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Scotland – where criminal justice is part of social justice

Penelope Gibbs
01 Dec 2017

If my family ties were not down south, I would be tempted to up sticks to find a job in criminal justice in Scotland. All is not rosy, but people have an optimism and energy about the system that is absent in England and Wales. And they have concrete plans to improve things, notably to reduce the use of short prison sentences and to improve community rehabilitation.

My visit to Scotland revealed some of the complexity of what is happening to sentencing in Scotland.  The presumption against prison sentences under three months (enacted in 2010) is regarded as a success but it has little to do with the 8% fall in the prison population. The presumption is just that – judges can use short prison sentences but they have to justify in open court why they have done so, particularly if a suitable community programme was available. The numbers getting sentences under three months was small, and is now tiny, hence the lack of impact on the overall numbers. This was never the justification anyway for introducing the presumption – it was that short prison sentences are ineffective and break family and work ties.

Getting consensus on the presumption against sentences under three months was not difficult, given that everyone in the system agrees they are useless. But opposition to a presumption against sentences under twelve months (proposed in 2015) has been stronger. The Conservative party, under Ruth Davidson, has vigorously opposed the measure: “Right now, 17 per cent of all offenders done for attempted murder or serious assault received a sentence of less than 12 months. More than a quarter of all sex offenders are given jail terms of less than 12 months….That option should not be removed.” In fact the presumption does not remove any option from judges since it is just a presumption, but that would spoil the story.

Intriguingly some voluntary sector groups have also opposed the measure, including the powerful Women’s Aid Scotland who feel that under twelve month sentences offer abused women respite from their partners. Even Women’s Aid recognise however that short term sentences do not rehabilitate perpetrators, decrease reoffending, or improve desistance efforts, and that a presumption against short sentences would benefit women who offend, many of whom are victims of domestic abuse themselves.  Women’s Aid argue that the risk of letting so many perpetrators be “free” in the community (albeit serving community sentences), outweighs the benefit of reducing women’s imprisonment.

Notwithstanding this opposition, 85% of those who responded to the Scottish Government’s consultation approved of extending the presumption against under three months sentences, and the SNP has the numbers to get the measure through, which they will do towards the end of next year. Which gives them time to develop solutions – GPS tagging, behaviour change programmes, supported accommodation – which would radically decrease the likelihood of domestic abusers reoffending while on community sentences.

Its interesting to contrast the Scottish response to the presumption against short sentences consultation with the response in England and Wales to a consultation on increasing penalties for death by dangerous driving. It’s not happy reading for a penal reformer. 90% of 8,880 respondents wanted a new offence of causing serious injury by careless driving, and 70% of respondents thought that the maximum penalty for causing death by dangerous driving should be increased from 14 years’ imprisonment to life. I totally understand why people think higher sentences will reduce the suffering caused by poor and dangerous driving, just don’t agree that this is the resolution.

Not surprisingly, the Conservative government has committed to table legislation on these tougher driving sentences which will, ironically, apply to Scotland too (driving offences are some of the few which can be imposed by the Westminster parliament).

Each consultation was asking a different question but each dealt with how you punish and rehabilitate people who commit crime. The contrast is stark. It’s partly a contrast in the kind of people who responded – in Scotland mostly voluntary agencies and organisations in the public sector, whereas the England and Wales consultation was flooded with responses from individual victims, and victims’ groups. But underlying is I think a real contrast in leadership. The proposal to change the law on driving offences was led by victims’ groups who campaigned and lobbied hard for it. The government responded to the pressure. In Scotland, the SNP is trying to be brave, and those involved in criminal justice are rallying round to support them. The wider public sector in Scotland is very involved in criminal justice (local authorities deliver probation services) and they can directly benefit from reform. In England and Wales this is not the case. Criminal justice is a separate silo here, and no local authority would dream of responding to a consultation on sentencing reform.

It is easier in Scotland – the population is smaller, as is the government. But under New Labour their prison population increased as much as that in England and Wales.  People in Scotland are probably as convinced as ours that prison is the right solution for nearly all crime. Only brave politicians can break the mould.