Presumption against short sentences to extend to 12 months despite concerns

Ash Denham

The existing presumption against short prison sentences will be extended from three to 12 months and come into force this summer, subject to the approval of the Scottish Parliament.

People released from a custodial sentence of 12 months or less are reconvicted nearly twice as often as those sentenced to serve a Community Payback Order (CPO), the government said.

Lawyers, however, have expressed misgivings about the plans to extend the presumption.

Defence solicitor Robert More, of More & Co, told Scottish Legal News earlier this year that in many cases the presumption will effectively extend to sentences of up to 18 months.

Courts must factor in an offender’s guilty plea and when it was tendered when determining a sentence. This usually results in a reduction of the sentence and, where the guilty plea is tendered at the earliest opportunity, the sentence is reduced by a third.

He said at the time: “Where an accused person pleads guilty immediately and the court takes the view that the crime or offence should properly attract a sentence of 18 months’ imprisonment, it can be expected that such a case will now attract the presumption against sentences of 12 months or less.”

Mr More described a further, “catastrophic effect” the extension of the presumption will have on criminal legal aid – it will ultimately reduce the number of criminal legal aid solicitors as the volume of summary business declines, which means there will be fewer such lawyers able to serve other accused persons, limiting access to justice.

Community safety minister Ash Denham said: “We have made clear that the presumption is not a ban and its extension will not abolish short prison sentences. Clearly prison remains the right option for those who pose a serious risk to public safety and sentencing decisions will remain a matter for the independent judiciary. However, we want to ensure courts consider the most appropriate sentence in all cases and imprison people only when there is no suitable alternative.

“Disruptive and counterproductive short prison sentences often lead to homelessness, unemployment and family breakdown – making it harder for people to reintegrate on release and increasing the likelihood that they will be drawn into a cycle of offending.

“The introduction of a presumption against sentences of three months or less and use of CPOs since their introduction in 2011 have, alongside other reforms, helped achieve a 19-year low in reconviction rates. Evidence shows alternatives to custody are more successful in supporting rehabilitation and preventing reoffending, ultimately leading to fewer victims and safer communities.”

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