Smarter justice: Scotland has been praised for its efforts to move towards more community sentences

Community justice and electronic monitoring - Image credit: Holyrood magazine

Scotland has one of the highest prison populations per capita in Western Europe, but it has been dropping in the past few years from a high in 2011-12.

Initiatives such as ‘No Knives, Better Lives’ and the work of the Violence Reduction Unit (VRU) have been successful in tackling violent crime in Scotland and the crime rate has continually fallen.

And although the Scottish Government could rarely be accused of making changes to the justice system too quickly, often taking years to consult, research, pilot, consult again, the consensus is that it is moving in the right direction, away from incarceration and towards community-based alternatives, where possible.

In a debate on overcrowding in English prisons last month, positive comparisons were made with the Scottish prison system.

Lord Cullen, when mentioning the falling prison population in Scotland, particularly among young offenders, said: “This points to the success of a whole system initiative which has encouraged a number of actions such as early intervention, opportunities for diversion from prosecution and support from the court process.

“For initiatives such as this, the relatively small size of Scotland has assisted in bringing together the responsible agencies, sharing good practice and developing good teamwork.”

Baroness Stern also recommended looking at the Scottish model. She said: “Reducing the use of imprisonment is not, however, impossible… the lessons from Scotland – brought to our attention by the noble and learned lord, Lord Cullen of Whitekirk – are also well worth studying.”

And responding to last month’s Programme for Government, Peter Dawson, Director of the Prison Reform Trust, said: “There is much for England and Wales to learn from the progressive approach to punishment outlined today by Nicola Sturgeon.

“In particular, extending the presumption against short prison sentences from three to 12 months is a sensible way of reserving prison for those that really need it.”

Forms of community sentences have existed in Scotland for some time.

Electronic monitoring (EM), for instance, was first introduced as a pilot in 1998 to monitor restriction of liberty orders, before being rolled out in 2002.

The use of electronic was extended to curfews as a condition of probation and drug treatment and testing orders by the Criminal Justice (Scotland) Act 2003.

Home detention curfews were introduced in the Management of Offenders (Scotland) Act of 2005 and rolled out in 2006, before being extended in 2008.

Community payback orders were introduced to replace existing community sentences in the Criminal Justice and Licensing (Scotland) Act of 2010.

In 2010 the Scottish Government legislated for a presumption against prison sentence of less than three months and this year, in the Programme for Government, Nicola Sturgeon announced that this would be extended to 12 months.

Work is being done too to look at increasing the use of electronic tagging as an alternative to prison, with a view to bringing forward a bill.

Earlier this year the 2016 Community Justice Act came into force.

This establishes a new model for community justice with a national community justice strategy, local community justice partnerships, which are required to produce local plans, and the setting up of Community Justice Scotland as a national body for learning and development, as well as to provide assurance to the Scottish Government on achievement of outcomes.

Karyn McCluskey, formerly head of the VRU and now director of Community Justice Scotland, is passionate about prevention, and although it’s still early days, with the organisation having just formally launched in April this year, she has big aims and high hopes for the changes that can be brought about in criminal justice and Scottish society as a whole.

She says: “What you’re trying to do is effect social change. You’re trying to take a country away from the way that it used to do things … and point it in a different direction, so you need to surround yourself with people who embrace a whole set of values and culture that you think is appropriate…

“We realise that we’re dealing with some of the most damaged and damaging people but that lots of things that we’ve done before haven’t really worked and that prevention is key…

“I know people will probably laugh at me when I say I would like Scotland to be the safest country in the world. I genuinely believe that.”

Comparing Scotland with Scandinavian countries, she continues: “We tell ourselves that we’re socially just, but we’re not always.

“And really what we’re dealing with is poverty and inequality and adverse childhood experiences and lots of trauma that’s borne out of domestic abuse and drugs and alcohol and all the things that we all know about.

“And sometimes, it manifests itself in the most wicked of problems so that people that are appearing in our courts…

“Prison’s not always the solution. In fact, prison probably is not the solution, and actually, sometimes what we need to do is get them to repay their debt to society, but we need a smarter justice that returns people to themselves, that returns them to their community where they can support their families, earn square money, engage in the economy – in a good way – pay their tax, pay their national insurance and that everybody’s safe.

“People always think it’s fluffy. Prevention’s not fluffy. Just usual metrics about arresting people, that’s dead easy to do.

“See, to do long-term prevention and to start to prevent people offending, whether that’s the first, the third or the seventieth time, that’s a big task.

“And it involves health and homelessness and housing just as much as it does justice.”

While the legislation setting up Community Justice Scotland refers to the prevention of reoffending, McCluskey is taking a broad approach to preventing offending across the board.

This includes keeping young people in school, but particularly, it involves work with health and housing. The issue, she says, is inequality, and dealing with that will address offending.

She says: “I absolutely need to bring partners to the table and health is incredibly important, but housing [too].

“I mean, how do you lead a life if you’ve not got a home? And it’s not just a house, it’s a home… which is why I’m really interested in the Housing First model.

“And people will say, ‘oh, but that’s dead expensive’. You think that’s expensive? Try not doing it. Because that’s what we’ve got just now and it’s hugely expensive.

“If you’re only convinced by the fiscal side of it and not the moral side of it, that’s massively expensive. But it’s just a massive impact on people’s lives.”

Some of that involves social work support and problem-solving community sentences. McCluskey suggests we should be considering payback but also how we support people to make better choices in life and not to offend.

That might mean looking at drink or drugs or someone’s mental health problems because our criminal justice system is filled up with broken, damaged people.

She adds that while her experience in the VRU taught her that some people just need to be in prison, there should be a lot fewer than we have now.

McCluskey suggests it should give hope that the Scottish Government has promised to extend the presumption against short-term sentences to 12 months.

“That’s quite a bold move by government to say presumption against short-term sentences. Not too far away from here…things are going in a very different direction.

“So I’m not saying that’s going to be easy.  I actually think that’s going to be very hard. We’re going to have to corral people to think, what might this look like?”

Ninety-eight per cent of women get a sentence of less than 12 months and McCluskey says she wants to turn that around.

“I want to turn the men’s journey around as well, but we want to turn the women’s journey around.

“That might be hard, but I think the view will be worth the climb, I do, I think, to transform the life of some really damaged people for crimes that are generally quite minor, but are damaging.

“And there’s victims out there and I want to create fewer victims. That’s what prevention is all about; it’s about creating fewer victims.

“But that would be a great thing. I would love to look back in 10 years’ time and think, ‘Look at what we did?’ Look what we did, so when they mentioned Finland and Denmark and Scandinavia, they mention Scotland there as well.

“Because I mean, even in the Netherlands, I was in Amsterdam and there were stories in the paper about the fact that the jails are empty.”

Part of the move towards less imprisonment and more community sentencing will involve increased use of electronic monitoring.

At the moment in Scotland, electronic monitoring is used as a sentence instead of custody, for example, home detention curfews and restriction of liberty orders, either as a replacement for a prison sentence or as a condition of parole.

The order might be that the person has to be at a certain location, usually their place of residence, for up to 12 hours a day, often 7pm to 7am for up to twelve months.

Alternatively, they may have a restriction placed on where they can go.

At present, only RF (radio frequency) monitoring is used in Scotland.

This relies on proximity to a sensor, so the system can track whether someone is or is not at a particular location. If they are not, though, it can’t track where they are.

To introduce GPS monitoring would require new legislation. It presents some advantages, but there are also issues with it.

Rather than just checking that a person is or is not at a specific location, GPS monitoring provides real-time information about where someone is 24 hours a day.

This can be either by locations being transmitted regularly all day or recorded on the device and transmitted once a day – the former being more labour intensive, but providing instant notification of a breach.

However, there are also issues with GPS, including potential loss of signal in, for example, large buildings, the underground or rural areas with poor mobile connectivity; the potential for intentional signal jamming, which could be difficult to differentiate from unintended loss of signal; the need for the offender to be connected to a plug socket for an hour or more a day to recharge it; increased workload for prison or probation services; and the potential for net-widening and a lack of proportionality, where low-risk offenders who would previously simply have been released into the community are subject to tracking.

However, conversely, it is thought that it could provide greater freedom than RF because it would not necessarily require the person to be at a specific location to be tracked.

There is also the possibility of dual monitoring with the victim also being given a GPS tag to ensure the offender is not at the same location. And it is possible to use RF and GPS using the same device.

One of the key weaknesses of electronic monitoring in Scotland is that it is a standalone sentence, operated by a private company, G4S, and is not integrated with any form of support or intervention to help with behaviour change.

Countries such as Sweden, Norway and the Netherlands, which have internationally recognised approaches to using EM, have the service run by the state prison or probation service and use it in an integrated way with supervision from probation officers and other sources of support to promote community reintegration.

This is something the Scottish Government is looking at and it is expected to appear in policy proposals in the near future.

An element of the Scottish system that is being reconsidered is that EM cannot be used as a replacement for remand.

Dr Hannah Graham, a lecturer in Criminology at the University of Stirling, has been researching the use of electronic monitoring in Scotland in comparison to other countries.

She is concerned, though, that it is used as a replacement for remand and not extended to cases where the person would currently be on bail without monitoring.

Graham says: “My own perspective, and a broad finding in our research, is that there is moderate support for EM to be introduced pre-trial in Scotland to try to reduce the use of remand – as long as decision-making continues to be based on appropriate assessment by criminal justice social workers, and as long as EM is used in cases where remand in custody is being considered, rather than being routinely added to bail.

“If EM is introduced pre-trial and the judiciary decide to use it in cases which would have otherwise previously got bail without EM, then there is a risk of net-widening and the potential for more people to be breached because of technicalities.”

In their report ‘Electronic monitoring in Scotland’, Graham and Professor Gill McIvor warn against electronic monitoring being seen as the be all and end all of community sentencing: “Electronic monitoring is a tool which can be used for different purposes; however, EM is not a panacea and any expectations about its impact after monitoring has ceased should be truncated.

“Monitored people benefit from positive supports and opportunities to help them leave crime behind, which extend far beyond time-limited and place-based restrictions.

“Tagging technologies and equipment should not be allowed to unnecessarily dominate discussions of electronic monitoring and offender supervision, now or in the future.

“Objectives of supporting rehabilitation and desistance are better realised in the context of supervisory relationships and desistance-oriented supports and regimes in which EM may only be one feature.”

McCluskey supports the use of community alternatives to remand: “The challenges with things like short-term sentences and periods of remand is, what it doesn’t do is change your behaviour.

“What it does do is make you lose your house, take you away from your community, put you into debt, it’s a whole range of negative things around it.

“And there are needs, sometimes, to keep someone on remand for a whole range of things, but I would hope that we would be able to use the technology in a much more thoughtful, managed way to help keep people away from crime and to help them to change and address their behaviour.”

McCluskey suggests that tagging without support is a “bit like wearing your Fitbit or your Garmin watch and then not getting off the couch”.

At an event recently, she spotted a typo that referred to ‘electronic mentoring’ rather than electronic monitoring, which she finds rather apt.

Employment is another key strand in rehabilitation and she is pleased that Skills Development Scotland is involved, but also mentions restorative justice as essential for victims, something the Scottish Government released guidance on a couple of weeks ago.

None of this will be a quick fix, she suggests, but it will be worth it.

“I’ve got to convince them that this is the right thing to do and I’ve got to be there for them in terms of that resilience about some of this is really long term, we’re not going to achieve it overnight.

“So people are going to have to think this is about changing a country, it’s about a long haul, and that was the same in Scandinavian countries.

“They didn’t do this overnight and this is not just about legislation, this is about hearts and minds as well.”