Conservative plans to usher in 24-hour prison terms should not be given the time of day

The beauty of presenting yourself as a party of opposition rather than one of government is that your policies need not stack up. “This isn’t a programme for government – it is a programme for that strong opposition,” Scottish Conservative leader Ruth Davidson told party members as she unveiled their 2016 manifesto.

Which is perhaps just as well, in light of their proposal to send offenders who breach the terms of community sentences to prison for 24 or 48 hours at a time.

Under so-called ‘swift and certain’ programmes, individuals are given a short spell in a prison cell – typically a day or two – every time a breach occurs. The approach has gained traction in parts of the United States, particularly in dedicated drug courts where it has been combined with intensive treatment.

Success in reducing reoffending rates has caught the eye of several here, including Prime Minister David Cameron, who earlier this year claimed ‘swift and certain’ sentencing to deal with drug offenders in Hawaii was “perhaps the most successful community sentence anywhere on the planet”.

Almost 18 months ago I interviewed Washington DC judge Russell Canan, who shared his experience of problem-solving courts, specifically drug courts, in the US capital. Defendants undergo drug tests several times a week.

“If they tested positive, they’d have to come to court and if their reason for testing positive was not satisfactory, they would get a jail sanction ranging from one to three days with the principle being that swift and certain punishment is really an excellent guide for behaviour modification rather than long sentences,” said Canan.

That takes place, however, against a backdrop of high-quality support and the personal oversight of a judge, factors that the Tories appear to have skimmed over when it comes to their own over-simplistic pick-and-mix version.

First, the party cannot say how much it will cost. Why? Because they are unable to determine how many of the 5,000 community payback order breach applications lodged with the courts in 2014-15 amounted to what they term ‘wilful’ breaches.

That said, justice spokeswoman Margaret Mitchell felt confident enough to declare we’d not be talking about a “huge” number given the policy “will concentrate the mind”. If prison as a deterrent actually worked, though, surely we would not have so many short-term prisoners in custody as it stands.

That aside, given Mitchell said that “hundreds” of individuals breach orders every year when the number of CPOs revoked in 2014-15 due to breach was almost 3,000, the definition of huge is clearly open to interpretation.

Then there are the practicalities. Just because criminal justice social workers apply for a breach of an individual’s order doesn’t necessarily mean that the court, which does not always consider these things at the drop of a hat, will breach them.

Typically, if social work breach an individual, a warrant will be issued for their arrest, the police will go out on a Friday to see who they can find and individuals will spend the weekend in the cells before appearing in court on the Monday. In practice, what is likely to happen therefore is that the sheriff will backdate a 48-hour sentence to when the individual was lifted a few days earlier.

Let’s for a moment assume otherwise. The scheme would undoubtedly require a change in primary legislation given the prison service is not allowed to release individuals at the weekend or on a public holiday. Without such a change, a scenario could legitimately arise whereby individuals taken to court on a Friday and given what Davidson termed a “short, sharp shock” would have to be released on the same day.

For those who did stay the night, the pressure of arrivals on the likes of Barlinnie or Polmont with people going through induction, becoming familiar with first-night prison procedures then getting chucked out in the morning, would be a nonsense.

Just as well this isn’t a programme for government then.