The Scottish Parliament - Justice 2 Committee Report

The Committee took evidence from Scottish Executive and Scottish Prison Service officials on Tuesday 24th October about the Custodial Sentences and Weapons (Scotland) Bill. The Convenor invited officials to write to the Committee with points of clarification where appropriate. We appreciate this opportunity and have provided further information below. I apologise for the delay in getting this information to you.

To set the context, I think it is worth keeping in mind that the proposals in the custodial sentences element of the Bill do not introduce an additional “sentencing option”. Their purpose is to reform the way sentences are managed so that offenders will be subject to restrictions from the beginning of their sentence through to the end. Other than for sentences of less than 15 days, all offenders will also now spend time on licence in the community in addition to the period in custody. This will allow offence-related and rehabilitative work begun in custody to be followed through to the community part, providing the prospect of true end-to-end offender management. The conditions placed on an individual on release from the custody element of the sentence will be informed by the joint risk assessment and his or her response to work begun in custody.

Areas where further clarification might be helpful to the Committee are preceded by the questions, shown in bold italics, below.

Was there a particular reason for the change [from a three member to a two member tribunal], or was it simply a question of efficiency and the fact that the new system has worked elsewhere?

What will happen if the two members of a tribunal cannot reach a unanimous decision?

The Committee will recall that officials confirmed at the evidence session on 28th October that neither of these matters are in the Bill. They are procedural issues for the Parole Board Rules (which the Committee will see). The outcome of the consideration on these matters will not affect the policy as set out in the Bill. As regards the matter of members on a tribunal, we are already consulting the Parole Board about the best structure while ensuring that the Board is able to do its business in the most efficient and effective way.

Mention was also made of the experience in England and Wales. However, the Parole Board for England and Wales’s report shows that tribunals there still comprise 3 members. Clearly we will keep this in mind in our ongoing discussions with the Parole Board for Scotland on the drafting of the Parole Board Rules. However, I can confirm that Scottish Ministers are committed to ensuring that the Board is legally competent and that it is properly resourced, but resourced in the most efficient and adequate way while at the same time securing best value for money.

The Committee noted the proposal for unanimity in Parole Board decisions. This is mentioned in paragraph 151 of the Financial Memorandum and is also commented upon in the Parole Board's evidence, in paragraph 10. It may be helpful to expand a little on the proposal. The intention is that when the Board sits as a tribunal (which we anticipate will be the case in most of the references under the Bill) the prisoner concerned may only have his or her release directed by the tribunal where both members agree that this direction is appropriate. In other words, both members will make up their minds about the case, but the tribunal itself may only direct release where that is the unanimous view of both members. Where there is no unanimous agreement on release, the tribunal must not direct release. This will mean that prisoners will no longer be released where one of the tribunal members is not satisfied that this is appropriate.

It is possible that a recalled offender could spend almost 100% of the sentence in custody. In that situation, how will the offender be reintegrated into the community?

Officials explained the community part licence process and confirmed that this would end when the sentence expired. However, the Committee might find it helpful to have some more information on the community component. We would like to take the opportunity to remind the Committee that all offenders receiving a custody and community sentence (those given a sentence of 15 days or more) will spend a period in custody and a period in the community on licence. Licence conditions will be tailored to individual risk and needs. This means that for the first time all offenders will be subject to some form of restriction for the entire length of the sentence. This offers additional support to a large group of offenders who under the current arrangements would be released automatically and unconditionally at the half-way point of sentence without any means of control or support.

While licence conditions that relate to a sentence expire when the sentence ends, other measures are in the process of being put in place with a view to improving public protection from the highest risk offenders. Joint working arrangements between the police, the local authorities and the Scottish Prison Service will be achieved by adopting the Multi Agency Public Protection Arrangements (MAPPA). The network of MAPPAs will ensure improved management of sexual and violent offenders in the community, including those offenders whose sentences are spent but who the statutory authorities consider to be people who may cause serious harm to the public. This group will, where needed, be able to apply for voluntary assistance from their local authority to assist with their re-integration. The Community Justice Authorities (established under the Management of Offenders (Scotland) Act 2005) have an important role to play in building the local partnerships that will offer the sorts of rehabilitative services that these offenders, and others, will need on their release.

As well as the arrangements described above, the “sex offenders register” was introduced in 1997 by the Sex Offenders Act 1997 (the provisions are now contained in the Sexual Offences Act 2003). It has proved an invaluable tool for the police to monitor convicted sex offenders within their area. There is no central register as such; individual sex offenders notify their details to the local police and are identified on the Scottish Criminal Records Office's Criminal History System. The police use the register to manage offenders within the community and to identify potential suspects when a sexual crime is committed. Provisions in the Police, Public Order and Criminal Justice (Scotland) Act 2006 include giving the police the power to take data and samples from sex offenders if such data is not already held; requiring registered sex offenders to provide passport details; and giving the police powers to enter and search sex offenders homes for risk assessment purposes.

It is also possible for a Sexual Offences Prevention Order (SOPO) to be made. The police and courts must be satisfied that an offender has acted in such a way as to give reasonable cause to believe that a SOPO is necessary to protect the public or any particular members of the public from serious sexual harm from the offender. For example, in relation to an offender with convictions for sexually assaulting children who is, following his release, found to be loitering around schools and talking to children, the police may have reasonable cause to believe that there is a risk of the offender re-offending, in which case he may apply to the court for a SOPO. The prohibitions are specific to each case but, for example, an order could prohibit an offender who has a history of offending against children from being alone in the company of children or from being involved with organisations that would bring him into close contact with children. Any prohibition would need to be justified in relation to the risk and would need to be capable of being policed effectively. The prohibition must be necessary to protect the public or particular members of the public from serious sexual harm. A SOPO has effect for a fixed period which will be specified in the order. The period must be no less than 5 years. A person guilty of an offence of failing to comply with a SOPO is liable on conviction on indictment, to 5 years imprisonment.

Courts will still be able to impose extended sentences for serious sexual and violent offenders. This occurs at the point of sentencing and has the effect of adding an additional “extended” period to the community part of the sentence, increasing the period during which licence conditions (and the possibility of recall to custody if required) can be applied.

In addition, the courts now have at their disposal the Order for Lifelong Restriction (OLR). This a new sentence which provides for the lifelong supervision of high risk violent and sexual offenders and allows for a greater degree of intensive supervision than is the current norm. The OLR was made available to the High Court to use from 20 June 2006. OLRs will target those offenders who are assessed as posing the highest risk to the public. An offender who is sentenced to an OLR will, for the first time, be subject to a risk management plan that will be in place for the rest of the offender’s life whether in custody or on licence in the community. Once they have served the punishment part of the sentence that the court considers is right for the crime itself, the Parole Board for Scotland will consider when the risk they pose is acceptable enough to allow the offender to be released into the community. This means that there is no guarantee that the offender will be released immediately after the punishment part expires.

Will the commitment of the Scottish Executive Justice Department and this Parliament to reducing the overall numbers of people in prison be compromised by the measures in the bill that seek to put people in jail and make them stay there, so that more people will be in jail for longer?

In line with the undertakings given on 24th October the chart showing the expected increase in the prison population is attached at Appendix 1. This shows the anticipated number of designed cells available to SPS; what the population is expected to be without these measures; what it is estimated to be with these measures; and the assumed breach rates during the community part of the sentence. (An explanation of the dip in the design capacity can be found in the Scottish Prison Service’s published Business Plan if required.)

SPS annual population projections, which have a track record of accuracy over a number of years, use observed trends in sentencing behaviour over the last 34 years to project the population for future years. They assume that sentencing behaviour remains unchanged. The methodology takes no account of potentially related factors such as demographics or recorded crime as no statistical relationship has been established between those factors and the prison population.

The chart modelling the effects of the Bill’s measures contains, for the first time, predictions. These apply certain assumptions about change in behaviour. It is the first time that SPS has been required to model such potentially very large changes in population. The assumptions we have made are:

If the above assumptions prove to be incorrect or under-stated, the estimated effect on the population will be different from that shown in the chart. The resources required to implement the measures would then be different. In this regard it might assist the Committee for us to clarify the point quoted from the SPICe briefing that “offenders who present as a high risk of re-offending and/or who pose an unacceptable threat to public safety will be referred to the Parole Board by Scottish Ministers. This is not correct in every regard. The test in the Bill is a test of “harm” not of risk of “re-offending”. That is very important in the context of the potential impact of these measures on the prison population. Re-offending and return to custody rates are also in the public domain and are closer to 50% than the 15% assumed here as meeting the “harm” test for referral to the Parole Board. It might be helpful to note that SPS, CJSW and Community Justice Authorities are all working to reduce re-offending already through the arrangements provided for in the Management of Offenders legislation.

In reading the transcript, there is a point of clarification which might assist the Committee. The evidence pointed to the fact that it will be the Scottish Ministers who take the decision on whether or not to refer a prisoner to the Parole Board at the end of the custody part of his sentence. SPS and local authority criminal justice social work departments will have roles and responsibilities in relation to the risk assessment that will inform that decision. When the Bill was published on 3rd October it was also announced that an independent review would look at the Scottish Ministers’ involvement in the decision making process in individual cases including the role proposed for the Scottish Ministers in deciding whether an offender should be referred to the Parole Board. This review will clarify the precise arrangements which should apply to that decision making process as it is implemented. Recommendations on the implementation route are expected by the end of 2007.

Are you confident that offenders will have access to appropriate rehabilitation opportunities?

The new arrangements for combined sentences will explicitly place the responsibility for taking up opportunities for rehabilitation and for future good behaviour on the offenders with a range of sanctions in place if they fail to comply with their licence conditions. Within this new approach, the nature of offender management will be tailored to the risks posed by, and the needs of, the offender rather than one standard package. This will require a new shared understanding of what is generally understood to be the nature of supervision with CoSLA, ADSW and the voluntary sector.

Supervision will be an automatic condition for sex offenders serving sentences of 6 months or longer, offenders given a custody part in excess of 50% by the courts, those whose cases have been referred to the Parole Board and those serving sentences of 4 years or longer who, historically, have been subject to statutory supervision requirements on release. The intention is therefore that all offenders serving a sentence of 6 months or longer will receive some form of statutory supervision as a condition of release on licence. The intensity of supervision will vary from offender to offender and will be informed by the joint risk assessment which will be carried out. The risk assessment will have regard to a range of factors including the nature of the offence, the offender’s response during the custody period and the anticipated circumstances on release.

Most of the under 6 month group will not require what we understand as the standard statutory supervision by qualified criminal justice social workers. The needs of this group – and the time available to work with them – suggests that we need to take a different approach. This is much more about getting this group into contact with the range of services that they need – such as drug treatment or accommodation services – to stabilise their lifestyles and to move them away from offending. It is a service more akin to signposting them on and brokering access to services than supervision by social work. It puts the onus, quite explicitly, on the offender to be of good behaviour, makes them responsible for what they do and provides the criminal justice system with sanctions if they fail to accept this responsibility.

For those serving 6 months or over, the intensity and nature of the supervision will be informed by the joint risk assessment, which will also suggest whether a qualified supervising officer is needed. The risk assessment will have regard to a range of factors including the nature of the offence, the offender’s response during the custody period and the anticipated circumstances on release. Offenders recalled to custody until the end of their sentence will, where needed, be able to apply for voluntary assistance from their local authority to assist with their re-integration.

Making all offenders subject to restrictions for the full sentence enhances public protection but recognise the considerable challenge in making sure that the community licence structure is delivered adequately and proportionately. The joint Planning Group is already looking at how best to deliver.

The Planning Group I mentioned above, which includes members from the Association of Directors of Social Work, COSLA, Sacro and the voluntary sector, will be looking amongst other issues at the most appropriate arrangements for supervision and will offer recommendations on how best these should be developed.

There are some offenders for whom a custodial sentence might not be the most effective way of getting them to change their offending behaviour. We are looking at ways in which community disposals might be better utilised. While this is not dealt with specifically within this Bill the Committee might find it useful to be reminded that this is just one of an ongoing serious of measures aimed at transforming Scotland’s criminal justice system.

The Committee was interested in the effects the legislation will have on fine defaulters in the context that many of these are women. While no specific research was carried out in relation to this for the purpose of this Bill, Ms Gwyon from Scottish Prison Service mentioned that she would make available a letter sent previously to the Justice 1 Committee on this matter. A copy of that letter is attached at Appendix 2.

The information in this letter has been contributed to and agreed by Scottish Prison Service.

Thank you for the follow-up queries from the Committee relating to any potentially differential impact of the Bill’s provisions on women or young people as regards prison numbers.

As we understood it, Committee members were interested in any breakdown we could provide relating to the figures we had already given. In addition, an interest was expressed in whether young people were more likely to offend whilst on bail or breach bail and whether this might have a statistically significant bearing on the likelihood of an aggravated sentence being given.

We have looked at the data we have on fine default. In 2004-05 the average daily prison population of fine defaulters was 61. 4 of these were women (6.6%). 7 were young offenders (under 21) (11.5%). These figures compare with the following proportions of our overall prison population: 4.9% female; 21.1% young offenders. The overall context is that 0.9% of the total prison population are fine defaulters compared with 0.9% of young offenders and 1.2% of women.

The numbers involved are very small and we have been advised that statistically it is hard to draw any conclusions. It seems that the female population is made up of a slightly higher proportion of fine defaulters than the male prison population so to the extent that the Bill’s fine enforcement arrangements should help reduce the numbers sentenced for fine default, it may be that women stand to benefit to a slightly greater extent.

Although it is possible to establish the proportions of those receiving bail that are women or young people, the figures showing those bailed and having previous convictions are not broken down in this way. As such it is not possible, using our current information, to provide a breakdown of the gender or age impact for our estimate of the 25-35 potential extra prisoners per night arising from the new bail provisions. This figure was obtained by examining the numbers who had previously received bail for one of the offences set out whilst having a previous relevant conviction as set out in the Bill.

Finally we have looked at some research conducted by the Scottish Executive: Offending on Bail: An Analysis of the Use and the impact of Aggravated Sentences for Bail Offenders. This is published on the Scottish Executive website at www.scotland.gov.uk/Publications/2004/03/18848/32719. The research found that younger accused were more likely to offend on bail and females were less likely to offend. But it also found that “an offender’s gender, age and type of offence…committed were found to have no statistically significant bearing on the likelihood of an aggravated sentence being given”. The research also states that in the vast majority of cases (90%) where an aggravated sentence was given, the aggravation represented 50% or less of the total sentence.

It seems that within our initial estimate of an overall slight impact, we can establish no potentially differential impact on either women or young people of any statistical significance. I hope this additional information is helpful to the Committee.

Submission from the Association of Directors of Social Work and the Convention of Scottish Local Authorities

The Convention of Scottish Local Authorities (COSLA) and the Association of Directors of Social work welcome the opportunity given by the Scottish Parliament Justice 2 Committee to contribute to the scrutiny of the Custodial Sentences and Weapons (Scotland) Bill which has wide-ranging implications for local government. COSLA and ADSW support the overall policy objectives of the Bill which broadly represent an ambition to achieve safer communities and to prevent re-offending which is shared by all in local government.

However, COSLA considers that the Custodial Sentences and Weapons (Scotland) Bill needs to be scrutinised and further developed in a number of areas to ensure effective implementation. These areas are outlined below in:

This evidence on the Custodial Sentences element of the Bill is provided jointly by COSLA and ADSW. Whilst we welcome the increased emphasis on community-based sentences as an approach to reduce reoffending, we recognise that the measures contained in the Bill will result in considerable additional pressures on local government and on Criminal Justice Social Work services in particular.

The Bill offers an opportunity not only to reduce the ever-growing prison population but also to tackle Scotland’s high rates of re-offending. While the Bill focuses on offenders sentenced to between 6 months and 4 years, there is a clear opening to make a much-needed impact on re-offending rates among those sentenced to between 15 days and 6 months. To stop the revolving door of prison/re-offending we need to re-examine areas for improvement to meet the needs of this group.

Clearly, making provision to reduce re-offending based on individual risk of re-offending rather than length of sentence will require commensurate additional capacity. COSLA and ADSW consider that for reasons of effectiveness and efficiency, qualified social workers should be deployed to work with high risk serious offenders while para-professionals focus their work on lower risk offenders.

While for some persistent, “low-level” offenders, a short prison sentence may provide sufficient impetus to break the offending cycle, for the majority of offenders very short custodial sentences are ineffective in deterring, punishing, reforming or rehabilitating. There is also a disproportionately high financial cost to processing very short-term prisoners into and out of prison. For reasons of both effectiveness and cost, therefore, COSLA and ADSW agree in principle that short sentences are ineffective and it is COSLA’s view that they should be used only as a sentence of last resort for those most persistent low-level offenders. Any resulting upward drift in sentence length, however, would clearly be unwelcome and should be closely monitored.

Alternatives to custody for breach of licence and for fine defaulting should be sought for the same reasons of effectiveness and cost. There are questions around whether breach always warrants custody. The current breach rate is around 25% and it is anticipated that breach rates will only further increase with the introduction of the Bill.

Subsection (4) defines the appropriate local authority as either the one in which the offender resided immediately prior to the offence or the one the offender intends to reside in upon beginning the community part of her or his sentence on licence. This lack of clarity as to appropriate authority will inevitably lead to uncertainty over exactly which authority is responsible and takes no account of the difficulties in tracking offenders effectively across boundaries, especially those on short-term sentences.

It is further suggested by COSLA and ADSW that offenders should be imprisoned as close to their family or likely future accommodation as possible to maximise the likelihood that they retain relationships and settle sustainably on their release. Young offenders and women offenders, in particular, currently face specific issues in being placed in institutes or prisons, respectively, often at a considerable distance from their home, and ways of overcoming this potential dislocation need to be sought.

COSLA and ADSW welcome the recognition that joint working arrangements should be put in place between Scottish ministers and local authorities in relation to the assessment and management of the risk posed by custody and community prisoners. There are two elements of risk which require to be assessed and managed – risk of harm and risk of re-offending. It should also be noted that level of risk posed is not necessarily associated with the length of sentence. Domestic abuse, for example, can draw a relatively low tariff yet risks to partners and children can be extremely high.

It is essential that Criminal Justice Social Workers are jointly involved in risk assessments together with colleagues from the Scottish Prison Service to ensure appropriate conditions are attached to licences, that key transitional arrangements are in place and that local provision is made available and used. Indeed, COSLA and ADSW consider that it is essential that local authority social workers attached to prisons are actively engaged in sentence planning and delivery of appropriate interventions and programmes from the outset to assess and manage risk of harm and risk of re-offending. This joint process of risk assessment between Scottish Prison Service and local authority Social Workers raises difficulties related to the contract culture within SPS which would benefit from consideration.

There are significant resource issues arising from the assessment process. Criminal Justice Social Workers will be engaged in a large number of additional risk assessments as a consequence of this Bill and its requirement to assess the risk of harm from all those sentenced to 15 days or more.

“Supervision” is a wide term which requires closer definition as it can range from signposting and brokerage to monitoring and direct support and one-to-one programme delivery. Local authority social workers support:

There are currently around 4800 prisoners serving custodial sentences of 15 days to 6 months. The Bill sets out that only those sentenced to over 6 months in custody will be required to receive supervision. Those offenders sentenced to between 15 days and 6 months custody will be released on licence unless they are assessed as specifically needing supervision.

Whilst it is the case that not every prisoner released will require full supervision, it is likely that the majority of offenders, including those at the lowest end of the tariff scale, would benefit from an assessment of their wider welfare needs and, at the very least, signposting to provision – be it registering with a GP or accessing training. We consider that more needs to be done at all levels of offending if we are to break the cycle of re-offending, building on the role of prison-based social workers.

Across the Community Justice Authorities, there will be different organisations with the skills and knowledge to deliver this signposting or “brokerage” role. There may also be merit in exploring further the concept of “link centres” or hubs in the community which bring together the range of services and facilities to support offenders under one roof.

COSLA and ADSW support the proposition that the level of “supervision” required should be proportionate and tailored to the risk of both harm and of re-offending that each individual offender presents. Whilst for the purposes of assumptions for allocating resources and identifying additional needs, it is possible to identify around 3 different tiers of supervision (see appendix 1), in practice, each individual’s supervision package will need to be individually tailored to meet their specific requirements.

At the high end of the tariff scale, it should be noted that the impact which supervision can have on reducing further offending must be kept in perspective - more can be expected by the public and media than can realistically be achieved.

There are currently around 3800 prisoners serving sentences of between 6 months and 4 years who will be eligible for supervision. Criminal Justice Social Work currently supervise around 600 offenders across Scotland and, clearly, will be engaged in supervising much higher numbers of offenders during the community part of the sentence and will require a commensurate increase in resources.

COSLA and ADSW welcome the community sentence element as an effective means of reducing re-offending. Offenders need to be seen to take responsibility for their behaviour in the community - punishment through deprivation of liberty alone does not necessarily result in reform. Community sentences focus on taking responsibility, making reparation and being assisted into an inclusive community.

There are also specific gender issues which are not addressed by the proposed legislation. Many of Scotland’s short-term prisoners are women and we are not currently well-equipped to work with women offenders.

COSLA and ADSW perceive a need to publicise and explain community and hybrid sentences to the wider public and in particular, a need for shared messages from Ministers, MSPs and Councillors.

It is anticipated that the proposed measures will only intensify existing recruitment, retention and training issues across Social Work. There are capacity issues not only for Social Work Services but for voluntary sector and other partner agencies in securing sufficient people with the appropriate skills to deliver this challenging agenda. We estimate, for example, that a 10% increase in Social Work staff would be required to deliver the measures in this Bill.

We propose that qualified social workers should be deployed to work with the higher risk offenders while a range of para-professionals and voluntary organisations will be best placed to work effectively with lower risk offenders. While the arrangements for who delivers the latter role and how it is commissioned or contracted will be best determined locally, through the Community Justice Authorities, agreement is required nationally on the skills, functions and menu of services which should be available to low risk offenders.

In order for the Bill to achieve its stated policy objectives it is crucial that partnership is built into the provisions, in particular to require all relevant agencies to work jointly and to contribute to the rehabilitation of offenders. This partnership also relates to the Judiciary as for this Bill to have any impact it is essential that the influential law professions are on board and recognise the impact that a combined structure sentence can have on the rehabilitation and resettlement of offenders.

The financial memorandum outlines that £7.45m will be available to oversee those subject to supervision over 6 months. This equates to £2,000 per offender. COSLA and CJSW do not consider this allocation to be adequate. We estimate that the unit cost for supporting a high risk offender averages nearer £5,000 (including Social Enquiry Report costs, Keyworker Drug and Alcohol costs, employability services, resettlement facilitation, costs of breach, and offence-focussed work) and for lower risk offenders the unit cost is closer to £3,500, with a requirement for around £10m to oversee those subject to supervision over 6 months alone (see appendix 1). COSLA and ADSW will provide more detailed estimates of costings to the Finance Committee.

Caution must be exercised with regard to the estimates for additional financial burden. This is a new approach based on risk of harm rather than length of sentence but we only have information on current prisoners and patterns of activity. Services such as probation and community sentences, court-based social work, throughcare, supervision, supported accommodation, services specifically for women offenders, and drug and alcohol rehabilitation all need to be properly resourced if the risk of harm and re-offending is to be effectively reduced and if offenders are to be fully integrated into their communities. Local authority community-based disposals are not currently funded at a level which can realistically achieve the expected reduction in reoffending.

will all generate increased workloads and the need for additional staff and, in turn, additional office accommodation. There will be significant implications for prison-based, court-based and community-based Social Workers due to the increased assessments, reports and supervision required as a result of this legislation. There will also be an increased demand on accommodation and supported accommodation costs for prisoners released from prison.

COSLA broadly agrees with the terms in Part 3 of the Custodial Sentences and Weapons (Scotland) Bill in relation to the regulation of knife and sword sales and welcomes the increased role of Local Authorities in the regulation of knife sales and the prevention of knife crime. The proposed Bill has the potential to bring a consistent approach to the licensing and regulation of the sale of knives and swords.

However, COSLA proposes a number of areas below that require further consideration.

Premises where unlicensed dealing in knives is suspected or where a dealer is suspected of breaching conditions of their licence may be entered in order to ascertain whether the provisions of the Act is being complied with. However, these powers are only available after a warrant has been granted by a sheriff or Justice of the Peace. The Bill, as it currently stands, supplies no provisions to enter an unlicensed premise without a warrant nor is this available under the Civic Government (Scotland) Act 1982.

COSLA suggests that the legislation be amended to include powers allowing Local Authority Officers and Constables to enter unlicensed premises in order to check compliance with legislation. In addition, if there is reasonable belief that an offence has been committed, there should be the power to seize goods and documents. COSLA also considers that a power to test purchase knives would be helpful.

The provisions could be open to abuse by second-hand dealers who could sell knives, owned by private parties, for sale in their shop premises. These items could potentially be sold on behalf of another on a commission basis and this situation would not be subject to licensing and the consequent conditions. Similarly, non-domestic knives sold privately at auction will not invoke licensing conditions. COSLA considers that due diligence should be required of all sellers.

COSLA recommends that the Bill should be amended to place a condition on dealers to display a notice stating the offences in the Criminal Justice Act 1988 as amended regarding the sale of knives etc. to persons under 18 years. We also suggest that current provisions such as the Knives Act are taken into account to ensure that the marketing of knives is controlled and that inappropriate use is not promoted. Clarity is also required on licensing of sales of knives and swords from temporary points of sale across Scotland, for example at events and festivals.

The Bill contains no definition of a “non domestic” knife. This could lead to enforcement problems. COSLA suggests that there should be an amendment to ensure that the Bill clearly demonstrates a definition of “sword” and clarity to ensure craft knives, trimming knives, bush knives, and kukri or Ghurkha knives are captured within this definition.

We propose that knife crime should be monitored by the Police to capture the types of knives used following the introduction of this legislation to ensure that knife purchase is not simply displaced from non-domestic to domestic or from points of sale in Scotland to points of sale in England or abroad, beyond the reach of the legislation.

While internet and mail order sales from depots within Scotland can be monitored and regulated within the scope of this legislation, sales made from England or beyond will not be subject to such regulation.

A cost recovery model is the suggested form of financing the licensing scheme. However, it must be recognised that over the years, a number of small-scale, supposedly “cost neutral” schemes have been implemented by local authorities. Being small-scale, they do not individually warrant a dedicated member of staff. However, cumulatively, they represent a growing burden on local authorities. There are a relatively small number of businesses that sell knives and the cost recovery model suggested has potential to move the cost of the scheme on to local authorities through additional administration and regulation in ways which will not be “cost neutral”.

COSLA and ADSW welcome the general direction of the Custodial Sentences and Weapons (Scotland) Bill. However, we propose that the potential it has for impacting on both community safety and reduced offending, will be very much dependent on its comprehensiveness, its integration with the wider community justice and community safety agendas, and the level of resourcing made available to implement it effectively.

These are broad costs and include management, accommodation etc. However it may that the establishment of such a significant service will demand a major capital investment in accommodation. A very rough calculation suggests that an additional 100 staff would be required across Scotland to provide case-working and offence focussed work to the tier two and three services: an increase of about 10% in the staff group based on the 2005 figures. This is assuming that associated services e.g. accommodation, employability etc were provided by other agencies and therefore social work would not have a capital cost for their accommodation.

Thank you for your correspondence addressed to Sir William Rae, ACPOS Honorary Secretary, dated 10 October 2006. I would offer the following written submission on behalf of the ACPOS Offender Management Portfolio in relation to the above Bill. Unfortunately, I am not in the country to give evidence myself on 7th November 2006 and have therefore arranged for Detective Superintendent James Cameron, Chair of the Offender Management Working Group and Detective Superintendent William Manson, Lead on the ACPOS Management of Offenders Implementation Team will attend the Scottish Parliament, in my absence.

ACPOS has been a member of the recently formed Custodial Sentences and Weapons Bill Working Group and will be taking part in the sub groups which will have responsibility for scoping the impact of the proposed legislation.

It is noted that the Bill contains provisions on the two broad policy areas of custodial sentences and that of swords and non domestic knives.

The replacement of the system for automatic release for some offenders is welcomed and the new system should provide a risk assessed and managed return into the community. The punishment aspect of the sentence followed by supervision in the community should be easily understood by the offender, criminal justice professionals and the general public.

The release of offenders into the community must be a considered release with due regard to risk of harm based on risk assessment as opposed to many offenders in the previous system who often ‘did their time’.

The Integrated Case Management process now being used within the Scottish Prison Service will provide an effective structure for the management of offenders whilst in custody. It is vital that the release of offenders is influenced by effective risk assessment in relation to the risk that person may pose to the community and not only be based on behaviour whilst in a prison environment.

There is likely to be an increase in the number of offenders released on supervision which may increase the burden on Criminal Justice Social Work staff. This increase has yet to be fully scoped, however it is also likely that if there is an increase in offenders being supervised in the community there is likely to be an increase in offenders breaching the terms of their supervision and being returned to prison. Cross border powers of detention and responsibility for prisoner escort and transfer should be clearly defined.

It is important that a system is developed to ensure that if an offender presents a serious risk of harm to the community or is seriously breaching the conditions of supervision they are returned to custody without delay and this provision should be achievable outside office hours.

The release of prisoners into the community must link into the proposed Multi Agency Public Protection Arrangements (MAPPA). This will allow for defensible decision making and management of the identified risks involved. The MAPPA in respect of Registered Sex Offenders will be in place by March 2007, however the arrangements for violent offenders will not be operational until later. The MAPPA is only suitable for the management of Sex and Violent offenders.

Information sharing protocols between partner agencies supported by the concordat and within the ‘duty to cooperate’ are still in the process of development. It is essential that criminal justice partners have clear information sharing guidelines to ensure accurate risk assessment and to inform effective offender management.

Due consideration has been given to those with a legitimate reason for trading in such articles with the minority of the community who may have a legitimate reason for possessing them.

The enforcement aspects of the legislation seem to be proportionate and achievable to assist in tackling an aspect of knife crime within a violence reduction strategy.

The damage inflicted daily across Scotland through the use of such weapons is clearly evidenced through the work of the Violence Reduction Unit and Health information from Accident and Emergency Departments. Restriction on the availability of non domestic knives and swords is likely to encourage retail responsibility and may reduce the volume of combat designed weapons in the community over time.

The Association of Scottish Police Superintendents is grateful for the opportunity to comment on the general principals of the above Bill.

While the Association is generally supportive of the need to consider alternatives to custody to ensure that the prison population is reduced and that prison is retained as the ultimate sanction for serious offenders, there are concerns that financial and political considerations may dictate the agenda. The Association considers that there is a need for increased investment in non-custodial penalties which are positive and offer better chances of rehabilitation of offenders, particularly young offenders in the early stages of their criminal career.

The Association believes that sentencing policy should take cognizance of the protection of the community as well as the rehabilitation of the offender. It is felt therefore, that community penalties should be directed at those who commit minor offences or do not have a substantial criminal record. Such penalties are not considered suitable for those who have committed serious crime or habitual recidivists. Nor should the more serious sexual cases ordinarily be eligible for a community disposal.

The Scottish criminal courts already have available to them a wide range of sentencing disposals ranging from imprisonment to absolute discharge. Until relatively recently the range of non-custodial sentences available to the courts has been largely limited to: admonition ; caution; absolute discharge; the fine and the probation order. In 1979 the Community Service Order (CSO) was introduced and this has been followed by the Compensation Order (1980); the Supervised Attendance Order (1990) and, more recently, the Drug Treatment and Testing Order and the Restriction of Liberty Order (1998).

In 2000, only 13% of those convicted of crimes and offences were given a custodial sentence. However, over the last half century the average daily prison population has increased threefold from around 2,000 in 1950 to 5,869 in 2000. In the last decade an increasing number of convicted offenders have been sent to prison both in absolute and proportionate terms. In 1990, 12,969 of 176,558 persons with a charge proved against them received a custodial sentence (7%). Ten years later the number of persons with a charge proved in court had fallen by 33 per cent to 118,009 but of these, 15,265 (13%) were sentenced to a period of imprisonment.

This upward trend in the use of imprisonment has coincided with an increase in the average length of sentence handed down by courts in recent years. While, in 1990 the average custodial sentence imposed was 187 days, in 2000 this had increased to 217 days. Both of these factors have had an impact on the steady growth of the prison population. One result has been overcrowding, particularly in local prisons. In March 2001 the average population of Scottish prisons peaked at 6,253 against a capacity of 5,896. In comparative terms Scotland has one of the highest incarceration rates in the European Union. The great majority of custodial sentences handed down by Scottish Courts are for short periods. In 2000 for example, 82% of custodial sentences were for 6 months or less.

In 2000, 7,703 people (23% of entire prison population) were imprisoned for defaulting on a fine. Of those, 29% had been fined for crimes involving dishonesty, 29% for miscellaneous offences (which include simple assault, breach of the peace and drunkenness) and 20% for offences involving motor vehicles. The average fine outstanding in 2000 was £241 and the average length of imprisonment for fine default was 11 days.

As at 31 March 2001 the Scottish Prison Service employed 4,586 staff and operated 17 penal establishments (including HMP Zeist) at a total cost of £250.6m. The average annual cost per prisoner place in 2000-01 was £28,114. The approximate cost of keeping an offender in prison for 6 months (£14,057) can be compared with £1,936 which was the estimated average cost of a probation order in 1990-2000 or £1,828 for a community service order.

Consideration of costs alone, of course, can say nothing about the relative effectiveness of custodial and non-custodial sentences in reducing re-offending. One way of assessing effectiveness, though not without its problems, is to examine reconviction rates. Several recent studies have suggested that community-based disposals such as probation or community service lead to lower (23% - 27%) reconviction rates than the use of custody.

The Association sees a number of benefits in increasing the pool of available sentencing options. However, the Association would caution that in considering alternatives to custody, a careful balance should be struck between the rights of offenders and the protection of society and communities. The imposition of a non-custodial part sentence should never be financially driven – it should be driven by the desire to find the appropriate disposal for the case at hand.

Of specific concern to the Association would be the supervision of prisoners released on licence and whether that role would fall on the police or the local authority. Police forces currently monitor Curfew Orders which to do properly involves an enormous amount of time and use of resources. It would not be possible for forces to redeploy resources from the front line to yet another duty which has been placed upon us.

In relation to Part 3 of the Bill regarding the licensing and regulation of knife dealers, the Association supports the general provisions contained therein. Any legislation which attempts to control the sale of such items is to be applauded. However there are so many other ways in which knives, swords and other lethal weapons could be obtained, such as the internet or through mail order.

The Association would like to have seen specific conditions contained within the Bill in respect of the Knife Dealer's Licence. Exactly what will the records maintained by the dealer actually record, i.e. age of purchaser, address, reason for purchase, identification produced etc. The Association would also wish to know what checks would be carried out prior to issuing a licence and would police forces be allowed to comment on eligability.

Chief Superintendent Clive Murray, President of the Association of Scottish Police Superintendents, will be attending the meeting of the Justice 2 Committee on Tuesday 7 November 2006 where he will give evidence. I trust these comments are of assistance to you and if the Association can be of any further assistance, please do not hesitate to contact us at the address listed.

The proposal for the licensing of the sale of swords and knives is fully supported by the Violence Reduction Unit. Clearly many retailers will be unhappy about such a move but the problem of knife carrying and associated violence in Scotland is so acute that any legitimate objection against licensing must be weighed against the potential benefits of such a scheme. There is a need to limit the immediacy of access to such weapons and to place a barrier between those who wish to use such a weapon and the commission of such heinous acts.

The use of knives is neither a new or increasing problem in Scotland and in particular the West of Scotland. Over a 10-year period (1993-2002), there were 885 murders in Scotland, 669 of which were in Strathclyde, out of which approximately 50% were committed with a bladed weapon.

The use of knives is maybe historically linked to Glasgow and the West Coast, the knife is also one of the most common weapons currently used across the whole of Scotland, with the frequency of use dependent on the seriousness of the assault. For example, Tayside Police report that 45% of attempted murders, 12 % serious assaults where committed with a knife, whereas, Lothian & Borders report 31% for murder, 33% for attempted murder and 9.5% for Serious Assault. The pattern for the rest of the force areas is similar with knives being less common in less serious incidents.

Unlike a firearms assault, the seriousness of a knife injury is sometimes completely random and is influenced by many other situational factors such as availability of emergency services, speed of response, did the knife cut a major artery or organ. Even the most innocuous stab wounds with a blade less than 3 inches can be life threatening. Considering the random nature of knife assault, then the murder figure in Scotland could be significantly higher.

A recent study of knives recovered within Strathclyde (Violence Reduction Unit) indicates that the most common weapon is the ‘lock knife’. If this is extrapolated it would then suggest that this knife is the most common used in assaults, attempted murders and murders, challenging the stereotype that the knife mainly comes from the kitchen drawer. The fixed blade knife is next most common, which includes the kitchen knife, however, this group also contains a variety of other knives including hunting and the ‘Rambo’ style blade. Detailed examination of the knife type indicated that 77% of all knives either used in an assault or apprehended in a search were non-domestic in origin.³

The behaviour displayed with the knife may have a resultant effect on the type of knife carried (and vice versa), with locking knives being kept most usually in the carriers underwear, whereas, it is unlikely that fixed blade knives would be secreted in the same area (for personal safety reasons). Alternatively, kitchen knives may be predominantly used in domestic attacks and larger ceremonial knives/swords may just be primarily for intimidation purposes.

Where the knives are being sourced is important. There is some evidence to suggest that some are still being sourced in the home (primarily fixed blade) weapons. This is indicative of the availability of that type of weaponry in the family home. However, the more common lock knife is not being sourced from the home. Intelligence suggests that these are being sourced through shops and other outlets (not necessarily major retailers). Licensing retailers and applying appropriate proportionate condition will help to stem the number of knives available on the street.

Any person who seeks a licence to sell non- domestic knives should be a fit and proper person with no convictions for crimes of dishonesty or violence. Identity must be sought from customers seeking to purchase non-domestic knifes and a record of said individuals should be kept. It is the opinion of the Violence Reduction Unit that non-domestic weapons must be stored in a secure way and not be openly displayed in shop windows.

Although swords may primarily be used for intimidation and show there have been a number more serious incidents involving a sword including 5 murders, 41 attempted murders and 196 serious assaults since 2000. In the last year alone there has been 10 attempted murders and 48 serious assaults where the primary weapon is a sword. (Strathclyde figures only).⁴

It is the opinion of the VRU that the swords used in such attacks and threats are low-grade imitations such as the £30 set of three samurai swords. It is unlikely that the attacks would be carried out using a genuine samurai sword at a cost of thousands of pounds. Legislating for swords based on there relative merits such as quality and price would be difficult and even more difficult to police. It is therefore, the opinion of the Violence Reduction Unit that any such legislation should make provision for those with a genuine need to purchase said items such as sporting use or members of historical societies.

Legislating and licensing alone will not make a sustained substantial difference to the level of serious violence within Scotland. Tackling the problem will require societal change and work is ongoing in the long-term to achieve such ambitious goals, however by limiting the access to both swords and knives and decreasing the opportunity that these weapons are used in the commission of violence it will save lives.

The POA have been invited to give evidence to the Justice 2 committee of the Scottish Parliament on the above bill. We thank the committee and welcome the opportunity to do so.

In doing so we must first make our position clear on this Union commenting on sentencing policy. We have always in the past steadfastly refused to become involved in commenting on this area of the Criminal Justice System primarily because of our apolitical stance on these areas and also the fact that our membership in the main are Civil Servants whose role it is to implement Government policy without fear or favour.

It would therefore seem appropriate that we try to curtail our comments to the potential impact of the proposals on both the staff and the service itself.

Having read through the proposals it seems clear that the move from what is considered by most practitioners to be automatic 50% remission at present to a situation whereby Sheriffs and Judges can in some circumstances determine that an individual must serve 75% of the sentence in Prison custody will place an additional burden on already strained and overcrowded Prisons. The consultation itself seems to already recognize that there is little or no information available regarding those prisoners who have at present been released having served 50% of the sentence reoffending and being returned to serve the remaining 50% of their sentence. If as proposed there is greater scrutiny of a prisoner’s time in the non custodial part of their sentence and they are made to return to serve the remaining part this again will place further pressures on overcrowding. We are not at this juncture advocating against merely point out the further pressures on a system which currently houses the highest prison population yet experienced.

Turning to the proposal that sentences of 15 days or less should be served wholly in custody. It is difficult to try and understand what exactly the prison service is to do with these people other than to keep them in secure custody and whilst this is one of the primary aims of the service it is also incumbent on us to try to address offending behaviour. A sentence of 15 days or less does no more than allow us to warehouse prisoners who in the main given the level of sentencing will have committed a minor misdemeanour which would call into question whether prison was the most appropriate response or if some other alternative to prison should have been considered prior to sentencing.

The role of the Parole Board in the bill causes concern, certainly not over their competency in the ability to implement the new proposals, more so in the logistics of administering the new proposals in what we perhaps wrongly perceive as a substantial increase in work load without it would appear a substantial increase in resources.

In summary, the proposals in our opinion have far reaching resource implications for a service that for the last five years has been subjected to a flat line budget on running costs which to date has seen us shed in the region of 700 operational prison officer jobs. This has been required to meet the needs of 5% savings year on year to take into account annual inflation and any negotiated increase in staff salaries and as far as this Union is concerned is a situation that is no longer sustainable. The implications in the Bill are such that there would be a considerable increase in the administration work required to be done by Prison Officers in providing the parole board with reports on more prisoners than has been required in the past and that the estimates by the Prison Service of an additional 18 to 19 staff per 1000 prisoners at a cost of £5-6million a year seems in our opinion very conservative.

We hope these brief written comments and short summary are helpful to the committee and are ones that we can hopefully elaborate or expand on during oral examination

It would not be our intention to comment in any great depth on the proposals to license non domestic knives and swords. However, given that it is an integral part of the Executive’s strategy to combat knife crime we thought it incumbent on ourselves to draw to the committee’s attention what we believe to be a serious anomaly in the current situation.

As it stands just now it is a crime to carry certain types of knives in public and anyone caught will be subject to prosecution. The anomaly exists in that a prisoner caught within the confines of a Prison is not subject to the same provisions and as far as our preliminary investigations can find out neither the police nor procurators fiscal are in a position to do anything about it under what we believe to be the wrong assumption that Prisons are not public places. This perception in our opinion is at complete odds with the Scottish Executive’s smoking bill which quite clearly has designated Prisons for the purposes of the act public places. Whilst we appreciate that this current bill under consideration might not be able to address the problem we believe that it is of such a serious nature that it has be addressed as a matter of some urgency not only that it seems so wrong in principle but that it would appear to be in conflict with the Executive’s campaign on zero tolerance to assaults on public sector workers.

Again if the committee feels that we can assist with anymore information during oral evidence then we are happy to do so.

Supplementary Submission from the convention of Scottish Local Authorities and the Association of Directors of Social Work

The Convention of Scottish Local Authorities (COSLA) and the Association of Directors of Social Work (ADSW) welcome the opportunity given by the Scottish Parliament Justice 2 Committee to contribute additional information to the scrutiny of the Custodial Sentences and Weapons (Scotland) Bill

This supplementary submission is in response to the request from the Justice 2 Committee for further information on

Statistics that demonstrate the difference between the reconviction rates of those who have served a custodial sentence followed by some community intervention and those who have served a custodial sentence only

What alternatives might there be to simply returning to custody for those who breach their license

What conditions local authorities would be likely to impose in relation to licensing schemes for knife sales

ADSW can advise that the Scottish Executive does not publish reconviction figures related to whether or not the individual has been on supervision. The Scottish Executive Analytical Services has been contacted by ADSW to discuss whether this data was available for ad hoc analysis and have been advised it is not.

ADSW has been advised that these figures are on their forthcoming agenda and have requested that the Scottish Executive Analytical Service clarify this. ADSW believe it would be more effective if Justice 2 Committee makes the enquiry direct to the Analytical Services Unit of the Scottish Executive. The bulletin in which the most recent reconviction figures appears is Reconvictions of Offenders Discharged from Custody or Given Non-Custodial Sentences 2002/03.

In answer to the Committees question regarding what alternatives might there be to those returning to custody after breach in their license ADSW has the following comments:

The Courts have a range of options available to them depending on what order is being breached including extensions of hours, additional conditions etc. Also for failure to pay a fine there is Supervised Attendance Orders.

Options at breach might include being able to pay the original fine for breach of SAO; the imposition of a fine for breaches of probation, CS, DTTO etc. - perhaps with the attachment of earnings or benefits; restriction of liberty orders or tagging.

It is of course important that breaches are dealt with quickly - many are outstanding for 6 months or more after the breach report is submitted. It is suggested long delays significantly reduce the impact of the breach process.

Resentence for the original offence - especially for breach of Community Sentence which is meant to be an alternative to custody.

In the COSLA and ADSW submission to the Justice 2 committee on 7th November 2006 in the section entitled Knife dealers’ licence conditions it stated that:

In response to the question asked at the evidence session COSLA undertook an appraisal of local authorities’ current licence schemes. Some examples given are as follows:

Whilst the new legislation gives local authorities the ability to set their own fees it is anticipated to an extent that fees will be set within a similar range, as appropriate.

As stated in first submission COSLA and ADSW welcome the general direction of the Custodial Sentences and Weapons (Scotland) Bill. However, we propose that the potential it has for impacting on both community safety and reduced offending, will be very much dependent on its comprehensiveness, its integration with the wider community justice and community safety agendas, and the level of resourcing made available to implement it effectively.

Victim Support Scotland is the largest agency providing support and information services to victims of crime in Scotland. Established in 1985 the organisation currently employs around 180 staff and 1000 volunteers. In 2005-2006 our community based victim services and court based witness services supported 170 000 people affected by crime. Through our contact with victims and witnesses, we have identified a need to demystify the criminal justice process to the general public and to make sentencing more transparent. These are two of Victim Support Scotland’s policy objectives and reflect the views we will be taking regarding the new bill.

Victim Support Scotland is aware that crime in Scotland today is falling. Cathy Jamieson stated last week that violent crime is at its lowest level since devolution and that last year there were 20,000 fewer crimes recorded by the police. However, Scotland still has a problem with re-offending. Figures show that 45 % of offenders discharged from prison or given a non-custodial sentence in 2002-2003 were reconvicted within two years. This must be addressed; Victim Support Scotland therefore welcomes new legislative initiatives and willingly accepts the opportunity to provide a response regarding the Custodial Sentences and Weapons (Scotland) Bill.

The Custodial Sentences and Weapons (Scotland) Bill contains provisions within two broad policy areas: provisions on custodial sentences and provisions relating to knives and swords. We have divided our response according to the two policy areas.

According to the new bill, sentences of 15 days or more will have a minimum of 50% spent in custody. Courts will have the power to increase the time spent in custody to a maximum of 75% of the sentence by considering the seriousness of the offence, previous convictions and the timing and nature of a guilty plea. The court will however not be able to take into account the risk the person may present to the public when determining the length of the custody part, since this will be assessed during the custody part and, if necessary, will be decided by the Parole Board. Victim Support Scotland does not see the Parole Board’s assessment as an obstacle to the court’s review and would like the protection of the public, including the views and opinions of the victim, to be taken into account by both the court and the Parole Board. The criminal justice system serves to reflect the wishes and needs of the public, and should fulfil the society’s expectations of punishment and deterrence. For the court to take the protection of the public into account when determining the time spent in custody would seem to be in the public’s interest. It may also increase people’s view that “justice” has been done, which increases the public’s faith and trust in the criminal justice system.

Before the expiry of the custody part of the sentence, the bill proclaims that a review should be made if the person would, if released on licence, “be likely to cause serious harm to members of the public”. Victim Support Scotland supports the consideration of public safety, which includes the victim(s) and witnesses. A proper assessment of the offender’s individual circumstances significantly improves today’s practice of automatic and sometimes unconditional release.

If a person is seen to not cause a threat to members of the pubic, the person must be released on community licence. The licence may include certain conditions. If the prisoner breaches a licence condition, if Scottish Ministers think it is likely that a person will breach the licence or if it is in the public interest, the Scottish Ministers must revoke the licence. Victim Support Scotland supports the use of license conditions. We would however like to stress that for these conditions to be affective and fully respected, they have to be communicated appropriately to both the accused and the victim(s). Both parties should also be informed of the consequences if the offender breaches any of the conditions in the licence. Regarding revocation of licences, Victim Support Scotland supports the possibility for Scottish Ministers to take account of the public interest, including safety of the public at large. We are also positive to the mandatory wording, that the licence must be revoked, which will hopefully lead to consistency and predictability in the practice.

The community licence is in force until the sentence expires (for custody-only and custody-and-community prisoners) or for the remainder of the prisoner’s life (life prisoners). Victim Support Scotland agrees with this practice, which will hopefully increase the public’s faith in the justice system, as offenders will be seen to serve the entire court imposed sentence and not just the custody part of it.

This need for victim(s) to receive information regarding community licence and attached licence conditions is not appropriately reflected in current legislation. Victim Notification Scheme is a statutory scheme, which gives eligible victims the right to receive certain information regarding the offender, for instance date of release. To be eligible to receive this information, the offender has to be sentences to a period of imprisonment of four years or more. This is a high threshold, which disqualifies many victims from receiving any information regarding the offender. According to Criminal Justice (Scotland) Act 2003, section 16, subsection (4)(a), Scottish Ministers may amend the specified time period. Due to an increased need for information attached to community licences and their conditions, Victim Support Scotland wish the Ministers would take this opportunity to specify a shorter time period, to allow more victims to be eligible to receive information.

If the person is seen to cause a threat, the person will be referred to the Parole board for further review. However, the Parole Board will not be able to prolong the period spent in custody beyond the period imposed by the court. Victim Support Scotland supports the practice of referring prisoners to the Parole Board, since it takes the concerns of the public, including victim(s) and witnesses, into account. The Parole Board is already operating (considering parole for prisoners serving a sentence of four years or more) and we commend the extension of the Parole Board’s functions, which will hopefully make parole releases more tailored to the individual prisoner.

The new provisions appear likely to have implications for the workload of agencies such as Criminal Justice, Social Work, and the Parole Board. It will be important, therefore, that appropriate resources are made available to those agencies charged with the implementation of this legislation.

The bill introduces a mandatory licensing scheme for the commercial sale of swords and non-domestically knives, to be known as a knife dealer’s licence, with local authorities being the licensing authorities. The knife dealer’s licence is required for people who carries out business as a dealer in knives and other specified articles, and is hence not needed for private sales between individuals. Many people that Victim Support Scotland comes in contact with have been victimised by knife violence. Even if the knife is not intended to be used, it may be carried for protection, intimidation etc. If a threatening situation arises, the knife is sometimes brought out, which increases the gravity of the situation and may lead to violence and injuries that had not taken place without the knife. The number of people jailed for carrying a knife has risen 20 per cent in the last five years. Victim Support Scotland therefore strongly supports the proposed regulation, as the need for a knife dealer’s licence will hopefully decrease the number of knifes in the general public’s hands.

The new bill proposes that the sale of swords will be banned, subject to exceptions for specified religious, cultural or sporting purposes. By decreasing the number of swords in the general public’s hands Victim Support Scotland hope that this regulation, along with the introduction of a knife dealer’s licence, will decrease the general violence using these tools and make Scotland’s communities safer.

The provisions regarding custodial sentences strive to end automatic and unconditional early release of offenders and to achieve greater clarity in sentencing. The new management regime aim to provide a clearer system for managing offenders while in custody and on licence in the community, to take account of public safety by targeting risks and to have victim’s interests at heart. The goal is to enhance public protection, reduce re-offending rates and increase public confidence in the justice system by fulfilling society’s expectations for punishment and deterrence. The objective of the provisions regarding restricting the sale of non-domestic knives and swords is to tackle knife crimes and violence in general by helping to prevent that these potentially dangerous weapons fall into the wrong hands, which will lead to safer communities. Victim Support Scotland is positive to the proposed regulations, which we hope will fulfil their stated goals. The great number of knife crimes shows there is a great need to reduce the number of knives in the general public’s hands. Regarding the custodial sentences, we hope that the new regulations will help the courts take greater consideration of the views and needs of victim(s) and witnesses in their choice of sentence. We would like to stress that regarding the new community licence regulations, both the offender and victim need to get extensive information of the sentence, the reasons behind it and licence conditions for the new regulations to be fully applied and appreciated by all parties.

The Scottish Consortium on Crime and Criminal Justice (SCCCJ) agrees that public protection is paramount and that if offenders are assessed as at high risk of causing harm they should be detained in prison for lengthy periods and be subject to supervision on release.

SCCCJ commented in May 2006 on the Sentencing Commission report “Early Release from Prison and Supervision of Prisoners on their Release”. The Consortium at that time, expressed its concern about the Commission’s proposals on grounds both of clarity and effect. The Consortium also studied the Scottish Executive’s proposals for legislation “Release and Post custody Management of Offenders” and its concerns remained. The concerns increased on reading the Bill.

The Consortium regrets very much that the Scottish Executive is choosing to follow a path that, far from achieving the above goals and intentions, would incur huge costs and have serious negative and we believe unintended, consequences for the criminal justice system and for the safety of Scottish communities. The Bill, if implemented as it stands, would not achieve its objectives, as it would:

2. ring into the risk assessment process such a large number of offenders that it would require a large increase in bureaucracy and processing which will use up resources which would be better invested in front-line services that reduce re-offending and in dealing with the most dangerous offenders on whom the risk assessment and supervision resources should be concentrated

4. Furthermore, the proposals would increase the prisoner population considerably. The projected increases would lead to Scotland having the highest imprisonment rate in Western Europe, more than double that of Finland, Sweden, Denmark and Norway, and even more than Hungary and Bulgaria!

5. An additional point the Consortium wishes to make is that if the current provisions for prisoners sentenced to life remain “fit for purpose” as stated at Para 31 of the Policy Memorandum, then the existing provisions should simply be re-enacted in full in this Bill. Although this same Para stats this is the case, there are some apparently significant changes. For example, Section 34 (2) says, “Where a prisoner’s life licence is revoked by virtue of section 31(1) or (4), the prisoner must be confined until the prisoner dies.” This is not the case at present. It is unclear whether section 34(3) means the above would not happen if the Parole Board directs the prisoner be released.

Also, at section 15 (7) the wording is unusual for a Bill, saying “it does not matter [our italics] that a punishment part so specified may exceed the remainder of the person’s natural life.” This is ambiguous and strangely worded for a statute.

The proposed system will not be easier to understand than the present system.

It is that important public confidence and understanding of sentencing is increased. The Consortium strongly supports the proposal to explain fully, at the point of sentence, what the sentence means in terms of custody and time on licence in the community. The sentencer should emphasise that both the custodial and community part are integral to the sentence and that it is divided in this way to best achieve its purpose – the reduction of re-offending – which should also be stated.

Counter to the objective of the Executive, the proposed new system appears more complicated to operate, more uncertain in its effect and more difficult to understand and more open to public confusion than the system it would replace. In the proposals there are many more uncertainties and variations in the sentence.

The proposed system would bring so many prisoners into the risk assessment process that it would require a large increase in bureaucracy and processing which will use up resources that would be better invested in much-needed front-line services that reduce re-offending by dealing with the most dangerous and also dealing with the lower level persistent re-offending from which some communities suffer.

Key to making the new system work would be a higher threshold at which risk assessment would have to be conducted on all prisoners. We do not object to the principle of assessing risk but to which categories of prisoner it would be applied. At the lower end of the sentence range the proposed new system would be unworkable as there is such a large number of people involved. A significantly higher threshold would be needed.

If those under 6 months did not have to be risk assessed the numbers going through this process would reduce by approximately 7000 per annum.

The Consortium strongly supports better release arrangements and community support for short-term prisoners but not linked to a complicated system of risk assessment and release arrangements.

It is proposed that if a prisoner serving 15 days or over is not released at the half-way point, his case would be referred to the Parole Board. To consider the case properly, papers would need to be prepared and sent to the Parole Board. While there would be more time with longer sentences, over 80% of sentences imposed in any year are for 6 months or less. It is impractical, before the end of short sentences of under 12 months in total i.e. 6 months in custody, for:

The Policy memorandum states at Para 19 that “The level of joint working and the assessment required will be proportionate to the nature of the crime and the length of sentence.” Firstly, this reverts to length of sentence being an indicator of seriousness, which may be reasonable but is not consistent. Secondly, although it is recognised there may be different levels of intensity of risk assessment, the administrative process would still have to be carried out for all.

Resources

This proposed system would require huge additional resources (Financial Memorandum of the Explanatory Notes P32), which would be diverted to prison building and management from elements of the criminal justice system which are crucial to reducing re-offending.

A significant increase in the prison population is assumed in the Financial Memorandum of the Explanatory Notes. The increase will lead to serious overcrowding, at least in the short term. Overcrowding will adversely affect positive work in prison to reduce the level of risk of those being released.

Under the proposals all those in this category would serve the full sentence in custody. This means a number, albeit relatively small (no exact figure is available from current prison statistics), in the daily prison population would serve double the time currently served and this would double their proportion of the daily prison population.

It is proposed that all fine defaulters will serve their whole sentence in custody. The average sentence is 11 days, and their numbers in the daily prison population (54 in 2005/06) will double. The cost of this is will be an average of £1205 per prisoner while the size of the average fine is £278.

If we are seeking to reduce harm, why double the length of sentence of those whose original crime was one the court did not deem worthy of a custodial sentence and who are being imprisoned in lieu of a monetary penalty with no risk factor?

All released after a sentence of over 15 days would be on licence. It is well known from research (Fergus McNeil) and from experience in the Drug Court, that the path to desistance from re-offending is a process not an event. It is inevitable that there would be recalls for breaches of the licence. If there are more prisoners on licence, there will be more on recall. As the numbers on licence would be large, the numbers recalled to prison would also be large

Although the Parole Board may then instruct that some of those recalled are released, this would take time. So, not only would the numbers of recall be higher than at present but also all recalls would add to the prisoner population even if the Parole Board deemed the recall unnecessary.

Breaches have to be “serious” to merit recall. Who would define “serious”?

The only additional measure mentioned in this regard, is new representation on the Parole Board of someone with knowledge and experience of the way and degree to which offences affect victims.

Imprisonment for Fine Default or Contempt of Court (i.e. not direct sentence)

You will serve x days in custody. You will serve this period in full unless your release date falls on a weekend in which case you will be released on the preceding Friday or if it falls on a public holiday you will be released on the preceding working day.

You will serve this sentence in full unless your release date falls on a weekend in which case you will be released on the preceding Friday or if it falls on a public holiday you will be released on the preceding working day. You will not be subject to any licence on release.

¹ 87% of the liberations in this sentence length i.e. excluding convictions of non-sexual crimes of violence and crimes of indecency

² 13% of the liberations in this sentence length i.e. those with convictions of non-sexual crimes of violence and crimes of indecency

³ 05/7/04-04/7/05

⁴ 27/10/2005-26/10/2006