Perceptions of Summary Criminal Justice in Scotland

4 views on sentencing

4.1 Although the workshops did not have a primary focus on sentencing, many of the discussions generated comments from participants about what they perceived characterised current sentencing practices and outcomes. It is important to note that most of the views expressed reflected participants’ priorities for sentencing and in many cases bore no relation to how the system currently operates in practice. The views were often uninformed and so should be taken as indicative of participants’ views only, rather than being accurate discussions of the system as it currently stands.

Giving Victims a Voice

4.2 Regardless of the types of disposals discussed, there was a shared empathy across the group discussions that victims would probably wish to have a say in the sentencing of those who perpetrated crimes against them, and that their voice should play a part in the sentencing process, if they desired:

“I think it would be good to discuss with the victims to say, “Right, these are the options here”. (Aberdeen)

“Possibly give the victim a chance to give any evidence, so that if he wants to, he can, and he’s given a specific time to give that evidence, and if he’s not in there, he doesn’t get another chance to give it.” (Ayr)

“I think everyone should be allowed to give an opinion on stuff, not just maybe some of the witnesses but even the victim should be able to say what they’ve got to say as well.” (Livingston)

4.3 Many participants recognised that not all victims would want to appear at court, since it might be a daunting experience and may mean facing the accused. That said, for more serious cases, participants, for the most part, felt that the court experience, including an opportunity for the victim to speak would provide more closure than penalties being handed out which did not allow the victim’s perspective to be publicly heard:

“There’s times when it’s good to go through the court process. Just there’s more finality, and peace of mind to realise that everyone else has heard the seriousness of what happened… because one of the basic needs of human nature is the need to be heard.” (Livingston)

4.4 Only a small number of participants felt that the stress of appearing at court would outweigh this desire to be heard in such serious cases.

The Importance of Offending History

4.5 Regardless of the severity of cases and the type of disposal that was likely to be imposed, there was a shared view among a large number of participants that offending histories should be taken into account both when determining guilt (which is not currently the case) and during sentencing (as is indeed currently the case).

4.6 For quite a notable number of participants, there seemed to be some doubts about whether innocence should always be presumed, especially for those with long offending histories:

“If we knew that someone who has committed ten thefts before then, and he’s probably guilty, it’s just a waste of time. If he says, “No, I didn’t do this”, but if he’s got a huge string, then he’s likely to have done it.” (Ayr)

4.7 Such views were expressed by at least one group of participants across all workshop sessions and seemed to relate mainly to serious or prolific offenders from whom there was no real desire to see innocence assumed.

Community Payback and Personal Compensation

4.8 Across almost all groups, sentiments were expressed about the potential positive value of making offenders return to the scenes of their crimes to repair criminal damage, in order to provide direct compensation to the individuals and communities who had been affected by their crimes:

“I would like to see victims being compensated…. I think it’s appropriate that people should be made to tidy up their mess.” (Ayr)

4.9 It was felt that this kind of community payback may also act as a means of making clear to offenders what the true impact of their crimes had been and was, therefore, a better option (in some cases) than paying financial compensation or fines:

“It would maybe help people realise what they’ve actually done as well, if they go back to the crime, and see what they’ve done and try and fix it and then maybe they’d realise, “I’ve done wrong”. But, if they just got a fine or something, they would just pay it and that would be it.” (Livingston)

4.10 There was also an expressed view that greater visibility of community service work may give it greater credibility as a punishment both in the eyes of the public and the offender:

“But mostly, we are unaware of who is doing community service. I’ve never seen anyone.” (Aberdeen)

“There must be some sort of programme that they can do, to do community work properly. When you think years ago, gravelling, and things. It would be far better if they were in doing things that would benefit the public.” (Aberdeen)

4.11 Despite strong calls for greater use of community service work as a means of paying back the community, there remained some scepticism about whether some accused would actually complete the work and whether such work was appropriately monitored:

“If they get community service they [the accused] couldn’t care less. The shoplifter, the alcoholic, they don’t complete it.” (Aberdeen)

4.12 Interestingly, several people stressed a particular liking for the notion of community service or payback for young people :

“I think, young children who commit vandalism and things, they should be made to clean it up and that way, that might teach them a lesson rather than their families having to pay back the money, which isn’t gonna come out of their pockets, it’s gonna come out of their families.” (Aberdeen)

“I don’t understand in our current justice system why, if you’re a child and you go out and you smash somebody’s window, then the punishment for that should be that you go and help in some way do some kind of service to that person who you wronged…It’s about the payback to the community to fit the crime… I think they should be back putting right what they did wrong and that’s a form of, what’s the word? A form of restitution, or something like that.” (Livingston)

4.13 Importantly, it was viewed that young people were most likely to learn from engaging in community payback and that it may help towards rehabilitating young people before they got caught in a cycle of re-offending.

4.14 There were other perceived advantages of community service sentences too. Firstly, it was viewed that they affected all offenders the same, regardless of how much money they did/did not have (unlike fines); and secondly, it could potentially be managed such that the end result was better than before the crime (i.e. enhancement not simply repair). For example, if the perpetrator of a vandalism had to paint the bus shelter/fence/wall such that it looked better than prior to the damage. In this way, it was suggested that the victim and the community would jointly be the benefactors of the restitution or payback for the crime:

“If there was community service, I think that’d be a good thing and would benefit the people who were affected by the crime, doubly so by improving it - better than it was before.” (Ayr)

4.15 A chance for offenders to revisit crime scenes and learn more about the consequences of their actions was seen as something which might be doubly effective if the victim also had a chance to convey the impact of the crime on them directly to perpetrators:

“I think the law has to be much more towards compensating victims properly… These people [offenders] should be back on the streets, and they can, you know, repay their victims personally in some way. And I think generally we need a culture of victims being compensated for the harm that’s been done for them. And also a chance for confrontation with the perpetrator of the crime as well. I don’t mean confrontation in a conflictive way, I mean, being aware of the harm that they’ve done to the victim.” (Livingston)

“Um, if it’s from the victims perspective, that they get an opportunity to say what the consequences have been to them, all the sort of ‘wider consequences’. I think, quite often they don’t get that opportunity to put that across.” (Aberdeen)

4.16 The principles of community payback and restorative justice are not new, and recent policy developments in both areas reflect awareness that these issues are important to members of the public, to victims and witnesses. The new Community Payback Order was introduced in Scotland in February 2011. The Order allows the court to require offenders to carry out hours of unpaid manual work in the community, to be supervised and meet specific conduct requirements, to pay compensation to victims and to participate in rehabilitative activities or interventions to tackle some of the factors underlying their offending behaviour. The Order also allows for tough sanctions to be applied for non-compliance. The workshops show that there is indeed support for such types of Orders.

Fines and Financial Penalties

4.17 There was some cynicism about whether fines presented a credible punishment option and whether, therefore, they presented a real deterrent to offending:

“It depends if you want it to be a deterrent or if you just want things to get through the system quicker. I don’t think it’s much of a deterrent, paying £40 and that’s it.” (Aberdeen)

“There’s no real, um, they are not put out any by these fines…It’s just like, “Well, I have no money”, so for people who don’t work, for them it’s no punishment there as far as I’m concerned. You know, pay back £2 a week or whatever.” (Livingston)

“It seems a bit strange that somebody can be fined and say, “Well, stuff you, I’m not gonna pay it” and basically just walk away from it. It just makes an ‘ass of the law’. Obviously, if they fail to respect the law, they should be taken to task.” (Aberdeen)

4.18 Similarly, it was felt that the fines system may not be equitable for accused of different financial means and, therefore, fixed penalties had a greater negative impact for some than others:

“Is there a way that they could make it more equitable? ‘Cause, a £100 fine to a poor person is gonna be very different to a £100 fine for a rich person doing the same crime. So, make it a percentage of income. Just to keep it kind of ‘means fair’ or anything so that it’s not just the richer ones who are getting away with it.” (Aberdeen)

4.19 As discussed above, this was perhaps one reason why community service may be perceived as a ‘fairer’ option for all accused, since financial standing does not play a part.

4.20 Discussions around fines also provided some contradictory opinions. Generally, people were supportive that, for low level crimes, one of the best punishments was financial, as this was seen to be something that accused would resent:

“I guess the way to hit people is in their pocket.” (Aberdeen)

“Short prison sentences don’t work. I don’t think prison sentences work at all, I think you need to hit them [offenders] where it hurts - in their pocket. Always.” (Livingston)

4.21 That said, however, there was also little confidence that the current fines system was working, or that fines actually got paid. This was either because people were unwilling or unable to pay:

“Some people are not gonna pay no matter what.” (Livingston)

“I think, for me, there are people that just cannae afford payment.” (Ayr)

4.22 It was suggested that the fines system could be better ‘oiled’. One participant compared the robustness of the response by a private sector company when someone commits a very small offence (i.e. is unable to pay a bill) with that of the justice system when someone commits a much higher level offence (e.g. assault) and is fined. The law seemed, to some participants, to be entirely on the company’s side in such scenarios and allowed them to resort (quickly) to strong-arm tactics, such as bailiffs, to get their money, which was perceived as being very successful. The formal justice system seemed to be laboured in comparison, based purely on people’s limited experience and understanding of it. The justice system was perceived as placing all the burden of proof onto the victim with, often, the accused being let off because of the need to presume innocence until found guilty, instead of being directed by the evidence:

“You can happily break that non-written contract to behave well with your fellow man - in the pub. Nobody will hold you to account for your offensive behaviour. Whilst if you sign a contract with a credit card company, they’ll hound you to death. They’ll hand you over to the debt collectors. They’ll threaten you and get what they want. They don’t have to have the evidence or plough through witnesses, and all that sort of thing”. (Livingston)

4.23 There was some split in opinion about what should be done to tackle the issue of non-payment of fines. Some people were strong supporters of ensuring that financial penalties were paid, regardless of what this meant to offenders. Some participants expressed a desire to see loss of wages or even seizing of property to ensure that fines were paid^[13]:

“I think they should be strict. They should arrest wages, and take people’s benefits, as long as their children have got clothes, and been fed, then they should enforce it.” (Ayr)

“As I said earlier, if you’ve got a 40-inch plasma sitting on the wall and you can’t pay the fine, then, take it away and sell it. “Sorry, we’ll sell that to pay for your thingy.”” (Aberdeen)

4.24 Others advocated community service as an alternative to fines for those who ‘could’ not afford to pay:

“They should be made to do something. They should have to do community service or something.” (Ayr)

“I mean, if they don’t pay their fines, they should do community service or something.” (Aberdeen)

4.25 The main issue with fines as a sentencing option, however, was the value of using fines for people where it was quite clear repayment would not occur (either because they ‘could not’ or ‘would not’ pay):

“I think, thinking about the financial penalties again, something I get fed up with reading in the paper is somebody’s got to pay a fine, and it’s a £1 a week. And I think, “What does that actually mean to the person?” (Ayr)

“I still think, if it’s a case that the person can’t afford it, what else can be done? ’Cause, 50p a week is just not gonna teach someone a lesson.” (Aberdeen)

“There’s a lot of people who are given these financial penalties who won’t have the money to pay for it. It’s just creating another problem there, chasing up the money, and so on and so forth.” (Aberdeen)

“Well the outcomes of it, if all we are ending up doing is getting people further in debt, nicking things, petty crime, then that’s not efficient. Not cost efficient, not ‘any’ efficient.” (Livingston)

4.26 Where people genuinely could not pay, there was a strong preference for community service over short-term custodial sentences for low level offences since, on balance, community work disposals were perceived to be more visible, less attractive to offenders and potentially more likely to offer rehabilitative value and thus be a greater deterrent to re-offending. There was no suggestion among participants that an inability to pay should mean that punishment should not be meted out.

Prison and Repeat Offending

4.27 Discussions around custodial sentences usually provoked one of two types of responses: either that everyone should be ‘locked up’, as it was the most serious deterrent, or that prisons were simply not effective. In particular, it was suggested that existing prison conditions were too ‘comfortable’ and that this meant that prison was not seen as a real deterrent:

“You hear the stories about prison, the PSPs [PlayStation Portable computer game] and all that.” (Aberdeen)

“This business of going to prison for two years and you get a plasma TV and a Slumberdown mattress and all that.” (Livingston)

4.28 The following discussion between two participants in Ayr also reveals how participants viewed the use of prison for repeat offenders:

P1: “You get fed up of hearing about people who have done 10, 20 and maybe 50 crimes, and they still are not getting the jail, or maybe they’ve only been there once. And, I think jails are easy too.”

P2:“Yes, it seems like they’re staying in 5 star hotels.”

P1: “There shouldn’t be re-offenders. They should be really punished when they are in jail, so that they don’t do it again.” (Ayr)

4.29 Interestingly, however, prison was also cited by a large number of attendees as being the only thing that would help to prevent and reduce re-offending rates:

“Because, the only things that’s gonna affect re-offending is putting people in jail.” (Ayr)

4.30 Whilst prison sentences were welcomed, therefore, especially for repeat offenders, it seems that there was some appetite among participants for conditions of custodial sentences to be tougher than is currently perceived to be the case (although there was no evidence that any of the respondents had any factual knowledge of what actual conditions may be).

4.31 Overall, the view that was expressed was that, whilst prison sentences needed to be fair and consistent, they also needed to be sufficiently tough in the first instance that, on completion of the sentence, offenders would not commit further crimes:

“Once is more than enough, as far as I’m concerned. I mean, it’s just that should be it. It shouldn’t be three, four times or whatever.” (Aberdeen)

4.32 This view, which was quite widespread among participants, does not reflect what the research evidence shows. Indeed, tough treatment has been shown to be less impactful on re-offending or recidivism than dealing directly with offenders’ criminogenic needs. This may include, for example, tackling their social attitudes, changing their social circles, tackling drug and alcohol addiction problems, etc. Thus, although lay public representatives may perceive that a strong punitive approach is likely to have a deterrent effect, this is not supported by the evidential base. Indeed, a small number of those who took part in the workshops did recognise that punitive treatment in prison would not have any rehabilitative value, and so tough prison conditions were seen as potentially useful only if accompanied by access to and rehabilitative work with specialists (e.g. social workers or drug specialists) who could help to explore the roots of offending behaviour.

Proportionate Sentencing

4.33 There was a clear split in views between groups and between areas about whether sentencing should be more consistent and rigidly applied or whether flexible sentencing should be the norm. For some, there were arguments for treating all offenders the same, regardless of the personal backgrounds:

“For me, it means taking into consideration all cultures. I mean, you often hear because you are a poor family, you get treated less than a rich family. You should get treated the same… No matter who you are.” (Aberdeen)

“The punishment should match the crime. Whatever they’ve done, they should all be dealt with the same, ‘cause it’s the same crime.” (Livingston)

4.34 These feelings in favour of fixed frameworks and punishments to ensure consistency were contrasted with some desire for a flexible system that took into consideration individuals’ personal circumstances:

“Not just that ‘one size fits all’.” (Aberdeen)

4.35 In particular, it was viewed that the system needed to be sufficiently flexible to accommodate those who made genuine ‘mistakes’ or one-time errors which landed them in a court scenario:

“Sometimes people do it once and then realise how stupid it was and don’t do it again which is fair enough.” (Aberdeen)

4.36 Similarly, people did not want to see too severe sentences handed out purely to make a point:

“Fair to the crime, it’s got to fit the crime. If someone’s breaching the peace, you don’t want to see them doing two years in the jail, do you? It’s got to be fair to the crime.” (Ayr)

“I feel it has to be a deterrent but not too harsh. You can’t cut people’s hands off for thieving.” (Livingston)

4.37 The only area where almost all participants agreed that ‘different’ sentences should be used was for repeat offenders who, as discussed above, participants wanted to see treated more harshly than first time accused.

4.38 The participants demonstrated a tolerance for some lower level one-off offences and genuine mistakes, but a ‘last stop’ was also required:

“But, there should be such a thing as a last chance.” (Ayr)

4.39 Finally, it seems that, for some, the effectiveness of sentencing was undermined by perceptions that sentences were different in different regions; and that such inconsistencies could not be fair:

“Consistency in sentencing is needed. Is the punishment given out in Glasgow… the same in Edinburgh? Dundee?” (Livingston) Early Pleas, Discounted Sentences and Early Release from Prison

4.40 Several discussions revealed that some members of the public perceived the offender bias to be supported by facets of the system which allowed them to reduce their sentence. These include discounts for early pleas and early release from prison, the first of which was discussed with participants in relation to the recent summary justice reforms to legal aid. There was a view that, in some cases, sentencing might be perceived as ‘dishonest’ since the punishments handed out and publicised did not match the actual punishment as experienced by the offender:

“If someone is sent to prison for, say, fifteen years, but they only ever serve half of what their sentence is, I don’t get why they are not just sentenced for seven and half years? Why are they sentenced to double when you’re only gonna serve half?” (Aberdeen)

“I just don’t like the idea of a discounted sentence. It’s like rewarding them. Why should they be rewarded, they’ve committed a crime. They shouldn’t be rewarded.” (Livingston)

“That’s what I meant earlier about accused being treated better than victims. They seem to get away with it. ‘Cause they plead guilty.” (Aberdeen)

4.41 Concerns about reduced sentences compounded concerns about the lack of effectiveness of short-term prison sentences and again led to overall perceptions that the system was currently inadvertently favouring the accused. That said, a minority of participants also felt that rewarding offenders through reduced sentences may assist in their longer term likelihood of recidivism:

“I would say that if somebody pleads guilty to something, it’s almost like the first step on their rehabilitation so perhaps that’s the reason for rewarding them with a lighter sentence, is that there is already a recognition of the fact that they’ve done something wrong.” (Livingston)

4.42 Indeed, as a general rule, alternatives to short-term sentences were seen as being necessary since short custodial stays were not being seen as long enough to be a sufficient deterrent nor allow rehabilitative work to be undertaken:

“I mean custody is all very well but some people will come out and they will just go and commit the same crime again. I think some people it’s more beneficial to them to get, not counselling, but proper sort of care so they won’t do the same thing when they come out. Rather than a year in jail and they come out and do the same thing again.” (Aberdeen)

“But, evidence has shown that short prison sentences don’t rehabilitate someone. Either give them longer prison sentences, or a different type of sentence.” (Livingston)

Visible Punishment

4.43 Finally, across the groups, there appeared to be quite strong support for the notion of making punishments more visible to the public, in order to act as a deterrent to future offending i.e. ‘naming and shaming’ or public humiliation:

“I’ve often thought if we published in one of the local papers, everybody who commits a crime, name, address, and if everybody was aware that that was going to happen to them before they actually committed a crime, it would certainly put, hopefully for people who cared, that ‘shame factor’ before they actually went there [offended]…. ‘Cause I think there’s a lot of people who commit crimes and they think there’s not really a price to pay because the public don’t really get to know unless you are reading the paper.” (Aberdeen)

“If you could make them do something that makes them stand out, embarrassment of people knowing that they have done a crime - that would work.” (Ayr)

4.44 Again, this was perceived as being likely to be particularly effective for repeat offenders and links closely with peoples’ strong support for community service or payback. Making it publicly known who had committed various offences, as well as making their punishment be served in public seemed to appeal to many of the participants who took part. It again, however, is not a view that is supported by the research evidence which instead shows that the likelihood of punishment, and not its severity, is more likely to act as a deterrent.