Scottish Sentencing and Penal Policy Commission report: Justice That Works

Annex B: Reflecting on the legacy of the McLeish Commission

Summary

The Commission reviews the findings of the 2008 McLeish Commission and notes that many problems identified then persist today. We find that high imprisonment, overuse of short sentences, limited community alternatives and gaps between policy and delivery remain significant challenges. We suggest that progress stalled due to political caution, punitive attitudes, fragmented governance, judicial independence and long-term resource pressures. We observe that later reviews repeated some of the same findings. We recommend renewed political commitment, stronger leadership and sustained investment to shift Scotland away from over-reliance on custody.

In 2008 the McLeish Commission published its report, “Scotland’s Choice: The Report of the Scottish Prisons Commission.” This was a landmark moment in Scottish justice, setting out a clear vision for a more coherent, evidence-based and rehabilitative approach to sentencing in Scotland. The report contained 23 recommendations for reform to penal policy and practice, covering a range of criminal justice issues from community sentences to decisions about parole and release. It aimed to create a system that was more transparent, proportionate and effective in reducing reoffending.

Most of the recommendations have been accepted and taken forward to some degree by the Scottish Government and partners. However, many were not fully implemented, advanced as far as possible, or did not achieve the intended impact. The reasons for this are complex and interconnected, reflecting political, institutional, financial and cultural barriers that continue to shape penal policy in Scotland.

“…it is disappointing to note that despite the passage of 17 years, many of the [McLeish] Commission’s key findings remain true today. High imprisonment under low crime conditions; use of imprisonment for the troubled rather than troubling; use of imprisonment for short periods; individuals pulled back into the system through parole recall and criminal histories; poor public awareness of crime and punishment trends; and poor public awareness of the kinds and effects of different sentences are all issues we are still grappling with.” – Families Outside, Call for Evidence.

Political and public sensitivity around crime and punishment has been one of the most significant constraints. The McLeish Commission called for a fundamental shift away from the routine use of short prison sentences toward community-based disposals, reserving imprisonment for serious offences and for those people who pose a threat of serious harm to the public. However, in the face of continuing public concern about crime and sections of media portraying reforms as lenient, politicians and successive governments wished to avoid being portrayed as soft on crime or ‘soft touch justice,’ limiting the scope for reform even when the evidence for change was compelling. Reactive, crisis managed penal policy making has led to unintended consequences, resulting in higher costs and reoffending, alongside reduced confidence in the justice system. Some bold policy decisions like the ambition of the McLeish Commission and our own Commission to substantially reduce the prison population will necessitate willingness to expend political capital to see that realised, rather than talked about.

Within parts of the justice system and the wider public, there persisted a strong attachment to punishment and limited confidence in the capacity of community-based interventions to deliver justice or reduce harm. The McLeish Commission’s call for a new sentencing culture – one grounded in rehabilitation, proportionality and public understanding – was only partly achieved. There was significant potential for the ‘paying back by working at change’ reparative emphasis in the McLeish report to resonate with victim support organisations and advocates by reflecting what at least some victims might want.⁴¹⁰ Though the work to build trust and credibility in this reparative, generative aspect of community payback has not been done as extensively with victims and local communities as it could have been in the years since. The persistence of punitive public attitudes, coupled with insufficient communication about the aims and effectiveness of community justice has struggled to gain wider credibility and public trust.

Though public opinion on sentencing and penal policy is complex, the latest research suggests that that awareness and knowledge of the criminal justice system in Scotland is decreasing.⁴¹¹ There has been a reliance on narrow, ‘traditional’ levers for change, without building a wider civic consensus and social support for transforming Scottish justice and penal policy.⁴¹² The public would benefit, then and now, from wider communication on this – similar to what happens on other issues like public health messaging – and wider efforts to build the credibility of dealing with crime and harm in our communities.

“The one obvious factor that needs addressing in Scotland is the durability and persistence of strong resistance to moderately progressive and evidence-informed penal practices. This punitive constituency, as we have called it, has several elements, including political representation, various forms of media and victim and survivor voices, all interlocking and reinforcing each other. No-one in Scottish policy-making would deny the existence of this constituency, or its longevity” – Scottish Quaker Community Justice Working Group, Call for Evidence.

Institutional complexity and systemic inertia have also played a major role. The Scottish criminal justice system involves a wide range of independent and semi-independent institutions, including the police, Crown Office Procurator Fiscal Service, courts, the Scottish Prison Service, social work (prison-based and community-based), local authorities and the Parole Board for Scotland. The challenges facing the Scottish criminal justice system are multiple and interconnected. What happens in one area or part of the process can affect other areas; policies and decisions about one person or group can affect others. Implementing coordinated reform across these agencies required strong central leadership, sustained collaboration and a clear shared purpose.

In practice, the system’s dispersed governance has made it difficult to drive coherent change. Prosecutorial and judicial decision making have rightly been given significant weight and influence, reflecting the rule of law and the long-standing principle that prosecution and sentencing decisions must remain free from political direction. While this independence is essential in democracy to maintaining fairness and public confidence in the courts, it may have also limited the extent to which government could shape or direct sentencing practice to achieve broader penal policy objectives. As a result, progress towards greater consistency and alignment with national policy aims depended largely on discretionary prosecutorial and judicial engagement rather than structural or legislative compulsion or mechanisms for collective judicial accountability and leadership, beyond decision-making in any one case. The complexity of implementation and delivery has been compounded by accountability gaps and scrutiny of progress across so many disparate organisations. That is why we see decarceration as an issue requiring national long-term planning.

“If we are serious about changing the way we punish in Scotland, we have to involve the judiciary in that discussion to a far greater degree than has been the case hitherto. Ideally, they must understand that they have a crucial role to play and must be part of the solution.” – Scottish Centre for Crime and Justice Research (SCCJR), Call for Evidence.

“…there is no consistent process for recording or reviewing progress towards previous recommendations nor for ensuring accountability over delivery of recommendations.” – Criminal Justice Voluntary Sector Forum (CJVSF), Call for Evidence.

“Make sure recommendations actually get implemented.” – Lived Experience Participant.

Resource and capacity constraints have further limited progress. Many of the McLeish recommendations, particularly those related to community supervision, rehabilitation and the expansion of alternatives to custody, required significant and sustained investment. In the years following the review, financial pressures, including the effects of austerity, constrained public spending. The third sector, who play a key part in community justice, have been majorly affected by constrained short-term funding. Structural barriers to implementing change within the criminal justice system persisted, including fragmented funding, short-term pilots, workforce and workload capacity issues, and system delays (in the justice system, as well as in other systems, like access to mental health services and so on). As a result, the infrastructure required to support credible, effective and well-resourced community sentences did not develop at the pace required.

…we are not investing enough in making these community disposals work…we see a structure carrying an expectation of delivery and impact without the necessary resources to make that happen […] We are spending on reacting, not on preventing, and not on the approaches to rehabilitation that are based in evidence of what works” – Turning Point Scotland, Call for Evidence.

The overall consequence of these factors was that Scotland continued to rely heavily on short custodial sentences, despite clear evidence that they are less effective in reducing reoffending than well-designed community-based approaches. Community justice services remained underdeveloped relative to the scale of the challenge, and the broader vision of an integrated, evidence-led and person-centred system was not fully realised. While the McLeish Commission’s work has positively shaped the direction of justice in Scotland, the pace of change has been one of gradual evolution and incrementalism rather than the systemic transformation envisaged by McLeish.

Since then, there have been changes in the criminal justice system and society more broadly. There has also been a plethora of other recommendations relevant to the criminal justice system by a range of different bodies or groups. Some take a whole-system view; others focus on specific areas or practices; and some from other sectors have influence on the justice system.^413-451 Many of these require multi-agency working and collaboration, falling within the responsibilities of multiple organisations.

And yet implementation gaps remain. As a critical example, the Scottish Human Rights Commission and the UK National Prevention Mechanism’s report “Review…Recommend…Repeat” (2024) found that 83% of the 29 recommendations made by international human rights bodies for improving Scotland’s prisons and forensic mental health settings showed little or no meaningful progress. The report described a “glacial pace of action,” noting that many recommendations have been repeated – some for over 30 years. The report’s comment on the chronic mismatch between policy rhetoric and actual implementation may, conceivably be applied to wider elements of the wider criminal justice system. Penal practices and their inspection have been ‘rights-respecting’ in how they are framed, but not enough progress has been realised in actually respecting rights in the years since McLeish.

As a Commission, it has been beyond our remit and timeline to explore in depth the systemic barriers to implementing reform and seeing meaningful change, and the wider social-structural factors that affect public trust and confidence in sentencing and criminal justice. However, it has been beneficial for us to look back at McLeish and others to understand the barriers and challenges associated with recommendations to date, whether taken forward or otherwise, to ensure that Scotland learns from these. Many of these barriers remain relevant today and throughout this report we have at times suggested ways to overcome these.

However, the nature and scale of the challenge have changed significantly over the past 10-15 years. Scotland’s penal system is at a critical point, with the highest ever prison population and systemic strain across the justice system, and suboptimal outcomes for society. This is the context in which this Commission has been established. Like McLeish, we have been tasked with rethinking our justice system. There is no more time to lose if we are to make the transformative shift to evidence led, cost-effective and humane sentencing and penal policies which will help deliver the improved outcomes that Scotland needs and deserves.