Short-term prisoner release point: responses to targeted consultation

Response from Edinburgh Health and Social Care Partnership / City of Edinburgh Council’s Adult and Young People’s Justice Services

Question 1: What are your views on changing the release point for certain short-term prisoners to 30%?

We consider that the number of people being sent to prison to serve a short-term sentence is too high therefore agree with releasing some of those individuals earlier however, there are concerns relating to unintended consequences which are set out below.

Planning for release and access to supports

There are concerns in relation to those who need to access supports while in custody; the proposal will mean a shorter time frame in which to organise assessments and implement appropriate interventions. The time pressure may result in individuals not getting the support they need, which may include a package of care and/or support that may be difficult to resource within a short time frame. This is particularly relevant for those with an alcohol and/or drug dependency who start on a recovery programme in prison and are released a short time afterwards before achieving stability. Ideally, those individuals are picked up and channelled into recovery supports on release however securing the right supports at the right time within such a short time frame presents additional challenges and successive transitions are likely to increase vulnerability and uncertainty for this group. For some vulnerable individuals with chaotic lifestyles, for example, the care experienced who struggle with adapting to adult life, prison represents a safer haven and short-term accommodation security, and in the absence of a deterrent, petty crime is a realistic option to secure an element of stability. The proposal to change the release point may result in an unintended increase in petty crime with some adults seeking this outcome.

Short term sentences can create significant disruption to treatment plans, accommodation, family relationships, employment, and financial stability. For those on remand subsequently sentenced to a short-term sentence, there may be immediate release after a court appearance due to time already spent in custody. This process affords little to no time for support planning to address the aforementioned issues and an unexpected release can place additional pressures on services where particular family vulnerabilities and/or child protection concerns apply. The revolving door of prison and community, and lack of ability to plan for an individual’s release undermines the work of justice services and causes the most vulnerable to lose faith in the system and its ability to get them the support they need.

Engagement with sentencers

There are concerns that sentencers will compensate for the new release point by increasing sentence length. Additionally, for many individuals, Justice Social Work recommend credible alternatives to prison however those are not accepted and sentencers hand down short-term sentences. We consider that the preferred approach to reducing the prison population would be to engage with sentencers to reduce both the number of people given a short-term sentence, and the remand population.

Public perception

The general public’s perception of the justice system is likely to be negatively impacted, not only by the proposed change but by the repeated use of the Emergency Early Release (EER) Scheme. Similarly, survivors, victims, and victim’s organisations’ confidence in justice more widely is likely to be reduced. There is concern that trust in the justice system overall is eroding and that this lack of confidence may begin to extend to community sentences and interventions.

Question 2: What are your views on excluding those serving sentences for domestic abuse and sexual offences?

We agree that those groups should be excluded from the proposed change in the interests of safeguarding, justice, and to preserve the credibility of the system for the general public and victims. Prison should be reserved for those who present a risk of harm; this approach allows for more opportunity to address the offending behaviour while individuals are custody.

Question 3: What are your views on making equivalent changes for children detained in secure accommodation?

Our current experience is that most of the Edinburgh children in secure care are placed there via the courts and not the children’s hearing system. This makes sense given we should only be depriving children of their liberty in the most serious of circumstances and these are often the cases retained by the Procurator Fiscal and usually under solemn proceedings.

Given the purpose of the proposed changes to early release is to reduce the pressure within the prison estate, we would note that there is not the same pressure currently on secure accommodation placement availability (though there have been capacity issues within the last 18 months). That said, we would agree with the Social Work Scotland view that from an equalities perspective we should not be treating children more harshly than adults therefore the changes should apply to both equally.

The length of time that children are on remand is a current concern for us and our view is that if children’s cases progressed through court more quickly this would ultimately be more beneficial than reducing the length of time served on a custodial sentence. We have had a number of children who have been on remand for significant periods of time who have had to move into a YOI on their 18th birthday when, had they been to court already, it may have been possible to avoid this entirely.

One important point that separates children from adults is that, under s7(1)(a) Prisoners and Criminal Proceedings (Scotland) Act 1993

Children detained in solemn proceedings.

(1)Where a child is detained under [section 208]^[12] of the [1995 Act]^[13] (detention of children convicted on indictment) and the period specified in the sentence—

(a)is less than four years, he shall be released on licence by the Secretary of State as soon as (following commencement of the sentence) [the period mentioned in subsection (1ZA)]^[14] has elapsed;….

This legislation does not appear to be well known (probably because most children serving custodial sentences are not released prior to their 18th birthdays). Challenges may arise for example, where justice social work recommend a community sentence but instead an individual is sentenced to custody and released immediately on license due to time spent on remand. This leaves little time to put appropriate arrangements in place e.g. completing a Home Background Report (HBR) and with earlier release dates the possibility of this occurring does increase and poses challenges to staff. Justice social work therefore requires further clarification and would welcome the opportunity to discuss the proposal’s implications prior to any changes being implemented. With a reduction in time spent in custody this issue may begin to apply to more children if they are released prior to their 18th birthdays. I don’t think the pending changes being brought in by the Care and Justice Act Scotland 2024 will impact this but it would be good to have some further clarity on this point if that’s available.

A final point- transition planning for young people returning to the community from custody can often be challenging and robust planning will need to be in place to support early release- anything that reduces the amount of time available to plan and make arrangements for a child (particularly around onward accommodation) could result in more difficult transitions. When remands are taken into account, this could leave very little time for planning. While we wholeheartedly agree that children should be detained for the shortest time possible, the challenges of making transition arrangements in very short timescales, and the impact of this not being done well cannot be discounted.

Question 4: What are your views on the changes applying to short-term prisoners serving sentence for fine defaults and contempt of court?

We consider that in most cases people should not be sent to prison for fine defaults. In many cases, those individuals live in poverty, are unable to make payments and the cost of imprisonment is disproportionate to any amounts recovered. A preferred option would be to utilise Fiscal Work Orders. Fine default sentences should be reserved for particularly high value, serious cases and for those relating to the proceeds of crime.

Question 5: What are your views on the proposed transitional approach to initial releases?

A phased approach is supported particularly if justice services will be asked to provide feedback in relation to risk prior to release; should those checks be required justice services would need additional resource going forward.

Question 6: Do you have any other comments

The following comments from housing colleagues relate to housing issues for people being released from a short sentence.

It would be helpful to review the process relating to housing for individuals serving a short-term sentence and to try to implement a more coherent procedure with locality housing on what to do with tenancies for those going into prison.

Currently, a case by case basis is employed. However, if people are only serving 30% of sentences it is still likely that Universal Credit housing costs will stop (this applies to any sentences over 6 months) but in reality, the tenant will be released likely within 6/9/12 months. In those circumstances it does not make sense to encourage people to terminate their tenancy, as this in turn puts more pressure/costs on homeless services.

Rather a sensible approach would be for their tenancies to be kept open with arrangements made to have costs covered. In practice, some tenancies might need to be terminated depending on the offence and where other issues apply such as antisocial behaviour and rent arrears, but robust arrangements need to be developed in order to support a consistent approach for people whose tenancies could be at risk upon detention.

There should also be scope to exclude certain drugs offences e.g. supply, from the proposed early release changes.

There is also concern that as this proposal will result in around 200-300 people being released; even if sustained, this number is insufficient to prevent the prison population from returning to crisis levels, particularly as the measure is being introduced immediately after 3 rounds of EER.