The presumption against short sentences (PASS) was extended from three months or less to twelve months or less by the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019. The extension to 12 months followed the original statutory presumption against short-term sentences which was approved by the Scottish Parliament through the Criminal Justice and Licensing (Scotland) Act 2010. The current presumption applies to offences committed on or after 04 July 2019.
Evidence suggests that short custodial sentences are less effective than community sentences at reducing re-offending. For example, people released from a custodial sentence of 12 months or less are reconvicted nearly twice as often as those sentenced to serve a Community Payback Order (CPO) Reconviction rates - offender cohort: 2017 to 2018 - gov.scot (www.gov.scot). The extended presumption against short prison sentences is intended to encourage greater use of community sentences and help break cycles of reoffending.
This publication provides information on sentencing patterns in the courts throughout 2020. Information on disposals from April 2017 is included to provide context and background relating to sentencing patterns prior to the implementation of the extension to PASS.
The Criminal Proceedings bulletin is the National Statistics source for court proceedings in Scotland Criminal Proceedings in Scotland 2018-19 - gov.scot (www.gov.scot). However, the publication schedule of the Criminal Proceedings bulletin is such that data to monitor the impact of PASS will not be available for some time.
In the interim, the Scottish Courts and Tribunals Service (SCTS) has provided information to the Scottish Government on every charge disposed of for every individual brought to court between 01 April 2017 and 31 December 2020. This information has been processed to isolate the most serious disposal for each individual in a case, using similar methodology to that used in the Criminal Proceedings bulletin. It should be noted that although the overall trends presented by both sets of statistics will be similar, actual numbers will vary because the data sets are processed in different ways. In the data presented here, if an individual was given one or more custodial sentence, the total sentence length has been extracted. So for example, if an individual was given three consecutive custodial sentences of 6 months for different charges, their total sentence length will be 18 months.
The data presented in this report will be available to monitor the impact of PASS until such time as they can be replaced by those in the Criminal Proceedings bulletin.
The background data for the charts in this bulletin are available in the additional datasets accompanying the bulletin.
Impact of COVID-19
Since March 2020, following the coronavirus (COVID-19) outbreak, the Scottish Government put in place significant restrictions, including a period of lockdown, to slow the spread of COVID-19 and prevent the NHS from being overwhelmed. As a direct result of these restrictions, there was a 12 week period in 2020 where only priority court business proceeded. For the purposes of this bulletin this period will be referred to as 'lockdown'. In the last six months of 2020, different parts of the court system recovered at different speeds with jury trials being the last to return with remote jury centres being set up. Despite the fact that courts have managed to resume business, there are still limitations on throughput which has resulted in a backlog of cases waiting to proceed. Data recently published by the Scottish Government: Coronavirus (COVID-19): Justice Analytical Services Data Report - December 2020 - gov.scot (www.gov.scot) showed that there had been 40% fewer custodial disposals and 51% fewer community disposals imposed by the courts between April to December 2020 compared to April to December 2019.
With this in mind, it will be difficult to separate the effects of the COVID-19 pandemic from the effects of the extended presumption against short custodial sentences. Therefore, this bulletin documents what has happened to court disposals (with a particular focus on custodial sentences of 12 months or less) in 2020 but will not attempt to attribute those results to events or policies.
Offences subject to the extended presumption
Only offences committed on or after 4 July 2019 are subject to the extended presumption against short sentences. Around 75% of cases disposed in 2020 relate to offences committed after that date and therefore subject to the presumption.
In the two full years preceding the implementation of the extended presumption, the median time between an offence being committed and disposed of in the Sheriff Summary court was just under six months. The corresponding figure was 10 months in the Sheriff Solemn court and 16 months in the High Court. So, even without the impact of COVID-19 related suspension of court business previously discussed, we would only now be getting to a stage where we could assume that the vast majority of offences coming to court would be subject to the extended presumption.
This report focusses on all offences disposed of by the courts in 2020.