Scottish Sentencing and Penal Policy Commission report: Justice That Works

Chapter Five: At the crossroads: the sentencing decision

Summary

Short prison sentences are not effective at reducing reoffending and often destabilise lives by disrupting housing, employment, treatment and family ties. Community sentences offer a more effective route to rehabilitation but are not consistently prioritised. Sentencing decisions in individual cases remain a matter for the independent judiciary, but a move toward prohibiting custodial sentences under 12 months – with limited exceptions – and in the meantime extending the presumption against short sentences to 24 months would support more consistent decision-making.

Requiring judges to explain why community options were insufficient would enhance transparency. Judicial communication offers an opportunity to strengthen open justice and public understanding of sentencing decisions. Additional investment in community interventions, improved public information and stronger protective measures for victims would strengthen confidence in non-custodial approaches. The work required to build greater public trust and professional confidence in community sentences is justified by the evidence of better outcomes.

The Scottish Sentencing Council’s guideline on the principles and purposes of sentencing sets out that the “standard list” of the purposes of sentencing is typically as follows:¹³⁸

• Protection of the public – Sentencing may seek to protect the public from offending behaviour through preventative measures and by deterring offending behaviour.
• Punishment – Sentencing may seek to punish the offender as a consequence of their criminal behaviour, normally resulting in some sort of loss depending on the sentence chosen.
• Rehabilitation of offenders – Sentencing may seek to reduce the risk of reoffending through the effective rehabilitation of people who have offended, providing people with the opportunity to change and move away from past behaviour.
• Giving the offender the opportunity to make amends. Sentencing acknowledges the harm caused to victims and communities. Sentencing may also aim to recognise and meet the needs of victims and communities by requiring the person to repair at least some of the harm caused.
• Expressing disapproval of offending behaviour. Sentencing may act as an expression of society’s concern about and disapproval of the offending behaviour under consideration.

Short prison sentences of less than 12 months only achieve two or three of these five purposes. They clearly offer punishment and societal disapproval, but only offer short-term protection of the public that is not effective at deterring offending behaviour. The evidence is consistently clear that they are less effective than other community sentences at rehabilitating people who have offended and reducing reoffending.^{139 140} They typically do not provide opportunities for the person who has offended to make amends.

A central test of sentencing policy is whether it protects victims and commands public confidence. Victims are best served by responses that reduce the likelihood of further harm, avoid unnecessary delay and hold people to account in ways that change behaviour. Evidence shows that short custodial sentences often fail to achieve these aims, while high-quality community sentences, used appropriately, can provide greater protection by addressing the causes of offending and enforcing compliance.

Furthermore, short prison sentences often have a negative impact on the very factors that can help people leave crime behind, including family relationships, positive peer associations, housing, employment or education, and access to healthcare and welfare support. They temporarily incapacitate, rather than build capacity to leave crime behind and live well in the community. Short sentences also make it harder for the Scottish Prison Service and partners to invest the time required for rehabilitation of people who have committed more serious offences serving longer sentences.

Evidence suggests that short-term custodial sentences can contribute to higher rates of reoffending. The latest official statistics showed the reconviction rate within 12 months in 2021-22 for Community Payback Orders was 28.4% compared to 42.8% for people released from custody.¹⁴¹ Indeed, the shorter the sentence, the higher the reoffending rate. The reconviction rate was 52.6% for prisoners sentenced to one year or less, compared to 26.2% for over two to four years.¹⁴² The Commission are clear that the most effective approaches keep individuals within their communities while addressing the root causes of offending behaviour.¹⁴³

“There are significant protective features with community sentences that encourage desistance. Retaining a home and links with family, and maintaining employment or continuing with training or education, are important elements in encouraging desistance from offending. Conversely, the loss of a tenancy, job, income, and more restricted access to family support which come with custodial sentences present barriers to successful community reintegration and desistance.” – His Majesty’s Inspectorate of Prisons Scotland (HMIPS), Call for Evidence.

In our interim report, we highlighted that short custodial sentences are an expensive and wasteful use of resources. A community-based disposal is more likely to be effective in addressing the issues that led to committing the crime and therefore reducing the risk to society of further crime. During our engagement it was made clear to us, including by people with experience of custodial sentences, that some consider prison to be the “easy option” as it is “warehousing people” rather than dealing with their underlying issues.

By their nature, short sentences relate to less serious crime but nonetheless the sort of crime that can be most disruptive to society such as public disorder, violence and drug use. People in the 2021-22 offender cohort with their main conviction for a crime of dishonesty were the most likely to be reconvicted within 12 months, with a reconviction rate of 43.4% compared to the overall rate of 27.1%.¹⁴⁴ Evidence suggests that community-based disposals are likely to be more effective for this type of offending and therefore more likely to reduce such disruption to the public.

The 2008 McLeish report recommended legislative limits on the use of short sentences. Specifically: “To reduce the use of short-term prison sentences, the Commission recommends that the Government bring forward legislation to require a sentencing judge, who would otherwise have imposed a sentence of six months imprisonment or less, to impose a Community Supervision Sentence instead, except in particular circumstances.”¹⁴⁵

In 2010, the Scottish Parliament legislated to require sentencers to consider a community-based alternative in any case where they would impose a custodial sentence of three months or less, “unless they are of the opinion that no other disposal is appropriate”. This introduced a presumption against short sentences (PASS) but does not require judges not to use those sentences. In 2019, the Scottish Government extended the presumption against short sentences to 12 months or less.¹⁴⁶ The McLeish report’s intention was that a judge would be required to impose a community sentence except in particular circumstances. The number of custodial sentences – despite the presumption – suggests that there are perhaps more “particular circumstances” than had been envisaged.

There remains a sense that in Scotland custody is the default sentence, the starting point for any sentencing decision and sentences of under 12 months remain by far the most frequently received sentence of imprisonment. The accredited statistics for 2023-24 showed that 73% of those receiving a custodial sentence – 7400 people – received a prison sentence of 12 months or less. Furthermore, of the 798 women who received a custodial sentence in 2023-24, 88% received a custodial sentence of a year or less.¹⁴⁷

“In general, short-term sentences in no way rehabilitate an offender. Due to pressures of resourcing within the prison estate, no rehabilitative work is undertaken with short-term prisoners […] Any view held by the public that an offender will emerge from a short-term sentence in any way rehabilitated should be dispelled” – Edinburgh Bar Association, Call for Evidence.

“Where punitive or deterrence-based measures are delivered without rehabilitative or wider support, it may instead increase the risk of reoffending.” – What works to reduce reoffending, 2025.

There are appropriate reasons why a person may still receive a sentence of under 12 months when the presumption is in place.¹⁴⁸ Recent analysis¹⁴⁹ highlighted that 30% of those given short sentences in the period studied were already in prison in the sentenced population. However 20% arrived in prison from the community at the time of their sentence, and 41% were on remand. The numbers of short sentences are so substantial that the presumption cannot be said to be working as the Scottish Government and indeed Parliament intended.

Respondents to our Call for Evidence raised concerns about the use of short-term custodial sentences. Perceived reasons for this included insufficient resourcing and availability in the community to deliver good support; alongside variable confidence in, and perceptions of, such sentences by the judiciary. At our Academic Roundtable, participants discussed that prison is often seen as the solution for those who continuously breach community orders and conditions or have complex or overlapping social problems. An evaluation after the initial implementation of PASS found that sheriffs often used short prison sentences in response to non-compliance, despite their poor rehabilitative potential.¹⁵⁰

Without further action on both the use of short-term sentences and the effective provision of community options, Scotland is likely to retain its position as one of the countries most likely to imprison people in Western Europe, and all the negative consequences that follow from that. Those with lived experience of the justice system told us they felt sentences were imposed based on previous custodial convictions rather than the nature or seriousness of the most recent offence. We also want to directly acknowledge that people can face barriers to access to justice when they have difficulty accessing legal advice and legal aid, as their case goes through the criminal courts. People with lived experience, as well as bodies like the Scottish Human Rights Commission,¹⁵¹ have highlighted this as an issue.

“People with previous offences go to jail for things like being drunk and falling asleep. It doesn’t seem proportionate – others get a CPO. It’s like choosing from a roulette wheel what your sentence will be” – Lived Experience Participant.

“There should be consistency. One person does something and gets a slap on the wrist; another does the same and gets prison. I’m not saying everyone should get the same punishment – everyone is different – but there needs to be more understanding of how it affects someone” – Lived Experience Participant.

Prohibition on short sentences of under 12 months

Given the very large number of short sentences that are issued every year,¹⁵² it is clear that only further restrictions will reduce their use. To achieve this policy aim the Commission considers it is necessary to convert the “presumption” against short sentences of under 12 months into a prohibition against their use, except under exceptional circumstances. We consider that the exceptions should be tightly restricted so that a person may not be imprisoned unless there is real risk of serious harm to another individual, or recent serious breaches of an order which cannot be dealt with in any other way. These exceptions must be used sparingly and transparently. It would not be appropriate for a pro-forma rationale for the sentencer’s decision to be recorded by a court clerk in the court record. The sentencer themselves must set out their rationale in writing, including what community disposal options they considered, and why none of these options were thought to be sufficient before they reached their decision that only imprisonment was appropriate.

Such a prohibition on the use of short sentences would flow through to remand, as we set out in more detail in the previous chapter, so that where there is no real prospect of a custodial sentence, remand should not be an option, and in more serious cases could be replaced with supervised bail (potentially with electronic monitoring).

The prohibition of short sentences would remove the option of a custodial sentence as a disposal in summary courts except in exceptional circumstances. This would make clearer to the public that that the judiciary’s options for offences which do not merit a sentence exceeding one year in prison are limited to community sentences, fines, compensation orders or admonitions because the evidence shows that these are more effective at preventing reoffending and supporting rehabilitation than short sentences of imprisonment. This should lead to a reduction in the rate of reoffending and also provide more time and space in prisons for effective programmes for rehabilitating those who pose risk of serious harm.

Although we consider a prohibition on short sentences with very limited exceptions to be the most appropriate option, we considered whether the power to implement an outright ban would be within Scotland’s legislative competence. Many offences are set out in legislation from Westminster where Scottish Ministers would likely not have powers to limit the maximum penalty, for example road traffic and firearms offences, offences committed under the Misuse of Drugs Act 1971, and immigration offences. In the limited time available to this Commission, we have anticipated that these Westminster statutory offences would need to be carved out of any prohibition, at least in the first instance.

Under the current devolution settlement this would lead to the complex, unsatisfactory and unfair situation where sentences of under 12 months were prohibited in Scotland except for UK wide offences already in existence and any future UK wide offences created at Westminster. This could cause confusion for victims, accused and members of the public as well as complicating matters for sentencers. If the constitutional aspect were not addressed fully and satisfactorily at the legislative stage there might be Scotland Act challenges with the courts being asked to adjudicate on the legitimacy of the policy.

Recommendation 5.1: Scottish Ministers must immediately engage with their counterparts in the UK Government to clarify the position regarding the Scottish Government’s ability to prohibit sentences of under 12 months in respect of UK wide statutory criminal offences and, if need be, seek this power. Lead partner – Scottish Government.

Until such powers are granted and it is clear that a ban on short sentences can be implemented, we recommend the following intermediary measure.

Extending and reinforcing the presumption against short sentences

“Community sentences must become the default disposal in Scotland.” – Prison Expert Group, Call for Evidence.

“Scotland needs to set a new course that realises the ambition of a fundamental shift towards community-based approaches to dealing with offending behaviour.” – Community Justice Scotland, Call for Evidence.

Since the presumption against short sentences (PASS) was introduced others have emulated this approach, such as in the recent UK Sentencing Bill which includes a presumption of suspended sentence order for sentences of 12 months or less in England and Wales. In Ireland, where they face similar challenges in respect of prison population, there has recently been discussion about going further to consider community service be made mandatory where considering custodial sentences of up to two years or less.

The Commission consider that it is now time to be bolder in Scotland given that even if PASS was being implemented in all summary cases, many people would still be spending fewer than 12 months in prison. This is because, under the current system those designated as “short-term” prisoners are released at 40% of their sentence (with the exception of a number of exclusions as set out in The Prisoners (Early Release) (Scotland) Act 2025). So if a person is sentenced on indictment before a sheriff and jury to between one and two years, as 1400 people were in the most recent year’s data,¹⁵³ they will serve between no more than five to ten months in prison. And as with those sentenced to under 12 months imprisonment in summary cases, the multiple detrimental impacts of a short period of imprisonment are the same and there is not sufficient time in custody for rehabilitation. Therefore, to fully implement the policy intent of reducing the amount of people sentenced to fewer than 12 months, would require the presumption against short sentences to be extended to all sentences of up to two years.

Accordingly, the presumption against short sentences should be extended to 24 months. This would send a strong signal that the use of custody for periods of under 24 months should be used less frequently, while still providing judicial flexibility for the limited range of situations in which they may still be most appropriate.

It is also important that there is clarity about the circumstances in which the presumption is rebutted. The 1995 Act provides that, where a court passes a sentence of under 12 months, it must state reasons for the opinion that no other method of dealing with the person is appropriate. However, there is currently no requirement for the sentencer themselves to set out the specific details regarding what other options have been considered, or why they concluded any of these would not have been suitable.

We considered a 2022 appeal case relating to the requirement to give reasons for the opinion that nothing except imprisonment is appropriate. In the case [Humphreys v PF Aberdeen]¹⁵⁴ the Sheriff Appeal Court set out that failure to comply with recording reasons did not have defined legal consequences.

We understand that there are sentencers who limit themselves to stating that their opinion is that in light of the nature of the offending behaviour and previous convictions there is no other method of dealing with the person which is “appropriate” without explaining what else they considered or why they rejected all possible community justice disposals. Furthermore, there is no requirement for the sentencer to write anything at any stage, it is the clerk who writes up the record (usually referred to as the interlocutor) which is signed by the sheriff.

This Commission considers the duty to give reasons as far more than procedural. Requiring the sentencer to set out their rationale for a sentence of under 24 months in writing including what community disposal options they considered, and why none of these options were thought to be sufficient would have a number of advantages including:

a) Working towards the longstanding commitment to make sentencing more transparent and allowing the public a greater understanding of the consideration behind certain sentences.

b) The practice of recording decision-making will help ensure that the presumption against short sentences has been rigorously applied and will provide an opportunity for appealing the decision where it arguably may not have been.

c) Allowing community justice partners to become aware if sentencers consider community disposals in their area are not adequate, so they can work to improve services locally and/or improve judicial awareness.

d) Collecting data nationally to promote the understanding of how many people are sentenced to short sentences each year, whether there are issues in particular areas, and what alternatives could be appropriate.

We acknowledge that time spent on remand is something that a court is required to have regard to when imposing a custodial sentence.¹⁵⁵ We hope that with the new bail test, and with an extended presumption as the Commission proposes, fewer people are on remand in future. For those individuals who are remanded to custody, we note that the court only considers time spent on remand when imposing a custodial sentence. We hope that the decision about whether or not to impose a custodial sentence is taken before having regard to time on remand. In this way, the aim is for remand not to serve as a justification for a custodial sentence but rather, if a custodial sentence is to be imposed, there is acknowledgement of the period already spent in custody.

Of course, further limiting the use of short sentences is not in itself sufficient. The next chapter addresses the changes to community sentences that will facilitate and incentivise greater use of these while achieving safety and providing assurances to victims of crime and communities.

Recommendation 5.2: Extend the presumption against short sentences (PASS) to 24 months. When passing a sentence of fewer than 24 months, members of the judiciary should provide a written note of all the available alternatives considered and why, bearing in mind the particular facts and circumstances of the case, no other method of dealing with the person was appropriate. Data on the reasons provided by sentencers should be gathered in a format that is amenable to systematic collation and analysis. Lead partners – Scottish Government and Scottish Courts and Tribunals Service (SCTS).

Victims

If greater numbers of people are to be sentenced in the community, victims’ interests, safety, and confidence must be at the centre of sentencing policy and practice. We know community sentencing can be more effective at reducing reoffending and addressing the root causes of offending behaviour, but this shift must be accompanied by clear safeguards and credible measures that protect victims from ongoing risk. The Commission recognises that there may be some tightly defined exceptions to the prohibition and extended presumption against short sentences and, where these exist, they are likely to be anchored in the principle of public protection, prioritising considerations of risk to victims or the wider public. Albeit it is not clear how a risk might be meaningfully mitigated by a period of a few months in prison where a person is unlikely to undergo any form of rehabilitation and on the contrary is likely to be exposed to factors that could make future offending more likely.

Victims organisations have told us that victims require clear, timely, and accessible information throughout the justice process. Too often, victims report uncertainty about what a particular sentence means in practice, how long an individual will remain in custody, what conditions apply to a community order, and when a person who has offended may be released. This lack of information is not acceptable and is inconsistent with a trauma-informed approach. Improved communication, including advance notification of release where appropriate and clear explanations of sentencing and supervision conditions, is essential to sustaining victim confidence.

We also heard concerns about the inconsistent and sometimes infrequent use of Non-Harassment Orders (NHOs), especially in cases involving domestic abuse, stalking, or persistent offending. Where victims need protection, NHOs should be considered routinely and applied consistently. The existence of a credible, monitored protective order is often central to a victim’s sense of safety and to preventing further harm.

A shift towards greater use of community disposals must be meaningful for victims. This includes ensuring that community sentences are robust, monitored, and enforceable; that non-compliance is dealt with swiftly; and that the conditions attached to such sentences – whether behaviour programmes, treatment requirements, restrictions on movement, or exclusion zones - are clearly explained to victims where lawful and appropriate. A well-designed community order can provide more sustained accountability, reduce the likelihood of reoffending, and better serve victims’ long-term interests than a short custodial sentence.

Clear, accessible public information about sentencing is also vital. We heard from stakeholders that many victims and members of the public remain confused about sentence lengths, release arrangements, and what happens when someone is managed in the community. This confusion contributes to perceptions of leniency and undermines trust. Improving the availability and quality of sentencing data, and strengthening transparency around judicial decision-making, will help build confidence and ensure victims understand the rationale for sentencing outcomes.

Ultimately, reducing the use of ineffective short custodial sentences must go hand in hand with strengthening protections, information, and support for victims. A justice system that prioritises victim safety, communicates clearly, and reduces the likelihood of further harm is essential if Scotland is to move towards a more effective and trauma-informed system.

Recommendation 5.3: Ensure victims have access to clear, accurate, accessible information about the sentence of the person convicted, including, if on a custodial sentence, their earliest possible release date, and when they are released. Lead partners – Crown Office and Procurator Fiscal Service (COPFS) and SCTS.

Recommendation 5.4: There should be further consideration of the reasons some Non Harassment Orders are not granted by courts, and whether the proportion that are granted can be increased. Lead partners – Judicial Institute, SCTS and victims’ groups.

Sentence length and severity

Sentence inflation is when increasingly longer sentences are given for the same crime.¹⁵⁶ Sentence inflation and sentencing severity have been highlighted and critiqued in England and Wales by eminent, senior members of the judiciary,¹⁵⁷ by sentencing researchers and policy advisers,¹⁵⁸ and the UK Government Independent Sentencing Review¹⁵⁹ led by David Gauke. In their paper on sentence inflation, four former Lords Chief Justice have said, “reversing the current trend of sentence inflation will not be easy. The public will need to be persuaded of the benefits of doing this, but the benefits are very much in the public’s interest”.¹⁶⁰ The same question has been asked in Scotland, as to whether a high rate of imprisonment and the expansion of community sentencing over the years has served the public interest?¹⁶¹

There is currently a lack of available systematic data collection and detailed analysis of these issues in Scotland. It appears that there may be trends of “sentence inflation” or increasing severity over time but it does not appear as stark as in England and Wales.¹⁶² For example, the average length of custodial sentences, excluding life sentences and Orders for Lifelong Restrictions, increased by 37% between 2014–15 and 2023–24, from 286 days to 393 days;¹⁶³ and the punishment part for life sentences has also risen over the long-term, from 13.7 years in 2004-05 to 20.5 years in 2023-24.¹⁶⁴ However, it is important to note such trends are uneven across crime types and sentence types. There are also complexities in measuring sentence severity, as analysis needs to be sensitive to context and sentencers’ decision-making practices.¹⁶⁵

Recent analysis from the Criminal Proceedings in Scotland 2023-24 bulletin examined potential drivers of a 35-year rise in average custodial sentence length (excluding life and indeterminate sentences).¹⁶⁶ This looked at three factors that might explain the doubling of average custodial sentence length over this time, from around 200 days to almost 400 days. These were: “offence mix” (a greater proportion of serious offences which attract longer sentences), “custody rate” (fewer short-term custodial sentences for less serious crimes or more long-term custodial sentences for more serious crimes) and “sentence inflation” (longer sentences for the same crime). The results showed that custody rate was a very poor explanation for the rise, meaning there was no support for the possibility that the rise was driven by increasingly lenient sentencing. However, offence mix was a good predictor. This means a model where sentencing harshness was held constant still predicted a long-term rise in average custodial sentence length, and so the rise was not driven entirely by sentence inflation. Furthermore, although sentence inflation was a good predictor, some caution is urged in assigning too much of the rise to increasingly harsher sentencing. This is because other untested factors may also be playing a role, such as a rising trend in the total number of charges convicted. Overall, offence mix and sentencing inflation are both likely driving the rise.

Life sentences and other indeterminate sentences were excluded from the analysis above as they have no fixed endpoint. Separate analysis shows the average punishment part for life sentences has steadily risen since 2004-05, when it was 13.7 years, to 20.5 years in 2023-24.¹⁶⁷

“A role for sentence inflation in driving an increase in average custodial sentence length [was] suggested by trends amongst the most common crimes. These will have the greatest influence on the average. Some of the highest numbers of custodial sentences are for a main charge of Common assault, Crimes against public justice and Threatening and abusive behaviour. Between 2014-15 and 2023-24, average custodial sentence lengths for these offences rose by 17%, 20% and 19%, respectively.” – Criminal Proceedings in Scotland: 2023-2024.

This is an area where more judicial leadership would be welcome in response to clearsighted assessment of the extent of these trends in the Scottish context. The Scottish Sentencing Council has a role to play in this area. A thorough and thoughtful assessment of sentence severity and sentence inflation, and ways of mitigating these issues, will also be helpful to inform national planning towards decarceration (see Recommendation 9.8).

Recommendation 5.5: Systematically gather data to inform consideration of whether sentences have become “inflated” and whether any action requires to be taken to address this. Lead partners – Scottish Sentencing Council and Scottish Government.

The Commission have heard from various stakeholders, about public confusion regarding typical sentences for particular offences, and the various release points. We are also aware of work that notes that “it has been suggested that by collecting and making high quality data publicly available confidence in sentencing could be enhanced, not least as the sorts of sentences people would like to see passed may not be as different to the reality of sentencing as people tend to imagine.”¹⁶⁸ We are grateful to the Scottish Sentencing Council, who noted in their response that they are “more than open to discussions about how it may contribute to efforts to improve the information available across the criminal justice system to support sustainable and effective policy in this area.”

Recommendation 5.6: Make data and information regarding current sentencing practice publicly available to be used in awareness raising and education to help address misconceptions and improve public understanding. Lead partners – Scottish Sentencing Council and SCTS.

Further creation of crimes that may lead to a short sentence

Despite setting out a clear policy intention to reduce the use of short-term prison sentences, as well as the ongoing problems of a prison estate filled beyond capacity, the Scottish Government has continued to propose legislation to create offences where the punishment is likely to amount a period of fewer than 12 months in prison. Recent examples include:

a) The Dogs (Protection of Livestock) (Amendment) (Scotland) Act 2021¹⁶⁹ provides that where a dog attacks or worries livestock on agricultural land the owner may receive imprisonment for a term not exceeding 12 months; a fine not exceeding £40,000; or both.

b) The Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024¹⁷⁰ sets out that a person who supplies, offers to supply, or has in their possession for supply, a single-use vape, can be sentenced to a term of imprisonment not exceeding 2 years, or a fine, or both.

In addition to this, some offences are also created using secondary legislation that is not necessarily subject to a parliamentary vote, and it is common for Members of the Scottish Parliament to seek to create a new offence using a Member’s Bill. In October 2025, the same week that plans were announced for the emergency early release of prisoners due to prison overcrowding, the Scottish Parliament supported a Member’s Bill to create a new criminal offence for dog theft with a maximum prison sentence of five years. There is currently a Member’s Bill before parliament which seeks to allow a punishment of up to ten years for defacing a war memorial. Surely instead of spending up to £500k on a prison sentence, society would be better served by compelling the individual to make reparations to their community and address the issues that led to such behaviour.

It is clear that a mechanism is required to scrutinise the creation of new imprisonable offences, to ensure alignment with the Scottish Government’s overarching goal to reduce the use of custodial sentences as well as Parliament’s previous legislation which makes it clear that sentences of under 12 months should be avoided. More broadly, the creation of new offences, whether leading to short sentences or longer ones, has the effect of creating a society in which it becomes the default approach to criminalise any behaviour deemed unacceptable. Civil powers which also impose consequences that include recompense provide an alternative route to deter and mark conduct that our communities object to.

Under the current system, Scottish Government Justice Directorate guidance encourages policy makers to fully assess the need for any new offence. However there are no barriers to the creation of offences that may be subject to short custodial sentences, nor requirements for compatibility with Government justice objectives, for example to have a sustainable prison population. Nor is there any requirement to carry out a detailed analysis of the likely impact on the prison population. It is left to the discretion of individual policy areas and there is no requirement for the Cabinet Secretary for Justice to approve criminal offences that are created in other policy areas.

Recommendation 5.7: Develop criteria to be considered when parliament seeks to create new offences, which include a detailed analysis of the likely impact on the prison population and associated costs which is published. All new offences, or changes to existing offences, created by government, must be approved by the Cabinet Secretary for Justice to ensure they adhere to these criteria before being put before Parliament. Lead partner - Scottish Government.

Consideration of children in sentencing parents and primary carers

Throughout this report we refer to the negative impacts of custodial sentences; these extend beyond the individual in prison to their families, and particularly their children. Scotland’s Commissioner for Children and Young People (‘the Children’s Commissioner’) first reported to the Scottish Parliament in 2008 about concerns relating to parental imprisonment,¹⁷¹ arguing that “children of prisoners are the invisible victims of crime and our penal system”. In a more recent response to the Scottish Sentencing Council consultation on the sentencing process,¹⁷² the Children’s Commissioner advocated for clear guidance addressing the sentencing of parents.

The Children’s Commissioner advocates for a rights-based approach in relation to the rights of a child whose parent is being sentenced. Children’s rights are set out in the 1989 United Nations Convention on the Rights of the Child (UNCRC, or ‘the Convention’), which the UK ratified in December 1991. More recently, the UNCRC was incorporated into Scots law.¹⁷³ This brings duties to act compatibly with children’s rights into the justice sector as a whole, but specifically in relation to sentencing practice and judicial accountability particularly in relation to children affected by the sentencing of a parent or carer.¹⁷⁴

Article 3 of the Convention requires the child’s best interests to be treated as a primary consideration in all actions concerning children, including by courts. Article 12 of the Convention sets out the right for children to have their views considered in decisions that affect them. These obligations mean that, where a sentencing decision has a foreseeable impact on a child, the court may now be expected to identify those interests and show how they have been taken into account.

This development supports a more relational approach to sentencing, in which courts recognise the wider familial and social consequences of their decisions.¹⁷⁵,¹⁷⁶ However, it also raises questions about the extent of judicial responsibility: what enquiries a court should make about affected children, how such information should be gathered, and how children’s interests should be balanced with other sentencing principles such as retribution, rehabilitation, public protection and the seriousness of the offence. While some of this already occurs in practice, UNCRC incorporation makes the expectations clearer and more consistent with judicial accountability through the appeal process.

We heard from one stakeholder that this relational approach to sentencing does not always happen in practice.

“…we are yet to see evidence of children’s rights being considered in either bail or sentencing decisions […] Ultimately, a significant amount of work is required to ensure the judiciary and other agencies in the adult criminal justice system are aware of, and more importantly implementing, their obligations under the UNCRC. ” – Families Outside, Call for Evidence.

To support a more meaningful shift to consider UNCRC requirements, the Commission considers that there is a role for the Scottish Sentencing Council. We note that in England and Wales, the Sentencing Council’s “General guideline: overarching principles’¹⁷⁷ passed in 2019, the sentencing of sole or primary carer for dependent relatives is listed as a mitigating factor to be taken into account once a provisional sentence has been arrived at.

Recommendation 5.8: The Scottish Sentencing Council should issue a guideline on how children’s rights should be considered at the point of sentencing of parents and primary carers. Lead partner – Scottish Sentencing Council.

Many respondents to our Call for Evidence raised wider issues regarding how children and families of people involved in the criminal justice system are considered. In the time available, this Commission has focused primarily on the decision-making in sentencing, though we acknowledge the suggestions made in relation to every stage of the justice system, including during sentencing, imprisonment, progression and release.