Response to Scottish Govt Consultation on Short Sentences
Women for Independence – Independence for Women
Response to the consultation on short prison sentences
Women for Independence is a non- party political women’s organisation with 54 affiliated groups across Scotland. We have a strong commitment to pursuing justice for women in Scotland and is calling for prison to be ‘taken off the menu’ in the summary courts in Scotland.
We therefore welcome the Scottish Government consultation on short prison sentences as an opportunity for us to make the case for our position.
Scotland imprisons women at a higher rate (7.9 women per 100k), than any other country in the UK, and at almost three times the rate of imprisonment of women in Ireland (2.7/100k).
The 2012 Report of the Commission on Women Offenders was only the last of a number of reports into the treatment of women in our criminal justice system. We imprison too many women, we imprison women who have serious mental and social problems, and who have been failed by health, housing and social services response to their problems. All summary cases are the less serious end of offending. Most of the women sent to prison in Scotland are either on remand for summary court cases or have been sentenced through the summary courts. The 2012 report went further than previous reports in that it recommended that HMP Cornton Vale be closed down as unfit for purpose.
Some of us remember when HMP Cornton Vale was opened in the late 1970s with the promise of a modern therapeutic regime which would recognise the vulnerabilities of women in prison and return them to their families and communities rehabilitated and ‘cured’ of offending. This promise, and the failure to provide community responses and real community justice for women, actually increased the number of women being sent to prison. Within a few years, HMP Cornton Vale was full, and was experiencing serious problems with the management of distressed and vulnerable women sent there. Levels of self harm and of prescribed and non prescribed drug use were high, as were repeat convictions and returns. Many women had no support for life outside of the prison and had lost children, families, friends and could not cope on release. In the 1990s attention was drawn to the number of young women, two only 18 years old, who had been sent to prison for minor offending related to trauma, emotional distress and drug and alcohol use, who had committed suicide.
In 1998 ‘A safer way’ by Nancy Loucks, now CEO of Families Outside, reported on the emotional, psychological and social problems of the women we were incarcerating, and the high rates of distress, self harm that existed in the prison
A commitment was made to reducing the number of women in prison by half. Instead it has doubled.
Baroness Jean Corston in her 2007 UK wide review of women with particular vulnerabilities in the criminal justice system pointed to the fact that 9 out of 10 women are imprisoned for non-violent offences. Serious violent offending by women is mostly family based, and most usually involves their own children, or is a response to violent partners and relationships.
Earlier this year, WFI and others successfully campaigned against the building of a new super prison in Inverclyde for women. We pointed to the inevitable consequence of building newer and bigger prisons to increase the ‘curative’ capacity of the system. The bigger prisons will be filled. Prison is not a cure. It exacerbates distress, and increases the likelihood of further offending
People released from short sentences are not given any support with accommodation or benefits on release, and must sort for themselves. If you have lost children, job, home, family, friends, and then been released with all your belongings in a bin bag and a £46 discharge grant you are not likely to be able to move into accommodation and employment. Where can you go? Only to a floor somewhere, to drink, drugs and even to prostitution, thus incurring another encounter with the criminal justice system.
Offences related to prostitution, drugs, alcohol, petty theft, minor assaults, mental illness or distress are the offences which bring most women into prison on remand or sentence. They are not motivated by criminal intent but arise from a result of failure of other services to provide health, housing, education and employment support.
The case for taking prison off the menu for the summary courts
We believe that only by removing prison from the remand or sentence options for any summary proceedings will we put an end to the unnecessary high levels of imprisonment in Scotland. While the summary courts have the power and the possibility to send people to prison on remand or sentence they will do so. This is not least because of the failure to invest in diversion from prosecution and from diversion from custody. Police, PF and Courts need to have available very definite resources that they are confident can and will be put in place immediately. At the moment, police cells and prisons are the only such resource.
The current presumption against sentences of less than three months has been ineffective as sentencers have merely replaced sentences of three months or less with sentences only a few days longer. This was seen as a danger when it was introduced. Additionally, the summary courts are still using remand into custody for cases which are unlikely to incur a prison sentence. 70% of women remanded into custody last year in Scotland were not sentenced to imprisonment after trial but were instead released for community sentence but expected to pick up the pieces of their lives without help or resource.
The use of remand by the sheriff summary courts is usually in the context of failure to attend court when on bail, or for failing to attend social work offices for reports to be prepared, or for other breach of bail conditions, or simply because the person has a long history of minor offending and prison is seen as the only suitable punishment.
The criminal justice system is unchanged since Victorian times, with investment in courts and prisons for dealing with what are mainly the consequences of inequality, poor education, poor social justice and the failure of preventive services. We need to end investment in prison and move the investment into the community. Taking prison out of the summary courts would concentrate minds and resources very effectively in this situation.
With Community Care we successfullly shut down long stay hospitals and have saved thousands of people from life long institutional care, shut away from society. Yes, other problems need to be addressed in ensuring proper support for them and carers in the community, but the hospitals are gone and are no longer seen as having any place other than for those in need of treatment or 24/7 expert care. We now need to adopt a similarly brave and effective approach to unnecessary imprisonment.
We need 24/7 support services outside of prison to ensure an immediate and effective response to both any offences but also to causative or underlying issues – domestic violence, coercion, homelessness, mental illness, trauma related offending. For those who pose some risk to others, tagging, curfews, supervision, civil injunctions and also therapeutic and effective responses are also better than short prison sentences that do not tackle and diminish but instead increase any risk.
The economic case
The general public would be appalled to know the cost of our Victorian system and that the evidence all points to prison being part of the problem of offending, and reoffending, rather than the cure.
It costs £35k per year and more pro rata for short prison sentences because of the costs of the churn of admissions and discharges. The cost of rehousing someone released from prison can be as high as £25k in addition to this. We need to spend this and money invested in prosecution and trials for minor offences very differently.
Resource transfer from prison to community would take place very quickly if the summary courts could no longer send people to prison. Health, housing and social services would also stand to make significant short, medium and long term savings. The economic cost of children in care, and the life-long impact of this are enormous. Residential care can cost as much as £300,000 per year. Fostercare can cost up to £60k and more per year.
Responses to the consultation questions
Question 1: Should the presumption against short periods of imprisonment of three months or less be extended?
Question 2: If you agree that the presumption against short periods of imprisonment should be extended, what do you think would be an appropriate length? a) 6 months b) 9 months c) 12 months
Question 3: Do you have any specific concerns in relation to a proposed extension of the period covered by the presumption against short sentences?
We believe that the presumption will not work unless the power to sentence to imprison on sentence or remand is removed from the summary courts and that the presumption in solemn proceedings is that prison should only be for serious cases and where public safety is a serious concern..
Question 4: Do you think there are any specific circumstances to which a sentencing judge should be required to have regard when considering the imposition of a custodial sentence?
The impact of a custodial remand or sentence on the children and whether in any case a custodial sentence is in the public interest. Is a custodial sentence more or less likely to reduce the chances of future offending?
Question 5: Do you think there are specific offences to which the presumption should not apply (i.e. offences which could still attract a short custodial sentence)?
Question 6: Do you think that there are any circumstances in which a custodial sentence should never be considered?
A custodial sentence should not be imposed for non-violent offences where the person poses no real risk to the safety of others. Prison is not the only way to restrict risk e.g. restriction of liberty by way of tagging, supervision, bail conditions, remand or sentence conditional on residing at particular address and prohibition of contact with named persons or categories of person are available to the courts.
Question 7: Do you think that the Scottish Government should also consider legislative mechanisms to direct the use of remand? Do you have any views on what such a legislative mechanism might include?
As suggested, there should be no resort to the use of remand into custody by the summary courts. In solemn proceedings the use of remand should only be where the person poses a serious risk of flight, or risk of harm to others. Unless there is such a serious risk, even those facing almost certain imprisonment if convicted should be able to make arrangements for dependents and for security of their housing, employment etc.
Question 8: Do you have any additional comments on the use of short-term imprisonment?
It is expensive, wasteful, and ineffective. Short term imprisonment is not a cure for offending, but part of the problem. They are not in the public interest but there is a lack of information about this in the public domain. We believe that there is a need for the public to be properly informed of the facts about the negative social and financial costs and consequences of short prison sentences. . Prison is assumed to be the most effective way of deterring offending, and demonstrating society's disapproval. Community sentences are less financially costly, and generally more effective than prison in addressing and reducing the causes of offending. This needs to be made publicly known by Government in a systematic process of public information.
Women for Independence
 World Female Prison Population List, ICPR, Walmsley, R. September 2015
 Scottish Commission on Women Offenders, Angiolini, E. Scottish Government, 2012
 A Safer Way, Loucks, N. Scottish Office, 1998
 The Corston Report http://www.justice.gov.uk/publications/docs/corston-report-march-2007.pdf