Sentencing and Penal Policy Commission - call for evidence: analysis of responses

2. Overarching themes

Given the broad nature of the call for evidence, many themes were evident in responses to each open-ended question. These are discussed in the question-by-question analysis later in this report. However, a few themes emerged repeatedly across the consultation questions. To avoid repetition, this chapter outlines these overarching themes, from most to least commonly mentioned across the consultation. These included:

• Raising awareness to counter punitive attitudes towards people in the criminal justice system.
• The need for effective multi-agency working to support rehabilitation.
• Tackling non-compliance with sentencing requirements or bail conditions.
• Enhancing victim-centred approaches.
• Providing tailored, individualised approaches to people involved in the criminal justice system.
• Calls for more data collection, reporting, or research.

Improve awareness

Many respondents at Q1 called for more awareness raising to counter punitive attitudes towards people in the criminal justice system. A few respondents at Q2 and several at Q3 also raised this issue, with those views considered here to avoid repetition. In this theme, comments were made about the public’s and professionals’ views on and perceptions of people in the criminal justice system and community-based disposals, with possible solutions also being suggested.

Respondents raised concerns that community sentences were viewed as a ‘soft option’, particularly by those involved in the criminal justice system or members of the public, as they were seen as less of a punishment than being incarcerated, or that the people serving community sentences could pose a risk to the public. It was felt that the prevailing discourse used by the media and some politicians, for example, is fuelling a view that punishment, rather than rehabilitation, should be the priority focus of intervention. The recent early release initiatives from prison were felt to have heightened fears over public safety. Additionally, prevailing derogatory language used to describe people involved in the criminal justice system was criticised.

“There are undoubtedly public perception challenges with any shift towards a more preventative approach, which includes ‘decarceration’.” - Children and Young People's Centre for Justice (University of Strathclyde)

“The language of the media and some politicians fuel the cry for punishment rather than rehabilitation or any of the other purposes of sentencing… calling people ‘thugs’ and other derogatory terms is unlikely to promote a journey of recovery or help people to feel safe. The stories of the mentors of Aid & Abet demonstrate that with the right support, people can transform their lives and go on to contribute positively to their communities.” – Aid & Abet

While comments under this theme mostly related to views held by the public, they were also felt by respondents to apply to professionals. These included the judiciary, criminal justice staff and staff across wider services. Given the perceived society-wide nature of such punitive views, some respondents suggested measures to counter them.

Respondents felt there was a need for professionals to have more awareness and understanding of the value and effectiveness of community sentences to avoid a perception that these were not effective in reducing reoffending. This was felt particularly relevant for those in decision-making positions, such as the judiciary. Supporting judicial staff to change their outlook and approach, for instance, through ensuring better awareness of social contexts for each person and understanding of community supports available in their area, was recommended.

“One of the enduring problems with community-based sanctions is public perception and how the judiciary frames these sentences. Courts frequently begin from the assumption that custody is the appropriate starting point, and community disposal is something an individual is ‘lucky’ to receive. This framing is both inaccurate and harmful.” - Scottish Prisoner Advocacy and Research Collective (SPARC)

“One of the key issues affecting the use of community sentences is the perception of their effectiveness in addressing offending behaviour. Providing a cohesive body of evidence on impact and outcomes could positively contribute to the narrative of their effectiveness. The Scottish Sentencing Council Consultation (2021) noted that shifting from custody to community sentences required confidence in the availability, quality, and effectiveness of community sentences.” - Social Work Scotland

A few respondents felt greater accountability within the criminal justice system would assist with cultural change. Suggestions to enhance accountability included that it should be an offence for the media to use derogatory language in their reporting, that expectations for police visits be set out transparently in statutory guidance, that the judiciary be held accountable for their decisions and that the public should be willing to openly recognise and censure others, i.e. ‘call out’, the injustice of unwarranted harm.

Other suggestions for raising awareness and changing the prevailing discourse around community sentencing included, in order of prevalence:

• Public campaigns that explain how the system works and its benefits for communities, or to increase understanding of the types and scale of issues faced by people involved in the criminal justice system. For instance, criminal justice bodies could routinely and proactively highlight alternatives to custodial sentencing via public messaging.
• Improving practice by improving multi-agency communication across those involved in the sentencing process, considering the language used by professionals and extending awareness of the range of options involved in community sentencing.
• Undertaking cultural work on what Community Payback Orders (CPOs) are, to ensure they are not equated with carrying out physical labour as a ‘punishment,’ to ensure the judiciary are aware of the range of options offered, and to raise public awareness.
• Investing in staff, including training for professionals in criminal justice, social work and housing staff. This could include recognising and responding to pre-conviction risk, understanding of diversion, awareness of local support services, on disability, neurodivergence and trauma-informed practices. It was felt that this would raise awareness of the value of increased use of community-based disposals and increase the ability of these professionals to consider how best to develop behaviours and attitudes which reduce reoffending among individuals in the criminal justice system.
• Being more aware of the specific needs of people in the criminal justice system, such as children and young people, or those with disabilities, and ensuring adequate resourcing to enable their needs to be met (see ‘Tailor approaches to ensure individualised response’ in Chapter 2: Overarching themes).
• Recognising that community sentences in isolation might not protect victims, and that additional measures may be required (see ‘Enhance victim-centred approaches’ for suggested protection measures), engaging with victim agencies to ensure awareness raising campaigns are sensitively handled and greater use of restorative practices to help change attitudes.
• Community education to teach people about due process, false accusations, and the importance of evidence-based justice.
• Considering how places such as Norway and the Netherlands have achieved cultural change.
• Reinstating budgets to embed forensic psychologists in young people/youth justice and social teams.

“The language around community justice needs to change. At present, a Community Payback Order, or other community-based disposal, is described as an alternative to imprisonment, implying that imprisonment is the default sentence. This enables criticism of sentences other than imprisonment, notwithstanding their appropriateness, as ‘soft justice’… There needs to be improvement in communication for all who are involved in the court and sentencing process. Improved communication will lead to a better understanding and confidence in community justice.” - Aid & Abet

“There also needs to be a review of a ‘common language’ that all justice services use that heralds the Scottish Government vision of justice in respect of trauma-informed practice. We need to consider agreeing stopping the use of words like ‘offender, prisoner and addict’ and agree words that agencies, partnerships and communities feel comfortable with.” - South Lanarkshire Council

“Providing the public with accessible, factual information could bolster public confidence in community sentencing options, which may in turn help to increase their use. It is also important to liaise with victim agencies to ensure that efforts to improve public understanding and increase the use of alternatives to custody are achieved in a manner which is sensitive to the needs and perspectives of victims of crime.” – The British Psychological Society (BPS)

The need for improved multi-agency working

Respondents across all questions highlighted the need for effective multi-agency working to support a rehabilitative justice system. This theme was raised by several respondents at Q1 and at Q3. More general views on multi-disciplinary working arrangements are presented below, with specific comments addressed under the relevant question.

It was widely felt by respondents that rehabilitation of people involved in the criminal justice system requires a coordinated multi-agency response across services, including health, housing and employment services, and that criminal justice sits in a wider infrastructure of community-based support. Reasons for advocating for a multi-agency response included addressing the high level of needs presented by many individuals, providing a holistic, timely and consistent response, reducing negative consequences of poor communication between agencies, and reducing the likelihood of reoffending.

Current issues identified by respondents included:

• A lack of engagement of support services pre-release, such as third sector agencies being unwilling to work with people in the system, or due to overstretched services with long waiting lists or high caseloads, e.g. justice social workers.
• Inadequate provision of assessments to inform planning or insufficient access to community-based supports, leading to people being released without adequate support in place.
• Challenges faced immediately following release, such as managing multiple community appointments with different professionals across locations.
• Insufficient involvement of those with lived experience in the delivery of community sentences.

Suggestions for addressing perceived current issues with multi-agency working included:

• Support to develop whole-system, evidence-based approaches at the national and local levels. This could include:
• Developing place-based partnerships.
• Undertaking area-based strengths and needs assessments to inform service planning.
• Embedding community justice in local planning structures.
• Providing holistic support that addresses practical, emotional, and relational needs, recognising that rehabilitation is a shared responsibility requiring a collective focus.
• Developing cross-cutting policy strategies and workstreams that target the reduction of risk factors across communities rather than at the individual level, to drive down offending and conviction across the life-course. At a national level, one respondent suggested, this could be facilitated by clarifying the role, responsibilities, and justice interdependencies of national agencies, e.g. the Care Inspectorate, Community Justice Scotland, Risk Management Authority, and the National Social Work Agency.
• Reviewing the effectiveness of Multi-Agency Public Protection Arrangements (MAPPA). Two respondents highlighted issues with eligibility, for instance, that it only applied post-conviction or could exclude certain people, such as those who may present a serious and ongoing risk but have avoided conviction due to evidence thresholds, those with pending charges and those acquitted but needing multi-agency intervention.
• Facilitating collaboration between local authorities. For instance, according to one respondent, this need was identified during an evaluation of the Overdose Response Team Test of Change and could have allowed them to share investment and the impact of this service model.
• Focusing on prevention and increased resource allocation, such as through ring-fenced budgets, to reflect and facilitate an increasing use of community sentences and support effective rehabilitation. These views generally aligned with the desire to provide therapeutic rather than punitive responses, with calls for wraparound services that addressed underlying causes of crime.
• Enhance staff capacity, giving time to deliver quality person-centred support and liaise with other professionals, instead of limiting input to a more supervisory, siloed role.
• Services should be able to meet demand and be delivered in the right place, at the right time. As the analysis of responses in Chapter 5: Release from custody highlights, many respondents felt this should happen from the point of custody and that people should be supported through the transition back into the community.
• Holistic service provision should be designed to reflect individuals' needs, strengths, aspirations, and skills. This could involve facilitating collaborative service models, such as co-located services, and embedding staff, such as recovery or housing workers, in community justice services.
• Calls for improvements in the quality and use of assessments to inform decision-making, and increased data sharing.
• The need for structural reforms to improve communication, data sharing, and system planning.
• Routinely addressing core issues during planning and decision-making, notably housing needs, mental health issues, support for alcohol and drug services, as well as the needs of families and children.
• Improved risk assessments for people progressing to open estates as part of progression planning (see Chapter 5: Release from custody), such as clearly addressing risks and management strategies relevant to the person’s temporary release on home leave and routinely inviting the community justice social worker to join the progression risk management team.
• Community social workers attending integrated case management meetings in person when involved with someone in custody.

“Shared release planning processes, including prison, local authorities, and third sector partners, should be mandated and appropriately resourced. The operational model of Upside provides an example of how this can be effectively structured within a national, person-led, and trauma-informed framework aligned with the SHORE (Sustainable Housing on Release for Everyone) standards. Upside delivers trauma-informed, person-centred, and goal-oriented support that continues for up to 12 months post-release. The model includes assertive outreach, family engagement, risk and needs assessment, and strong inter-agency coordination. Families Outside is embedded within the model to support family integration and reduce intergenerational harm.” - Sacro

“Multi-agency planning is essential. Section 12 of the Bail & Release from Custody (Scotland) Act 2023, which provides for multi-agency planning, has not yet been implemented, and there is no indication as to when it might be. There needs to be a proactive and not reactive approach.” - Aid & Abet

“Effective prevention work to address the underlying causes of crime often requires a foundation of longitudinal relationships, services and partnerships. This means we need to create the conditions in funding and partnership arrangements for relationships to thrive, including relationships within families, in communities, between professionals and the people they support, and between professionals across agencies.” - Criminal Justice Voluntary Sector Forum (CJVSF), hosted by CCPS

Enhance victim-centred approaches

The Commission’s terms of reference set out that “the review will embed trauma-informed practice and have regard to the views of victims, those with experience of the system, and representative organisations on how best to respect and protect the interests of victims while maintaining the rights of those accused of crime”. Across Q1, Q2 and Q3, many respondents commented on the need to pay attention to the impact of crime on victims, such as to centralise victim protection. This did not just apply to victims directly impacted by the crime, but also to others, notably families of the person involved in the criminal justice system. The need to consider families was particularly highlighted in Q3 and is addressed in Chapter 5: Release from custody. However, other comments on this theme are presented here to avoid repetition.

Improved victim support was felt to be essential to keep people safe and reduce feelings of vulnerability, provide reparation through restorative justice programmes, and help shape public understanding. Victim Support Scotland expressed concern about the repeal of section 23D of the Criminal Procedure (Scotland) Act 1995 (restriction on bail in certain solemn cases),^[5] which they believed could increase harm to women and girls, highlighting instances where a man released on bail had gone on to kill their partner, despite conditions having been in place to restrict contact. They felt that such cases only served to fuel negative public perceptions of those involved in the criminal justice system.

Perceived benefits of restorative justice schemes - where victims and perpetrators interact to discuss the crime and its impact - were described. Respondents highlighted evidence that showed these types of interventions could help reduce reoffending, reduce negative emotions among victims and generate economic savings.

Ways that respondents felt support for victims could be further enhanced included:

• Victims having more say in sentencing decisions and restorative practices.
• Incorporating restorative practice as part of CPO supervision while recognising the importance of voluntary engagement.
• Supporting victims with improved trauma-informed communication and safety planning when someone is released.
• Reducing system delays to reduce uncertainty for families and ensure safety for victims.
• Widening the notification scheme on release to include people, e.g. partners who may be at risk, not just the victim impacted directly by the crime.
• Checks being undertaken when there is a change of address of a person subject to electronic monitoring to avoid increasing risk for victims, and to recognise that electronic monitoring may not offer the same safeguards as supervision, though it helps identify breaches.
• Greater use of orders that can protect victims or communities, such as non-harassment, non-contact and restriction of liberty orders, and exclusion zones.
• Greater presence of victim services in the community justice environment.
• Being mindful of the likelihood of people ‘testing’ bail conditions in domestic abuse cases, often by trying to circumvent them. Also recognising that the onus often lies with victims to report breaches. It was noted that if little action is then taken or increases risk, victims become less likely to report again, meaning breaches can go unrecognised.
• Providing risk assessments to consider whether there is a risk of harm to others, to ensure only suitable people are considered for bail supervision.

“Non-Harassment Orders should be imposed where the victim has requested this. Currently, we find that some victims are requesting this protection (which may in itself increase risk) and are left with no protection at the end of a court case. We would be supportive of a move towards granting Non-Harassment Orders where these have been requested by the victim.” - SafeLives

“Victims’ views are often not taken into account enough when sentences are being considered. Victims often feel that they aren’t supported through the process or kept informed, which can lead to them feeling isolated and less safe.” - North Ayrshire Council Justice Services

“There is scope to make greater use of these [restorative justice] processes, including by enabling people to take part in [them] within the 'other activities' component of Community Payback Orders. Not only can these processes contribute positively to desistance from crime, but they can also facilitate people to make amends for the harm they have caused, either symbolically (e.g., apologies) or in more material ways (e.g., by doing something that will benefit the person harmed or help address the harm they suffered)…Ultimately, it can help to restore a sense of dignity, respect, and trust among those affected, which is likely to be positive for the individuals and helpful for communities more generally.” - Individual

Address non-compliance

Some respondents commented at Q1, as did some at Q2, on non-compliance with sentencing requirements or bail conditions, advocating for more flexibility and addressing the causes of non-compliance. A contrasting idea from a few respondents in this theme was the need for stronger measures and action to address non-compliance, notably to respond swiftly to breaches.

More tailored approaches (see ‘Tailor approaches to ensure individualised response’ in Chapter 2: Overarching themes) were recommended to ensure requirements were proportionate and did not inadvertently increase the chances of breaches. Similarly, work to address cultural change around non-compliance was suggested to promote understanding of factors leading to non-compliance.

Greater attention to effectively managing non-compliance was seen as a way to reduce recalls to prison following breaches, lead to better outcomes for people, and reduce the likelihood of reoffending rates. Concerns were raised over delays in responding to breaches, non-engagement with responses to breaches, and the potential risk to public safety when breaches were not dealt with swiftly or effectively.

Suggestions for changes in this area included, in order of prevalence:

• Improving understanding of the drivers of non-compliance. Underlying factors such as insecure housing, poverty, stigma, or needs should be addressed so they do not interfere with a person’s ability to comply, which was felt to be a challenge currently.
• Improving action when non-compliance does occur and introducing stronger and consistently applied recall measures when needed. For instance, one local authority highlighted that there was no power to recall people immediately for those on certain community orders, such as CPOs.
• To require bail addresses to be where a person resides instead of simply an address to receive any communications from the court, as it is currently, which can lead to difficulties ensuring compliance or hinder effective victim safety.
• Ensuring court and social work professionals adopt a holistic view of risk and desistence, informed by collaborative assessment processes. This was seen as a way to adopt proportionate responses to non-compliance, address structural disadvantage and trauma, and encourage improved re-engagement with individuals.
• That if people do not voluntarily take part in rehabilitation programmes, within the assessment for the Caledonian System,^[6] then failing to comply with the resultant community sentence should result in recall to prison.
• Increasing incentives to comply, especially for younger adults who are unlikely to receive a custodial sentence.
• Avoiding prison recall for minor breaches, unless there is ongoing risk to public safety, for instance by avoiding rigid responses to non-compliance.
• Research with people with experiences of breaches, for instance, to see if they felt barriers existed to compliance, and seeking views on how breaches could be handled in future.

“Compliance with community sentences should be understood within the context of structural disadvantage and trauma. Responses to non-compliance must be proportionate and focused on re-engagement.” – Sacro

“Sentencers create issues and additional work by imposing inappropriate requirements (e.g. alcohol or drug treatment orders) and imposing programme requirements contrary to professional assessment of social workers. Justice social work also experience frustration around the perceived ignoring of breaches by the court when social workers are explicitly saying that risk cannot be managed and orders are allowed to continue, which creates a perception from the service user that they can act without consequence. This creates frustration among staff and can be demotivating.” - North Ayrshire Council Justice Services

“Breach of community orders should be addressed proportionately. However, lack of access to housing, healthcare and universal support does impact on someone's ability to respond positively to a community sentence and can result in further offending behaviour and non-compliance to such orders. Intensive, trauma-informed support and flexibility are more effective than a punitive response to non-compliance, which can result in repeated custodial use for prolific low-level offending.” - Stirling Community Justice Partnership

Tailor approaches to ensure individualised response

The need to provide a holistic, person-centred approach to people involved in the criminal justice system was highlighted by some respondents. This theme was also evident across questions and themes, whereby designing appropriate community sentences or support packages was recommended as a key consideration in penal reform. Respondents felt that decision-making should occur in the context of life circumstances and specific needs, as well as a trauma-informed, rights-based perspective.

In comments on this theme, concerns were raised about the extent of needs presented by many involved in the system. These included additional support needs, such as learning disabilities, neurodivergence or other vulnerabilities, but also needs presented by an ageing population, as a result of substance use or poor mental health, or due to a lack of provision such as housing. Key issues raised by respondents included needs not being adequately assessed or met, a lack of community-based support leading to criminal justice measures being applied instead, people struggling to understand their community sentence and its implications, and insufficient attention being paid to key legislative requirements such as the Equality Act 2010 and the Adults with Incapacity (Scotland) Act 2000.

Suggestions for improvement included:

• That community sentences can be used to good effect but should be more tailored to the individual and adopt asset-based approaches to build on people’s strengths and skills.
• Ensuring suitable community-based support, such as appropriate care home places, is provided for those who need it.
• Greater understanding of the impact of the criminal justice system on those with conditions, such as neurodivergence or learning disabilities. Support could then be provided to minimise negative impacts, for instance, recognising that certain individuals may struggle to comply with requirements.
• Compliance by all professionals with guardianship orders and involving the legal guardian in decision-making processes.
• Ensuring decisions are based on multi-agency assessments and incorporate support provision.

“What Works to Reduce Reoffending: A Summary of the Evidence (Scottish Government, 2015) places an emphasis on effective interventions needing to be community-based and having to mirror types and levels of risk, relevant needs and learning styles when engaging with individuals. ” - Social Work Scotland

“Tailor sentences to individual needs: mental health, neurodivergence, addiction, homelessness, and trauma must be recognised in sentencing decisions. Embed specialist assessments and case management at the start of community sentences.” - Individual

Improve data collection and undertake research

Another recurring theme was calls for more data collection and reporting or for more research. Improved local data collection was felt to contribute to the ability to undertake quality research at the national level. Some respondents raised this theme in response to Q1 and Q2, and a few at Q3 and Q4. These views are consolidated here.

Perceived issues with data gathering were highlighted by respondents. These included a lack of consistency across Scotland, a lack of transparency in decision-making, a lack of information on the effectiveness of interventions – such as mandatory drug or alcohol treatment orders – and the difference these make, a lack of data on the number of people currently in prison due to breaches or analysis of why prisons are overcrowded, and the lack of integrated recording systems across services.

Suggested ways to improve data gathering and analysis were provided, including establishing a shared information system across services, identifying and addressing gaps in data, using the World Prison Brief,^[7] and to ensure ongoing evaluation of recent developments such as the national throughcare service Upside, the Bail and Release from Custody (Scotland) Act 2023, the United Nations Conventions on the Rights of the Child (Incorporation) (Scotland) Act 2024 and the SHORE (Sustainable Housing On Release for Everyone) standards related to housing (see ‘Address Housing Needs’ theme in Chapter 5: Release from custody).

Greater research was also recommended by respondents, such as to address the areas covered above, or to:

• Implement learning from approaches during the pandemic when face-to-face meetings were not possible.
• Identify success factors in areas with greater use of community sentencing.
• Provide a cohesive body of evidence on impact and outcomes that could support a narrative of the effectiveness of community sentences.
• Monitor the experiences of those involved in the criminal justice system, such as the impact on them of different sentences, so unintended consequences can be addressed swiftly.
• Publish detailed statistics on remand usage, including average duration, eventual sentence outcome, gender and racial disparities, and use of alternatives.
• Understand why bail assessments have comparatively low conversion rates. In other words, exploring why the judiciary uses custody rather than bail, often in contrast to assessment recommendations.
• A shared information system for recording by professionals in different sectors, with integrated data sets developed to inform policy and practice developments.

“Data pathways should follow people pathways. At present, different parts of the justice system, including courts, prisons, justice social work, and third sector providers, often hold disconnected and incomplete data about individuals.” – Sacro

“There is scope for greater transparency in decision-making to better understand why available bail services are not used. Such information is useful to local and national partners in developing and continuously improving bail support services.” - Care Inspectorate

“We need more quantitative research into why almost 57% of people on remand do not go on to serve a custodial sentence – if we can minimise this waste of resource at the point of first appearances in court, then it will go a long way to keeping people out of the revolving door syndrome of prison.” - Prison Expert Group