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

3. Community sentencing

Question 1 - What changes could be made to community sentences and other alternatives to prison to reduce crime, protect victims, and create safer communities?

Introduction

Two thirds of respondents left a comment at Q1 on changes that could be made to community sentences and other alternatives to prison to reduce crime, protect victims, and create safer communities. The most prevalent themes in comments were the need to provide individualised rehabilitation support for people subject to a community sentence, strengthening community sentencing in Scotland and adopting these solutions instead of imprisonment wherever possible, and specific comments on the need to improve Community Payback Orders (CPOs). Calls to use a wide range of community sentences and to reduce the use of custodial sentences were also commonly mentioned.

Several respondents used Q1 to leave comments about other aspects of Scotland’s criminal justice system. These views and suggestions have been included in Appendix A.

Focus on rehabilitation

Many respondents emphasised the need to provide individualised rehabilitation support for people subject to a community sentence. It was highlighted that many people involved in the criminal justice system need significant levels of support, that rehabilitation could effectively contribute to a reduction in offending, and that it should be preventative in nature. In other words, rehabilitation should focus on addressing underlying causes of crime, such as substance use or poor mental health, to avoid a ‘revolving door’ approach. Respondents felt such support should be rights-based and trauma-informed, address health and housing needs including mental health and substance use issues, and involve a consistent, trusting relationship with a key professional. Other less commonly mentioned aspects to include in rehabilitation were travel support, help maximising benefits, employment support, mentor support and volunteering.

Various concerns were raised about current rehabilitation approaches, including that:

• There is a significant need to invest in community services to facilitate robust rehabilitation. The extent of support required and challenges accessing services – such as long waiting lists for psychological support, particularly in rural areas, or the need for greater input from social workers – were cited as reasons for investment.
• Community sentences are preferable because prisoners often do not have access to programmes in prison, such as short-term prisoners or those in prison for certain crimes.
• Breaches in community sentences are often related to underlying issues such as trauma or substance use, yet there is insufficient support to address these.
• Current approaches are too narrowly focused on risk assessment and management.

“Shift from surveillance to care-based community justice models, grounded in trauma-informed, rights-based approaches.” - Scottish Prisoner Advocacy and Research Collective (SPARC)

A few respondents highlighted the need to take account of both the wider and personal impacts of poverty, such as on crime rates and on life opportunities and outcomes.

“The correlation between poverty and social deprivation, and entering the formal justice system, are well established. Notably, the groundbreaking Edinburgh Study of Youth Transitions and Crime reported that exposure to poverty and trauma in childhood is strongly associated with offending behaviour in adolescence and early adulthood (McAra & McVie, 2022). This is evidenced, for example, through Scottish Prison Statistics, which show the disproportionate presence of those from the most deprived communities within the prison estate.” - Children and Young People's Centre for Justice (University of Strathclyde)

Support for strengthening community sentencing

Many respondents supported strengthening community sentencing in Scotland and adopting these solutions instead of imprisonment wherever possible. Reasons given included solid evidence that community sentences could reduce reoffending compared to short-term custodial sentences, for instance, as they could help sustain informal support networks, prevent family trauma, and aid rehabilitation efforts.

“CJS believe that 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

“What Works to Reduce Reoffending: A Summary of the Evidence finds that rehabilitative interventions with the strongest evidence base for reducing reconviction rates are cognitive-behavioural programmes which address criminogenic needs.” - Community Justice Glasgow

However, respondents raised concerns about the effectiveness of existing community sentencing, with commonly mentioned challenges including inconsistent use of community sentencing options and insufficient resourcing in the community to deliver good support to people in the context of their community sentence. Reasons for inconsistent use of community sentencing included variable confidence in, and perceptions of, such sentences by the judiciary and others (see theme below on awareness raising), inconsistency in the use of review hearings by courts, the use of assessments to support decision-making, and the availability if of support or programmes for people.

“There is a compelling evidence base for the effectiveness of community sentences in reducing reoffending when compared to short-term custodial sentences. However, their use remains inconsistent, with barriers including variable judicial confidence and perceptions of community sentencing as a ‘soft option’.” - Stirling Community Justice Partnership

“There continues to be significant inconsistency in the way that community sentences are managed across the country. Our members report that there are still areas that do not take a trauma-informed approach and can be punitive towards people in the justice system. We recommend that the training provided to staff in the justice system, including social workers, is reviewed to ensure that all staff understand how they can contribute to addressing the causes of crime together with providing robust public protection.” - The Scottish Association of Social Work (SASW)

Further funding for statutory and third sector organisations was felt to be necessary to encourage preventative work, by shifting resources from prisons to the community. Reasons included the need to promote consistency, to strengthen the availability of provision, to ensure effective supervision and monitoring, to better provide individualised support (e.g. time to build relationships) and to use technology more effectively. Suggestions for where funding could be targeted focused mainly on allocating funding for third sector and support services, including out-of-hours support, as well as employing more social workers.

“We are not investing enough in making these community disposals work… From our perspective we see a structure carrying an expectation of delivery and impact without the necessary resources to make that happen.” - Turning Point Scotland

"Appropriate resources should be provided to local authorities to assure clarity and consistency across the country.” - The Law Society of Scotland

Other less mentioned views on community sentences included that additional needs, e.g. neurodivergence or learning disability, were not sufficiently considered when setting requirements, staff lacking knowledge of available supports to refer people to, insufficient links made with recovery communities, that community sentencing would increase safety concerns or were perceived a ‘soft option’. A few respondents suggested that individuals in the criminal justice system could perceive their needs would be better met in prison, or that the duration of the custodial sentence would be shorter than a community sentence. One individual suggested punishment should be the focus of community sentences.

A few respondents advocated for using proportionality principles in sentencing. In other words, the stringency of the ‘punishment’ part of a sentence should be revisited. These views are considered in the theme of ‘improved decision-making’, addressed particularly in the analysis of responses to Q2 and Q3. However, in the context of community sentences, it was highlighted that having too stringent conditions attached to a community sentence could increase the likelihood of breaches, generally due to the scale of the issues a person often faces when attempting to reintegrate into society (see the ‘Address non-compliance’ theme below).

“A triage approach to sentencing could promote the swifter administration of justice, whereby cases are selected which are likely to attract a community sentence and then go forward to a community sentencing court for more rapid attention. There may be learning from the operation of problem-solving courts, drug courts and youth courts.” - Social Work Scotland

Singular suggestions on improving community sentences included:

• Investing in assertive outreach approaches, with consistent, supportive staff working to overcome engagement challenges and identify and meet support needs once a relationship is forged.
• Further developing structured deferred sentencing, problem-solving approaches, and consistent use of review hearings to support rehabilitation and judicial oversight.
• Working with stakeholders to develop a shared understanding of the purpose of community sentences, for instance, by developing a reporting framework, agreed with stakeholders, through which outcomes can be measured.
• The need for high-quality research into the effectiveness of mandatory alcohol and drug treatment, specifically its impact on health outcomes and substance use, and for current treatment approaches to be updated.
• Adopting asset-based, participatory approaches, such as building on skills such as football, painting and decorating or gardening and co-creating sentence conditions with people.

Improve Community Payback Orders (CPOs)

Several respondents at Q1 commented specifically on the need to improve Community Payback Orders. Ten different requirement options are available, of which one is unpaid work. CPOs were seen as a useful form of community sentence, as respondents felt that this approach helped to address offending behaviour, that review hearings helped manage an order, and that they could help support victims of domestic abuse if there is a condition of using the Caledonian system. Respondents felt it was important that CPOs offer a positive experience for people or assist with the provision of support, such as accessing counselling as part of ‘other activities’ if this is funded.

However, multiple issues with the use of CPOs were identified, including, in no particular order, that:

• Most conditions are for unpaid work and supervision, with infrequent use of the other requirements.
• Variability in the quality of CPOs and Restriction of Liberty Orders had been identified in research with young people, including a lack of support and negative supervisory relationships.
• Practitioners in rural areas are likely to encounter different risks and needs in providing services, compared to those operating in urban areas, such as a lack of specialised third sector services.
• CPOs were considered less effective when supervision is not incorporated.
• The duration of CPOs was becoming longer, resulting in system pressures, e.g. on supervision resources.
• Drug or alcohol treatment requirements can pose a barrier, due to the likelihood of excessive waiting periods for services from NHS or third sector providers.
• CPO stipulations may be a barrier for people seeking to move into employment.
• One respondent expressed concerns that Sheriffs were choosing CPO reviews over a social worker assessment, reducing time available for one-to-one support and engagement.

Suggestions for improving CPOs included:

• Reviewing the use of requirements to ensure they are person-centred and avoid being so stringent that they will likely be breached, particularly for those with significant needs.
• Using the range of CPO conditions more fully.
• Increasing resources to allow for meaningful supervision that helps to address unmet needs and offending behaviour or deals effectively with non-compliance. This was considered especially relevant should CPOs be lengthier than in the past; a practice considered to be occurring currently.
• Greater use of court reviews to manage CPOs.
• Considering ways to overcome the reluctance of community services to work with people involved in the criminal justice system, for instance, because they preferred to work with people on a voluntary basis, rather than with those on compulsory orders.

Comments on unpaid work placements were provided, with respondents highlighting these were the most frequently used form of CPO requirement. While unpaid work was felt useful in engaging people in employability training and assisting with reintegration, issues raised with unpaid work placements included:

• Work tasks that did not provide opportunities for meaningful or valued activity or contributed little to improving the community.
• Unpaid work being seen as a ‘soft option’ if it was not physical labour.
• Costs associated with unpaid work placements could lead to non-compliance.
• Unpaid work and supervision requirements are applied substantially more than the other CPO requirements, with the other potential requirements rarely used.

Respondents provided suggestions to improve unpaid work placements, including by:

• Expanding CPO work opportunities, particularly in rural areas where opportunities were felt to be very limited. This could be achieved through forging stronger relationships with local employers.
• Using private contractors could instead involve people on unpaid work placements, and contribute the money saved to justice social work services to operate with increased budgets.
• Revising the name ‘work’ to better reflect its community contribution or benefit, enabling wider access for people with additional support needs.
• Increasing the sense of purpose through meaningful activity, such as environmental work, space to address trauma and giving positive feedback to people on the difference they have made.
• Undertaking a national review into their feasibility.

“Examples of effective work include addressing offending behaviour, mental health, addictions, trauma and engaging people in employability training. However, extended, improved, and enhanced use could be made of the other eight requirements.” - Social Work Scotland

“People expressed concern about unpaid work tasks which did not appear to be meaningfully improving the local community, and which were viewed as ‘tick box’ exercises), or were experienced as repetitive, tedious ‘odd jobs’ with little reparative or personal value - although for others the experience could be valuable and reintegrative.” – Scottish Centre for Crime and Justice Research (SCCJR)

Use a variety of community sentencing options

Calls to use a wide range of community sentences were made by several respondents. It was suggested that this could enable more people to serve their sentence in the community and allow sentences to be more tailored to individuals’ circumstances, for instance, minimising disruption to existing protective factors such as informal and formal social support, employment and housing. It was suggested that a flexible range of options could allow people’s disabilities or other specific needs to be considered.

Suggested ways to achieve this included:

• A few respondents felt that deferred sentences should be used more frequently, with two respondents also recommending the use of problem-solving courts.
• Developing mid-level community alternatives that offer more structure than basic supervision but less restriction than custody.
• Embedding peer mentors, community navigators and lived experience practitioners at all stages of the justice system and adequately compensate them for their input.
• Expanding the use and authority of civil orders to manage risk where prosecution is not viable or appropriate, such as creating a legal framework that drives action based on proven evidence of risk, not just criminal history and expanding MAPPA-type panels to recommend or initiate civil orders in high-risk cases.

“South Lanarkshire Justice Services are an example of where structured deferred sentence courts and approaches work well. With both a young persons and alcohol and drug problem-solving courts being in place in Hamilton Sheriff Court, independent evaluation confirms the approaches provide a welfare-led and trauma-informed approach that supports people out of formal justice systems and into recovery pathways. This is in no small part due to the creation of integrated health and social work teams for the alcohol and drug problem-solving court.” - South Lanarkshire Council

Social Work Scotland cautioned that research across Europe had found that introducing new community sentences can result in an increase in both community sentences and imprisonment, as they can promote a ‘net widening’ effect, pulling people into the system despite not having significant factors that lead to crime (‘criminogenic needs’).

Using community sentences as the default disposal

Some respondents noted that the ability of the criminal justice system to shift to a more preventative approach focused on rehabilitation was inextricably linked to the need to reduce demand for prison spaces. These respondents typically emphasised the need for prison as a last resort, or to aim to avoid its use for certain people, such as pregnant women, women with dependent children, or people with substance use issues. Despite the statutory presumption against short sentences, concerns were raised that short custodial sentences were still commonly being applied by courts.

A research/policy organisation called for a review to determine the effectiveness of the 2022 guidance on regarding rehabilitation as a primary consideration for those under 25 years, considering prior variation noted in decision-making perspectives and practices by judiciary for this cohort.

“Community sentences must become the default disposal in Scotland.” - Prison Expert Group

“Presume community sentences for non-violent, low-risk crimes, particularly those linked to poverty or addiction. Expand diversion schemes to keep people out of the formal justice system where possible.” – Individual

Some called for an increase in diversion schemes to prevent crime. Diversion schemes were reported as a useful way to address emerging risks before they escalate, avoid the traumatising impact of incarceration, and reduce offending. Respondents suggested redirecting resources for diversion schemes.

“HMIPS contributed to a joint review of diversion from prosecution, led by HM Inspectorate of Prosecution in Scotland in 2023. This review looked at the operation and impact of diversion from prosecution in Scotland and found that there was potential for this mechanism to be better used to help avoid the use of custody. Improvements included wider availability of relevant services and interventions; better training, and knowledge and understanding of diversion for staff in the agencies involved in the process; and better communication between these partners.” – His Majesty’s Inspectorate of Prisons Scotland (HMIPS)

Suggested alternatives to prison

Suggestions were made for alternatives to prison, predominantly through using more stringent measures applied in community settings, including:

• Increasing the use of custodial sentences that can be served at weekends/evenings, to avoid disruption to support structures.
• Using ‘bail hostels’ to allow people the opportunity to remain in the community but to reside at a given address. Bail hostels can offer a halfway point between prison and community – as operated by the third sector in England.
• Following suggestions made in the report of the Independent Sentencing Review for England and Wales, notably:
• Limiting the time people spend in prison if recalled for instance, due to breaching conditions or if probation officers have concerns about a person’s risk of reoffending.
• Adopting a Texas-style ‘points system’ to reduce sentences by participating in programmes, work and purposeful activities.
• Changes to Home Detention Curfews or extending their use, for instance, clarifying the rules to help people understand required targets while in custody and to motivate people not to reoffend, introducing these earlier in the custodial sentence, ensuring victims are informed where there is felt to be a continued risk to them, or extending them to those detained in secure care.
• Greater use of conditional sentences, like suspended sentences, but where certain conditions must be met to avoid custody.
• Considering whether to introduce post-release oversight by parole boards, learning from the success of specialist courts and drug treatment and testing orders in the Sheriff Court.
• Incentivising or mandating compliance with rehabilitation or mandating services to contribute to rehabilitation. Suggestions included mandating engagement with recovery services in light of positive experiences of those going into residential rehabilitation upon release from prison, mandating the Parole Board for Scotland to consider rehabilitation as a principal consideration in decision-making, greater use of mandated supervision for those released from short-term custodial sentences, or mandating services, such as third sector services, to contribute to release planning and support provision, and to mandate the Scottish Prison Service to notify housing services and provide them with relevant information.
• Mandating supervision requirements for certain people as highlighted in the quote below:

“People with regular short sentences (for example, two within an agreed period) should have statutory supervision on release for the rest of their sentence (60% of sentence). This would be resource-intensive in the community but could have significant impact on this ‘revolving door’, reducing costs for the police, courts and prison service.” - The Scottish Association of Social Work (SASW)

Consider the wider context

Some respondents recommended considering a wider policy and societal context, given their interplay with people involved in the criminal justice system. These included implementing previous policy commitments, an issue considered further at Q4. Points raised included:

• Adopt a systemic public health approach through working with mental health practitioners to develop preventative policies that address issues preventatively and to implement recommendations from Independent Review into the delivery of Forensic Mental Health Services (Barron Review). This could include addressing the lack of data on delays in transfer and community forensic mental health and addressing delayed discharges in secure mental health services to ensure rights are upheld.
• Use a gendered lens to understand women's employment aspirations and barriers to employment and use the aspirations in local Children’s Poverty Plans to create new work opportunities.
• Bring forward the expiration date of the temporary justice provisions in the Coronavirus (Recovery and Reform) (Scotland) Act 2022, as these were felt to extend system delays and create damaging outcomes for people, such as extending uncertainty and delaying support interventions being put in place.
• That the rights of the child must now legally be considered in decision-making, due to the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. Additionally, recognition that considerable maturation can occur in the period between the offence and sentencing, and that this should be considered. It was suggested that the routine use of Child Rights and Wellbeing Impact Assessments could evidence that this is happening in practice.
• Ensure children and young people with care experience are identified, and that corporate parents across agencies have a clear understanding of their duties and responsibilities towards them.

Change approach for certain offences

A need to consider revising the approach taken to certain offences was suggested by some respondents, mainly individuals. These centred around those accused of sexual offences or domestic abuse. Concerns included discrimination against such individuals, resulting in mistreatment or heavy-handed responses. Specific issues raised included concerns over perceived miscarriages of justice due to the Moorov doctrine and section 274 of the Criminal Procedure (Scotland) Act 1995 (restrictions on evidence relating to sexual offences), loss of hope for individuals impacted, a lack of behavioural change among prolific perpetrators of domestic abuse, and the damaging impacts of notification requirements.

Prisons and punishment are required

A few respondents at Q1, and a few at Q3 incorporated here advocated the use of punishment, with calls for more prisons or custodial sentences and for sentences to be ‘punishment’. The majority of these respondents were individuals. Organisations in this theme were more likely to suggest custodial sentences were needed for prolific offenders or for people committing certain crimes, such as those involved in organised crime.

“There is also perhaps a requirement to deal with Serious and Organised crime persons differently. Given the networking and criminal activity that is taking place in custody, there could be an argument for dispersing people across the country and use segregation to disrupt activity.” - South Lanarkshire Council

“We support prison sentences for sexual offenders and believe that harsh sentences should be delivered to the guilty of rape and child sexual offences.” - Alliance for Democracy and Freedom

“Scottish Government need to realise that the true answer is to build more prisons - prisons that are not there to allow prisoners to do what they want apart from leave, but rather a place of confinement, reflection, and rehabilitation.” - Individual