Community sentencing options for people with substance use problems: review findings summary

Background

This short paper summarises the key findings from Justice Analytical Services' review of Drug Treatment and Testing Orders (DTTOs) and Community Payback Orders (CPOs) with drug treatment requirements. The evidence review underpinning the findings related to good practice in respect of court mandated treatment is attached at Annex 1, and the full report containing all analysis of the current approach in Scotland is attached at Annex 2.

This review takes place in the context of an urgent public health crisis for Scotland - one in which 1,051 people died drug related deaths last year, the highest drug-death rate in Europe, while thousands more suffered the health and social harms associated with both drug use and its criminalisation.

In response to this ongoing crisis in 2021 the Scottish Government announced a National Mission on Drugs, which has involved significant work and funding to extend a public health approach to drug use. The Mission is premised, in part, on the wealth of evidence showing that treatment is a protective factor against drug-related harms including death.

In addition, the National Strategy for Community Justice (published in 2022) reflects the Scottish Government's longstanding aim to encourage a shift towards community justice interventions and away from using custody as a response to people who commit crimes. It recognises that while public protection is paramount, there is clear evidence that community-based interventions and sentences can be more effective in reducing reoffending and assisting with rehabilitation than custody.

Currently in Scotland, courts have a range of sentencing options they can impose for offending behaviour, including a prison sentence at the most restrictive end, and a spectrum of community orders with various degrees of restriction or requirement on the person's movements or behaviour.

The two main community orders specifically aimed at people with substance use problems are a Drug Treatment and Testing Order (DTTO) or a Community Payback Order (CPO) with a drug treatment requirement. For both orders, the person must confirm that they are willing to comply with the relevant requirements before the order is made – although it is important to note that a prison sentence is a possible alternative, so the voluntaryness of such consent may be contested.

The two orders have slightly different legal definitions – a CPO is a sentence of the court, while a DTTO is an order instead of a sentence. This creates a technical distinction in the person's status, with CPO recipients being convicted and sentenced, while DTTO recipients are convicted with no sentence passed. However, the orders function in broadly the same way. For both orders if the person fails to comply the court may vary or revoke the order, or impose any sentence competent for the original offence, but should take account of the time spent on the previous order. Both orders are also listed in Section 5D, subsection (2) of the Rehabilitation of Offenders Act 1974, and consequently have the same disclosure periods in respect of the person's criminal record.

DTTOs are widely, but not universally, available across Scotland. CPOs are available in all areas across Scotland, and delivering them is one of the major functions of all justice social work departments.