incentivisation of good behaviour on CPOs.

Taking a strengths-based approach to justice social work requires that it is possible to recognise and incentivise good behaviour. Any reductions in sentence or early discharge should be the result of clear, consistent improvement over a period of time, with evidence that the individual is addressing their offending behaviour and actively working with services and supports.

Question 18 – What changes, if any, do you believe are needed to improve breach processes for CPOs to ensure timely, proportionate, and consistent responses to non‑compliance?

It is important that breaches of orders are addressed quickly and consistently. Victims often report feeling scared and anxious while waiting a considerable time for breaches in Non-harassment Orders, which then often don’t result in a justice response. If there is to be public confidence in community sentencing, there needs to be a clear response to breaching a community sentence which is proportionate but also acts to protect the public where need be.

Consideration needs to be given to patterns of behaviour which indicate coercive behaviour, or a nudging of the boundaries inherent in the sentence imposed. These should be taken seriously and recognised as a risk indicator for further, more harmful behaviour particularly where domestic abuse has been a factor in the relationship.

Question 19 – Please share any views you have on retaining Drug Treatment and Testing Orders as a distinct community disposal for addressing substance-related offending.

Please give reasons for your answer, including:

views on whether they should be reformed or replaced;
views on the current effectiveness of DTTOs;
how they compare to alternative disposals, including Community Payback Orders (with or without treatment requirements);
what a future community sentence for individuals whose offending is related to substance use should look like.

Substance misuse is often a factor in offending behaviour, with addiction having its roots in early trauma, childhood poverty, mental illness and complex support needs. As such it is important that this disposal recognises the particular needs for people whose offending behaviour is driven or influenced by substance misuse. The DTTO recognises the need for testing and treatment, however, it is essential that appropriate treatment options are available and accessible to people on DTTOs.

Question 20 – Do you have any other comments in relation to the potential impact on victims, equality or human rights of these proposals to enhance and strengthen community sentences?

Community sentencing is consistent with human rights legislation which argues against unnecessary imprisonment or deprivation of liberty.

Question 21 – Please share any views you have on the proposal that there should be a formal mechanism to enable bail cases with an electronic monitoring requirement to be brought back before the court or dealt with administratively in chambers. This would be used when administrative issues arise that may prevent the order being monitored, and currently require judicial consideration, but where there may be no evidence of criminality.

Technical difficulties in monitoring should have a route back to review where there is no criminality. As such this seems to be a sensible measure which would allow review for issues such as change of address or technical problems which prevent monitoring.

Question 22 – Please share any views you have on the proposal that there should be a power of arrest for breaching the order or licence relating to an exclusion zone.

We agree there should be a power of arrest for breaching an exclusion zone, these are imposed to promote the safety and wellbeing of victims who have been harmed or harassed, and form part of a protective approach for victims. Breaches of exclusion zones can show an intent, which is a concerning sign for rehabilitation.

Question 23 – Please share any views you have on the proposal that there should be other improvements to the system of electronic monitoring either to help facilitate any of the other reforms in this paper, or more broadly.

The current technology used to support electronic monitoring is outdated and ineffective and needs to be reviewed. While the use of GPS technology seems to be an ideal method of location monitoring, this may present human rights challenges for offenders in that their location would be constantly available to those monitoring the system. GPs systems can also be subject to black out, which reduces effectiveness, meaning reliance on GPS is not in itself a solution to location monitoring. We need to improve our monitoring of offenders while balancing their right to privacy, this is an urgent question for Government.

In the absence of GPS, services must listen to victims who encounter their offender in the community in places where they have been excluded or in breach of the terms of their order, and appropriate supports and safety measures put in place.

Question 24 – Do you have any other comments in relation to the potential impact of these electronic monitoring proposals on victims, equality or human rights?

Any monitoring process raises human rights concerns both for the person being monitored and for vulnerable people in the community who may live in fear of encountering someone who has caused them harm. These priorities need to be balanced and considered in any review of monitoring processes.

Question 25 - Please share any views you have on the proposal that people should not be remanded to custody unless they have a reasonable prospect of a custodial sentence of 24 months or more.

Please give reasons for your answer, including whether there are any circumstances in which remand should remain available even where such a sentence is unlikely.

To remove the possibility of remand where a custodial sentence is likely to be less than 24 months is to pre-judge the actions of the court while investigation into criminality is ongoing. While we agree that remand is often overused, it can provide safety and space for both for the offender and their victims. Particularly in the case of domestic abuse or sexual offending, remand can offer the victim space to find a safe place to live, to end a relationship or find a way forward without the threat of the offender preventing this. For the offender, remand can provide space for them to consider their behaviour, prepare for court and begin rehabilitation – this requires appropriate support services to be in place prior to conviction which may be a barrier to provision.

Question 26 – Do you have any other comments in relation to the potential impact of this bail and remand proposal on victims, equality or human rights?

Question 27 - Please share any views you have on the proposal that the automatic release point for long-term prisoners (excluding those on extended sentences) should be amended to the two thirds point. Please include what the potential impacts could be on reoffending and rehabilitation into the community.

This proposal has both benefits and possible risks for public protection which should be considered carefully.

Requiring individuals to spend a greater proportion of their sentence in custody may be perceived as strengthening the punitive element of sentencing and enhancing public confidence in the justice system. Victims and communities may feel that sentences more closely reflect the punishment imposed by the court.

In some cases, a longer period in custody may provide additional opportunities for individuals to engage with offending behaviour programmes, education, vocational training, substance misuse treatment and mental health support. For prisoners who require significant intervention, additional time could allow more sustained engagement with rehabilitative services.

Conversely, a longer period in custody with a reduction in community supervision may act against rehabilitation in that supports and services have less time to work with the offender in the community building capacities which lessen the risk of reoffending. Longer periods in custody reduce community links which act as a protective factor. They also increase pressure on prison staff, reducing their capacity to deliver interventions effectively which may in turn increase reoffending behaviour.

The release point is less important than having clear, structured, responsive services to reintegrate back into the community in a way that supports rehabilitation. It is important that there is clear communication about what a custodial sentence means in practice, ie that someone will be released before their stated sentence is finished. The public need to understand both sentencing measures and what early release entails in terms of supervision and monitoring, and rehabilitative measures in place in the community to gain confidence in the justice system.

Question 28 - Please share any views you have on the proposal that if amending the automatic release point for long-term prisoners to the two-thirds point, those subject to extended sentences should be included.

Extended sentences are imposed when there is a clear, evidenced danger to the public that cannot be managed in the community. As such it seems counterproductive to include these in automatic release arrangements.

Question 29 - Please share any views you have on the proposal to amend the definition of short-term prisoners from “less than four years” to “less than five years”.

This change may have unintended consequences for victims of crime who would lose their right to representation when an offender becomes eligible for release. Currently, long-term prison release is managed by the Parole Board, which seeks representations from victims. This process gives victims a voice and also ensures they are aware that the person who caused them harm will potentially be returned to the community. This is an essential safeguard which supports victims.

This measure would also be contingent on appropriate community supports. Longer sentences are often imposed due to risks presented by the offender, as such they will require careful management in the community which will fall to already over stretched justice social workers. This feels like a piecemeal solution to address prison overcrowding, rather than a coherent approach to a complex, systemic challenge, which is problematic in the longer term. The definition of short-term prisoners should be considered as part of a wider, systemic approach to criminal justice.

Question 30 - Do you have any other comments in relation to the potential impact of these proposals regarding prisoner release arrangements on victims, equality or human rights?

Question 31 - Do you have any comments on the overall package of reforms contained within this consultation, potential interactions, and whether taken together they would help work towards achieving a sustainable prison population?

The package of reforms aims to address the challenges of the prison population in Scotland. This is an issue which requires careful thought and consideration. There does not appear to be a consistent thread throughout the reforms proposed which would provide a coherent and consistent response to these challenges. The proposals instead run the risk of pushing the problem out of prisons and into other parts of the system, which are overstretched and under-resourced.

While many of the proposals have significant merits, isolated, disjointed interventions will not address offending behaviour overall. This needs systemic change, adequate resourcing of all parts of the system, not least justice social work, who will carry the bulk of supervision, monitoring and direct work with offenders. There is the opportunity to create a comprehensive justice approach which supports victims and offenders, works towards reducing offending and strengthens communities. This will, however, require significant investment in services, which is not evidenced in the proposals. We cannot build public confidence in the criminal justice system, nor reduce offending, without a system which is well resourced.