Extending presumption against short prison sentences will have little impact, argues criminal justice expert

One of Scotland’s leading criminal justice experts argues that an extension to the existing presumption against short custodial sentences will not have the impact intended by the Scottish government of significantly reducing the prison population.

Cyrus Tata, professor of law and criminal justice at the University of Strathclyde argues in a paper published today in Scottish Justice Matters that instead a radical rethink of penal policy is needed.

Recently, the Scottish government consulted on extending the current presumption against three month sentences to six, nine or even 12 months.

But Professor Tata says that the problem lies in the underlying legislation: “No fresh legislation is needed: the current Presumption period could be increased by statutory instrument. So far so simple. But let us consider section 17 of the Criminal justice and Licensing (S) Act 2010: “‘A court must not pass a sentence of imprisonment for a term of 3 months or less on a person unless the court considers that no other method of dealing with the person is appropriate (emphasis added).’

“This caveat could hardly be more permissive: do not impose a sentence of x months or less unless considered appropriate. Does any sentencer make a decision which she or he considers inappropriate? Little wonder, then, that the Government’s research found that “there was little sign of figuring prominently or explicitly in decision-making.”

Professor Tata says that an extension even to 12 months is unlikely to have much effect on sentencing practice: “it will be a reminder to sentencers of the existing injunction that imprisonment should be ‘the last resort’.”

What is needed instead, he argues, is to abandon the prevailing policy approach that ‘prison is the last resort’. It sounds progressive, he says, but in fact renders prison as the default.

“When other options do not seem to work, there is always prison. Prison is the only option which does not have to prove itself. While non-custodial sentences and social services seem so stretched, imprisonment appears as the dependable, credible and well-resourced back-stop.

“Although it is uncomfortable to admit it, many people end up in prison not because their offending is particularly serious, nor because they pose a risk of serious harm. They end up in prison because there does not appear to be anywhere else that can address their chronic physical, mental health, addiction, homelessness and other personal needs.

“While non-custodial sentences and social services are so stretched, imprisonment, on the other hand, appears as the dependable, credible and well-resourced default. Indeed, it is not entirely uncommon for people to say that they would prefer to be in prison because of a lack of help and support in the community,” he states.

Professor Tata also says that the way to counteract this problem is to articulate a two-part public principle.

He writes: “First, the test for imprisonment should depend on the seriousness of offending and risk of harm. Secondly, addressing personal needs should not be a ground for imposing a prison sentence.

“Such a principle could be set out in a Sentencing Guideline judgement and also through guidance to social workers. Importantly, this principle would also concentrate policy minds: a clear target of time to ensure that there is sufficient resourcing of community justice and services.”

The academic also argues for more “creative” ways of dealing with breach of community orders as well as the more imaginative use of electronic monitoring combined with humane social work.

Last month Her Majesty’s Inspector of Prisons as well as penal reform charities, social workers, councils and a former judicial studies director all called for a different approach to reduce recidivism and push down the number of people in jails.

There are about 142 prisoners for every 100,000 citizens in Scotland according to the International Centre for Prison Studies. This compares to 100 in France, 80 in Ireland, 76 in Germany and a mere 55 in Sweden.

A Scottish government spokeswoman said: “Currently 60 per cent of offenders imprisoned for three months or less are re-convicted within a year.

“Extending the presumption would give a clear signal custodial sentences should be reserved for people whose offences are so serious that no other form of punishment will do.”