Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences

7 Judicial Decision-Making About the Use of Community Penalties

7.1 This penultimate chapter of the report considers the extent to which all three aspects of the reforms - Community Payback Orders (CPOs), Criminal Justice Social Work Reports (CJSWRs) and Presumption Against Short Sentences (PASS) - have influenced judicial decision-making in relation to the use of community penalties and, by extension, short prison sentences. In the language of the logic model, it considers the extent to which Sheriffs have confidence in community penalties and see them as an appropriate and viable alternative to custody. As such, it draws almost entirely on the views of Sheriffs themselves, as captured via the qualitative interviews and the national survey. The chapter begins, however, by reviewing briefly recent statistics on actual use of community penalties and short prison sentences.

Use of community penalties and short prison sentences in the Scottish courts

7.2 There has been a long-term increase in the use of community penalties in Scotland. In 2003-4, for example, 13,943 such penalties were imposed, accounting for 11% of all disposals; by 2012-13, the number had risen to 17,254 or 17% of the total. It should be noted, however, that the increased use of community penalties was not associated with a corresponding fall in the use of custodial sentences, which also increased in absolute terms during the period between 2003 and 2009 and as a proportion of all main disposals across the period as a whole. Since 2008-9, however, community penalties have accounted for a slightly greater proportion of all disposals than custodial sentences. Moreover, the increase of three percentage points in the proportion of all sentences accounted for by community disposals between 2010-11 and 2012-13 is the largest in any two-year period in the last decade, suggesting that the introduction of CPOs and PASS may have given additional impetus to a longer-term trend.

7.3 Table 7.1 shows that the total number of prison sentences of three months or less imposed in 2012-13 was 4,334 - slightly fewer than in 2011-12 and markedly fewer than in the year immediately preceding the reforms.

Table 7.1: Prison sentences of up to two years imposed in the Scottish courts, 2010-2013

	Total	Less than 3 months		From 3 months to less than 6 months		From 6 months to less than 2 years
	n	n	% of total	n	% of total	n	% of total
2010-2011	15256	5324	34	5220	31	3436	24
2011-2012	15874	4516	28	6149	39	3908	25
2012-2013	14748	4334	29	5470	37	3804	26

Source: Criminal Proceedings in Scotland, 2010-11, 2011-12, 2012-13.

7.4 By contrast, though, the use of sentences of three to less than six months and six months to less than two years rose sharply in the first full year following implementation of the reforms. Both figures fell back again in 2012-13, but remain above the level imposed in 2010-11.

7.5 Overall, then, there are grounds for thinking that progress is being made on two key objectives associated with the reforms - the increased use of community penalties and decreased use of short prison sentences. Considerable caution is, however, required in the interpretation of these figures - both because relatively little time has elapsed since the introduction of the reforms and because we may simply be seeing the continuation of longer-term trends and influences: for example, the increase in sentences of between three months and two years over the same period is consistent with longer-term trends which pre-date the reforms.

7.6 With this statistical backdrop in mind, we turn now to evidence of judicial views and perceptions of the disposals open to them for lower tariff offenders.

Overall views of CPOs and willingness to use community penalties

7.7 We start this section by looking at Sheriffs' overall views of CPOs and the extent to which they consider that the new arrangements have shaped their sentencing practice. On balance, there is evidence that CPOs are seen as an improvement on previous community penalties, have contributed to a greater willingness to use such disposals and are viewed with a reasonable degree of confidence by most Sheriffs. However, while signs of such impacts may be evident at an aggregate level, the nature and extent of such change is limited, and many - if not most - Sheriffs see little change in the balance of their use of community and custodial disposals. What is clear, however, is that there is almost no evidence of a shift in the opposite direction - in other words, towards a loss of confidence in or use of community penalties - as a result of the reforms.

7.8 In the Sheriffs' survey, for example, around a third of respondents (25 out of 67) thought their use of community penalties had increased as a result of the introduction of CPOs; a majority (41) thought that there had been no real change while none thought it had decreased.

7.9 Those Sheriffs who were particularly positive about the reforms typically welcomed the range and flexibility of the options on offer to them, the simplification of the overall framework and evidence of swifter implementation and more rigorous enforcement. One Sheriff simply commented that CPOs offered: 'Better and more creative sentencing options', while another indicated that he/she was making greater use of community penalties under CPOs because of 'the robust nature of the process - the robust monitoring and the encouragement against imprisonment'. Others focused on the advantages of CPOs in terms of being able to combine different type of requirements (and sentencing objectives) in a single order.

"You just use a combination of these things. And it's a flexible tool. You can do a lot of things."
(Interview 27, Sheriff)

'The multiple requirements, including unpaid work and the Conduct Requirements, have made them more relevant and appropriate sentencing options.'
(Open ended response to Sheriffs' survey)

7.10 It is also worth noting that, on the specific measures of confidence, CPOs score relatively highly. The vast majority of Sheriffs (62 out of 72 replying), for example, had 'a lot' or 'quite a lot' of confidence in CPOs in terms of the 'capacity of CJSW and other agencies in their area to offer an appropriate range of programmes and services'. Those who expressed little or no confidence in this respect attributed this to insufficient budgets and lack of resources - issues that are returned to below.

7.11 Around a third of Sheriffs (24 out of 67 replying) also thought that CPOs were an improvement on previous community sentencing options in terms of the capacity of CJSW and other agencies to offer an appropriate range of programmes and services, though most (40) felt there was little difference between the two. Again, very few (2) Sheriffs regarded CPOs as worse than the previously available community sentencing options in this respect (Table 7.2).

Table 7.2: Sheriffs' confidence in CPOs and comparison with previous community sentences (n)

	Confidence in CPOs in terms of…			CPO compared with community sentencing options previously available in terms of…
	A lot/ Quite a lot	Not very much/ None at all	Don't know/ can't say	CPO much better/ Better	About the same	CPO worse/ Much worse	Don't know/ can't say
…the capacity of CJSW and other agencies in your area to offer an appropriate range of programmes and services	62	8	2	24	40	2	1
…the monitoring of progress and breach	54	18	0	27	37	2	1
Bases						72	67

Source: Sheriffs' survey.

7.12 There was a similar level of confidence in terms of the 'monitoring of progress and breach' (54 Sheriffs saying they had either a lot or quite a lot of confidence in this regard). Nevertheless, as we saw in Chapter 6 (para 6.50), the qualitative data suggest that there are still some areas in which Sheriffs feel that these processes could be improved - especially around the length of time it takes to declare a breach and the sense that too many warnings are given.

7.13 A sizeable minority of Sheriffs (27 out of 67 replying) also thought that CPOs were 'better' or 'much better' than the community sentencing options previously available in terms of monitoring and breach. Again, this suggests that some Sheriffs are more confident in CPOs compared with previous community sentencing options and some progress is being made towards the outcomes.

Use and views of the specific requirements

7.14 We have already explored the use of the specific requirements, though largely from the point of view of CJSW staff and offenders. It is worth revisiting some of these issues, however, in the context of judicial decision-making.

7.15 Sheriffs' reported frequency of use of different requirements broadly matches evidence from other sources. Table 7.3 below shows how often Sheriffs report that they use each of the requirements as well as whether they would like to make greater use of any of them (this issue is addressed in the following sub-section). These data follow a broadly similar pattern to the official Criminal Justice Social Work Statistics 2011-12, outlined in Chapter 3.

Table 7.3: Sheriffs' use and views of different CPO requirements (n)

	How often use requirement			Whether would like to make greater use of requirement
Requirement	Very often/ Fairly often	Not very often/ Almost never/ never	Don't know/ can't say	Yes	No	Not answered
Unpaid Work or Other Activity	71	0	1	19	47	6
Offender supervision	69	2	1	3	62	7
Compensation	20	51	1	12	53	7
Programme	30	41	1	25	40	7
Mental Health Treatment	9	62	1	14	51	7
Drug Treatment	25	46	1	18	48	6
Alcohol Treatment	29	42	1	24	42	6
Residence	3	68	1	8	56	8
Conduct	20	50	2	13	53	6
Some other requirement not currently available	N/A	N/A	N/A	9	11	52
Bases					72	72

Source: Sheriffs' survey.

7.16 For example, Sheriffs were most likely to report use of the UPWOA and Supervision Requirements: 71 using UPWOA and 69 Supervision 'very' or 'fairly' often. Interestingly, a relatively high proportion (19 out of 66) also indicated that they would like to make more use of the UPWOA Requirement - even though all of this group reported that they already used UPWOA 'very often' (n=13) or 'fairly often' (n=6). While this may reflect what some Sheriffs see as general lack of resources, it is also likely to signal a desire to be able to make more creative and appropriate use of both UPW and OA - for example, for offenders with health difficulties. This perceived lack of resources is also seen by some Sheriffs as creating difficulties in the timely completion of UPWOA Requirements.

'I would make a greater number of such orders if work was available quickly, intensively and, to a greater extent, at weekends.'

'Need for a wider range of activities/work settings for those with general health difficulties.'

'There are insufficient resources to allow work to be done within the relevant time limits. Always being asked for extensions which defeats the purpose of the exercise - not 'swift' enough.'
(Open-ended responses to Sheriffs' survey)

7.17 It is also clear that some sentencers are unhappy with what they see as a lack of clarity and transparency around the eventual balance between these two elements. The concern here appears to be that too much of the 'demarcation' of the two elements is left to the discretion of the supervising social worker.

'I would like to be able to impose unpaid work (as punishment) plus 'other activity' requirement (as rehabilitation) rather than have this requirement combined as at present.'

''Other activity' should be defined and identified in the CJSWR. There should be a clear demarcation between 'unpaid work' and 'other activity' so that the sentencer is aware precisely of how punishment/rehabilitation is to be achieved.'
(Open-ended responses to Sheriffs' survey)

7.18 Both the qualitative interviews and Sheriffs' survey revealed considerable enthusiasm for Level 1 orders, described by one interviewee as 'a great innovation'. That enthusiasm largely derives from the fact that it is seen as a more constructive disposal than a fine for low tariff offenders - especially those on benefits - and young males who might otherwise be lacking structure and direction.

"I think the availability of the Level 1 order is a good thing. I think […] for people who do not have very much money to start with and don't have any structure to their lives, but they are fit, doing something like this not only repays the community for their offending behaviour, but it can offer them something. It can offer them something to do. It can offer them a degree of, you know, self-esteem, in the sense that they've completed something that is worthwhile, and - who knows? - on some occasions, it may open a door to something."
(Interview 51, Sheriff)

7.19 We saw earlier that the absence of a CJSWR in the case of Level 1 orders is seen as potentially problematic by CJSW staff. For several Sheriffs, however, this also forms part of its attraction - not only because it reduces the demands on the system, but also because it can lead to swifter imposition of the penalty.

"You don't need a report, you know? Sometimes you might be borderline whether you get a report, and the reports are very time-consuming and they're expensive to make. [I] can impose that sentence without a report… if there's an early plea. For example, you can reduce the 150 hours, which is quite a substantial sentence, to 100 to take account of the early plea, and you can do that without the report, and it […] gets them out, and they're in the next day."
(Interview 44, Sheriff)

7.20 There were also some apparent differences between the patterns evident in the published statistics and Sheriffs' own reported use of different requirements. Despite Conduct Requirements being the third most commonly issued type of requirement according to data on actual disposals, only 23 Sheriffs reported using these very or fairly often - a lower reported frequency than was evident for some of the other requirements, including Programme, DTR and ATR, which have very low levels of actual use.

7.21 Although it has been recognised by Sheriffs that the use of the Conduct Requirement to impose a general 'good behaviour' clause is not consistent with the aims of the legislation, in the qualitative data, several indicated that they would still welcome such a provision - especially in the absence of further offending representing an automatic breach.

'Since it was established that a Conduct Requirement cannot include a requirement that the offender be of good behaviour, but I have never used this. But in principle, I don't see why this shouldn't be a requirement, as it was for probation orders.' (Open-ended response to Sheriffs' survey)

7.22 DTR, MHTR and, especially, ATRs (along with the Programme Requirement) also featured relatively frequently when Sheriffs were asked whether they would like to be able to make greater use of specific requirements. While some Sheriffs simply seem frustrated by the failure of CJSWR writers to suggest such requirements, or to do so in the specific terms required by the legislation, most recognise that there are very significant resource constraints that make it difficult to secure assessments or identify and access appropriate services, and that these factors underpin the 'failure' of CJSW staff to make such recommendations. There is a widespread view, however, that many offenders would benefit from dedicated treatment programmes, rather than more generic counselling or support of the kind available under the Supervision Requirement.

'I can't impose a Programme Requirement or Drug Treatment Requirement or Alcohol Requirement or Mental Health unless the possibility and contact of that requirement is identified in the CJSWR. But, that is rarely done - so usually drug/alcohol support is only done through Supervision, which I think is much less likely to be successful. I suspect that one reason why Programme Requirements are not usually recommended is lack of resources. I believe many of those appearing before us would benefit from intensive and extended Programme Requirements were they to exist.'
(Open-ended response to Sheriffs' survey)

The Presumption Against Short Sentences

7.23 Although PASS was the subject of much debate during the Bill stages of the legislation - in part, because of opposition that forced the (then) minority SNP administration to amend the point at which judges would have to formally justify the use of imprisonment from six months to three - in practice, it has been one of the less visible aspects of the reforms.

7.24 Although the presumption has been widely referred to in the media as a 'ban' on sentences of less than three months in all but exceptional cases, this is too strong a characterisation. The presumption carries little direct force, other than a requirement for judges to record formally the reasons for their decision. In practice, this seems to amount to a sentence or two in the minutes of the court - often added by the clerk and simply stating that 'no other sentence was appropriate'.

7.25 From the qualitative interviews with sentencers, there was little sign of PASS figuring prominently or explicitly in decision-making, although one or two indicated that it had made them think twice on occasion:

"It's certainly pointed me away from a short sentence on a few cases, particularly where a good, skilled court practitioner will remind the Bench about that - and very proper that they should do that." (Interview 50, Sheriff)

7.26 Most of those who took part in qualitative interviews, however, considered that the presumption had little practical consequence because custody was always treated as a last resort. Had the original six month limit stood, the direct impact of the presumption might have been greater; but the fact that sentences of three months or less are already used relatively rarely is a key factor here.

"I don't think the approach has been particularly different. The presumption against short sentences, it kind of reinforces the thought process a little but from the practical view, we were using ours on a low level anyway." (Interview 75, Sheriff)

7.27 Perhaps equally significantly, several interviewees emphasised that - regardless of the presumption - they would continue to impose short sentences where they felt them to be the only appropriate sanction:

"Sometimes a sharp shot across the bows is appropriate. […] And I have to say that I still do that - it makes no difference other than having to give a justification for it." (Interview 20, Sheriff)

7.28 One interviewee also pointed out that the effect of imposing a short sentence was sometimes to release someone from prison, in circumstances in which they have been held on remand and the sentence has already effectively been served.

7.29 For many of the Sheriffs interviewed, then, PASS was largely seen as an irrelevance to day-to-day sentencing practice or, at most, as a background factor in their considerations. Consequently, it was not viewed as a particular source of contention. It is worth noting, however, that a small number of Sheriffs were overtly and extremely critical of PASS. One Sheriff, for example, described it as 'a hopeless piece of legislation'; while another commented that it was 'a disgraceful section [of legislation]… showing a complete lack of trust in the sentencing person'. A third said that he regarded the changes as 'largely cosmetic' and as an exercise in 'spin'. The strength of such views suggests that it may be some time before there is a consensus among Sheriffs about this aspect of the reforms.

7.30 Although much of the discussion around PASS centred on its impact - or lack of impact - on the use of short prison sentences, a small number of interviewees also broached the possibility that it might lead to the imposition of longer sentences (of more than three months). Indeed, as one Sheriff commented: "In place of short sentences, I use both CPOs and longer sentences".

7.31 This suggestion of a slightly more nuanced picture is reinforced by findings from the (national) survey of Sheriffs (see Table 7.4). This suggested little change overall, although it found that some Sheriffs have increased their use of community penalties or longer prison sentences as a result. In this context, it is possible that Sheriffs feel that their increased use of community penalties is also increasing the likelihood of breach and that they are making additional use of short prison sentences - for reasons discussed in paras 7.34 to 7.37 below - once other options have effectively been exhausted.

Table 7.4: Sheriffs' views of the impact of the Presumption Against Short Sentences (n)

	Strongly agree/ Agree	Neither agree nor disagree	Disagree/ Strongly disagree	Question not answered
PASS has led me to give some offenders slightly longer sentences than I would otherwise have done	20	11	35	6
PASS has made it more likely that I will give offenders a community rather than a custodial sentence	24	15	29	4
PASS has made little of no difference to my own sentencing practice	40	14	16	2
Base				72

Source: Sheriffs' survey.

7.32 Only 16 Sheriffs disagreed with the statement 'PASS has made little or no difference to my own sentencing practice' while 40 agreed, suggesting that most feel they are continuing to impose sentences as they did prior to the Act. But a sizeable minority of Sheriffs thought PASS had made it more likely that they would give offenders a community rather than custodial sentence (24 Sheriffs strongly agreed or agreed); and almost as many (20) thought PASS had made it more likely that they would impose a longer sentence. Returning to the theme highlighted above (in para 7.30), a small minority of Sheriffs (10 out of 72) indicated that PASS had made it more likely that they would impose both community sentences and longer sentences.

The continued use of short prison sentences

7.33 Sheriffs largely maintain, then, that they continue to use custody as a 'last resort' or where there is 'no other suitable alternative'. In what cases, then, do they consider this to be the case and that a community penalty is either inappropriate or ineffective? At first sight, there appears to be consensus that prison is simply reserved for cases where the specific offence merits it in terms of seriousness, or where the offender has multiple previous convictions and an entrenched record of serial non-compliance. In practice, however, there is a degree of variance in the assessment of seriousness and in the willingness of sentencers to give offenders 'one more chance'.

Short sentences as a response to persistent non-compliance

7.34 In this context, it is worth noting that several of the Sheriffs interviewed were keen to emphasise that previous non-compliance in itself would not necessarily be a barrier to a community penalty. Indeed some indicated that if the CJSWR contained any indication that the offender might be open to a constructive engagement with social work - regardless of previous record - they would look to build on that. As one put it, "really when I'm imposing short sentences, that's when we've run out of ideas!" (Interview 63, Sheriff). Another talked about gaining a sense from a CJSWR written by a social worker they trust that there is 'something to work with':

"If you see somebody in that context saying, 'Yes, we know all of this. We know about all of these breaches, but…' And sometimes it can be for all sorts of reasons. It can be they've done a little bit and they've got contact with their family member, they've got contact with their child again, they've got some other…something"
(Interview 28, Sheriff)

7.35 But it is equally true that if that 'something' is missing, and the CJSWR simply gives no grounds to believe that the offender will respond to a community disposal, Sheriffs have little choice but to impose a custodial sentence.

"You can defer sentence for good behaviour for a person for a short while, with a bad record, and say, 'Well, if you are of good behaviour, I may consider a CPO'. If he comes back, and has been of good behaviour… but if the criminal justice team come back and say, 'No. We can't actually work with this man', then… there's very little to go on."
(Interview 27, Sheriff)

7.36 Perhaps the clearest marker of this situation, then, is not repeat offending as such, but serial non-compliance - particularly in the light of clear and repeated warnings about the consequences of flouting existing orders. At this point, for some Sheriffs, the balance between the various elements of sentencing shifts decisively towards the punitive: in the absence of any prospect of rehabilitative progress, either inside or outside prison, what remains is the need to signal to the offender and to others that their behaviour has consequences. Sometimes, this is precisely how and why some Sheriffs do continue to make use of very short sentences.

"I impose a sentence that I think is apt for the individual offender in the circumstances of the crime in the particular moment that I impose it. And if you have somebody who has committed even a relatively minor offence, and has been given three opportunities to do something else, and has not done it, then you have to sanction them in a way that has an impact upon them and on others who might be in that situation. And that doesn't justify sending that individual to prison for six months or more because I'm told that a short sentence has no impact. I'm not at that stage trying to engage in the process of rehabilitation… I'm saying, 'You were told to do a variety of other things as an option. You have not done it. Here is the inevitable consequence'."
(Interview 28, Sheriff)

7.37 While the above example describes what might be described as 'wilful' non-compliance, other Sheriffs gave examples of serial non-compliance rooted in complex and overlapping individual problems, such as homelessness, mental ill-health and alcoholism. While there may be greater sympathy for the plight of such individuals, in practice, a short prison sentence can not only come to be seen as inevitable, but even beneficial in the absence of appropriate facilities elsewhere. For example, it may allow individuals to 'dry out', or simply 'give the local high street a break' from their behaviour. But it can also 'wipe the slate clean' - meaning that they no longer have to deliver on what may have become a complicated and (for them) unmanageable accumulation of community disposals and monetary penalties.

"[I]f you've got people with a transient lifestyle, and we know from history they're not going to be able to respond to a community-based disposal, and... the agents are generally inviting you to take the view of 'there's nothing else we can do'. […] That's where a short sentence comes in…"
(Interview 50, Sheriff)

Gender and decision-making about the use of short sentences

7.38 Several Sheriffs were at pains to emphasise that gender is not a specific factor in their decision-making about whether to impose a short prison sentence rather than a community penalty. Nevertheless, it clearly does feature in consideration of domestic circumstances and caring responsibilities, and occasionally more explicitly, as in the following account in which a Sheriff indicates that the fact that prison would necessarily involve a great deal of travel for family members (because of the lack of local places for female offenders) was a potential factor in their decision-making.

"You have to bear in mind, […] a factor here in sentencing is that if I sentence someone to prison, I mean, at closest, it's [name of location] or [name of location], which is so-so for visiting. But if it's a female [...] in general it's Cornton Vale. And it's a bit discriminatory in that sense!, that, if you're female, your family are only going [to] get to see you by traipsing [XX] miles. […With] a community disposal - if they're reasonably orientated to do it - at least they're here, they're still in the community, they're part of the community."
(Interview 75, Sheriff)

Attitudes towards 'recommendations' from CJSWR writers

7.39 When looking at Sheriffs' views of CJSWRs earlier in the report, we touched briefly on the question of report-writers' 'recommendations' or 'preferred sentencing options'. These were less likely than other aspects of the reports to be viewed as useful by Sheriffs (although 33 out of 69 did find them so^[32]) and it is worth considering the range of judicial views here.

7.40 In many ways, this issue cuts to the heart of the relationship between the judiciary and criminal justice social work and its potentially thorny character is captured in the movement between the formal language of 'preferred sentencing options' and the informal discussion (evident in qualitative interviews with both Sheriffs and social workers) of 'recommendations'.

7.41 Most Sheriffs maintained that they were happy to receive 'recommendations' from CJSW. Indeed, some were adamant that social workers are actually much better placed to arrive at such judgements because of the closeness of their work with individual offenders. One Sheriff even proposed an expanded role for social workers in the sentencing process (although, at the same time, acknowledging that this was an idea unlikely to find favour with his colleagues):

"My innovation would be, let the social workers do the sentencing because they're closer to it."
(Interview 44, Sheriff)

7.42 Another talked of the difficulty in persuading social workers to put forward detailed recommendations, based on their experience and knowledge of the offender.

"Some Social Workers will say, 'Well, we can't tell you how long you should be …It's a matter for you'. I think it's helpful for them to suggest periods… - because they're suggesting disposals, so why can't they suggest periods? They're afraid of being seen to be running it, as it were."
(Interview 27, Sheriff)

7.43 Other sentencers, however, were keen to preserve a clearer distinction between professional roles and to emphasise the continuing independence and discretion of the bench. In practice, this meant that they were happy for social workers to outline options and to highlight the relative 'appropriateness' of those; they were not, however, content for social workers to give them a 'strong steer' or highly detailed 'recommendation'. In direct contrast to the quote in the previous paragraph, for example, a different Sheriff explicitly indicates that it is inappropriate for the report writer to specify the proposed length of the disposal.

"I'm happy to have a recommendation that says that ... 'this individual is appropriate for a Drug Treatment & Testing Order', 'this individual's appropriate for Supervision', or .. 'We do the X Programme here for that kind of issue'. That's perfectly appropriate. I do not like a recommendation that says, 'This person should get 80 hours' or 'This person should get ...' whatever. That's not the social worker's job."
(Interview 28, Sheriff)

7.44 There is also evidence that Sheriffs are sometimes frustrated by what they see as 'unrealistic' recommendations - either because, as discussed earlier, they are seen as overly-reliant on offender accounts, or because they are felt to reflect an in-built preference among CJSW staff for community disposals:

'Always involves accused's account of offence - often way off mark' (Open-ended response to Sheriffs' survey)

'Many social workers as a policy ALWAYS 'recommend' a community disposal (even if unrealistic) which affects my perception of the credibility of such suggestions.'
(Open-ended response to Sheriffs' survey)

7.45 Even though some Sheriffs are known to look to social workers to make very clear recommendations, a degree of cautiousness - or at least sensitivity to potential judicial attitudes - is still evident in the wording of reports.

"[C]ertainly historically it was very bad form to recommend anything in a report because it just sent the Sheriff into a very bad mood! ...I find on the whole they don't say […] 'I recommend the court does this' - they're much more circumspect than that, which is good. They suggest that 'the court might like to consider'."
(Interview 63, Sheriff)

7.46 Sheriffs' attitudes towards the issue of 'recommendations' are likely to be a reasonable proxy for their wider attitudes towards the respective roles of social workers and the judiciary. There is certainly no doubt that several of the Sheriffs interviewed for the evaluation would regard themselves as liberal in outlook and were keen to emphasise the closeness of their working relationship with social workers and other criminal justice professionals. Others have what might be termed a more traditional stance, clearly distinguishing their role from that of other agencies and showing a degree of scepticism about the willingness of social workers to face some of the realities of the courtroom (including the need, on occasion, for an explicitly punitive disposal).

"Some sheriffs...I think feel much more responsibility or have much more of a... not a feeling that they're actually a social worker, but a feeling they're part of that process; whereas other sheriffs feel that they're not part of that process, that they're part of a different process."
(Interview 63, Sheriff)

7.47 It should be emphasised, however, that this latter position did necessarily lead to any kind of antagonism, but did shape the way that Sheriffs would understand or interpret the actions and recommendations of social workers -that is, as coming from a different professional start point and frame of reference.

"I think there's… traditionally been a disparity in approach. Social Workers think Sheriffs want to send people into prison, and Sheriffs think Social Workers will say anything to keep them out of prison. And so you... go in with that allowance perhaps. […] So you have a slightly different reference point, but, again, you take that on board and you carry on. It doesn't mean you can't come to a view. It's just a factor in the whole decision-making process."
(Interview 75, Sheriff)

Judicial perceptions of how community penalties are viewed by offenders and the public

7.48 Judicial perceptions of how CPOs are viewed by other actors can influence their decision-making in relation to specific cases and the use of community penalties more generally. Perceptions of the seriousness with which individual offenders are likely to approach a particular disposal are, of course, critical. But sentencers also sometimes invoke public expectations or opinion in explaining why a community penalty may be inappropriate.

7.49 Findings from the Sheriffs' survey suggest that views are fairly evenly balanced in terms of the confidence sentencers have in how seriously CPOs are taken by offenders. Of the 72 Sheriffs who responded, just two indicated that they had 'a lot' of confidence in CPOs in that respect though 29 said that they had 'quite a lot' of confidence; 32 said they had 'not very much' and just one said 'none at all'. Views were also mixed in relation to Sheriffs' confidence in the acceptability of CPOs to victims and members of the public, though fewer said they had 'a lot' of confidence and more said that they were unable to offer an opinion (see Table 7.5).

Table 7.5: Sheriffs' confidence in CPOs and comparison with previous community sentences (n)

	Confidence in CPOs in terms of…	CPO compared with community sentencing options previously available in terms of…
	A lot/ Quite a lot	Not very much/ None at all	Don't know/ can't say	CPO much better/ better	About the same	CPO worse/ Much worse	Don't know/ can't say
…the seriousness with which such sentences are likely to be viewed by offenders	31	33	8	16	44	4	3
…the acceptability of such sentences to victims and other members of the public	25	29	18	9	52	1	5
Bases						72	67

Source: Sheriffs' survey.

7.50 In terms of comparisons between CPOs and previously available community penalties, most Sheriffs felt that there was little difference in terms of the seriousness with which such disposals were viewed by offenders or their acceptability to members of the public. In relation to both issues, however, Sheriffs were more likely to say that CPOs were better than to say they were worse than the previous arrangements.

7.51 The qualitative interviews allow us to unpack some of these issues. Most Sheriffs who took part in these did not seem to think that offenders viewed CPOs as a 'soft option', though few doubted that almost all would prefer a community to a custodial sentence:

"I think generally - and it's a generalisation… - offenders, at the outset certainly, want the chance of the CPO."
(Interview 20, Sheriff)

7.52 That said, and as noted in the last chapter, the absence of the facility to breach offenders automatically for reoffending was seen by some Sheriffs to weaken the credibility of community penalties, as was perceived lack of speed or decisiveness in pursuing breach proceedings in the face of clear non-compliance.

7.53 There is little evidence from the qualitative interviews that Sheriffs have more than an anecdotal sense of what public opinion might be in relation to the use of community penalties, and this tends to emphasise public scepticism about unduly lenient sentencing.

Interviewer: "Would you have any idea or any notion of public views about CPOs?"

Sheriff: "Only from what people say to me, that they can't understand why some people get 'community service', as they still call it".
(Interview 20, Sheriff)

7.54 However, there is also a strong sense from Sheriffs (and indeed from other actors, such as CJSW staff) that members of the public know very little about the specifics of 'community payback' or indeed would even be familiar with the phrase. Most considered that the language of community service or probation remained the currency of public (and offender) discussion and understanding.

7.55 Such views are broadly in line with research conducted for the McLeish Review in 2007 into attitudes towards community penalties. This suggested that members of the public generally had a limited understanding of what such disposals involve; saw them as appropriate only for low-level and non-violent offenders (and hence not as an alternative to prison); and did view them as a 'soft option, which is perceived to accomplish little in the way of punishing or deterring offenders' (TNS, 2007, p.11). That said, the research also pointed to scepticism about the effectiveness of prison and to greater potential support for community penalties, subject to such penalties retaining a punitive element, and yielding tangible (and visible) benefits to victims and communities.

7.56 On the question of visibility, sentencers generally felt that members of the public had little sense of the overtly reparative aspects of CPOs. While few if any favoured 'chain gang'-style visibility, there was nevertheless a sense that such activities - and their contribution to the community - could be more widely and more effectively publicised and that this might increase the degree of public support for such disposals.

"If they're creating a children's play park, if they're cutting gardens of old folk in the street - that wouldn't otherwise be done […]That's something that people should be told about."
(Interview 28, Sheriff)

7.57 In this context, it is also worth noting that Sheriffs themselves tended to have little direct exposure to projects and placements on the ground. While some made a conscious effort to 'get out and about', this was felt to be hindered by workloads.

Key points

7.58 The two years following the introduction of the reforms saw both an increase in the use of community penalties and a fall in use of short prison sentences in Scotland - two key long-term objectives for the reforms.

7.59 Caution is warranted in the interpretation of these figures, however, and it would certainly be unwise to draw a direct line to the reforms. The increase in the use of community penalties is consistent with a much longer-term trend, while the fall in the use of sentences of three months or less has been accompanied by an increase in the number of sentences of three to less than six months and six months to less than two years.

7.60 Nevertheless, on balance, there is evidence that CPOs are seen by Sheriffs as an improvement on previous community penalties, have contributed to a greater willingness to use such disposals and are viewed with a reasonable degree of confidence by most Sheriffs. While many Sheriffs see little change in the balance of their use of community and custodial disposals, there is a minority who say they are using community penalties more since the introduction of CPOs and there are almost none who say they are using them less.

7.61 Those Sheriffs who were strongly positive about the reforms typically welcomed the range and flexibility of the options on offer to them, the simplification of the overall framework and evidence of swifter implementation and more rigorous enforcement.

7.62 Sheriffs' reported frequency of use of different requirements broadly matches the data on actual patterns of use. Interestingly, however - and despite its already widespread use - a minority of Sheriffs indicated that they would like to make still greater use of the UPWOA Requirement, reflecting concern about the resourcing of UPW and provision for offenders with particular needs. There was also evidence that Sheriffs would like to be able to make greater use of the treatment requirements and other, more highly structured programmes and interventions.

7.63 One of the aspects of the reforms that Sheriffs are most positive about is the introduction of Level 1 orders, especially for lower tariff, young male offenders and those on benefits, for whom it is seen as a more constructive option than a fine.

7.64 There was little sign from the qualitative interviews of PASS figuring prominently or explicitly in decision-making in relation to specific cases - in part because Sheriffs indicated that they already used short prison sentences very rarely, but also because sometimes such a disposal was the only option left to them. That said, the survey provided evidence that some Sheriffs felt that PASS had contributed both to an increase in their use of community penalties and to the use of slightly longer sentences.

7.65 The clearest marker of the 'inevitability' of a short sentence is not repeat offending, but serial non-compliance - particularly in the light of clear and repeated warnings about the consequences of flouting existing orders. In the case of wilful non-compliance, this can have an explicitly punitive aspect; for others, whose lives are simply too complex and chaotic to break the cycle of offending, a short prison sentence is sometimes viewed as offering the chance to dry out or to 'wipe clean the slate' of accumulated penalties.

7.66 There is considerable variation in the attitude of Sheriffs towards the preferred sentencing options (or recommendations) contained in CJSWRs. Most Sheriffs say they are happy to receive 'a steer' on the most suitable disposal. While some like to see these couched in relatively cautious terms - avoiding any sense of encroachment on the independence of the bench - others called for social workers to be more creative and directive. Differences in Sheriffs' attitudes towards this issue are likely to be a reasonable proxy for their wider attitudes towards the respective roles of social workers and the judiciary.

7.67 There was some scepticism among Sheriffs about the seriousness with which CPOs would be treated by offenders and, especially, the acceptability of such disposals to the general public - although some interviewees were at pains to emphasise that they had little access to reliable evidence about either issue.

7.68 There was a sense that elements of CPOs such as unpaid work were still insufficiently visible to communities, and that it would be helpful for members of the public to understand more about the reparative aspects of such programmes.