In 2010 the Scottish Government legislated for a presumption against sentences of less than three months. Six months had been sought, but cross-party support was absent for the minority SNP administration.
The presumption isn’t mandatory and sentencers have the right to impose a custodial sentence simply by stating that no other option is appropriate.
Fears of a crime wave by offenders at liberty never materialised. Six years on, Scotland has seen crime drop to a 41-year low. Prison numbers have stabilised and there’s been a significant drop in youth custody of almost 50 per cent. Welcome progress.
Sadly, presuming the end of short sentences proved premature. Twenty-nine per cent of custodial sentences imposed are for a period of three months or less, notwithstanding the legislative presumption, and a further 37 per cent for periods between three and six months. Sixty-six per cent of sentences imposed in 2013/14 were therefore for six months or less, with only one per cent being for crimes of a violence or a sexual nature.
Extending the short sentence presumption
Hence, the Scottish Government launched a consultation last September on extending the presumption, and sought views on other appropriate actions to assist in the reduction of routine incarceration for low-level offending. The consultation is now closed, with the majority of respondents supporting an extension of the presumption to 12 months.
Many have also called for restrictions on the ability of sentencers to impose short periods of imprisonment. As ever in such consultations, most of the respondents were from the justice sector and were supportive of the policy and potential changes to improve it. Now, though, it’s for the politicians to act.
The Scottish Parliament has now reassembled after the Holyrood elections and a decision appears imminent.
The newly-reappointed SNP Justice Secretary, Secretary Michael Matheson, has stated that a presumption of at least 6 months is a step in the right direction. Though, once again a minority administration, there also appears to be cross-party parliamentary support. Both the Greens and Lib Dems supported 12 months and Labour six months in their manifestos.
The Scottish Government has also shown willing to date with bold action on women offenders. It has also recently announced a transfer of funding of £4 million from prisons to community justice budgets.
So it looks as if a change to a presumption of at least six months is coming. The support is there and the question is not if, but what period it will be for. That’s to be welcomed.
It’s thought the Government is open to 12 months but may be both wary of press hostility and perhaps hamstrung by the ability of community justice to react immediately to a hugely increased workload.
Moreover, whilst the transfer of resources from prison to community projects is welcome, they take both time to work through. They are also only a fraction of what is really required to make the policy work. Getting to that period seems the issue.
A staged transition
A staged transition would be an option: indicating a change to a presumption of 12 months at a slightly later date but increasing incrementally from an immediate six months, which can be done more easily and speedily. This would allow for resources to be provided, community justice to prepare and sentencers to be educated on options beyond incarceration.
Much more than £4 million will be needed. The road to hell is paved with good intentions and policy needs to be delivered in practice. The practical challenges are significant and the funding stream limited so far.
Moreover, a staged transition would allow time to legislate for action restricting the opt-out by sentencers. That, as the Scottish Government themselves said in the consultation, will require primary legislation. Its doubtful that a blanket end to short sentences would be either wanted or acceptable, politically or judicially. But restrictions on categories of offences and circumstances most certainly are.
Progress has been made. The new Lord Justice General has indicated a clear desire to see the use of short sentences greatly reduced. The Judicial Institute, which trains the Judiciary, has been active in trying to guide and assist sentencers in that desire. Moreover, generational change, as new Sheriffs are appointed, has also impacted.
However, a blockage still exists. Research indicates that the presumption has had minimal impact on sentencing decisions. Indeed, in-depth interviews with Sheriffs indicated that it had worked for some but been ignored by others.
It’s premature to presume the end of short sentences in Scotland, though a direction of travel has been set.
However, it’s not just resources for community disposals but restraint on the imposition of custodial sentences that’s needed. That’s why it’s not just an extension of the period of the presumption that’s required but a curtailment of the right to impose them.
Kenny MacAskill was the Scottish Justice Secretary between 2007 and 2014. His new book, The Lockerbie Bombing: The Search for Justice, is out now from Biteback Publishing.