Sentencing and Penal Policy Commission: Call for Evidence

Foreword of the consultation

Scotland’s justice system plays a crucial role in keeping us safe, providing us all with a sense of security, ensuring fairness, and upholding the rule of law. Sentencing and penal policy are key components of this system, shaping how we address crime, punish criminality, deliver justice to victims, and manage people who have offended both in the community and in prison.

However, our system is facing a substantial challenge. Despite a significant drop in recorded crime—down 40 percent since 2006-07— in Scotland we have one of the highest rates of imprisonment in Western Europe. This has several significant and detrimental impacts. It leads to overcrowding in our prisons. It reduces the effectiveness of reoffending programmes and therefore rehabilitation. It results in an unnecessarily negative experience for too many of those that work there. It also has wider effects on the rest of the justice system, such as our courts, and ultimately our communities.

The Sentencing and Penal Policy Commission has been established to independently review Scotland’s current approach to sentencing and penal policy and provide recommendations to inform action and change. The Commission offers a chance to build on previous work and rethink our justice system – a considerable and necessary task.

We are calling for evidence to gather the widest range of perspectives and innovative ideas with a focus on key parts of our remit: community sentencing, bail and remand, and release from custody. The evidence you provide will play a pivotal role in considering how Scotland can achieve an effective, rehabilitative justice system, meaning less crime and fewer victims in future.

Thank you for your time and contributions to this vital Commission. Your insights will be instrumental in shaping our recommendations and achieving lasting change.

Martyn Evans

Chair of the Sentencing and Penal Policy Commission

SASW's response

The Scottish Association of Social Work

With around 22,000 members, the British Association of Social Workers (BASW) is the independent professional voice of social work and social workers across the UK. The Scottish Association of Social Work is part of BASW, representing the social work profession in Scotland on behalf of our members. SASW also has a very active Experts by Experience (EBE) forum.  We take the view that listening to voices of current and former users of social work services, along with hearing the views of social workers is an ethical imperative when considering any national policy work that affects the human rights and wellbeing of people who need social work support and the profession of social work across children’s, adults and justice services. 

Question 1 - What changes could be made to community sentences and other alternatives to prison to reduce crime, protect victims, and create safer communities? 

Community justice

There continues to be significant inconsistency in the way that community sentences are managed across the country. Our members report that there are still areas that do not take a trauma informed approach and can be punitive towards people in the justice system.  We recommend that the training provided to staff in the justice system, including social workers, is reviewed to ensure that all staff understand how they can contribute to addressing the causes of crime together with providing robust public protection.

Our members told us that they are concerned that the Multi Agency Public Protection Arrangements (MAPPA) are being used inappropriately for some cases. For example, many sexual offences could be managed effectively without MAPPA. 

In contrast, the management of risk in cases of domestic abuse can be extremely complex. Our members support strengthening public protection by applying MAPPA style sentences and supervision arrangements for the most serious cases of domestic abuse.

Our members are concerned about the conditions within Community Payback Orders, commonly referred to as requirements, that require the person to attend for treatment within the specified timescale of the order to specific named services such as alcohol or drug support agencies. This requirement is restrictive as, if those agencies do not have fairly immediate capacity to provide treatment and support, the order cannot be completed on time.  We recommend that this restriction is removed to allow greater flexibility and time to identify and secure the right sort of services to support the wellbeing of the person.

It is important that people doing unpaid work as part of their sentence get feedback about the positive impact their work has on the community in which they are working. This would give meaning and purpose to the work and improve satisfaction in doing the work for those on the order. Positive work experience can help people change their behaviours and find new directions in life.

Our members tell us that they observe an overall risk aversion within the justice system which values the certainty of risk managed in custody over the relative uncertainty of decisions in favour of a community sentence. If Courts are conservative in their approach to managing risk in the community, over time, social workers will begin to reflect that conservatism to create and maintain credibility with the Courts. We recommend that this be investigated further as any remedy to an overly risk-averse system will need a whole systems approach. 

The training provided to social work students about justice social work and the management of risk relating to public protection should be reviewed and improved. Social work training is generic, enabling newly qualified social workers to practice across any of the specialisms of children’s adults’ and justice services. Students have two placements during their training.  Over the past few years there have been significant difficulties in finding local authority placements for students and so it is entirely possible that newly qualified social workers (NQSWs) might not have experienced justice services directly. The recruitment and retention crisis in social work, means that across the specialisms, there is a lack of experience in many teams.  In justice services, this is may be contributing to what our members report as a developing culture of risk aversion to the management of community-based sentences. 

Community sentences should consider the convicted person’s welfare as well as public protection. Supporting people to stop offending is more challenging when the 

person being supported is experiencing instability, homelessness, financial, relationship and employment, or psychological challenges. 

Our members also tell us that breaches of community orders take too long to be processed through the current channels. If breaches were dealt with more quickly, it would reinforce the consequences of not adhering to conditions and publicly demonstrate the effectiveness of community-based approaches in responding to non-compliance. 

Social workers are experts at assessing risk but are time poor. While they are well trained, they do not always have the time to work directly with people, to build meaningful relationships that will drive behaviour change.  This reduction in the use of social workers to do direct work can be seen across the social work specialisms over the last couple of decades. Where social workers are only used to assess (a care management approach where other agencies do the direct work with people) or to manage crisis, SASW believes this leads to poorer outcomes for individuals, families and communities. 

Victim support

Victims’ groups often see prison as the only suitable option for perpetrators of crime. This is often reflected in media reporting and in the public announcements from our politicians. Our members recommend a programme of work to help the public and victims understand that community sentences are not “soft punishments” and that incarceration without truly effective rehabilitation, once incarceration is over, can contribute to destabilising lives, perversely creating greater risk for victims in the future.

Sentencing

Our member’s experience is that individuals are being viewed as posing more risk and getting longer custodial sentences than previously. It is not clear why this is the case. 

Where there is a zero or minimal public protection risk, community-based sentencing should be used as a matter of course. The onus should be on sheriffs or judges to explain why they have used custody where there are no or very low public protection issues. 

A wider range of options for and use of suspended sentences may create a wider range of community sentence options and make an impact on desistance whilst ensuring people face consequences.

Restriction of liberty orders could be used more often. This option would require the public to be informed about and understand that such orders place significant restriction on the liberty of a person and are not another “soft option”. 

Community payback orders (CPOs)

Supervision

Supervision can have a meaningful effect on individuals who have a range of social issues driving their offending behaviour. Again, the public do not have a good level of awareness about what CPOs with supervision entail nor how they reduce the likelihood of reoffending. 

Review hearings are helpful in managing an order as the person experiences the fact of the order being Court mandated, adding weight to the whole process. However, these reviews can be difficult to arrange due to lack of available court slots. A secondary court or system that could review running CPOs on behalf of the courts would help free up time in the main courts. 

It would be helpful for sentencers to learn from the experiences in youth and drug courts to communicate in the language and idiom of the people being reviewed so that they are both fully included and understand the process. Our members have noted that in drug courts this approach in ensuring people understand their responsibilities has increased compliance and engagement. 

Regional and local variability in sentencing is problematic. Of note is the inconsistency in cases identified for diversion or full prosecution. This variability has impacts for both the individuals who have committed an offence and their victims. 

Reducing the prison population

Programme completion

The Parole Board in its decision making puts significant weight on whether an individual has completed programmes or not. As a result, justice social workers overly weight programme completion when assessing for a community disposal. The emphasis on programme completion contradicts the research evidence which suggests that a range of options should be available to people with convictions, including reintegration programmes on release, and that it is the sequence rather than levels of completion of intervention that makes a difference in reducing reoffending (McKillop et al., 2022)[1]

People serving short sentences

Many people on short sentences (under 4 years) are effectively doing lifelong sentences by instalment. One of our members noted one person they were supporting who had been given short sentences over 20+ years. In these cases, people get no statutory support on release and no support in prison.

Short prison sentences indicate and create a degree of chaos in cases in which people could potentially benefit from intervention.  People with regular short sentences (for example, two within an agreed period) should have statutory supervision on release for the rest of their sentence (60% of sentence). This would be resource intensive in the community but could have significant impact on this “revolving door” reducing costs for the police, courts and prison service. 

Voluntary throughcare is very rarely taken up by people serving short sentences, many of whom are the most chaotic, and often risky in terms of committing a further offence. The use of short-term sentences followed by unsupported release from prison (given that many of these people will have been assessed by a social worker as requiring support and as suitable for a Community Payback Order including supervision), seems obtuse and lacking in joined up thinking.  Therefore, we recommend a statutory approach to throughcare for people serving regular short sentences.

Rehabilitation

Our members believe that there is not enough work done to support people in prison to change their offending behaviour.  Our members consistently hear, particularly from people serving short sentences, that they “sit and do nothing” in prison and are not prepared for release. 

The existing rehabilitative system in prisons overly relies on group work rather than individualised support as the format for intervention. Group work may not always be the best or only approach and is unlikely to address the social issues to which people will return after sentence. This means that the drivers of a person’s offending and the individual circumstances that create instability and increase the likelihood of offending may not be effectively addressed. Social workers know that people also need support, challenge and a professional relationship that is persistent to make meaningful change.

Within custody, our member report a notable absence of interventions to address domestic abuse as noted by the Scottish Violence Reduction Unit (Simon A, 2022). 

Non-Parole Licence

People who do not get parole are released from prison with six months left on licence. They will have been in prison for a long time. They are not prepared for life in the community and there is not enough time to support them in those six months on licence to address some of the complex needs that they have. The evidence from Australia (see McKillop 2022) suggests a solution in that providing sequenced programmes of intervention – preparatory, rehabilitation prior to release and 

reintegration on release – has a measurable impact on short-term recidivism and may have a similar impact on long term reintegration and rehabilitation.

Reoffending

Breaches of community orders and noncompliance need to be addressed more quickly. Our members recommend establishing a body similar to the Parole Board to address court breaches in a timely manner (See Community Payback Order comment above). 

Many of our members suggested that the Parole Board should have more options for intervention beyond warning letters and recall. They recommend expanding the options to include being able to require unpaid work or tagging to reduce the numbers of recalls. 

As we have said in relation to short sentences and the need to support people back into the community, thought should be given to extending statutory throughcare.

Ways of working

Although in its early days, our member’s experience of using AI suggests that it could be adapted for use with risk assessment and case recording to reduce the overall administrative burden on social workers. It needs to be used judiciously and with care, however. For example, off the shelf generic AI such as Copilot (Microsoft) are not GDPR compliant and can be biased when used to summarise complex documents. Please see the BASW UK statement on AI 

Question 2 - In your view, what are the priority issues affecting bail and remand? In Scotland, what needs to change and why? 

Our members were concerned that bail addresses are not routinely assessed or checked. This is a risk which is not currently managed. 

Question 3 - In your view, what are the priority issues affecting release from prison custody? In Scotland, what needs to change and why?

Progress to release

Our members note that, in their experience, individuals are not in reality able to progress through custody from higher end arrangements to the open estate. They are also concerned that the high threshold of level of progression for the open estate is a barrier. For example, there are older people in prison whose risk could easily be managed in the community but because they have not progressed sufficiently – either in their programmes or to the open estate - they will never get out early. This is poor use of an expensive prison system and may be building in discriminatory approaches towards people with protected characteristics such as age.

We recommend that the weight given to programme completion as a condition for release is reviewed. Current waiting lists for programmes presents a barrier to liberation which is entirely outwith of the convicted person’s control such that it appears unjust to punish them for it. Where interventions and programmes need to be completed there should be options to do this combined with day release. It is equally important for progression that home leave and day release be available from the closed estate, not just the top end and open estate. 

Offering incentives, such as a reduction in sentence accompanied by a requirement to complete certain tasks or programmes, could prove effective.  This would need to be done as a release on licence to enable recall if the person does not comply or reoffends. 

Question 4 - Are there any recommendations from the McLeish Commission or subsequent reports by other bodies that haven't been put into action yet but could still be beneficial? 

It is clear from our previous answers that in our view the McLeish Commission recommendations which are of most interest to our members, and would have overall benefit to individuals and the system, have not been met:1,2,3,13,15,18,19,20,23

The target proposed by McLeish in 2008 of a daily population of 5000 (recommendation 23) appears to be still well out of reach. The most recent figures published by the Scottish Government (2023-24) suggest that there is a current daily population of 7,860. When the McLeish report was published in 2008 the population was 7,964. Clearly this target has not been met and appears unlikely to be unless there are significant shifts towards community sentencing.

We understand that the new Barlinnie prison will have a capacity of 1344, compared to the current building which has a capacity of 987, but regularly accommodates 1300 people. We are concerned that the assumption in the system is for increasing populations despite a policy presumption against short sentences. This may create a perverse incentive for the judiciary for longer sentences which we believe should be investigated further. If this is substantiated, then further investigations will be necessary to explore what can be done to address judicial actions that contradict the national policy favouring community sentences.

[1]McKillop N et al. (2022). Effectiveness of sexual offender treatment and reintegration programs: Does program composition and sequencing matter? Journal of Criminology, 55(2), 180-201.