This article by Alison Payne appeared in the Herald.
Justice Secretary Kenny MacAskill’s plan to scrap prison sentences of six months and under is a typically bold move from a man who is, arguably, the Scottish Government’s most outspoken minister.
The proposal, a cornerstone of Protecting Scotland’s Communities: Fair, Fast and Flexible Justice, published earlier this month, is as sensible as it is radical. But it is a pity that Mr MacAskill has allowed his preoccupation with cutting Scotland’s spiralling prison population to hijack a vitally important debate.
Of course, reducing the number of inmates in our overcrowded jails is a perfectly laudable aspiration. But, to achieve this, the Scottish Government\’s focus should be on the means: how to cut crime.
We at Reform Scotland welcome the plan to scrap prison terms of less than six months. As we pointed out in our own report Power to Protect, published in October, very short sentences do not offer the taxpayer value for money; give limited opportunity for rehabilitation; and are more likely to push someone towards a career in crime rather than put them back on the straight and narrow.
But though this is a sensible proposal designed to steer more people away from the revolving door of prison, it is important to recognise that it will have a very limited impact on the overall jail population. Of an average daily prison population of 7375 in 2007-2008, only 570, or 8%, were serving sentences of six months or fewer.
Also, it would be wrong to presume that all these individuals would escape prison sentences under the new proposals. Some may end up serving longer jail terms because the judge believed that prison was the right disposal. This is not necessarily a bad thing because a longer sentence would also give the opportunity for more appropriate rehabilitation.
Rehabilitation is a key function of the prison service and is vital if reoffending is to be reduced. However, a one-size-fits-all approach will not work. Meaningful rehabilitation needs to be tailored to individuals. This is why we also believe that prison governors must be given greater discretion to try different approaches that address the needs of their inmates. It should be possible to provide some level of rehabilitation whether an inmate is serving six months or ten years.
While we would argue that very short sentences should not be handed out in the first instance, if offenders breach community orders, including the new Community Payback Sentences, the court has to be free to use prison as the ultimate sanction.
But while there is merit in scrapping very short sentences, the government\’s proposal to set up a Scottish Sentencing Council is misguided and poses a threat to the independence of the judiciary. It is a judge\’s job to take into account all the circumstances of a case and pass a sentence, and it is the government\’s job to enforce that sentence.
While you or I may sometimes think that sentences handed down in court are unfair or disproportionate, we are not in receipt of the full facts of the case. It is vital that judges are able to pass sentences they believe best fit the crime and take into account individual circumstances.
The Crown\’s ability to appeal a sentence provides a safety net to ensure that unfairly harsh or lenient sentences can be changed, negating the need for the proposed sentencing council. In contrast to the government, we at Reform Scotland believe judges should be given greater freedom in sentencing. At present, too many disposals, such as drug treatment and testing orders, and supervised attendance orders, which could often offer the offender the best path away from re-offending, are not always available to judges. This is an area that should be reformed to ensure that all sentencing disposals are available to judges at each level of the court system so the most appropriate sentence can be passed.
It is unfortunate that the aim of the Scottish Government\’s new proposals appears to be to cut the prison population rather than cut crime. It has to be remembered that the reason people are sent to jail is because they broke the law. The Scottish Government has argued that, because crime is at a record low, the prison population should not be, as it currently is, one of the highest in Europe. But that does not take account of the fact that crime in Scotland is still unacceptably high.
The number of crimes and offences being committed in Scotland is higher today than it was in 1997-1998. Indeed, the true level may be even greater than the statistics suggest: the Scottish Crime and Victimisation Survey estimates that only four in 10 crimes are reported to the police. Further, when compared with other countries across Europe, only Sweden, England and Wales and Belgium have higher levels of crime per capita than Scotland.
While some of the policy proposals put forward by the Scottish Government are to be welcomed, the key to reducing the prison population has to be to reduce crime in the first place. Reform Scotland believes that radical policy changes are needed to achieve that aim. We outlined a number of proposals in Power to Protect to introduce greater accountability and transparency into the criminal justice system, ensuring greater responsiveness to the communities it serves.
For example, police forces should match local authority areas, with a councillor appointed within each police authority area to be responsible for policing in the same way that one is currently responsible for education and transport. Chief constables would, however, still be in charge of operational matters. In order for the public to judge whether policing tactics and strategies in a local area are effective, local crime statistics should be regularly published.
Similarly, Scotland\’s senior criminal prosecutors should be voted into office, making them directly accountable to the public. At present, all 11 area procurators-fiscal are appointed, and they decide how, where and what crimes to prosecute. Yet the public knows little about how these decisions are reached. Such a policy would lead to a clearer and more transparent system of justice, and could also allow different area procurators-fiscal to pursue crime in different ways, reflecting specific problems in their areas.
Only with such reforms can we bring a sustained reduction in crime that offers better protection to the law-abiding majority as well as reducing the prison population.
Alison Payne is research director of Reform Scotland, an independent, non-party think tank that sets out better ways of delivering increased economic prosperity and more effective public services.