Exclusive:Do not limit Scottish courts ability to jail, top lawyers warn
Calls for electronic monitoring improvements and embrace of new technologies
A leading Scottish legal body has warned that courts must not be pressured into discounting short term sentences for criminals, and said sentencing decisions must rest with the judiciary.
The Law Society of Scotland said proposed changes around short custodial sentences could put sentencers in a “difficult position,” and stressed that reforms should not have the effect of “limiting” a court’s ability to impose a jail term where it is deemed appropriate.
The professional body for more than 13,000 Scottish solicitors also said greater investment is needed in community punishments, including GPS monitoring and geo-fencing of offenders - to make them a viable and successful alternative to prison time.
It comes as the family of Stacy Hunter, who was murdered by her estranged husband last month at her home near Houston in Renfrewshire while he was on bail for assaulting her, called for greater use of location tracking technology to monitor high-risk suspects. Jim Mair had been told by the court not to approach Ms Hunter as part of his bail conditions.
The Scottish Government is seeking deep reforms to the penal system to address the overcrowding crisis in the country’s prisons.
The most recent data from the Scottish Prison Service shows that the prison population stood at 8,531 on 21 August, only slightly down on the all-time high of 8,603 recorded on 26 May. Some 1,806 of those currently behind bars are awaiting trial, and the entire prison estate has a design capacity of just 7,805.
In an attempt to ease the pressure, ministers have been forced to roll out a series of emergency measures in recent years, but a consultation, which launched in June and closed on 20 August, was aimed at finding more long-term solutions to the problem.
Sweeping changes proposed as part of the initiative include encouraging judges not to issue prison sentences of less than two years - up from the current 12 months - with short custodial sentences only used as a “last resort.”
It also advocates designating all inmates serving up to five years as short-term prisoners, meaning many of them would be freed after completing just 30 per cent of their sentence.
The changes, which the Scottish government say build on the recommendations of the Scottish Sentencing and Penal Policy Commission, would not exclude people convicted of sex offences or domestic abuse, although they would be subject to tighter controls than other offenders, with measures including mandatory supervision and licence conditions after release put in place.
Justice secretary Neil Gray has said alongside the expansion of Scotland’s prison estate,the planned reforms will “strike the right balance” across custodial sentences, community sentencing, and the need to “robustly protect” victims and members of the public.
But in its response to the consultation, the society expressed misgivings about the plans to strengthen the legislative test in the presumption against short sentences, and said that “sentencing decisions must remain a matter for the judiciary.”
“Short custodial sentences may continue to serve a legitimate purpose in some cases, including where a period of imprisonment is considered necessary to reflect the seriousness of the offence, protect the public, or provide an opportunity for intervention and support that may assist in addressing future offending behaviour,” it explained.
“More generally, we consider that the proposal to strengthen the presumption against short sentences should not be viewed in isolation from the proposal to extend the presumption against short sentences from 12 to 24 months.
“Consideration should be given to the cumulative effect of these measures on sentencing practice. There is a risk that a more stringent legislative test may place sentencers in a difficult position and create pressure to avoid imposing sentences within the scope of the presumption, even where they would otherwise consider such a sentence to be appropriate.”
The society also flagged potential “practical consequences” of extending the presumption against short sentences to 24 months or less, and suggested that in cases where a court decides a custodial sentence is necessary, there is a risk that sentences exceeding the 24 month threshold could be handed down “rather than one that would otherwise have fallen within the scope of the presumption.”
As part of its response to the consultation, the society also stressed that achieving a sustainable reduction in the prison population will require “sustained investment” to ensure individuals released from custody are “appropriately supervised and supported” in the community.
It said adequate resources are crucial for local authorities and rehabilitation programmes such as the Caledonian system, an initiative aimed at changing the behaviour of domestic abusers, and pointed out that it “remains unclear” what additional funding will be made available to to increase capacity in community-based services.
The society also backed improvements to electronic monitoring, arguing that it may have an “important role” to play in supporting the government’s reforms. Enhanced GPS monitoring capabilities, it said, may provide greater flexibility in how offenders are managed and supervised in the community. It also said the further exploration of new technologies such as geofencing- which can enforce strictly designated exclusion zones for offenders - could be beneficial.
“Such measures could enable more tailored restrictions and monitoring arrangements, helping to manage risk while supporting individuals to remain within the community where appropriate,” it added.
Justice Secretary Neil Gray said: “Scotland’s prison population, like many comparable countries, has risen to unsustainable levels and must be addressed.
“We are taking a number of actions to tackle this, including building two new prisons and maximising capacity within the prison estate.
“We have consulted on a range of measures to achieve a sustainable prison population, while maintaining public protection and reducing future offending. That consultation has now closed, and we will consider all responses to help inform next steps.”