Presumption Against Short Sentences – Consultation Response

The Wise Group welcomes the opportunity to respond to the Justice Committee’s call for evidence on the Presumption Against Short Sentences (PASS); we were pleased to see the affirmative order laid on the 17th of May. We see this as an important step towards the Scottish Government’s ambition to deliver true ‘smart justice’ across our prison estate and communities.

We are one of Scotland’s leading social enterprises, working alongside people to support them to build bridges out of poverty. Established in 1983, we have significant experience of supporting people to transform their lives, with our work focused across three strategic business units: employment services and skills; energy advice and advocacy; and community justice.

Within community justice in Scotland, our support is delivered through an award winning mentoring approach, across three services: New Routes (we are the lead partner of the Public Sector Partnership (PSP) delivering mentoring to males aged 16-24 serving short sentences in all 32 local authority areas, while they are still in custody and then in the community); Wise Choices (we are funded by the National Lottery Community Fund to deliver a mentoring service to males aged 25 and over); and Shine Women’s Mentoring Service (part of the PSP led by Sacro).

Each year we support hundreds of people across these services, supporting them to reduce the cycle of reoffending. This provides significant benefit not only to the lives of those people we support, and their families, but to the economy. An independent evaluation of New Routes by Hall Aitken in 2015 estimated that in its first two years of operation, the programme achieved potential savings and economic benefits of £13m. This figure is now estimated to be over £30m. In 2018, analysis of data associated with New Routes for 2013-18 found that for those customers who exited the service as planned, the reoffending rate (within one year) was only 9.7%. This is in comparison to the overall reoffending rate for young males (aged 21 and under) which stands at almost 35%.

A key element of our mentoring delivery is that 50% of our colleagues have lived experience of the criminal justice system themselves, including imprisonment. This can be key to building relationships with people referred onto programmes, gaining their trust which leads to them making changes and achieving better outcomes.

2018-19 has been a particularly exciting year for us, in terms of being able to extend the impact of the support we provide to people. The approach we take on New Routes has effectively been transplanted into the English justice system, as we deliver the service in prisons across Durham and Tees Valley through the 2 Community Rehabilitation Company (CRC) delivered by the Achieving Real Change Consortium (ARCC). We were also delighted to welcome both the Justice Committee and the Cabinet Secretary for Justice, Humza Yousaf MSP, to learn more about our work and hear directly from our Mentors and customers about the issues they face in the justice system. We are very proud that, as demonstrated in the Committee’s report of its inquiry in the Management of Offenders Bill and the subsequent debate of the legislation, the evidence we provided has been reflected in amendments to the Bill as it progresses through Parliament.

Extension to the Presumption Against Short Sentences (PASS)

We welcome the extension to PASS, as an important step towards the development and delivery of smart justice in Scotland. Too many times, we have seen good rehabilitative work done by our mentors with customers undone as they are sentenced again to 2, 3, 4 month sentences.

For example, one of our Mentors working on New Routes last year supported a young male and first time offender (A). When she first met A in November 2018, he was six weeks into a six month sentence in HMP Barlinnie for a fraud offence committed in 2016. The offence was committed while A was working for a large banking group within a call centre. After hearing of how easy it was to gather customer account numbers and sort codes, A took home some customer information which he had for a number of months before an investigation at his work led to the police interviewing him. A hadn’t used any of the customer information for any fraudulent activity but had taken it “just in case” he fell into hard times. From speaking to A, the Mentor learned that at the time he didn’t realise just how serious it was to have such information and it wasn’t until he was charged that he realised the impact of his actions.

In the two years it took for A’s case to go to court, he committed no further offences, was in work and had begun studying business at university. As this was a first offence and A had been in employment and education since the offence was committed, his lawyer felt that it would be extremely unlikely that A would receive a custodial sentence. However, when A was at court he was told that fraud within large banking group call centres was a serious problem and that the judge felt he would have to impose a custodial sentence to make an example of A. After only eight weeks in custody, A was released on Home Detention Curfew (HDC) as he was deemed low risk. This meant that as he had been in prison for such a short period of time he had no access to any services which would in any way rehabilitate him. While we agree that prison should remain the right place for those who pose a risk to public safety, we believe the nature of A’s offence and his subsequent positive life choices while awaiting trial preclude him from being described as such.

The impact that this had on A’s life has been catastrophic. He not only lost his job and his place at university but his relationship with his family was greatly impacted. A had been determined to get back into work but since his liberation in January has struggled to find employment due to his criminal record. This has been extremely difficult for him as he has always worked and has struggled being on Universal Credit. Luckily, A has been accepted back into university; however, his chances of future employment in the business sector are unknown.

The Scottish Government is right to highlight the success that sentencing someone to an alternative to custody, such as a Community Payback Order (CPO), can have. The evidence shows that those serving a short sentence are significantly more likely to be reconvicted than those sentenced to a community alternative. As demonstrated by the low reconviction rate we have been able to achieve on New Routes, allowing someone to remain part of society while addressing their issues means that they do not risk becoming ‘institutionalised’ through being in and out of prison, often for such short periods that they are unable to access any support.

This is certainly the case for B, another customer we have supported through New Routes. Our Mentor met B when he was serving a three month sentence in HMP Greenock. B has been in and out of prison on short sentences for the last five years after leaving care. While serving a custodial sentence, B began using suboxone to escape his reality which has now led to him being on a methadone script. B has never used heroin and had no previous addiction issues.

It is clear in B’s case that short term sentences have done little to deter him from committing crime and this has now become a way of life for him. Prison has become normal to B and he has stated that he finds being in custody less stressful than being in the community as every time he is liberated from prison he is back to square one in terms of addictions services, housing and benefits etc. His Mentor is able to provide support to B with this each time he needs it; however, surely it would be more beneficial to B’s wellbeing (and the public purse) if when he finds himself at risk of entering custody for a short period again, the progress he has made in the community is acknowledged and he is able to serve his sentence in the community, with the support system he already has in place?

While this extension is to be welcomed, we know that it will not be a ‘magic bullet’, addressing issues of reoffending rates and an overcrowded prison population overnight. What we must do is use this extension as an opportunity to revisit the CPO model, and ensure it is an effective alternative that the judiciary can have increased confidence in as a disposal.

We have the empirical evidence of the impact and success of the mentoring model we apply across our services. A key reason behind the success of 4 programmes such as New Routes is that it is delivered by the third sector: non statutory services. We know that this engenders credibility and trust among our customers, particularly as 50% of our Mentors have lived experience of the system, and have had to navigate statutory provision themselves. For most, this is overwhelming due to the complex issues they are dealing with. Until we can get to a point where we have a system that is more streamlined – more person than process centred – having the support of a Mentor will be a key factor in promoting positive outcomes for customers.

The third sector does not seek to replace statutory provision. Rather, we want to find a way of better working in collaboration, and complementing each other’s work. Take CPOs for example; we often hear from customers that they feel the goal is simply for them to complete the order, as a ‘box ticking’ exercise. We understand the pressure placed on criminal justice social work, as they juggle a very demanding workload. What we would like to see is the creation of a role for the third sector here, delivering mentoring alongside, e.g. the unpaid work element. This would have the dual benefit of alleviating pressure on criminal justice social work and extend the focus from simply completing the order thereby also promoting the chance that the CPO will have the desired impact of deterring someone from reoffending.

The CPO in its current form puts in place measures that can help people address external factors, e.g. lack of work experience. However, in our experience it is hard for people to sustain success in external factors without concurrent work to address internal factors: i.e. mental health. It’s for this reason that we implemented our own in-house counselling service, Re-Connect. Working in partnership with further education, we have been able to provide over 600 hours of counselling to 170 people in the last year. Crucially, this support is available free of charge and at the point of need; those wishing to access the service wait a maximum of 48 hours before their first appointment. Evidence shows that mental health is often one of, if not the, main factors in offending behaviour. Sentenced to our care, people would be able to access this service throughout their engagement; unrestricted and free from the eligibility criteria and waiting lists often found in statutory provision.

In conclusion, we reiterate our view that the extension of PASS is a key milestone as the Scottish Government seeks to deliver on its smart justice agenda. We know that others are looking to Scotland as a source of best practice. England in particular has recognised the need to learn from our innovation; most recently in terms of reducing knife crime, but also by adopting our mentoring approach in the delivery of Through the Gate services, which we are pleased to be able to deliver across five prisons in the North East. There is clearly a desire from all parties to make the most of the opportunities the extension of PASS presents; we look forward to continuing to play an important role in its delivery, and of innovation in the Scottish justice system overall.