Douglas J. Cusine: Finding alternatives to custodial sentences ‘not an easy task’

Douglas J. Cusine: Finding alternatives to custodial sentences 'not an easy task'

Justice Secretary Keith Brown’s wish to find “credible and consistent” alternatives to a custodial sentence is laudable. That said, finding these is not an easy task, nor can it be done without substantial and long-term investment – something which many governments do not espouse, because the outcomes may not be tangible by the next election.

While this is not the place to discuss the efficacy or otherwise of short prison sentences, they are used, in the main, in summary cases which are, by a long way, the most frequent type of criminal case. Apart from the existing legislative conditions which must be met before a prison sentence is imposed, in summary cases, it is highly likely that the first custodial sentence will be imposed, only after community-based disposals will have been tried, frequently many times. These would include things like deferrals for good behaviour, fines (often not paid) restriction of liberty orders, community payback orders, drug testing and treatment orders.

Before imposing a custodial sentence on a first offender, or a person under 21, the court is obliged to obtain a background report. It is not uncommon to find that offender comes from what, in the past, might have been described as a “broken home”, that few, if any qualifications were gained at school, (some cannot read, or write) that there has been a dependence on alcohol and or drugs from an early age – 12 is not uncommon – and in some cases, low-level mental health issues associated with cannabis or other illegal drugs. While not every offender’s background report will disclose this litany of “issues”, it is not uncommon to find them all in one person.

Let us assume that the court is persuaded to go down the route of a community payback order. The offender will be supervised by social workers who are employed by the local authority. In my experience, these social workers try very hard in difficult circumstances to steer those they supervise away from crime. The problem for the social worker is that no one person is trained to deal with someone whose home life is not good, who cannot read or write, and who has, say, an addiction to alcohol. Clearly, to address these issues requires the involvement of a number of professionals, not just social workers, and at a cost. Offenders with these issues are often also a demand on the NHS, and even if they are not, their victim may require medical, or other professional input.

Again, this is not a criticism of social workers, but at best, they will see the offender once per month, and they have no control over what the offender does in the interim. It may not be the case now, but if a community payback order included a condition of unpaid work, the offender would not be allocated to do work which the local authority itself should do, even if accepted that it did not have the resources. For example, an offender might be a painter, but work on a local authority school’s railing would not be permitted. Thus, in many instances, offenders worked in charity shops, or stacked shelves in a local supermarket. That may still be so.

Given the number of “issues” facing many offenders that community-based disposals cannot, at present, address, it is hardly surprising that in the past at least, community-based disposals did not wean the offender off crime, and if every such disposal has been tried, and often, it is no surprise that the offender will end up in prison, or back in prison because everything else had been tried and did not work. Short prison sentences cannot address these problems either and are not designed to do so, but are, in most instances, imposed just to give the public a bit of respite. The respite will not be for long, because even a sentence of 12 months could be reduced as a result of an early guilty plea and time spent on remand, and that ignores the powers which prison governors have to release offenders earlier than the dates on which the sentences would normally expire. No one, in any event, would serve the whole 12 months imposed.

There is an understandable ground swell of opinion that short prison sentences should be avoided. I have no problem with that, but the public are entitled to be assured that their safety and the integrity of their homes and businesses are protected and they will feel that way only if the alternatives to prison are effective in averting the offender, or more offenders, from a life of crime, or to use the Justice Secretary’s own words “credible and consistent”. At the risk of repetition, there is a lot to be gained from attending courts to get a clearer idea of the issues which offenders face and the realities facing those who have to sentence them. (Sometimes, the sentence will be “the least inappropriate”.)

Apart from mere observing, many procurators fiscal and defence solicitors will be willing to answer questions posed by those who have a genuine wish to be better informed. Any research, or inquiry carried out without that experience is much less valuable than it could be.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.

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