Bail and release from custody arrangements: consultation analysis
Analysis of the responses received in relation to the public consultation on bail and release from custody arrangements in Scotland, which ran from 15 November 2021 to 7 February 2022.
Release from Custody
The second part of the consultation sought views on proposed reforms to the mechanisms governing release from custody, including how support for those leaving custody could and should be provided. Proposals for reforms included:
- providing victim support organisations with information about the release of prisoners to enable proactive safety planning to be undertaken;
- giving certain categories of prisoner the ability to demonstrate their suitability for earlier release or to serve the remainder of their sentence in the community following successful completion of programmes, etc;
- bringing forward the point at which short-term prisoners are automatically released (either unconditionally or subject to conditions);
- bringing forward the point at which long-term prisoners can first have their case heard by the Parole Board;
- amending or replacing the current model of Home Detention Curfew (HDC);
- providing courts with the ability to determine the proportion of a custodial sentence that an individual should serve in the community whilst subject to conditions (monitored via electronic monitoring) at the point of sentencing, with an emphasis on supporting reintegration;
- altering current flexible release arrangements so that release no longer happens on a Friday or in advance of a public holiday in order that people leaving prison can access support at the point of release;
- placing specific duties on public bodies to engage with pre-release planning for prisoners;
- introducing a support service for prisoners released direct from court to enable their reintegration;
- revising throughcare standards for people leaving remand, short-term and long-term sentences and seeking views about which services these standards should apply to in addition to justice agencies; and
- introducing wider powers of executive release to enable Scottish Ministers to release groups of prisoners in exceptional circumstances.
Feedback in relation to each of these proposals is presented below, however, it is important to note that, while there was support for many of the above, there was relatively little qualitative feedback given for why, notably in respect of the release questions. Many who agreed with different options did not explicitly say what in particular they agreed with and most of the feedback that was given focused on provisos, caveats or elements that would be needed to support each proposal.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 69 | 49% | 54% |
| Somewhat agree | 31 | 22% | 24% |
| Somewhat disagree | 9 | 6% | 7% |
| Strongly disagree | 19 | 13% | 15% |
| No response | 14 | 10% | - |
The majority of respondents agreed with the proposal (either 'strongly' or 'somewhat') that enabling a prisoner to serve part of their sentence in the community could help their reintegration. Individual respondents were more ambivalent about a prisoner serving part of a sentence in the community (because they perceived that punishment should be prison-based), whereas organisations were primarily in favour of it (because they perceived that prison was disruptive and rehabilitation was crucial), albeit with provisos. As with proposals linked to bail and EM, the main caveat for all respondent types was having the resources in place to make supervision and reintegration meaningful:
"Funding, additional staff and strengthened collaboration between SPS [Scottish Prison Service], justice and other support services are essential to the individual successfully reintegrating back into their community." (Local authority/justice partnership)
"[C]urrently, the approach is narrow and too often reliant on whether an individual has attended an offending programme(s) (and these are not always available due to resource restraints)… There would require to be a comprehensive assessment of the additional resources required to provide the support to deliver the outcomes associated with better reintegration e.g. housing, and readily available drug, alcohol and mental health services. Planning would require to begin immediately, at the point of sentence, between prison- and community-based services." (Professional Body)
"Community reintegration is vital as SPS do nothing to prepare prisoners for… proper release where they have to survive on benefits with no other support. If the reintegration test is to be effective then SPS need to have proper testing in place that properly reflects life in the community." (Individual)
"We are concerned that people are released without adequate financial support and with limited support to ensure that maximum benefit entitlement is claimed as quickly as possible." (Advocacy/support organisation (Children and Young People))
Several other respondents commented that suitability of this proposal depended on the type of crime and risk level posed by any individual, and that careful attention would need to be paid to vulnerable prisoners, children/young people, female prisoners, neurodivergent individuals, and the role of families on release.
Q14. What mechanisms do you think should be in place to support a prisoner's successful reintegration in their community?
Given that responses to the previous question stressed the importance of reintegration as part of a community sentence, the overwhelming majority of respondents to this question spoke of the need for adequate staffing and resources (not only in the community but also in prison), collaborative planning and meaningful interventions.
Adequate staffing and resources
Not only did many respondents comment on the need for greater resources for community based social work supervision (including that provided by the third sector) and the police, but also for prison-based throughcare officers to offer continuity in the transition from prison to the community. The Scottish Prison Service's (SPS) Throughcare Support Officers (TSOs) were viewed as sadly missed by many (as they supported more vulnerable people in a voluntary capacity than the current SHINE and New Routes partnerships can do) and one organisation suggested an alternative model of employing prison-based parole advisors as well as dedicated parole officers in the community:
"HMIPS report (2020-21) noted that "In all establishments the absence of the TSO role was keenly felt during the pandemic. While there are services providing throughcare support, the absence of the TSO was perceived as a significant gap in provision at a crucial time" (p.25)." (Public Body)
"… local authority capacity to carry out effective supervision is stretched. We believe this is partly a resource issue but would welcome a wider look at alternative models for supervision including a national rather than devolved service, with the option for more intensive and active 24/7 supervision where required. We wonder whether there is an enhanced role for prison officers, who will have built relationships with prisoners, to be involved in some aspects of community supervision. There may be benefit in looking afresh at what the role of a parole supervising officer should look like and the attributes and powers such an officer should have… The Prisoners and Criminal Proceedings (Scotland) Act 1993 empowers Scottish Ministers to appoint Parole Advisers to carry out this function but this has never been done. [We] would support the appointment of parole advisers and believe education and preparation of prisoners about their journey to release would positively impact release rates." (Public Body)
Low Moss Prison's Public Social Partnership, disbanded in 2020, was highly commended as an example of good throughcare practice, as was its successor, the New Routes Public Social Partnership, as well as the SHINE Public Social Partnership.
Collaborative planning
Needs and risk assessments prior to release were seen as important in enabling integration to work alongside public safety and comments were made that these should be done collaboratively between SPS and community-based practitioners. Preparation for release from a practical perspective (housing, benefits, employment and employer engagement, positive social networks, etc.) was also seen as needing to start early in the sentence and to ensure a seamless transition from prison to community support. In particular, accommodation was seen as an essential stepping stone towards successful reintegration:
"[M]echanisms require to be developed that ensures that services in the custodial setting connect seamlessly to those in the community… a pathway for transition that is transparent and timeous… Critical to success would be partner organisations viewing their role as not within a specific setting but as a continuum of support for the individual." (Local authority/justice partnership)
"Long-term prisoners should have permanent accommodation in place well before their release so that when they can come out on day release, they can - with support - decorate and furnish this… [and be able to] stay part-days, full-days and then overnights… if they have decent accommodation - a home in which they have an emotional and possibly financial investment - then they are less likely to reoffend." (Local authority/justice partnership)
One organisation suggested that a 'Community Sentence Plan', implemented in advance of release, would be helpful, while others mentioned information sharing protocols, and referral pathways as being key.
Meaningful interventions
As well as SPS offering greater access to prison programmes to facilitate early release, many suggested more engagement with industry, employers and education "to teach them some real working skills" (Individual), more access to primary care and mental health services and, some argued, matching the services offered in prison by improving those in the community. Increasing monitoring (e.g., GPS/EM) in the community was also promoted by several individuals, as was greater consistency in the delivery of throughcare options across the country.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Yes | 67 | 47% | 54% |
| No | 26 | 18% | 21% |
| Unsure | 31 | 22% | 25% |
| No response | 18 | 13% | - |
Just over half of those who answered this question agreed that, through good behaviour, or completing education, training and rehabilitation programmes, prisoners should be able to demonstrate their suitability for early release. This would show that prison had been effective in changing attitudes and behaviour and reducing the risk to public safety, although it was stressed that real behavioural change was more important than attending programmes since the latter could be a 'tick-box exercise'.
Of those who disagreed with discretionary early release, most considered prison to be a punishment, although others - including those who agreed with early release - noted that if prison rehabilitation programmes were adequately and consistently resourced, this proposition might be more viable:
"… the waiting lists are long and they are not easily accessed or available in all prisons… or if they simply appease specifications for release."(Local authority/justice partnership)
"[T]he complete debacle of MF:MC [where] SPS decide to withdraw the programme with no alternative in place and months later there is still no accredited programme in place. The Parole Board will not release as they are assessed as needing a programme but the prisoner has no control over what SPS decide. That no prisoner has yet taken this to a judicial review is amazing." (Individual)
"Not all programmes [are] available in all prisons…Programmes [are] not a priority for SPS. Prisons [are] not resourced to monitor individual prisoner progress at current staffing levels." (Individual)
For some respondents, whether agreeing or not, it was felt that prisoners could 'play the system'. Regardless of their agreement or not with the proposition about early release, some noted that the risk of reoffending was still there and that robust risk assessments and indicators of change would still need to be in place:
"Positive behavioural change and engagement with prison programmes, however, cannot alone be relied upon to accurately assess the risk an individual will pose in the community as some people may engage positively with all interventions offered but will continue to present a significant risk [on release]." (Local authority/justice partnership)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Yes | 66 | 47% | 54% |
| No | 30 | 21% | 25% |
| Unsure | 26 | 18% | 21% |
| No response | 20 | 14% | - |
Again, just over half of those who answered this question agreed with the proposal i.e. that, through good behaviour, or completing education, training and rehabilitation programmes, prisoners should be able to demonstrate their suitability for the ability to complete their sentence in the community.
Many respondents struggled to differentiate this question from Question 15a above, and indeed many raised the same issues including the lack of availability of prison programmes, the need for comprehensive risk assessments and the fact that 'good behaviour' and completing programmes may not necessarily be an indication of reduced risk:
"The overreliance on offending behaviour programmes within the current prison model to address identified risk/needs has considerable implications on proposals around release from custody, particularly for those serving short-term sentences…A recent meta-analysis on the effectiveness of psychological interventions in prison…found that…there was no significant reduction in recidivism…and that further research on understanding how the prison environment may impact on treatment effects…should be undertaken." (Individual)
In terms of Q15a and Q15b more generally, one legal organisation suggested that the consultation document lacked any consideration of the primary aim of sentencing, namely punishment, retribution and deterrence:
"It may be a matter of significant public concern if the court imposes a sentence of, for example, 18 months' imprisonment taking account of the need to punish the offender and the need to express disapproval of the offending behaviour, and concludes that this sentence is no more severe than necessary, and yet the offender is released after serving a period of 6 months imprisonment." (Legal Organisation)
Some individual respondents agreed with this concern, although most respondents concurred that early release should be a reward for good behaviour or evidence of progression within the prison estate, albeit noting that there were "serious issues" with the current process of progression within the SPS estate.
Q16. Do you have any comments on how you envisage such a process operating in the Scottish justice system? Who should be eligible to earn opportunities in this way? What risks do you see with this approach, or what safeguards do you feel would need to be in place?
A vocal minority in respect of questions 16, 17 and 18, as well as to earlier questions regarding release, suggested that automatic early release (AER) should be abolished and was ill-thought through:
"My main concern here is that the current Scottish Government appears to be saying the prisons are full, they will get busier and so we don't want to send people there and we want to let many already there, out. This is no way to run the Justice System. We need proper planning when it comes to prison and a prison estate that will cope. Letting people out early, cutting corners and, potentially, signalling to the wider public that we're not coping, isn't the answer." (Individual)
Others also commented that if behaviour in the community does not merit the fact that they received early release, then they should be recalled, based on risk, which would have significant resource implications (for supervising social workers and prisons) and administrative implications, especially for short-term prisoners. Some said that such a move to release earlier would impact adversely on victims, through re-traumatisation:
"Whilst 'punishment' remains one of the five primary responses of the criminal justice system there are inherent barriers to such an approach - particularly from those whose lives may have been devastated by an offence. A strong public campaign would be required to start to change the conversation and the voice of victim survivors would need to be heard loud and clear. Victims could easily be re-traumatised by an early release and could question their involvement in what is still a difficult adversarial criminal justice process." (Public Body)
Several respondents also commented on the under-use of the open estate and top end prisons, as well as the under-use of Home Detention Curfew (HDC).
Again, limited access to prison programmes was cited as a barrier to release, that the momentum to change is lost through ineligibility criteria or waiting lists for programmes, and that programme participation does not necessarily mean reduced risk. Equally, the importance of robust risk and needs assessments was again stressed (with some citing Multi-agency public protection arrangements (MAPPA) as an example of good practice).
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Automatic early release changes to earlier in the sentence, but the individual is initially subject to conditions and monitoring, until the half-way point | 57 | 40% | 55% |
| Automatic early release changes to earlier in the sentence, nothing else changes | 4 | 3% | 4% |
| No change: automatic early release remains half way through the sentence | 42 | 30% | 41% |
| No response | 39 | 27% | - |
Again, bearing in mind that some respondents, primarily individuals, felt the consultation wrongly excluded the option to abolish AER altogether, most were more concerned about early release being 'earned', risk informed and dependent on behaviour rather than arbitrary timescales. To that extent, it was felt by some that these three options in Q17 were limited:
"None of these options are preferable, however the consultation necessitates a selection of one. This is an unsatisfactory approach to a complicated issue… [We] would not prefer any of the options as currently stated… [but] would, however, support earlier release on the proviso that better support and access to services was an integral part of that process." (Local authority/justice partnership)
Respondents to this question reiterated that release should be based on risk level, not on automatic or expedient timescales, that prisoners should have to 'prove' themselves, and that meaningful interventions should be made available as part of any licence conditions. However, many respondents noted the considerable resource implications of the move to earlier release, with supervising social workers taking the heaviest burden:
"… without appropriate and adequate support this is likely not to work… [including] an increase of individuals being subject to conditions and monitoring (where previously the involvement might be more voluntary), to the potential very short time working with individuals." (Local authority/justice partnership)
"This will result in significant resource implications for SPS and justice social work, as well as statutory and Third Sector services in the community. SPS would require to develop and implement a process to assess whether an individual is ready to be released and, on the assumption that JSW would be responsible for managing those subject to conditions, the workforce would require to substantially increase to meet the demand. Is this a realistic goal?" (Local authority/justice partnership)
Whilst it was suggested in the consultation that EM could form part of the release conditions, one organisation noted that the majority of prisoners lost accommodation as a result of imprisonment, the inference being that to have a 'suitable address' for EM or HDC eligibility, one would have to significantly improve access to accommodation for prisoners on release.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Change to allow some long-term prisoners to be considered by the Parole Board earlier if they are assessed as low risk | 41 | 29% | 36% |
| Change to automatic consideration by Parole Board once one third of the sentence is served for all long-term prisoners | 14 | 10% | 13% |
| No change: automatic consideration by Parole Board once half of sentence is served for all long-term prisoners | 58 | 41% | 51% |
| No response | 29 | 20% | - |
Just over half of respondents supported the status quo, namely that PBS consideration is given at the half-way stage of the sentence for long-term prisoners. Just over a third of respondents preferred option one, namely that the PBS should have the discretion to allow some lower risk prisoners to be considered earlier than the half-way point, dependent on risk assessment rather than time served to date:
"I think if a prisoner is deemed to be a low risk then after a risk assessment their re-integration into community should begin at the earliest possible stage of a sentence." (Advocacy/support organisation (Children and Young People))
"[T]his is less a consideration of the time than of the principle. If a person is not deemed to be a risk to the public, and could be successfully supported in the community, then that is what should happen… once people have served a punishment element of a custodial sentence, they only remain in prison if there remains risk to other people." (Professional Body)
Several respondents commented, however, that options 1 and 2 above (changes to when parole may be considered) could overwhelm the Parole Board for Scotland (PBS) and it would therefore need more resources. Some suggested the Open Estate (HMP Castle Huntly) and National Top End[4] could be used more effectively in allowing prisoners to 'prove themselves' prior to parole consideration and that if the PBS was able to consider prisoners for parole at an earlier stage, they could flag up any issues that may cause concern at the first hearing where parole is unsuccessful:
"Assuming that they have been monitored, assessed, and categorised as low risk, then it may be appropriate that they are given earlier consideration for parole. This does not necessarily mean that they will be granted parole, although some undoubtedly will, but if the Parole Board have any concerns or recommendations for programmes or intervention they may require to undertake, this would raise them at an earlier point in the process and allow them to be addressed." (Advocacy/support organisation (prisoners, accused, released))
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Yes | 98 | 69% | 76% |
| No | 16 | 11% | 12% |
| Unsure | 15 | 11% | 12% |
| No response | 13 | 9% | - |
There was considerable agreement with this proposal, mainly on the basis that the existing system did not work. One respondent commented that the current system was:
"… cumbersome, opaque and discriminatory… anecdotal accounts imply a prevailing form of logic which surmises that if someone already has support from local agencies then they do not 'need' early release, whereas if someone does not have support, there is no obvious incentive in releasing them early." (Advocacy/support organisation (Children and Young People))
Most suggested that this proposal would ensure a more comprehensive preparation plan for release in collaboration with external agencies, for example in arranging appointments with addiction services or housing providers. However, it was noted that there should be no 'last minute' decisions to release, irrespective of the day of the week, as throughcare and community based support agencies need advanced warning as well. Indeed, SPS, the Parole Board for Scotland and Sheriff and High courts (the latter where accused were released from court on bail), were often cited as undermining the effectiveness of pre-release planning (and arguably putting victims and the wider community at risk) because of a lack of forewarning. Equally, although successful models of throughcare were cited by respondents - those operated by SHINE, New Routes and SPS's now disbanded Throughcare Support Officers - it was acknowledged that their success depended on those organisations being forewarned of releases.
Several respondents who disagreed with the proposition to ban all releases on a Friday felt that support should be available regardless of the day of the week. It was also felt that such support should not only be available in the community on release, but in the prison prior to release.
The largest number of responses, both of those who were unsure about the proposition and those who agreed with it, related to improved pre-release planning and throughcare, as well as earlier release within the week, so as to enable prisoners to settle and be supported in their host communities, not least during the Covid-19 pandemic:
"Given the impact of the pandemic, we feel that it is no longer enough simply to arrange appointments for people being released. Access to these services is greatly reduced to the wider population… At the point of release, we feel that every person leaving prison should have a suitable place to go home to, necessary prescriptions that can be taken to any chemist in Scotland, and an appropriate sum of money to last until benefits are reinstated." (Organisation)
"[R]eintegration should begin at the point of entering custody, frameworks need to be put in place for seamless transition to community and plans in place for liberation." (Organisation)
| Agree/Yes | Disagree/No | Unsure | |
|---|---|---|---|
| (a) Prisoners must actively apply for HDC. Should HDC be considered automatically for some categories of prisoners instead (Base 118) | 51% | 27% | 22% |
| (b) The maximum length of time allowed on HDC is 6 months (or 1 quarter of the sentence). Do you think that this should be made longer or not change? (Base 112) | 53% (be made longer) | 47% (not change) | - |
| (c) The minimum sentence for which HDC can be considered is 3 months. Should this limitation be removed? (Base 119) | 39% | 33% | 28% |
| (d) There is currently a list of exclusions that make someone ineligible for HDC. Should this list be reviewed with the intention of expanding eligibility for HDC? (Base 120) | 51% | 27% | 22% |
| (e) Currently, SPS make decisions to release prisoners on HDC following a risk assessment and engagement with community partners. Do you think this responsibility should remain with SPS? (Base 119) | 43% | 23% | 34% |
| (f) Do you think decisions on whether to release prisoners on HDC (or similar) should be taken by the Parole Board for Scotland in future - even for those prisoners serving less than 4 years? (Base 118) | 27% | 39% | 34% |
| (g) Do you think decisions about the length of time an individual would serve in the community at the end of their custodial sentence should instead be set by the court at the time of sentencing? (Base 121) | 28% | 49% | 23% |
Echoing responses to other questions in the consultation, the majority of respondents to Q20a-g felt that HDC should be determined by individual need/risk and not by category. Not only would it be more equitable and fair to offer it to all but there was also the likelihood that some people would not wish to take up the offer and should have the choice rather than be automatically/compulsorily included:
"Many find it more difficult and restrictive to comply with the curfew conditions. Anecdotal evidence indicates that some families found it more disruptive than having the person in prison." (Local authority/justice partnership)
Whilst the potential for 'up-tariffing', where one sanction, if breached, is replaced with a more severe sanction, was only cited by one organisation specifically, others cited those with low risk of harm or first offenders as being likely recipients of HDC, which would risk up-tariffing them if breached:
"[HDC has] serious implications for dignity, autonomy and human rights. We would not wish to see a widening of the use of HDC in respect of those who present no public safety risk and so could be released without it." (Third Sector/Other)
Where specific categories were mentioned by a minority of respondents, violent and sexual crimes and domestic offences were the only ones mentioned specifically. However, several respondents suggested that the higher the risk, the more appropriate HDC would be in general:
"If the purpose of HDC is to promote successful reintegration, then there is no basis on which to exclude any category of prisoner. Indeed, prisoners who present a higher risk of reoffending or harm should really be considered a priority for HDC so that community based interventions can be delivered while the young person is under a level of constraint, with a strong incentive to comply with the conditions of the HDC." (Advocacy/support organisation (Children and Young People))
Several commented that HDC was currently under-used and that it should/could be better publicised to all prisoners and their families, including those with disabilities, neurodivergent prisoners and those for whom English is a second language.
In respect of Q20b, there was an even number of those who wanted HDC to be longer than 6 months, and those who wanted it no more than 6 months. Two respondents suggested it could be shorter, and several suggested 'scrapping' HDC completely. Of those who had reservations, they noted that the sentence length and time span of HDC was irrelevant if it was based on risk and needs per individual. For those who wanted HDC to remain at 6 months or less, the majority suggested that this was long enough for behavioural/attitudinal change and that any longer would likely result in breach. One organisation argued that the effectiveness of HDC would be dependent on criminal justice social work, and that the resources were already over-stretched:
"[We are] not convinced the infrastructure (in terms of tagging and monitoring equipment) or personnel or capacity within criminal justice social work exists to support these proposals. We know from our day-to-day interactions with colleagues working in criminal justice social work that they are already beyond capacity. We know from our own experiences that there are significant vulnerabilities and limitations to electronic monitoring." (Professional Body)
Despite several respondents appearing to misunderstand the question of removing the three-month minimum sentence for HDC eligibility (Q20c), many noted that the Presumption Against Short Sentences (PASS) made HDC unnecessary for short sentences, since there should now be no prisoners serving 12 months or less without a written rationale (and in any case, Community Payback Orders (CPOs), Restriction of Liberty Orders (RLOs) and EM were already used for short sentences). Applying for, setting up and operating an HDC for a short period was also deemed counterproductive by several and that "such structure as it can bring to a released prisoner's life hardly has time to kick in." (Third Sector/Other)
Expanding HDC eligibility criteria (Q20d) was welcomed by just over half of respondents (with a few suggesting having no exclusions at all). Given the broad agreement throughout the consultation that individual need and risk should be prioritised over generic categories of offender/offence, nobody should be excluded, it was felt:
"There should not be a blanket ban on violent or sexual offenders receiving HDC… [They] may well warrant ineligibility, but each case should be judged on its merits." (Third Sector/Other)
Questions 20e and 20f asked respondents to comment on whether SPS or the Parole Board for Scotland (PBS) respectively should take responsibility for deciding on HDC applications. Although a third of respondents were unsure about SPS continuing in that role, or PBS taking it on, more respondents favoured SPS continuing because prison officers tend to know the prisoners best, and SPS is responsible for the overall sentence (of which HDC would be a part). However, SPS may not be au fait with detailed community-based risk assessment tools and respondents suggested that such decisions should be made jointly between SPS and community justice partners (including families, victims and prisoners themselves):
"Currently, prison officers are not trained to apply accredited risk assessment tools… or more specialist tools applied for sex and domestic abuse-related offending… Whilst the responsibility should ultimately remain with SPS, consideration could be given for adjusting the decision-making process to more actively and explicitly involve partner agencies and set this out in updated HDC guidance." (Local authority/justice partnership)
"I think that being under the care of the SPS, a prisoner would be best assessed by them, in conjunction with relevant services. I do, however think there should be an external body of appeal." (Advocacy/support organisation (Children and Young People))
Whilst some perceived that SPS may be less stringent in its consideration of HDC (the increased use of which, some suggested, would help reduce the prison population), PBS may be too risk averse to increase take-up of HDC, it was felt. It was broadly considered that PBS would become 'swamped' by what could be a drastically increased workload (taking on short-term prisoners as well as its current long-term prisoner parole applications which merit HDC, as an additional licence conditions).
Finally, respondents were asked in Q20g whether the court should - at sentencing - determine the period of time a prisoner should serve in the community. Almost half of all respondents disagreed mainly on the basis that sentencers have no knowledge of, or ability to predict, how a prisoner will progress and such decisions should therefore be made at the time of considering possible early release. There was also the potential for conflict of roles, it was felt:
"Requiring a judge to determine not only custody, but also the process and timing of rehabilitation for someone, is possibly a role conflict on the basis that judges do not, in the main, consider post-sentence rehabilitation. It could be argued that this may be the case in 'punishment' parts of life sentences, extended sentences, etc., but the judge does not determine or detail 'how' that rehabilitation should be undertaken - to do so in this context might be a conflict with one of their primary roles as sentencers." (Local authority/justice partnership)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 70 | 49% | 59% |
| Somewhat agree | 35 | 25% | 29% |
| Somewhat disagree | 6 | 4% | 5% |
| Strongly disagree | 8 | 6% | 7% |
| No response | 23 | 16% | - |
The vast majority of respondents agreed or strongly agreed with this proposal, albeit with provisos, since the main cornerstone of successful throughcare and reintegration was collaborative partnership planning and sharing of information. Several organisations noted that whilst victims are the focus of much conviction and sentencing activity, they, and the agencies that support them, are often lost in the later release arrangements:
"[This would] promote a survivor led justice system. Also to ensure third sector who at [the] time can be the main support to the individual are fully aware of protective and risk factors." (Local authority/justice partnership)
The main reservations related to GDPR concerns and prisoners' rights, and for the Government to be very clear and transparent about why such information needed to be shared - again, there was a need to balance the risk to victims with the rights of prisoners it was felt. Some thought, as elsewhere in the consultation, that domestic abuse cases (and victims) were often forgotten in release plans, and that lessons could be learned from MAPPA regarding information sharing protocols with regards to not only sex offence cases but also domestic abuse.
Whilst one respondent suggested SPS should lead on such information sharing, others suggested a partnership approach, with the third sector being one of those partners but not the lead.
There was caution expressed by some about inadvertent (or otherwise) media coverage encouraging vigilantism, a fear that may be relevant to those convicted of sex offences in particular.
In terms of victims, there was majority endorsement of the proposal to review the Victim Notification Scheme (VNS), and indeed to extend it, although there were mixed feelings as to whether this should be an 'opt in' or 'opt out' scheme in future. Many also agreed that victim safety planning was essential, but felt this all too often took secondary importance currently.
For the few who disagreed with the proposal to share information with third parties, some noted the breach of privacy, not least if a sentence had already been completed in prison or there was a fear of vigilantism (as above).
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 55 | 39% | 47% |
| Somewhat agree | 34 | 24% | 29% |
| Somewhat disagree | 19 | 13% | 16% |
| Strongly disagree | 10 | 7% | 8% |
| No response | 24 | 17% | - |
While most respondents agreed with this proposal, many were unsure about exactly what was meant by 'further information' and several stressed that this would need to be clarified/elaborated before they could comment. For most, however, keeping victims safe and alleviating their concerns as much as possible was supported, without putting the prisoner at risk or contravening GDPR legislation:
"[I]mproved victim support services is the answer here, not providing more information (on which the detail is currently patchy). All they should need to know is the person is being released, anything other than that would surely be verging on a data protection breach." (Local authority/justice partnership)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Existing duties on public services to give all people access to essential services are sufficient to meet prison leavers' needs | 32 | 23% | 26% |
| Existing duties are not sufficient; public services should have a specific duty to engage with pre-release planning | 90 | 63% | 74% |
| No response | 20 | 14% | - |
Whilst the majority of respondents again agreed that a 'specific duty to engage' was required, they were concerned that public services still needed more resources to fulfil that obligation:
"[F]or this 'duty' to be of value, the public services need to be properly funded and resourced to provide a service. A last minute expectation to engage with someone leaving custody is not always possible - most services have no additional resource so the whole process for release planning is vital." (Local authority/justice partnership)
Whilst it was seen as important for local authorities and the third sector to take on greater responsibilities with regard to pre-release planning, neither were necessarily seen as being appropriate lead partners, and collaboration was instead seen as key:
"We argued in our response to the consultation on the community justice strategy review that whilst the vision remains broadly relevant, "Success … requires each of the partners to contribute equally and meaningfully - too often, justice social work is expected to shoulder the burden of driving the agenda and providing the resource." Too often other public services are not being held accountable for contributing meaningfully to meet prison leavers' needs." (Professional Body)
Only a few comments were made that existing duties were currently sufficient, the inference being that if planning was implemented at the start of the sentence, in collaboration with community partners, then existing duties should be adequate as long as these were carried out as intended:
"The Community Justice (Scotland) Act 2016, detail contained in the national strategy and outcomes, performance and improvement framework, lays a statutory duty to local authorities to ensure access to services. How effectively and consistently this is applied varies greatly across the country. A streamlined service standard approach…would ensure that the current postcode lottery situation is addressed." (Local authority/justice partnership)
"As the government are aware, the legislative duties assigned within the Community Justice (S) Act 2016 have been embraced to varying degrees amongst statutory partners. We are of the view that it would be more practicable for standards to be developed for partners to evidence their commitment to current responsibilities both strategically and operationally. Additionally, this needs to include non-specific justice services e.g. NHS, DWP, banks, etc." (Local authority/justice partnership)
Q24. If public services had an additional duty to engage in pre-release planning for prisoners, which services should that duty cover? Please list each service and what each should be required to do.
In response to this question, the most commonly cited specific service was housing (including being available at point of release and having basic essentials such as white goods), followed by health (including having access to a GP from the date of release), and benefits/banking (including a discharge grant on day of release for not only convicted but also remand prisoners, and benefits such as Universal Credit accessible on day of release). However, if 'health' incorporated physical and mental health, as well as addictions/prescriptions, then this was by far the most commonly cited service required on day of release.
The fourth most commonly cited service required was employment or employability, with social work (whether statutory or third sector) coming fifth, reflecting that practical support was deemed more important to support prisoners upon release than emotional support or supervision for some, not least on the immediate days post-release. Unless housing, finance and health were stable (including ready access to prescriptions where needed), prisoners on release may be unlikely to engage meaningfully in supervision or more emotional forms of support it was stressed.
Other services mentioned included education, family support, liaison with police officers and HDC agencies, and the importance of pre-release planning was again key. A one-stop shop arrangement (for example, as in the organisation, New Routes) was also seen as helpful, as was the lone but highly realistic suggestion that prisoners are given a mobile phone and pre-paid minutes on release. The issue of funding was inevitably raised, however:
"[A] tension often exists as a result of how local authorities are funded for the delivery and commissioning of justice social work. This is predicated on a local commissioning model but, whilst [organisation] supports this approach, it does not adequately protect third sector bodies because of the financial pressures local authorities are under. This can result in situations where the local authority has to reduce or stop funding third sector bodies in order to deliver its core statutory functions. This requires to be addressed urgently." (Professional Body)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 90 | 64% | 74% |
| Somewhat agree | 26 | 18% | 22% |
| Somewhat disagree | 3 | 2% | 2% |
| Strongly disagree | 2 | 1% | 2% |
| No response | 21 | 15% | - |
Most respondents somewhat or strongly agreed with this proposal, albeit again with the proviso that adequate resources were put in place:
"… local authorities are not statutorily obliged to provide a court service and cannot guarantee to always be present in court… However, the scope of and resource required to deliver a comprehensive court service has been a neglected area of our work and we would welcome an opportunity to consider this afresh in collaboration with Scottish Government, Scottish Courts & Tribunal Service and other court services." (Professional Body)
Some suggested that there should be a one-stop shop for such services, and that a national provider with provision in each local authority (rather than per local authority such as justice social work) should take the lead, whether or not a third sector provider. Court-based signposting, such as having support workers based in every court, was considered essential for national consistency. It was further noted that not just remand prisoners are released from court, but also those given Diversion or Deferred Sentences, and that these would need to be considered also for ongoing community support.
One organisation highlighted the operational implications of providing court-based support, not just for the organisations offering that support, but for the courts themselves in accommodating it:
"… it is not clear how this would work from an operational perspective, but would almost certainly result in an increase in post-sentence applications to the court with the resultant impact on court programming and length of court hearings etc… There are a number of circumstances in which a prisoner may be released direct from court and these cannot be predicted, meaning that support cannot be arranged in advance of a court hearing… As indicated, not all courts have a social work resource located within the court building and many courts are currently unlikely to have available accommodation for these support services. Additionally, a number of prisoners now appear at court virtually and may be released from the prison following the hearing. Similarly a number of accused persons appear in courts outwith their local authority areas. It is unclear how support would be provided to these individuals in these circumstances." (Public Body)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 82 | 58% | 68% |
| Somewhat agree | 32 | 23% | 26% |
| Somewhat disagree | 5 | 3% | 4% |
| Strongly disagree | 2 | 1% | 2% |
| No response | 21 | 15% | - |
The vast majority agreed that minimum standards for throughcare should incorporate a wider range of services, not least if services are to be tailor-made and based on individual need, as suggested in answers to previous questions to the consultation, and to incorporate the third sector much more proactively:
"The risk and needs assessment should help formulate the release plan, then those organisations who have the expertise should contribute to the plan with a key worker overseeing that the plan is carried out in full. The Third sector has expertise and an important role to offer in relation to co-production." (Advocacy/support organisation (prisoners, accused, released))
Increased resources were again noted as essential, since standards can only be met if appropriately funded. It was also noted that lessons could be learned from considering other Minimum Standards such as the Medication Assisted Treatment standards and Health and Social Care standards, as well as international good practice.
Finally, and more broadly, throughout this latter part of this consultation, there was a tension between what specific services criminal justice can provide as opposed to what universal services should be provided by wider social justice organisations. There was a sense that the Scottish Government was perhaps asking too much of a narrowly-defined sector (criminal justice) to address the more environmental, financial and welfare needs of citizens, irrespective of their involvement or not in crime:
"It is a matter of access to justice. These proposals on bail and release from prison custody form one part of this, but are not enough on their own and in isolation to realise major changes to uses of prison custody and prison conditions… I strongly commend the need for human rights and equalities considerations to be central in the Scottish Government's justifications of legislative reform… Solutions to community safety and decarceration often exist outwith criminal justice. No amount of funding, staffing, services and reforms at the 'front end' (supervising and supporting bail, diversion) or the 'back end' (early release, throughcare and reintegration) of the criminal justice system will effectively address some of the major contributing factors as to why so many end up in it." (Individual)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 41 | 29% | 35% |
| Somewhat agree | 36 | 25% | 30% |
| Somewhat disagree | 23 | 16% | 19% |
| Strongly disagree | 19 | 14% | 16% |
| No response | 23 | 16% | - |
Two thirds of respondents agreed with this proposal, either strongly or somewhat. As with previous questions and responses relating to release, respondents stressed the need to consider 'individuals' and to include all prisoners irrespective of length of sentence (short- or long-term) or prisoner status (convicted or remanded), based on need and risk. However, they acknowledged that different groups had different needs - and would require different versions of the same services. Long-term prisoners may need help with reintegration as well as needing risk management; short-term prisoners and remand prisoners should have the choice to engage with services, but in a timely manner. However, not all agreed that one set of standards would cover all three categories:
"Given that the existing standards date from 2004 we would agree that these should, in the first place, be revised. We would suggest that there needs to be a human-rights based 'universal baseline' which is applicable to all three categories to which variations are added depending on the length of the custodial sentence and any statutory conditions that are attached to this." (Local authority/justice partnership)
"[T]here is much that is common to all in terms of what constitutes successful planning for release to maximise successful reintegration. Nevertheless, and notwithstanding this, minimum standards must reflect the different perspectives and our support is for distinct sets of standards, although this could be achieved by incorporating standards for remand and non-statutory short-term prisoners into one document containing an over-arching set of principles and distinct standards for each, thus recognising commonality." (Professional Body)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 69 | 49% | 58% |
| Somewhat agree | 31 | 22% | 26% |
| Somewhat disagree | 11 | 8% | 9% |
| Strongly disagree | 9 | 6% | 7% |
| No response | 22 | 15% | - |
Again, most respondents supported this proposal. While some saw a tension between 'statutory' standards for services and 'voluntary' participation in those services, and indeed the feasibility of placing statutory duties on third sector organisations, the majority agreed that statutory standards would enable consistency across all local authorities. Again, however, this was tempered with resource implications:
"[A]lthough the Community Justice (S) Act 2016 clearly states a range of activities local justice partners require to undertake, it is clear that - despite the legislative duty - this work is not always undertaken and, when completed, is delivered to varying standards across Scotland. Even though there is a legislative requirement there is no guarantee that required action will occur." (Local authority/justice partnership)
"[S]imply making something statutory does not actually guarantee a better service. It may or may not. It depends on the resources and quality of services that a legal obligation to provide throughcare requires." (Third Sector/Other)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Yes | 61 | 43% | 53% |
| No | 11 | 8% | 10% |
| Unsure | 42 | 29% | 37% |
| No response | 28 | 20% | - |
The majority view was that other changes did indeed need to be made to throughcare, but many respondents simply reiterated comments made in response to earlier questions in the consultation. The primary concern was that there needed to be continuity and collaboration between SPS and the community agencies involved; secondly, that preparation for release was essential (and some mentioned domestic abuse perpetrators as needing more preparation through programmes in prison); and thirdly, that housing, addiction services and health needed to be more involved. Other suggestions, again, included bringing back the SPS Throughcare Support Officers, increased resourcing for throughcare, national coordination, a 'Whole System Approach', a single point of contact for prisoners prior to and following release and a robust pre-release plan:
"Consideration of all individuals in custody being the subject of their own community reintegration plan to create a model where every person imprisoned has an active plan of preparation for release from the moment they are imprisoned and that recognises that even short periods of imprisonment can create significant barriers in social reintegration." (Local authority/justice partnership)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Yes | 85 | 60% | 71% |
| No | 7 | 5% | 6% |
| Unsure | 27 | 19% | 23% |
| No response | 23 | 16% | - |
The majority of respondents agreed with this proposal. Again, comments made in response to this question reiterated those in the previous question. This included the need for consistency in approach to throughcare, involving the community as well as voluntary sector (including Citizens Advice Bureau), improving access to employment/employability schemes, better signposting pre- and post-release, accountability of throughcare staff, family support and greater involvement of the Scottish Courts and Tribunals Service (SCTS) and PBS in throughcare service referral.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 25 | 18% | 21% |
| Somewhat agree | 47 | 33% | 39% |
| Somewhat disagree | 14 | 10% | 12% |
| Strongly disagree | 33 | 23% | 28% |
| No response | 23 | 16% | - |
There were mixed reactions to this proposal, not least because several respondents drew attention to the Coronavirus (Scotland) Act 2020 which was drawn up and enacted as a matter of urgency in order to ease pressure on the prison estate during the early months of the Covid-19 pandemic, and did not require an executive power to do so. Some respondents also queried what was meant by 'exceptional circumstances' and how this would be defined in any executive power. For those who agreed, some suggested involving either the judiciary or another relevant non-partisan organisation; and ensuring that resources and risk assessments were in place should such a power be used:
"Can safety of the victims be guaranteed? In the cases of domestic abuse, specialist risk assessment for all parties should be mandatory before release." (Advocacy/support organisation (victims))
Some, however, feared that such a power might be used to reduce overcrowding (through the back door), and several argued that politicians should be at arm's length to the process of decision making.
Q32. If an executive power of prisoner release was introduced for use in exceptional circumstances, what circumstances do you consider that would cover?
With the provisos attached to the previous question, the circumstances which some respondents felt were exceptional enough to warrant an executive power of release were as follows, in priority order:
- pandemic/fire/flood/war, etc.;
- compassionate grounds;
- for the safety of staff or prisoners;
- prison infrastructure failures;
- medical grounds (including terminal illness of the prisoner);
- significant overcrowding;
- exceptional riots; and
- miscarriages of justice.
Contact
Email: futureofcustody@gov.scot
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