Justice
Scottish Policy Forum Paper no. 4
Dear Colleague,
The primary duty of Government is to protect the public from harm and to protect lawabiding people from criminal activity.
The Scottish Conservatives remain a party that stands for the protection of honest citizens
and the defence of the rule of law. We should be proud that over the last five years the
party was instrumental in delivering 1,000 extra police officers as well as a new strategy to
tackle drug addiction.
However, crime remains a real concern for many people in Scotland and more must be done
to tackle the causes of crime, while at the same time ensuring sentences are tough and
reflect the seriousness of the offence committed.
Your views and opinions will help us to form policies that will help to protect the people of
Scotland from criminal activity and deliver an efficient and effective justice system.
The deadline for submissions is 31 July 2012.
Yours faithfully,
David McLetchie MSP
1. Crime & Punishment
Four justifications for punishment are usually identified in political philosophy - retribution,
prevention, deterrence and rehabilitation. Retributive theories argue that punishment
should fit the crime and that it is simply correct to punish those who break the law.
Prevention (incapacitation) focuses on the physical prevention of criminals behind bars from
committing crimes. Deterrence focuses on the effect punishment has on those who might
consider committing a crime. Rehabilitation shifts the focus to working with criminals,
helping them and fixing the underlying causes of crime.
These broad theories of punishment underlie party approaches to justice in general.
Conservatives have traditionally leaned towards retributive and deterrence theories and
have therefore developed an image of being ‘tough on crime.’ We have, for example,
traditionally preferred prison sentences over community sentences and have argued that a
higher prisoner population itself is not a justification for softer sentences – it should be up
to judges to decide what punishment is appropriate.
Prison sentences
Short sentences
We have long campaigned against the scrapping of short prison sentences – one of the
priorities of the SNP’s justice policy. The Scottish Government have established a
presumption against sentences of less than three months in legislation although they were
originally committed to scrapping sentences of less than six months. The presumption was
accompanied by the introduction of, what were described as, ‘tough community sentences’
in the form of Community Payback Orders, which are discussed below.
The reasoning behind the scrapping of short sentences is twofold. It has been argued that
they are unnecessary and ineffective. They are deemed unnecessary as some low-level
offenders on short sentences do not pose a threat and do not need to be incarcerated. They
are deemed ineffective because evidence shows they do not prevent reoffending as well as
community sentences. Statistically, 73.4 per cent of those who are sentenced to three
months or less in prison go on to reoffend within 2 years.1
Scottish Conservatives have often mentioned domestic abuse cases as examples of where
short sentences are appropriate – it makes no sense for the offender to be sent back home
fuelling a vicious circle of abuse. We have also argued that the effectiveness in reducing
reoffending has nothing to do with the length of time spent in prison and rather points to a
lacking rehabilitation strategy inside prison walls.
Automatic early release
Another issue that we have consistently campaigned on is the scrapping of automatic early
release. Under current legislation, all criminals sentenced to less than four years in prison
are released at the half-way point of their sentence. Prisoners with a longer sentence can
apply for parole at the half-way point and are released at two thirds of their sentence at the
latest. A written answer from the Scottish Government to a Parliamentary Question has
1
http://www.scotland.gov.uk/News/Releases/2010/06/23153353
2
revealed that nearly 48,000 prisoners have been liberated from prison under unconditional
automatic early release since 2006-07.
Our opponents often remind us that AER was introduced in the United Kingdom by a
Conservative Government in 1993 and we do recognise this. We have openly acknowledged
this was a mistake and have been attempting to reverse this decision. On numerous
occasions over the past 15 years, Scottish Conservatives have repeatedly tabled motions
and moved amendments to scrap the scheme. On each occasion we have been blocked by
Labour, the Lib Dems and the SNP.
The justification for automatic early release has been to ease prison overcrowding and any
changes to the scheme would have to address an increase in demand for prison places. This
can be approached by either shifting the focus towards more community sentencing for
low-level offenders or by further investment in the prison estate (i.e. building more prisons).
Whole life orders
Judges across the UK (both under Scots and English Law), when passing a life sentence, are
required to specify a minimum term that an offender has to spend in prison before being
eligible to apply for parole – the punishment part. This is usually at an imagined half-way
point of their sentence. Judges in England & Wales, however, have the option to disapply
these early release provisions (different from automatic early release) in extremely serious
cases provided the offender is over 21 years old. By not specifying a minimum term in prison
they impose a life sentence without the option to apply for release – effectively sentencing
the criminal to spend the rest of their life behind bars.
We have called on the Scottish Government to introduce the same provisions in Scotland
after a European Court of Human Rights challenge by a group of English prisoners was
rejected in January 2012.
The moral implications of such a policy, however, are significant. While only a handful of
prisoners would be likely to be handed such a sentence, it sends out a clear signal that in
some cases rehabilitation is impossible and even undesirable. It also effectively imposes a
drawn out death sentence, with some arguing that it is less humane than capital
punishment itself.
Community sentencing
The Scottish Parliament approved the Criminal Justice and Licensing (Scotland) Bill on 30
June 2010. The Act introduced new Community Payback Orders to replace the existing
provisions for Community Service Orders, Probation Orders, Supervised Attendance Orders
and the former Community Reparation Order. Kenny MacAskill, Scottish Government's
Cabinet Secretary for Justice, introduced CPOs saying: ‘low level offenders should be paying
back the harm they have caused to communities through the sweat of their brow.’2
The first official figures released show that almost a third of CPOs, however, were imposed
without any work requirement whatsoever. Instead they imposed supervision requirements
or alcohol, drug or mental health treatment sessions.
2
http://www.scotland.gov.uk/News/Releases/2008/06/24101103
3
Conservatives believe the justice system has to take into consideration not only the
punishment of criminals, but also the satisfaction of victims who are often forgotten. There
certainly is a place for fines and community sentences in the justice system, but we need to
make sure that criminals don’t just get off lightly. We believe community sentences have to
be tough. We believe that while these can be effective forms of rehabilitation as well as a
way to pay back or undo damage done in a particular area, they are not necessarily fitting
punishment.
Community sentences are also much harder to enforce – the first person to be handed a
Community Payback Order breached it straightaway. We do recognise though that this in
itself should not be used as an argument against community sentences per se, but it does
undoubtedly lower the deterrence factor of sentences compared to prison. On the other
hand, even the most intensive community sentences are significantly cheaper than prison
sentences and do statistically have a higher chance to reduce reoffending.
Prisoner numbers
There are two main dimensions to the problem of prisoner numbers.
Firstly, there are those who argue that Scotland incarcerates a disproportionately high
number of people, although any international comparisons have to be made with caution
due to varying crime rates, differing justice systems as well as some recording discrepancies.
Scotland (very similar to England and Wales) does have one of the highest rates across
Europe, with around 153 people per 100,000 in prison. It has to be noted though that this is
still significantly lower than across Baltic states (avg. 281), Russian Federation (568) and the
United States (743)3.
The average daily population for 2010/11 shows a small dip of 1 per cent compared to the
previous year, dropping to 7,853. This includes both convicted prisoners and prisoners on
remand (i.e. awaiting trial or sentencing).4 It is estimated that the average prison population
might rise to around 8,300 by 2012/13 and around 9,500 by 2019/20. In contrast, the
current prison design capacity is at 7,848 (as of March 2012).5
Secondly, the costs associated with prisoner remand have also raised concern. On average,
the yearly cost per prisoner place in 2010-11 in Scotland was £32,146, with £331million a
year to run the Scottish Prison Service.6 This is even higher for young offenders and in stark
contrast with the average cost of community sentences (the average cost of a Community
Service Order was estimated at £2,205 for 2005/06 in Scotland7).
It is questionable whether crime and punishment policy should ever be guided by anything
other than what is just and right in light of the offence/crime committed. On the other
hand, the above numbers can serve as a reminder that justice policy can not be drafted in
isolation from international perspectives or the economic realities of this day and age.
3
http://www.scotland.gov.uk/Publications/2011/08/19154230/3
Prison Statistics Scotland 2010/2011
5 SPICe Briefing 12/30 - The Scottish Criminal Justice System: The Prison Service
6 http://www.sps.gov.uk/faq.aspx#FAQno21
7 Scottish Government - Costs and Equalities in the Criminal Justice System 2005/06
4
4
Prison Visiting Committees
In January 2012, the Scottish Government announced proposals to replace prison visiting
committees with a new advocacy service, following a consultation which it said failed to
produce ‘decisive evidence’ in favour of keeping the current set-up.
Currently, there are two public bodies with a role in independently reviewing the conditions
of prisoners - Her Majesty's Inspectorate of Prisons for Scotland (HMIP) and the Visiting
Committees for Scottish Penal Establishments (VCs). HMIP for Scotland inspects the 15
prison establishments throughout Scotland in order to examine the treatment of, and the
conditions for prisoners. Inspections are carried out based on need, which usually equates
to a full inspection every 3-4 years. The Chief Inspector reports to Scottish Ministers and
annually to the Scottish Parliament.
A VC acts as an independent observer with duties to monitor the relevant prison and report
to the Governor and the Scottish Ministers on the administration of the prison or the
condition of any prisoner. VCs must monitor on at least a fortnightly basis and deal with
prisoner complaints as they arise.
In February 2012, Scottish Conservatives led a debate calling for the Government to
abandon plans to abolish VCs on the basis that they were both independent from the prison
service and were a cost effective solution. The Government initially proposed replacing the
VCs with a new dedicated independent advocacy service for prisoners. However, following
the debate, the Government retreated slightly on this position and is now committed to
developing a stand-alone monitoring service, as well as a separate support service. The
current proposal is for the 240 volunteers of the VC to be replaced by three new prison
monitors, who are likely to be former prison officers.
Q1: What is your opinion on short term prison sentences? Should we abandon our
opposition to their scrapping?
Q2: What do you think about automatic early release? How would you approach
the problem with prison places?
Q3: Would you support the introduction of whole life orders in Scotland?
Q4: How would you balance prison and community sentences taking deterrence,
victims and rehabilitation into account?
Q5: Should we adopt policies aimed at lowering the number of prisoners in
Scotland, taking international comparisons and monetary constraints into account?
Q6: Do you support the abolition of Prison Visiting Committees?
Q7: Do you have any other policy suggestions on crime and punishment (for
example, the introduction of US-style three strikes policies)?
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2. Crime and Rehabilitation
An Audit Scotland report published last year exposed the level of reoffending in Scotland. In
2009/10 out of the 9,372 people to go to prison most have been convicted before (51% had
5-20 previous convictions, 11% had 21-30 and 7% had >30). In 2009/10 around £81 million
was spent directly on services to reduce reoffending. Audit Scotland summed up the
situation as follows:
“Reoffending is a continuing problem in Scotland. There has been little progress
towards the Scottish Government’s national indicator to reduce reconviction rates.
Rates have fallen by less than one per cent in three years, despite this having been a
policy priority for a number of years”8
Rehabilitation theories significantly shift the focus from ‘being tough on crime’ to ‘being
tough on the causes of crime’. As mentioned above, Conservatives have traditionally been
associated with the former, mostly for victims’ sake and as a source of deterrence. A good
example is last year’s riots in London, where some people felt the sentences handed out in
court were too harsh – although the judges made it very clear these were exemplary
deterrent sentences.
When looking at rehabilitation strategies, we have argued that just because rehabilitation in
prison does not work presently this does not mean that rehabilitation in prison cannot work
at all. We have called for a thorough review of rehabilitation schemes in the past, to
properly evaluate what can be done to improve rehabilitation within prison walls. Most
importantly, we have argued that the Scottish Government’s approach to tackling drug
addiction has failed.
The number of prisoners being prescribed methadone has been steadily increasing for
years. In 2005 the number was 984 (or 16% of total prison population), which increased to a
2010 high of 1639 (or 22% of total prison population). In addition, it has been revealed that
Scotland now spends £28 million on methadone prescriptions.9
Annabel Goldie has fought tirelessly on the platform that methadone should be used to help
stop drug use altogether, but instead we are seeing record amounts spent on it. Scottish
Conservatives have argued that we should be concentrating on recovery leading to
abstinence rather than merely parking users on methadone. This should be used to
complement treatment, to offset physical symptoms of withdrawal, but not as an end in
itself. In other words, instead of getting drug addicts off drugs altogether, the system is
simply parking them on methadone, often leading straight back to illegal narcotics.
In our 2011 manifesto we have called for compulsory drugs testing for all on arrival and
departure as well as an extension of drug free wings in prisons. This way drug use can be
monitored more effectively (it is still too common inside prison) and those who want to be
in a drug free environment should be able to do so.
8
9
Audit Scotland – An overview of Scotland’s criminal justice system
Drug Misuse Statistics Scotland 2011
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Alternative approaches
There are a number of possible alternatives to rehabilitation outside of prison. Prevention of
criminal activity before an offence has been committed and work to reduce reoffending
once an individual has been released from prison can both yield results.
People who repeatedly offend often have many problems. For example, limited education
or training, no paid work, no place to live, problems with alcohol or drugs, mental health
problems or family difficulties. There has also recently been a greater emphasis on providing
support to prisoners to re-enter the community (typically referred to as ‘throughcare’).
Some services exist in the community to address reoffending, but these services vary
considerably across the country. The eight Criminal Justice Authorities (CJAs), established in
2007, have been tasked to provide a more coordinated approach to the local delivery of
offender services to reduce reoffending, but CJAs have largely been given a free reign to
establish services deemed appropriate to their area. For example, a three year project by
the Circle charity to reduce women reoffending rates resulted in the 79% of those receiving
services staying out of jail10.
Q8: What do you think can be done to reduce reoffending in Scotland?
Q9: Do you support compulsory drugs testing of all prisoners? If not, why?
Q10: Do you have any policy ideas to deal with underlying causes of crime – for
example alcohol or drug use?
10
http://www.thirdforcenews.org.uk/2012/01/circle-helps-reduce-reoffending-of-mums-in-jail/
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3. Other Issues
Knife crime
Knife crime in Scotland has always been one of the most serious issues on the political
agenda. Latest figures show that the absolute number of homicides by a sharp instrument is
second highest in 10 years and highest since SNP took over. It also accounts for almost 63%
of all homicides in Scotland.11
We did propose mandatory prison sentences of two years for anyone caught carrying a knife
in public in a Justice Committee session in 2010. The watered down version proposed by
Labour (six month mandatory sentences) was rejected by the SNP as well. We dropped this
policy in the run up to the 2011 Scottish Parliament elections, arguing that it should be at
the judges’ discretion to decide what the appropriate punishment should be.
In April 2012 a zero tolerance policy came into force across Scotland, which now means that
anyone caught carrying a knife will be prosecuted in front of a sheriff and a jury - with a
maximum sentence of up to 4 years.
Sectarianism
The Scottish Government’s Offensive Behaviour at Football and Threatening
Communications (Scotland) Act 2012 came into force on 1st March 2012. The Act creates
two new distinct offences, punishable through a range of penalties up to a maximum fiveyear prison sentence and an unlimited fine. The first offence targets any hateful,
threatening or otherwise offensive behaviour expressed at and around football matches
which is likely to cause public disorder. The second offence relates to the communication of
threats of serious harm or which are intended to stir up religious hatred, whether sent by
post or posted on the internet.
The Scottish Conservatives tabled amendments to the Bill at Stages 2 and 3, following strong
criticism of the Bill from a number of external organisations. Our opposition was based on
the fact that the existing breach of the peace law and other laws sufficiently covered the
type of offences the Act was designed to tackle. We also had concern about potential
unintended negative consequences. As none of our amendments were accepted at Stages 2
and 3, we voted against the Bill.
Now the legislation has been passed, the focus could be on monitoring prosecutions under
the Bill for any instances of the current laws being ignored in favour of the new legislation.
We have also spoken in the past of the importance of non-legislative measures - one high
profile example is the work of the anti-sectarian organisation Nil-By-Mouth in schools,
workplaces and other locations.
11
Homicide in Scotland 2010-11
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Sex offenders
The Scottish Conservatives have long argued for much stricter monitoring of sex offenders.
In particular, we have supported the use of GPS satellite tracking for sex offenders, a policy
which the Cabinet Secretary for Justice is reportedly12 ‘actively considering’ after the Ryan
Yates case.
Last year, a Significant Case Review13 published after a sex offender killed a little girl and her
mum who were his neighbours in March 2009 has called for the Scottish Government to
consider changes and give police officers more powers.
From the Review (pg. 55):
“It is recommended that the Scottish Government consider proposing an amendment
to the Sex Offenders Act 2003, giving power to search an offender’s home, for the
assessment of risk and to require an offender to produce his mobile phone for
examination if so requested by a police officer.”
They recommend a two-tier system, where judges identify whether offenders are
considered to present a serious risk of harm at point of conviction – those who are not will
be subject to current legislation. Those who are deemed to present serious risk, however,
could have their homes and phones searched without a warrant.
In 2009, the Association of Chief Police Officers called to have sex offenders locked up
indefinitely until experts no longer consider them a risk. We have always supported tough
measures for sex offenders, and have supported this policy in the past.
Q11: Would you support mandatory prison sentences for knife carriers?
Q12: Do you have any other policy ideas on how to deal with knife crime in
Scotland?
Q13: Do you believe tackling sectarianism should be a priority? Would you say
further/better/different legislation is desirable?
Q14: Do you support the use of GPS satellite tracking for sex offenders?
Q15: Would you support searches without a warrant or special indefinite prison
sentences? Would you like to see us adopt any other policies in relation to sex offenders?
12
http://www.telegraph.co.uk/news/politics/9244055/Kenny-MacAskill-considering-satellite-tracking-for-sexoffenders.html
13 http://www.bbc.co.uk/news/uk-scotland-glasgow-west-15693136
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