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

6. Implementation of recommendations

Question 4 - Are there any recommendations from the McLeish Commission or subsequent reports by other bodies that haven't been put into action yet but could still be beneficial?

Introduction

Over four in ten respondents left a comment at Q4. While several respondents specifically mentioned the McLeish Commission in their comments, others did not. This meant it was often unclear which, if any, of the Commission’s recommendations respondents were referring to, unless they were specifically cited. In addition, the topics of some recommendations (e.g. Recommendation 19, which suggests incentivising people to address substance use) have been addressed elsewhere in this report under other questions. As a result, the analysis of responses to Q4 below presents the themes evident in responses, referencing the Commission’s recommendations where possible.

Implement existing policy commitments

The most prevalent theme at Q4 was the need to implement existing policy recommendations or commitments. Respondents’ views on the McLeish Commission recommendations are addressed first, followed by other policy recommendations or commitments made elsewhere.

A few respondents offered a list of McLeish recommendations that they felt needed to be fully implemented. Other respondents noted some recommendations had progressed, while some had not, or the action taken had not created the desired results. Areas where further efforts to implement McLeish recommendations were suggested included reducing the prison population, the presumption against short prison sentences, throughcare and reintegration support, investing in robust alternatives to custody, increasing rather than decreasing the use of Home Detention Curfew, and engaging the public on penal reform to build understanding and support.

“Recommendation 15 of the McLeish report talks about suspended sentences. Recommendation 19 discusses a more restricted and rational use of custody. This was 16/17 years ago, and we are in a far worse position now in terms of the prison population. I think something a bit more radical is needed if there is to be more meaningful change in this area.” - North Ayrshire Council Justice Services

“While progress has been made, many recommendations remain only partially implemented—particularly those relating to prevention, reintegration, and housing.” - Stirling Community Justice Partnership

“One of the challenges in answering this question is that there is no consistent process for recording or reviewing progress towards previous recommendations nor for ensuring accountability over delivery of recommendations.” - Criminal Justice Voluntary Sector Forum (CJVSF), hosted by CCPS

“The planned focus on reparative approaches has not materialised; the preceding preoccupation with reducing reoffending (and with risk) crowded the radical potential of a more fully reparative approach. Similarly, the way that the report imagined 'progress courts' focused on supporting desistance (and implicitly reintegration) was not reflected in subsequent law and policy developments. Conditional sentences were not introduced. The envisaged dialogue and coordination between a sentencing council, a community justice body, the parole board, and the prison service has not developed.” - Individual

Some respondents in this theme mentioned recommendations from other reports that they felt should be implemented. Justice-related reports specifically mentioned included:

• The Scottish Human Rights Commission and the UK National Prevention Mechanism report ‘Review…Recommend…Repeat’ (2024). Views mentioned about this report included:
  • Adopting a similar approach of separating commitments, efforts and results to improve transparency over progress.
  • That it had identified 83% of 29 recommendations made by international human rights bodies identified for improvement in Scotland’s prisons and forensic mental health settings showed little or no meaningful progress, such as the need to take urgent measures to reduce overcrowding.
• Measures to reduce the use of remand, as called for in several reports from the United Nations and the European Committee for the Prevention of Torture 2019 report.
• Continuing towards full commencement and implementation of the Children (Care and Justice) (Scotland) Act 2024.
• The Gauke review (2025) to address prison overcrowding in England and Wales.
• The Recover, Renew, Transform Programme, established to enable the justice system to operate post-Covid and prepare for future transformation.
• Adopting solutions for addressing overcrowding in prisons put forward by the then Chief Inspector of Prisons, Andrew McLellan in his 2005-2006 annual report.
• The Creedon Report (2023) - an independent review of police-led sex offender management in England and Wales.
• Expanding the definition of ‘victim’ to include immediate family members of child victims or where the victim is deceased, as set out in the report of the Victim Notification Scheme Independent Review (2023).

A few respondents also mentioned reports or initiatives across other policy areas that they felt had a bearing on criminal justice and should be implemented. Criminal Justice Voluntary Sector Forum (CJVSF), hosted by Community Care Providers Scotland, provided a list of relevant policies that impacted the implementation of the McLeish recommendations, with readers directed to their published response to review the full list.

Recommendations made by other respondents included:

• Implementing the recommendations of the Promise in relation to children and young people with care experience.
• Learning from the statutory framework being created through the current Housing (Scotland) Bill and recommendations from the Scotland Homelessness Prevention Review Group.
• The National Mission and Medication Assisted Treatment Standards in relation to addressing drug and alcohol use.
• Mental health policies and plans, though the respondent who suggested this did not specify specific ones.
• Ensuring adherence to the Equality Act 2010.
• The Hard Edges Scotland (2019) report into the mismatch between multiple disadvantages people face and the fact services are often set up to address ‘single issues’.

“CJS have identified over 40 reports related to the Scottish Justice system that have been published in the years since the conclusion of the McLeish Commission in 2008. Some of these are cross-cutting, whole-system reports on justice, others look only at tightly defined areas of the system or practice, others relate to other sectors but have a bearing on how our system operates; all of them contain numerous recommendations, very few of them have ever been reported against and fewer still have had all of their recommendations implemented.” - Community Justice Scotland

Enhance understanding and confidence

Aligned with the ‘Raise Awareness’ overarching theme described at Q2, some respondents called for more to be done to implement the McLeish recommendation to rebuild confidence in the criminal justice system. Prevailing punitive views among the general public were seen by these respondents as undermining efforts to reform the system. It was felt that this was among the least implemented of the recommendations, that the punitive discourse had prevailed for decades and that wider policy teams within the Scottish Government did not promote reintegration, or that there was a need to raise awareness and understanding of the need to ensure diversity within the system, even within direct justice work. It was noted that public support was necessary to ensure legitimacy and could help the adoption of bold improvements, while another respondent, in contrast, felt change would be incremental. One Support/advocacy/third sector organisation highlighted that change is possible, noting positive developments in relation to positive public acceptance of changes in youth and women’s justice.

Suggestions for changing attitudes included:

• Devising a public communication strategy. This could focus on aspects such as messaging around those who have harmed local communities, reinforcing that sentences served in the community are part of the overall punishment.
• Community Justice Scotland taking the lead on innovations and sharing good practice nationally.
• Doing more to counter inaccurate media reporting and actively challenge the ‘lauding and sensationalising’ of ‘atypical’ high-profile individual cases.
• Creating a citizen’s assembly or citizen juries to provide confidence and a potential mandate for change, as has occurred in other jurisdictions (though these were not specified).

“In order to encourage greater civic engagement with the question of punishment, consideration should be given to the creation of a citizen’s assembly to address the way we punish in Scotland. Public support (overt or tacit) is crucial for legitimacy, and it will also enable and embolden political actors who are in an understandably difficult situation of trying to be bold whilst being continually mindful of public opinion and political opposition.” - Scottish Centre for Crime and Justice Research (SCCJR)

“The one obvious factor that needs addressing in Scotland is the durability and persistence of strong resistance to moderately progressive and evidence-informed penal practices. This punitive constituency, as we have called it, has several elements, including political representation, various forms of media and victim and survivor voices, all interlocking and reinforcing each other.” - Scottish Quaker Community Justice Working Group

Reducing the prison population

Some respondents highlighted issues about reducing the prison population (see also ‘Reduce the use of custodial sentences’ in Chapter 3: Community sentencing). These comments aligned with a number of the McLeish report recommendations, such as 1, 4, 15, 19, and 23, though respondents did not generally cite the recommendations in their comments. A few respondents commented on reducing the population to a daily average of 5000 (Recommendation 23). Concerns included that:

• The prison population is rising, fuelled by judicial decision-making.
• Since a 2024 consultation on a release mechanism for people on long-term custodial sentences, no legislative change has been introduced.
• Analysis based on 2023 data found that many short sentences imposed were for people already in prison.
• Decisions needed to be made around where money was invested – in prisons or in the community.

One respondent felt that adopting a numerical approach was not the way forward, while another acknowledged the Scottish Government's efforts to reduce numbers to ensure the system's safety and effectiveness.

Suggestions to reduce the number of people in prison included:

• Work with the judiciary to change attitudes towards custodial sentences and build their confidence in relation to community-based disposals and justice social work services. Specific suggestions included:
• An agreement there should be an onus on the Crown Office and Procurator Fiscal Service to ‘roll up’ matters (Recommendation 4), enabling one court case rather than multiple ones. It was felt that this could help reduce legal fees, demand for legal aid, and administrative burdens in the criminal justice system.
• Greater psychological input to the development and application of sentencing guidelines, with psychologists supporting judges to consider a broader range of options. It was noted that only the consideration of an OLR consistently requires a psychological risk assessment to inform sentencing currently.
• To introduce legislation to require a sentencing judge, who believes a custodial sentence is necessary, to consider whether the sentence should be served as a conditional sentence.
• Focusing on reducing the proportion of prisoners on remand, given that this accounted for close to a third of the prison population in October 2024. Readers are advised to consider the theme Reduce the use of remand in Chapter 4: Bail and remand for respondents’ views on this.
• Taking bolder steps to ensure action and using custody as an absolute last resort, where offences are so serious that no other form of punishment will do and for those who present a threat of serious harm to the public.
• Capping prison numbers.
• Introducing measures to avoid short custodial sentences, such as:
• Introducing a policy where any sentence of 12 months or less is automatically suspended with conditions (Recommendation 15). It was highlighted that suspended sentences, as used in England, had shown positive results in relation to reduced reoffending compared to both custodial sentences and other community disposals.
• Releasing people under licence conditions and directing them to support services, with provisions around risk assessment, conditional release and compulsory post-release supervision arrangements for those serving two years or more.
• Extending the presumption of liberty for women to men and young people.

“The Scottish Government should do more to counter inaccurate media reporting and should robustly challenge the lauding and sensationalising of ‘a-typical’ high-profile individual cases.” - Howard League Scotland

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

Address structural barriers

Some respondents suggested the need to address systemic or structural barriers to implementing change within the criminal justice system, though they tended not to link these to specific McLeish report recommendations. Issues highlighted were often reflected in other questions, but they included fragmented funding, short-term pilots, workforce capacity issues, addressing system delays, and protecting vulnerable people.

Suggestions for improvement included:

• A few respondents felt there should be clearer accountability structures in place, either to track progress in penal reform, outcomes of people involved in the criminal justice system, or judicial decision-making, including assessors. One noted that Recommendation 9 to set up a National Community Justice Council was not implemented and suggested that consideration should be given to which national body Justice Social Work is accountable.
• Reforms to improve system planning, data sharing and communication. One suggestion was for third sector providers to be involved in all planning processes.
• To involve national bodies in strategic policy discussions at an early stage, for instance, to ensure learning from scrutiny activity shapes the development of policy and practice, and that future scrutiny, assurance and improvement approaches are considered and embedded within plans from the outset.
• Involving people with lived experience in policy making.
• Upgrade Community Justice Scotland's powers and influence, for instance, to the level conferred on the Scottish Prison Service.
• More effective leadership from services such as Police Scotland, Justice Social Work and the Scottish Prison Service.
• Longer-term strategic planning, with associated budgets, which could support staff retention and improved service planning.

“There was also a feeling that lived experience is so valuable for those involved in the criminal justice system, and more recognition and utilisation of this could bring many benefits to not only the individuals in the system, but also their families, and the wider community.” - Scottish Recovery Consortium

“We are still seeing individuals subjected to a raft of arbitrary interventions and ultra vires^[11] demands that are neither necessary nor proportionate. A central issue here is the lack of accountability - evident in the significant difficulty people face when trying to obtain any justification for the requirements imposed upon them.” - Next Chapter Scotland

More effective support

The need for better support for people involved in the criminal justice system was highlighted by some respondents. While this relates to certain McLeish report recommendations, such as Recommendations 18, 19, 20 and 22, these were not specified within respondents’ comments. The issues raised aligned with those described elsewhere in this report, such as a few respondents who highlighted the need for improved mental health support or to address housing needs, support to address substance use or the lack of rehabilitation options (see Chapter 6: Implementation of recommendations), the need for more secure care alternatives, better support in prisons, and the need to address causes of offending (see Chapter 5: Release from custody). More joined-up services and multi-agency working were recommended by a few as an element of improved support for people, particularly those with complex needs (see ‘The need for improved multi-agency working’ in Chapter 2: Overarching themes).

“A national infrastructure for delivering consistent, trauma-informed, and integrated justice responses - including housing and health - is required.” - Stirling Community Justice Partnership

Use certain court approaches

A few respondents expressed positive views about progress courts for those on community sentences, and felt their use should be increased, as suggested in Recommendation 13 of the McLeish report. These were viewed as a way to ensure regular review of progress and compliance with community sentences and deal robustly with non-compliance. One respondent suggested these could be completed on a digital platform.

Other respondents commented on other forms of court that could be useful, including the roll out of youth courts, problem-solving courts, or 6 or 7-day custody courts that were considered especially useful for people in police custody awaiting appearance at court.

“Establishment of progress courts that enable swift and regular review of progress and compliance with community sentences - and deal robustly with offenders who do not pay back. This is similar to the problem-solving court model that has been successfully used in Glasgow. It would be beneficial to roll out this model further.” - Community Justice Glasgow

“Increased use of Court Reviews to assess progress – realistic expectations using the different requirements, notably around the Offensive Weapons Act [2019].” - East Lothian Community Justice Group

Consider community sentencing options

Comments on community sentences were noted by a few respondents at Q4. These views included that an increasing number of community disposals were being used, and this was welcomed, and that more preventative measures may be possible, such as diversion from prosecution. Three respondents commented on Home Detention Curfew, with two supporting its continued use, for instance, as it had been refreshed since the McLeish report, while one opposed its continued use.

Areas for further improvement, not covered elsewhere in this report, included:

• As per Recommendation 12, developing a three-stage approach to community sentences and their management: 1) how much payback? 2) what type of payback? and 3) checking progress and payback. This was felt to result in a more person-centred approach and better update of different CPO requirements.
• Consider the use of community sentences for more serious offences, making more use of the range of requirements available, targeting the causes of offences, and focusing on rehabilitation.

Youth and women’s justice

A few respondents highlighted issues relating to youth and women's justice. For instance, there is a need to ensure children’s rights are upheld with concerted efforts to reduce their overcriminalisation or detention, or reflect on the extent to which progress has been made to implement recommendations of the Commission on Women’s Offenders 2012 report. One respondent highlighted that women aged 31-40 show a marked increase in the number of reconvictions per offender between 1997/98 and 2020/21 cohorts, in contrast with the overall decline in this measure.