Douglas J. Cusine: Sentencing guideline for young people laudable but will it be effective?

In The Times today, Jamie Greene, the Scottish Conservatives’ shadow justice secretary criticises the new guidelines on sentencing which state that those under 25 should be spared jail, wherever possible.

I do not have a problem with that suggestion, but only if the public can be assured that not jailing offenders will provide them with some security and that whatever community-based disposal is used will attempt to divert young people from committing offences. Sadly, in my experience, that is wishful thinking.

When Kenny MacAskill was justice secretary, he seemed to be fond of giving the impression that sheriffs had a mindset, such that offenders would be jailed. Had he bothered to visit the courts as a parliamentarian (and MSPs might learn from such visits), he would have realised that the reality is vastly different. He was a court practitioner himself, and so ought to have known.

He was fond of saying: “Short sentences do not work”. That has as much intellectual validity as my saying: “Short sentences do work”. He then realised, or perhaps was told, that this statement is vacuous and then said that they did not work because they do not rehabilitate. I agree, but that is not the purpose. In short, a prison sentence is designed to give the public a rest, albeit, not for long.

In my experience, community service orders did not work in the majority of cases, and MacAskill accepted that, but according to him community payback orders, (a change of name, but no change of substance) would work. It is amazing what a change of name can do.

Community-based disposals were used on many occasions and, if, as was common, the person reoffended, what else could the sentencer do? Every non-custodial disposal had been tried, often more than once. In many cases, the social inquiry report would disclose that the offender had not benefited from such schooling as he or she had had, had come from a “broken” home, had misused alcohol and/or drugs from an early age, in some cases, from age 12 and in some they had low-level mental health issues resulting, for example, the misuse of cannabis. The co-leader of the Scottish Green Party has said recently that taking such drugs is not “inherently dangerous”. The medical literature suggests otherwise, but I would not wish to cloud the issue by stating facts.

In my experience, social workers do a good job, but they are not trained to deal with someone who is not very well educated, may not be able to read or write, had been disadvantaged by the upbringing and needs to have an addiction to alcohol etc addressed.

Of course, one has to accept that even if a number of professionals were engaged with the one offender, a short prison sentence would at best, scratch the surface. If youngsters are not to be jailed, the public are entitled to see something in place which actually addresses the problems: otherwise, we will see the same people coming back to the courts following re-offending. Something which is frequently not touched upon by politicians is the “expense” to the NHS incurred by the offenders and their victims, e.g. lying unconscious in the street, or having serious head injuries. MSPs should try visiting the courts to get an accurate view of things and then visit an A&E department, especially at a weekend. Making it difficult to send young persons to jail just masks a serious issue which needs to be addressed.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.