Presumption against short sentences extended

Ineffective short prison sentences of 12 months or less are expected to reduce after MSPs voted for a presumption against their use.

Such sentences often disrupt factors that can help prevent offending, including family relationships, housing, employment and access to healthcare and support. 

Around 90% of women sent to prison are given a custodial sentence of a year or less, many of whom have experienced abuse, mental health and addiction problems.

The presumption is not a ban, and courts will still be able to impose prison sentences of 12 months or less. It aims to increase the use of more effective methods of both addressing offending and rehabilitation, such as Community Payback Orders (CPOs).

The change will apply to cases where the offence was committed on or after 4 July 2019. 

Justice Secretary Humza Yousaf said:

"The extension of the presumption against short sentences is crucial to ongoing work to support reintegration and rehabilitation, helping keep crime down and communities safe. 

"We know from evidence and research that community-based interventions are more effective than disruptive short prison sentences. With such a high proportion of women prisoners serving custodial sentences of 12 months or less, this extension could have a significant impact on women in the justice system.

"This presumption is not a ban; it will encourage courts to consider alternatives to custody which can be more effective in rehabilitating individuals as they pay their debt to society. Impact will be monitored closely and there will always be serious crimes where it is decided in court that prison is the right option."

Bill Fitzpatrick, Director of Operations for Community Justice Scotland, said;

"The extension of the presumption against short sentences demonstrates Scotland's commitment to change and is another welcome stride towards smart, effective, more robust justice. 

"Evidence shows this extension, coupled with strategic support for local service providers and communities, could reduce offending – resulting in less victims of crime.  Focusing on what works, rather than what has always been done, will help us on our journey to become the safest country in the world."

Background

The Scottish Government committed in its 2018-19 Programme for Government to extend the presumption to 12 months or less, once additional safeguards for victims in the Domestic Abuse (Scotland) Act 2018 were in force.

The court must not pass a sentence of imprisonment for 12 months or less on a person unless it considers that no other sentence is appropriate. The court must record the reasons for its sentencing decision.

The statutory presumption against short-term sentences was approved by the Scottish Parliament through the Criminal Justice and Licensing (Scotland) Act 2010.

The extended presumption will apply to cases regardless of the gender of the convicted person, however the profile of women with convictions means the reform could have the greatest impact upon them – with around 90% of custodial sentences imposed on females being under a year. The Scottish Prison Service Women in Custody report (pdf) found around 60% of female prisoners reported four or more adverse childhood experiences around half report problem drug taking outside custody, around 40% were taken into care as a child, while around half have accessed mental health care while in custody - compared with a third of men.

The Scottish Government is protecting ring-fenced funding for Justice Social Work of more than £100 million in 2019-20 – investing £9.5 million a year more on community justice services such as community sentences and electronic monitoring compared to 2015-16.

Of the individuals receiving a custodial sentence, the proportion of those sentences that were of three months or less has fallen from 35% in 2010-11 to 27% in 2017-18. Extending the presumption will help ensure alternatives to custody are considered in all cases before Scotland’s summary courts.

Driven by longer minimum terms for life prisoners, lengthier sentences for serious crimes including homicide and sexual offences, and a rise in pre-trial remand, Scotland’s imprisonment rate is the highest in western Europe. While accounting for 12% of the prison population on any given day, short term prisoners sentenced to 12 months or less represent around 79% of all custodial sentences, contributing to a high ‘churn’ of people to be processed by Scottish Prison Service staff.

The Management of Offenders Bill, passed by Parliament, enables courts to add electronic monitoring to a community payback order (CPO) and strengthens powers of recall from Home Detention Curfew (HDC) by introducing a new offence of remaining unlawfully at large and granting police greater powers to help apprehend anyone who absconds.