Government plans to cut short sentences 'likely to have little impact'

Government proposals to extend the presumption against short custodial sentences are “likely to have little impact” on their own in reducing Scotland’s prison population, an academic has warned.

Dr Cyrus Tata, director of the Centre for Law, Crime and Justice at Strathclyde University, said “much more radical” changes were required, including making certain kinds of cases “normally non-imprisonable”.

The professor of law and criminal justice also mooted extending use of electronic monitoring to those on remand as well as a commitment not to send individuals to prison on the grounds it is considered to offer more help than is available in the community.    

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A government consultation on whether the current presumption against prison sentences of three months or less should be extended to either six, nine or 12 months is set to close this week.

Scotland’s chief inspector of prisons has already called for custodial sentences of up to 12 months to be scrapped, telling Holyrood in October that the increase would be “perfectly reasonable”.

However, given the "permissive" nature of the relevant legislation, which allows judges to still impose short sentences where they consider it to be appropriate, extension to 12 months "at best... is a reminder to sentencers of the existing injunction that custody should be ‘a last resort’", claimed Dr Tata.

“To achieve a radical reduction in the use of custody for those committing less serious offences and posing less serious risk of harm, the presumption even if extended to 12 months is likely (at least in itself) to achieve little," he added. "There will need to be a much more radical approach from the Government (and the Sentencing Council).

“Importantly, nothing much may change unless and until we relinquish the mentality of custody as ‘a last resort’. Such thinking, as we have seen, in fact renders custody as the default, a back-up when ‘alternatives’ are seen to fail.

“Instead, we need to exclude certain purposes (such as rehabilitation) as a ground of imprisonment, and begin careful work to specify certain kinds of cases as normally non-imprisonable.”

The Scottish Government has sought to “look tough on serious offenders in order to de-carcerate at the lower end”, added Dr Tata, citing ministers’ reforms of the system for early release of prisoners.

Government-commissioned research published earlier this year found “little sign” of the current presumption against short prison sentences “figuring prominently or explicitly in judicial decision-making”, perhaps even leading to longer sentences be imposed.

Dr Tata said: “In the same way as the three month presumption has had made little net difference, so a longer period is unlikely to make much difference.

“Indeed, given that the main effect has been inflationary it would seem futile to extend it to anything less than 12 months – consistent with maximum summary powers. Yet even if the presumption is extended to twelve months, it may still not achieve much.”

Dr Tata said there was a need to “relinquish” the “language and mentality of custody as ‘the last resort’”, which serves to paint prison as “the dependable, credible and well-resourced default”.

You can read Dr Cyrus Tata's full piece on the Scottish Consortium for Crime and Criminal Justice website here.