Scottish Sentencing and Penal Policy Commission report: Justice That Works

Chapter Six: Paths in the community: changing lives to leave crime behind

Summary

High-quality community sentences are supported by strong evidence that they reduce reoffending more effectively than short prison terms. While community sentences and community justice may attract less public attention than prisons and policing, they form a substantial part of the justice system and are central to its effectiveness.

Greater flexibility, simplified requirements, more discretion for social workers, more unpaid work opportunities, expansion of problem–solving approaches and modernised electronic monitoring paired with meaningful support would strengthen outcomes. Outcomes should be delivered in ways that are person-centred and place-based, recognising different needs and local contexts.

There should be clearer national standards, better communication with the public and improved responses to breaches of court orders – including wider use of early discharge where appropriate. If the prison population is to be reduced sustainably, justice social work and community services require increased investment and support.

The evidence is clear that community sentences are more effective in reducing reoffending than short custodial sentences.¹⁷⁸,¹⁷⁹ They have a range of advantages including that they are more person-centred and can allow a more tailored approach to be taken. There are more opportunities to gain access to rehabilitation programmes which are typically not offered to short-term prisoners or those in prison for certain crimes. This helps them to reduce the likelihood of future offending by addressing offending behaviour, particularly when delivered effectively by skilled professionals in communities equipped with relevant services.

If our recommendations regarding reducing the use of short sentences are taken forward, it is crucial that community sentences are effective, person-centred, and consistently available throughout Scotland to rehabilitate people who have offended, reduce reoffending, and give assurances to victims and wider society.

Our Call for Evidence made clear that there is a range of ways in which community sentences must be strengthened including improved support; unpaid work; incentivising good performance; and better use of technology to give victims assurances; more use of problem-solving approaches; and improving public awareness and professional confidence in their effectiveness.

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

“…in order to achieve the aim of using custody only where there is no alternative, there needs to be access to a range of consistent, effective, and adequately resourced alternatives, capable of maintaining the confidence of the public and the judiciary” – The Scottish Sentencing Council, Call for Evidence.

Although it is sometimes assumed that an increased use of community penalties will lead to the reduced use of imprisonment, the use of imprisonment and community sentences have both increased over time. Scotland’s total “correctional rate” of 548 people per 100,000 either in prison or under community-based supervision, is the third highest in Europe, behind Russia and Lithuania.¹⁸⁰ Therefore, it is important not to take a simplistic approach that says that we merely need more community sentences. Instead, we should be aiming for the proportion of community sentences to increase relative to short prison sentences.

Improved support

People subject to community sentences are often struggling with issues including addiction, homelessness, trauma, or mental ill health. Sentencing is a key opportunity to address these underlying issues and many respondents to our Call for Evidence supported strengthening community sentencing and taking this approach instead of imprisonment wherever possible.

“Just as prisons struggle to support rehabilitation when over-crowded and over-preoccupied with security, so community sentences struggle when caseloads are high and support is hollowed out from supervision. To put it simply, we have invested in control more than care; and that offers a poor return (whether inside prison or in the community).” – Professor Fergus McNeill, Call for Evidence.

There are ten requirements that may be imposed as part of a community payback order (CPO), the main form of community sentence. Official statistics from 2023-24 show that there are substantially more orders which include supervision (68.2% of CPOs) and unpaid work (68%) than any of the other requirements.¹⁸¹ The use of drugs, alcohol and mental health treatment requirements are significantly lower than may be expected given the severity of addiction and mental health needs amongst those involved with the justice system.¹⁸² We know from feedback we have received that work to address these issues is undertaken consistently and that the specific requirements do not need to be in place to allow targeted support to be put in place by social workers and third sector staff working with the person who has offended.

We also understand that these vary in quality and availability around the country, for example Edinburgh have stopped making drug treatment and testing orders (DTTOs). We also recognise that some sheriffs make use of other requirements, like the conduct requirement, to get people to engage with specific agencies for support for their issues.

Generally the nature of a CPO is a matter for the sheriff, informed by the advice of Justice Social Work in determining which requirements may best support a person in addressing their offending behaviour alongside their broader needs. It is important to note that individuals’ personal circumstances can change for better or worse during the course of an order, and on occasion meeting the requirements can become challenging for credible reasons, such as ill health. It follows that the more prescriptive an order is, the greater the risk of breach, or the need for the Justice Social Worker to submit a formal request to the court for a variation. Supporting the use of discretion rather than highly prescriptive requirements may help ensure orders remain flexible and proportionate, reducing unnecessary breach risks when circumstances change.

We have heard that mental health treatment, alcohol treatment and drug treatment requirements are little used owing to their rigidity and complexity. A simple conduct requirement to engage with relevant services at the direction of the Justice Social Worker can lead to earlier, appropriate supports being put in place, greater flexibility and better outcomes without unnecessarily engaging the court or requiring the individual to attend at court. It is right that the sheriff imposing a sentence in the form of a CPO should have regard to the extent to which it should address retribution, rehabilitation, protection of the public or individuals and the risk of reoffending. However, the Commission consider that it is more appropriate that in recognition of the professional expertise of Justice Social Workers and their direct personal knowledge of and engagement with individuals, the precise means of addressing their needs should be left to the social worker.

The problem-solving and restorative principles that underpin community-based disposals recognise that a person-centred approach benefits from continuing engagement and oversight by the sentencing judge and the greater use of review hearings is to be encouraged. The wider community and judiciary should place greater reliance upon the expertise of Justice Social Work in addressing the needs of individuals that simplifying the specification of CPOs can bring.

In seeking to advance community disposals, it is important to be attentive to rurality and island communities. This includes having regard to the obligations inherent in the Islands (Scotland) Act 2018. The Commission has heard from Justice Social Workers in the Outer Hebrides, the Highlands, and Aberdeenshire. They have to work across the courts and criminal justice process, each doing the range of interventions and activities that might be done by dedicated teams in some larger central belt cities. Local knowledge and good working relationships are particularly important in rural and island contexts. Stigma, privacy, and victim interests have to be handled particularly carefully in small villages. Supervising a CPO in Stornoway needs different resources and capacity to one in Barra or Uist, due to travel time, transport and accommodation costs. Supporting liberations on licence from central belt prisons to islands requires planning involving ferries or planes.

Looking to our neighbours, during our engagement, a number of people recommended that Scotland learn from Northern Ireland’s Enhanced Combination Order (ECO) which offers courts a community based sentencing option in a more intensive format. They focus on targeted interventions, restorative practice, desistance, and victims work, with individuals also required to complete unpaid work. Every person is assessed by psychologists, with those who need it receiving a bespoke mental health intervention. Where appropriate, parenting/family support work and accredited programmes are also part of the order. They use a multiagency approach with a range of organisations including Barnardos, Community Restorative Justice Ireland (CRJI) and NI Alternatives. The ECO is seen as particularly “flexible” and, importantly, efforts were made to limit the potential for net-widening.¹⁸³ The initiative has been embraced by the judiciary and the number of short custodial sentences imposed by courts in which ECOs are available decreased by over one fifth.¹⁸⁴

If Justice Social Workers in Scotland had more discretion and flexibility, they could opt for this more intensive approach in appropriate circumstances with people who require considerable support. If this approach is pursued in Scotland, ensuring commensurate access to psychologists will be needed, alongside what Justice Social Workers and restorative justice practitioners can offer.

We have heard that an application can be made to the court for early discharge of a CPO when an individual has demonstrated significant efforts, made positive progress, and the assessed risk/needs have been reduced to the extent that there is little benefit in continuing to intervene in the individual’s life. As well as incentivising good behaviour, more use of early discharge would also free up limited community justice resources. However, the most recent official statistics¹⁸⁵ showed both that early discharge is used very rarely, with only around 4% of successfully completed CPOs resulting in early discharge (Table 2), and that there is considerable variation between local authorities.

Table 2: CPOs – early discharge¹⁸⁶

2023-24

Area: Scotland

Total CPOs: 14,292

Successfully completed: 9,264

Early discharge: 550

Source: Justice Social Work Statistics in Scotland: 2023-24 – Part 2 – gov.scot

Since many people currently serving short prison sentences are there for breaching community orders, improving support and helping people with compliance would have a positive impact on the prison population. The Call for Evidence highlighted that breaches are often related to underlying issues such as trauma or substance use and breaches need to be dealt with swiftly with supportive measures to help improve compliance.

“…it is critical that non-compliance by offenders is referred back to the court and dealt with swiftly. Anecdotal evidence suggests that the breach process is beset by delay, with reports often taking several months to come back before the sentencing judge. Such delays undermine the effectiveness of the process and are likely to damage public confidence in community sentences.” – Law Society of Scotland, Call for Evidence.

“Justice Social Work National Standards and Objectives require to be reviewed in respect of formal breach process. There is an argument that those that do not pose a risk of harm should be afforded a degree of flexibility where there are instances of non-attendance. This would reduce the number of breaches, court time and uncertainty for the individual” – South Lanarkshire Council, Call for Evidence.

Clear national guidance could be developed to differentiate what type or level of non-compliance warrants return to court for breach considerations, and what can be handled quickly and flexibly by Justice Social Workers. We would expect judicial leaders and representatives to be engaged with early in discussions on this policy development, alongside Social Work leaders, as this is an area of importance to courts as well as to professional bodies, local and national authorities.

Recommendation 6.1: Strengthen policy on compliance and breach for community sentences which considers how to provide social workers with more discretion and flexibility to take a person-centred approach. Lead partner – National Social Work Agency.

Recommendation 6.2: Update guidance for Justice Social Workers based on a set of principles aligned with recovery and trauma, to ensure there is consistent practice across Scotland to support people on community orders. For example, seeking early discharge, providing support where appropriate to prevent escalation of breaches, and taking a more intensive approach where required (using learning from Northern Ireland’s Enhanced Combination Order model). Lead partner – National Social Work Agency.

Programme requirements

It is clear that there are barriers to utilising CPOs with programme requirements. These need to be consistently available across Scotland to empower sheriffs to use them. However, some regional or rural areas may need the flexibility to collaborate with counterparts in neighbouring local authorities in offering delivery of programmes. There may not be the numbers of participants locally to run a group programme, or they may not have the capacity for a staff member to travel a long distance to regularly deliver a programme intervention one-to-one. Some individuals needing interventions to reduce their risk of sexual offending or domestic abuse may not be appropriate for lone worker home visits. There may not consistently be a well-developed programme intervention offered for some common issues, for example, offending clearly linked to problem gambling. Online delivery or peripatetic delivery by qualified professionals can add flexibility and optionality, where assessed as appropriate.

“The current guidelines for mental health treatment/alcohol/drug treatment requirements are very restrictive but, if expanded, could provide for alternative sentencing options for these individuals which would address the root causes of their offending with a degree of accountability to the court.” – Anonymous, Call for Evidence.

Recommendation 6.3: Establish a review of Community Payback Orders. It should examine evidence as to which requirements are being used effectively and which are not – and why. This can inform decision-making on whether the current CPO “menu” of requirements in legislation would benefit from simplification, as well as added options and flexibility. Lead partners – Scottish Government and National Social Work Agency.

Unpaid work

Over the past decade, 11.6 million hours of unpaid work have been carried out to the benefit of communities in Scotland.¹⁸⁷ Where it is meaningful, unpaid work has the potential to be anchored in a few key principles. People can gain work experience and learn new skills, have structure in their day, while being punished for offences, improving and making reparations to their communities, and raising the profile of successful community justice interventions. Also, evidence suggests that unpaid work is more likely to lead to desistance from crime if it is purposeful and seen to be purposeful by those carrying it out.¹⁸⁸

“We should get companies involved, maybe offer unpaid apprenticeships or trades…Unpaid work should get people involved in something meaningful, something you can build on.” – Lived Experience Participant.

“Unpaid work could be better. It should involve working with organisations outside the Job Centre…We need to find places that take people on for unpaid work and offer room for progression. You could stay on if you’ve done well. It’s about giving back to the community, but it should also help you in the long term” – Lived Experience Participant.

We visited Perth and Kinross and heard about their unpaid work scheme to establish an early years outdoor nursery alongside the nature trail. The project works to provide better outcomes for nursery aged children living in the most deprived areas and improving their access to outdoor learning. We heard about the innovative approaches they take to react quickly to improve their communities, and provide alternative work to those who are not able to carry out physical labour.

However, despite these examples, our engagement made clear that unpaid work varies in quality and delivery across the country in terms of providing work that is meaningful and can help upskill participants, working closely with local communities, businesses, and the third sector. We have heard that there is still a need for more creative thinking to provide options for those unable to participate in physical work placements, or those with caring responsibilities. Sentencers have also observed that gaps in unpaid work need to be addressed to increase their confidence in using community sentences.¹⁸⁹ This is particularly relevant for specific categories of person (including disabled people and those with mental health difficulties, women and young people).

Considering all of the above benefits, it is disappointing that the Scottish Crime and Justice Survey 2023/24¹⁹⁰ showed that only 9% of adults were aware of unpaid work placements in their area. Work must be carried out to raise awareness of the positive impacts and increase communities’ involvement in determining what unpaid work their area would benefit from. An expectation of doing awareness-raising, media and public engagement about community sentences is explicitly set out in the Council of Europe European Probation Rules,¹⁹¹ in rule 17 and rule 106.

“We should strive for more inventive uses of unpaid work orders which lean into offenders’ skills and there should be greater visibility of what has been achieved by individuals” – The Howard League Scotland, Call for Evidence.

Recommendation 6.4: The review of CPOs should include a focus on unpaid work to consider opportunities to improve its delivery as part of both CPOs and fiscal work orders, to make it more consistently purposeful, effective and visible to communities across Scotland, while maximising opportunities to support people into employment and develop life skills. Whether the current number of unpaid work hours that can be imposed is optimal is worth considering in this. Lead partners – Scottish Government, Community Justice Scotland and Justice Social Work.

Drug Treatment and Testing Orders (DTTOs)

Scotland continues to face significant challenges in responding to evolving drug misuse trends. Despite ongoing efforts to reduce harm, drug-related mortality remains persistently high, with disproportionate impacts on disadvantaged communities.¹⁹² Patterns of drug consumption are shifting, notably from injection to inhalation, while emerging substances such as ketamine and synthetic opioids often used in combination are complicating treatment and prevention strategies.

DTTOs are court orders for people whose offending is clearly linked to significant drug misuse. They require the person to undergo drug treatment, regular drug testing, and frequent reviews with the court, as an alternative to custody. In 2023-24, 280 DTTOs were imposed in Scotland, an 8% decrease from the previous year and the second lowest in the last decade.¹⁹³ Falling numbers are partly due to service capacity issues with health services, a change in drug trends and ongoing challenges with successful completion rates, with not all participants achieving sustained recovery or reduced offending, as well as some local areas choosing to use CPOs with certain requirements instead of DTTOs.

Given that addiction in Scotland increasingly involves a complex interplay of drugs and alcohol, limiting specialist courts and treatment orders to drug misuse alone risks missing a significant part of the problem. Alcohol-related harm remains a major driver of offending and poor health outcomes, often overlapping with drug misuse in the same individuals and communities. Evolving the DTTO into a substance misuse treatment order, encompassing both drugs and alcohol, would allow courts to address the full spectrum of addiction-related offending, provide more holistic support, and better reflect the realities faced by those most at risk.¹⁹⁴ This integrated approach would strengthen the criminal justice system’s response to addiction and improve outcomes for individuals and communities alike.

While problem-solving courts addressing substance misuse may be sustainable in the larger urban areas, they may be more difficult to establish in other parts although a peripatetic model might be trialled. The tools available to a problem-solving, substance misuse court, are, nonetheless, available to all sheriffs in the form of CPOs and DTTOs and through judicial training and practice a problem-solving approach with the use of community-based disposals can be achieved.

Recommendation 6.5: Evolve the DTTO model into a Substance Misuse Treatment Order, enabling courts to address both drug and alcohol-related offending. This integrated approach would better reflect the realities of addiction in Scotland, provide more holistic support, and improve outcomes for individuals and communities. Lead partner – Scottish Government.

Better uses of electronic monitoring technologies with community disposals

Scotland has been using one type of electronic monitoring (EM) technology, using Radio Frequency to monitor compliance along with a home curfew for many years. Uses of other EM technologies within a goal-oriented and person-centred approach have been under consideration for at least 10 years, since the independent working group on EM¹⁹⁵ and accompanying research.¹⁹⁶ Ten years later, Global Positioning System (GPS) tagging is going to be piloted now in respect of individuals deemed suitable for Home Detention Curfew (HDC) but has not yet been used. In October 2025, Community Justice Scotland issued a National Improvement Recommendation¹⁹⁷ to Scottish Government calling for more progress on EM, including use of GPS tagging and alcohol tagging which can be attached at court immediately on the day that the EM order is made. Use of GPS has been possible for some time, since the Management of Offenders (Scotland) Act 2019.

EM technologies can be used in flexible and varying ways towards sentencing aims and desired outcomes in community justice. In our Call for Evidence and engagements, we asked about how EM can be used “wisely and well.”¹⁹⁸ Numerous respondents recommended improving uses of technology. There may be suitable uses of GPS tags and alcohol tags in rural and island contexts, for example, saving lengthy trips for breathalysing or being able to consistently check an individual is staying away from certain places that pose a risk of reoffending. We recognise alcohol use is a health issue and, as such EM should come with support of health services.

“GPS tracking is not mass surveillance. It is conditional, targeted, and time-limited, and it can be subject to independent oversight. In the right framework, it’s not only ethical but necessary - a less invasive and far more constructive alternative to incarceration.” – Aberdeenshire Council, Call for Evidence.

In our roundtables with victim support organisations, they emphasised the need for clear information for victim safety planning and risk assessment with EM. We discussed potential uses of technology in support of public protection and victim safety planning. For example, we consider GPS EM to have some utility in preventing approaching victims and places where risk of reoffending is known, as part of wider supervision and support. Victims’ organisations should be engaged in future developments of EM policy and practice.

There are certainly cases where using EM is not appropriate and may prove counter-productive to sentencing aims and community justice outcomes. Advancing uses of technology in community disposals must remain alert to avoiding net-widening whereby alternatives to custody can unintentionally lead to people getting further caught up in criminal justice, instead of reducing the prison population.¹⁹⁹ To be clear, we are advocating better uses, not expansionist punitive uses.²⁰⁰ In itself, technology will not offer support to resolve issues in people’s lives. Better uses of EM should feature good assessment and support by professionals, able to balance victim interests, those of the person who is accused or has offended, and families.²⁰¹

“Putting someone on a tag and curfew is something which can make someone more isolated. Whereas being on a tag and then having supports and activities during the day would have helped.” – Lived Experience Participant.

The Commission notes the helpful insights, including lived experience insights, arising from a thematic inspection of electronic monitoring²⁰² in probation in England and Wales, and we would encourage similar focused attention here to answer questions of whether uses of EM technology are improving. More and better data is needed. As newer EM technologies increasingly interface with AI, apps, and biometric surveillance, the rights and welfare of those who are monitored and the conditions they are subject to will require careful scrutiny. This includes data protection and privacy rights. Future uses of EM technologies may not necessarily be an ankle tag. As such, we envisage that the Scottish Biometrics Commissioner could have a purposeful role to play here, alongside that of Inspection and scrutiny bodies.

Recommendation 6.6: Implement different EM technologies, contained in the Management of Offenders (Scotland) Act 2019. Their use should be integrated with good assessment and support. The extent to which EM technologies are used ‘wisely and well,’ and the extent to which their use meets different sentencing aims and community justice outcomes, should be carefully and closely examined by relevant Inspectorate and scrutiny bodies, and through research and data analysis. Lead partner – Scottish Government.

Problem-solving courts

Problem-solving courts are intended to reduce the use of short custodial sentences and reduce reoffending by “combining the authority of the court with support and rehabilitative opportunities to address the underlying causes of offending.”²⁰³ As in other courts the sheriff has the power to use Structured Deferred Sentences (SDS) which combine multi-disciplinary intervention and support in the community, with regular court reviews from a dedicated sheriff to monitor and encourage progress, which has implications for motivation, compliance, and quality of supervisory relationships. Although problem-solving approaches are more time and resource intensive for courts and community justice, there is evidence to suggest that they could reduce the number of people given custodial sentences.²⁰⁴,²⁰⁵,²⁰⁶,²⁰⁷,²⁰⁸

Problem-solving courts combine two key elements: support to address the underlying issues that contribute to offending, and accountability through regular judicial oversight. Although we do not use the term “Support and Accountability Courts”, this description may help readers understand more clearly what problem-solving courts are designed to achieve. The aim is to reduce further offending by tackling the problems that sit behind it – such as addiction, mental ill-health, trauma or unstable circumstances – while ensuring that individuals return to court frequently so that sheriffs can monitor progress, reinforce expectations and respond quickly when difficulties arise.

Some problem-solving courts have been established in Scotland, including the Glasgow Drug Court, Glasgow Alcohol Court, Glasgow Youth Court, Glasgow Female Offenders’ Court, the Aberdeen Problem-Solving Approach, Forfar Problem-Solving Court and the Alcohol and Drug Problem-Solving Court in Hamilton. The further expansion of this model was recommended by the Scottish Drug Deaths Task Force and the Scottish Government’s response of January 2023 stated that “We will therefore explore the feasibility of further expansions of drug courts, in consultation with key stakeholders, in particular the senior judiciary and Scottish Courts and Tribunals Service, who are responsible for the conduct and administration of court business.” It is unclear what progress there has been since then.²⁰⁹,²¹⁰ More recently, the Gauke report recognised the evidence underpinning this approach and recommended that the availability of problem-solving courts be expanded in England and Wales to address prolific offending.

We are mindful that varying approaches may be suitable depending on local circumstances such as the challenge of running a problem-solving court away from the main urban areas simply because there will not be the requisite volume of cases to justify such a facility. However, the judiciary as a whole can adopt a problem-solving approach to their sentencing decisions since they have available to them all the same tools used by a problem-solving court especially the facility to conduct CPO review hearings and to engage in a relational way with those they have placed on orders.

“We strongly advocate for more use of SDS courts across the board and dedicated problem solving courts. This requires a review of how courts can accommodate and manage this type of sentencing approach and how to work round court business scheduling. We need to use the evidence of how these courts work effectively and learn from this, funding appropriately and encouraging staff to work in this area” – South Lanarkshire council, Call for Evidence.

“In the journey of recovery relationships are key. Included in those relationships can be with the Sheriff. Regular reviews of CPOs and DTTOs allow that relationship to continue post conviction which can reward, encourage and reinforce messages of support. Reviews following sentence should be encouraged and should always, so far as practicable, be held with the sentencing Sheriff. Specialist courts offer a similar opportunity but what is more important is the approach and attitude of the Sheriff. A problem solving approach can be adopted in any court not just a Specialist court” – Aid & Abet, Call for Evidence.

Some sheriffdoms may wish to operate a specific problem-solving court, whereas in others it may be more appropriate to have a cohort of “solution-finding”²¹¹,²¹² sheriffs who perform their role outwith a formal problem-solving court structure. In rural areas, courts may wish to consider further options to facilitate this approach including the use of technology, or peripatetic “floating” sheriffs.

Recommendation 6.7: Ensure every sheriffdom has problem-solving capacity and problem-solving approaches are encouraged through appropriate judicial training so this approach can be taken in all sheriff courts. Lead partners – Sheriffs Principal and Judicial Institute.

The Commission note that for this approach to be successful requires high quality services, interventions, justice social workers and third sector providers in the area to enable the solutions-focused judges to draw on these. It would improve the current situation where the progress of community sentences is often not known to judges unless they fail which may undermine judicial confidence by consistently showing them only poor performance.

To implement these recommendations there may be a need for culture change amongst the judiciary, who may not currently see themselves as accountable to communities for imposing tailored sentences designed to increase desistance and make good use of public money. This is something that could be fostered with judicial training that clearly values the solution finding specialism, and senior leadership. The Government should also consider legislating on this matter in due course to provide impetus, funding and demonstrate parliamentary support for this approach.

Community Justice Scotland told us that “when combined with problem-solving courts” SDS could provide a “significant reduction in the number of people receiving short sentences and even community sentences.” 39% of the 1,400 SDS which finished during 2024-25 resulted in an admonition. A further 15% were issued with a CPO.²¹³ However, we understand that there is variation in implementation of SDS across the country with different local authorities interpreting and applying SDS differently, leading to inconsistencies in access and outcomes. This is further compounded by resource disparities. Some areas lack the infrastructure or staffing to deliver SDS effectively, especially in rural or under-resourced regions.

There remain concerns that some sheriffs and legal professionals across the country may be unfamiliar with the SDS model or uncertain about its effectiveness. There may be reluctance to defer sentencing, especially for people who have offended repeatedly. We have also heard that there are inconsistent approaches taken to whether a SDS should end in an admonition or for example a CPO. Some also argue that there should be a change to legislation to make it possible to grant an absolute discharge at the end of a SDS and avoid any record of a conviction, as an incentive for those who behave well over the course of the disposal.

There is a need to deliver training and awareness sessions for sheriffs and justice social work staff on SDS benefits and success stories. Shared learning can be promoted through COSLA (Convention of Scottish Local Authorities), Community Justice Scotland, and Social Work Scotland networks to drive consistency. Targeted work should take place with those sheriffdoms and local authorities where there are currently low levels of SDS made with a goal of ensuring SDS are used regularly in every court.

Recommendation 6.8: Act to ensure structured deferred sentences are used more consistently in all sheriff courts. Lead partners – Sheriffs Principal and Judicial Institute.

As set out above, an admonition is a common disposal when an SDS is successfully completed. An admonition is when a person found guilty of a particular offence is warned not to offend again, and this is recorded as a conviction so will appear on their criminal record. We consider that the sentencer should also have the option of an absolute discharge. This would mean that in a summary case, when the person responded positively and pro-actively the judge would have the option not to record a conviction. If the person is convicted of another crime in the future, this would not prevent this being regarded as a previous conviction.²¹⁴

Recommendation 6.9: Legislate to allow a person who has offended to be granted an absolute discharge at the end of a Structured Deferred Sentence if they change their behaviour and co-operate fully, to avoid the negative impacts of a conviction. Lead partner – Scottish Government.

Ensuring appropriate funding and workforce

All of the recommendations in this chapter require suitable funding and sufficient numbers of a well-trained workforce. The Commission is clear that greater use of community-based sentences can only succeed if services are consistently available, well-resourced and delivered to a high standard. Expanding their use without addressing workforce capacity, service availability and variation in quality would risk undermining confidence among sentencers, victims and the public. Investment in justice social work, third sector provision and community justice partners must proceed in parallel with policy change.

Respondents to our Call for Evidence were clear that there is a significant need to invest in community services to facilitate rigorous and rights-based supports for rehabilitation and it is clear that this in turn impacts upon judicial and public confidence.

“A major shift from custodial to non-custodial sentences will be effective in reducing re-offending and in promoting social safety and well-being only if there are adequate resources to support, supervise, and monitor offenders: this will require significant upfront investment in community justice, but that investment will be more than fully repaid in the slightly longer term by the reduction in crime and its related harms that it can be expected to bring” – Howard League, Call for Evidence.

“Community sentences will only be meaningful if local authorities are resourced to deliver a broad range of rehabilitative options – including housing support, health services, education and employment pathways” – Scottish Prisoner Advocacy & Research Collective (SPARC), Call for Evidence.

We agree with the Scottish Sentencing Council’s observation that “a more consistent approach to the development, delivery and funding” of community disposals would support “more consistent provision, robust management and successful completion would be likely to enhance judicial confidence and to support an increase in the use of community-based disposals through the provision of more sentencing options.”²¹⁵

COSLA have provided us with indicative, baseline, high-level estimates of how much it would cost to have an additional 1000 people being managed on appropriate community sentences instead of within the prison population. Their costings include a broad range of estimates including justice social work, housing, social security, and social care. While this is just an estimate, and other partners may prefer alternate calculations, COSLA consider that the cost for 1000 people over 12 months could be approx. £18m. While requiring funding to achieve the levels of Justice Social Work and other necessary services’ inputs, this is substantially less costly than 1000 individuals being in prison on short sentences of imprisonment with little time for rehabilitative work. Moreover, it has the potential to lead to better outcomes with individuals being supported and supervised to overcome some of the issues that have contributed to their offending behaviour. However, investment to increase supply of community services is not simply a cost but a strategic reallocation that leads to better outcomes, reduced reoffending, fewer victims and safer communities as well as allowing lower long-term expenditure on imprisonment.

Recommendation 6.10: Increase funding for the public and third sector services that underpin delivery of high quality community disposals. Lead partner – Scottish Government.

Improving awareness and confidence of victims, professionals and the public

We have heard that victims are often unaware of what a particular sentence means, or when the potential release date may be. We consider that this is not acceptable or consistent with a trauma informed approach.

Recommendation 6.11: Victims must be able to access clear, accurate information about the sentence of the person convicted, including appropriate relevant details regarding any specific court order and, if in respect of a community sentence, the relevant restrictions placed on an individual when in the community. Lead partners – Scottish Courts and Tribunals Service (SCTS), Crown Office and Procurator Fiscal Service (COPFS).

We have also heard that the language around sentencing can be confusing unhelpful, and counterproductive for public perceptions and understanding of what the actual sentences involve, for example “automatic early release”, sentence “discounts” or “life sentences.” It is important that sentencing language is clear, accessible and sentencers provide consistent explanations.

In our Call for Evidence and other engagements, a concern was repeatedly highlighted that community sentences can be viewed as a “soft option” and there is a view that “proper” punishment requires being incarcerated. If other recommendations in this report are taken forward, this will serve to improve how community sentences are perceived by the public and judiciary. However, in addition to making community sentences more effective, there must also be continual effective communications strategies and advocacy to ensure the public are made aware of the evidence underpinning this approach. There are regular national public information campaigns on posters and television in respect of health but nothing similar in respect of criminal justice.

“…most custodial sentences are not simply that; rather, they are penal sanctions that include custodial and community-based elements. If we named them as such, instead of using misleading and confusing language around ‘early release’ (a person is not released from penal control when they are released conditionally from prison!), we might escape some of the futile and frankly juvenile politicking that attends debates about imprisonment and release. As I’ve argued in my publications, the community-based parts of (mislabelled) custodial sentences also involve significant ‘pains’, as do community sentences; we need to be more honest in recognising that as part of the overall punishment” – Professor Fergus McNeill, Call for Evidence.

Recommendation 6.12: Conduct a programme of research to ascertain the public comprehension of key sentencing terms and work together to develop language that will be more widely understood. Lead partners – The Scottish Sentencing Council and Scottish Government.

Public opinion featured prominently in evidence to the Commission, is often presented as an obstacle to sentencing reform. Yet research shows that public perceptions of and attitudes to sentencing are complex.²¹⁶,²¹⁷,²¹⁸ While many people believe sentences are too lenient in the abstract, public attitudes vary depending on both the specific offence in question and what the public thought the sentence should be.

Public attitudes to sentences being reduced for guilty pleas, for example shifted markedly when the rationale was explained.²¹⁹ This underscores the need to treat the public as partners in defining safety, proportionality and effectiveness, rather than as audiences to be worked around or adversaries to be managed.

The Commission would want to encourage the role that civil society – especially universities and advocacy organisations – can play in supporting informed public debate on penal policy. Scottish universities already contribute to public understanding in areas such as youth justice, homelessness and social policy, and their civic mission positions them to convene deliberative forums, translate evidence accessibly and support community engagement. Advocacy organisations likewise advance charitable purposes such as human rights, equality and community development. The Commission would encourage these institutions to embrace their existing civic and charitable responsibilities in sentencing and penal reform, working collaboratively to involve the public, amplify lived experience and strengthen trust in the justice system.

Recommendation 6.13: Devise a national communication strategy to ensure the public are better informed about the content of sentences which can be imposed and the circumstances they apply to. Lead partners – Scottish Government, in collaboration with Community Justice Scotland, and the Scottish Sentencing Council.

Proceeds of crime

During the course of its work, the Commission discussed the growing problem of serious and organised crime.²²⁰ In 2024, the Serious Organised Crime Taskforce reported that there were 158 people with serious organised crime nominals (links, related offences) incarcerated within 14 Scottish prisons, with these individuals having links to 42 separate serious organised crime groups.²²¹ We acknowledge the significance of this type of criminal behaviour across Scotland’s communities, and indeed in our prisons. SPS recently highlighted the increasing complexity of the prison population, in part due to “the increasing proportion…who must be accommodated separately due to their…offending history, for example…individuals with links to Serious and Organised Crime”.²²²

The standard purposes of sentencing apply to serious and organised crime as with other crime types. However, unlike other types of offending, serious and organised crime such as bribery, fraud and money laundering often result in large financial gains. Existing mechanisms allow the proceeds of crime to be frozen and seized. Scotland has various ways of depriving people of the assets obtained as part of criminal activity.

In this regard, we acknowledge the work of the Independent Sentencing Review for England and Wales, which highlighted the role that the recovery of the proceeds of crime can play in a justice system.²²³ Freezing and seizing assets helps ensure that crime does not pay. Under the Proceeds of Crime Act 2002, enforcement authorities can recover assets, including cash, obtained through crime or intended to be used as part of criminal activity.

In the time available, this Commission has not focused on recovery of the proceeds of crime. Our review has focused on the ineffectiveness of short custodial sentences in providing meaningful rehabilitation. As the Independent Sentencing Review set out in its report, however, “for some offenders even lengthy custodial sentences may fail to meet all the purposes of sentencing”.

This Commission considers that the Scottish Government should keep under review whether the current system of depriving individuals involved in serious and organised crime of their assets is sufficient to meet the purposes of sentencing.