1st March 2018

By Hannah Graham

The Management of Offenders (Scotland) Bill has been introduced to the Scottish Parliament by Justice Secretary Michael Matheson. What are the Scottish Government proposing in this Bill and why? Dr Hannah Graham, an SCCJR criminologist at Stirling University, provides an overview.

What the Bill proposes
The 42-page Management of Offenders (Scotland) Bill covers three key areas: more electronic monitoring (EM) of offenders (and more strategic uses of it), reduced disclosure times for past criminal convictions, and more modern fit-for-purpose Parole Board processes.

Key Scottish Government proposals in the Management of Offenders (Scotland) Bill include:

1. Introducing new technologies such as location monitoring through GPS tagging and tracking, or alcohol monitoring tags to detect alcohol consumption through sweat on skin. These new technologies would complement, but not replace existing tagging technology and home curfews, and people will need to continue to give their consent to be electronically monitored.

2. Adding the option of a restricted movement requirement (using EM) which could be imposed by the judiciary within a Community Payback Order (CPO) (a requirement that’s currently only available if a CPO is breached). This is a significant addition that could see uses of EM increase, as CPOs are among the most community sentences in Scotland, with 19,100 CPOs imposed last year, as well as increased likelihood of criminal justice social workers doing more suitability assessments and supervising more monitored people.

3. Letting Scottish prisons use EM as a condition of temporary release from prison.

4. Giving Scottish Ministers powers to make changes to electronic monitoring in the future, including: the power to amend or vary the list of order types or disposals in which EM can be imposed, and the power to introduce new EM technologies in future.

5. Changing the Rehabilitation of Offenders Act (1974) to reduce time periods for disclosure of convictions. This proposal will likely mean swifter recognition of rehabilitation and less disclosures made. Employers will still be able to be told about convictions that are recent and relevant, and the system of high level disclosures is not affected by this Bill.

6. Introducing disclosure periods for custodial sentences between 30 to 48 months, after which they can become spent convictions. Currently, custodial sentences over 30 months cannot become spent convictions, meaning they always have to be disclosed. Disclosures and post-release reintegration and employment prospects are not unaffected by a trend towards longer prison sentences in Scotland: new figures show the average length of custodial sentence handed down by the Scottish judiciary has increased by 26% over the last decade.

7. Removing the requirement that a High Court judge and a registered medical practitioner who is a psychiatrist be among Parole Board for Scotland members. The Bill also proposes other changes to Parole Board processes.

The Bill’s policy objectives and Justice Secretary Michael Matheson’s press release emphasise: public safety and reassuring and protecting victims of crime; reducing conviction disclosure periods as a common barrier to employment and reintegration; and themes of modernisation and advancing ambitious and progressive justice reforms.

These mooted reforms have been years in the making. Public consultations and analysis of responses regarding these three areas have spanned the last five years or so. The policy objectives of this Bill broadly reflect the recommendations of the Expert Working Group on Electronic Monitoring (2014-2016). There have also been major research reports and recommendations made by researchers in the Scottish Centre for Crime and Justice Research (SCCJR) on electronic monitoring, and the Rehabilitation of Offenders Act (1974) and employment and employability (see Graham and McIvor, 2015 and 2017; McIvor and Graham, 2016; McGuinness, McNeill and Armstrong, 2013; and Piacentini, Weaver and Jardine, 2018).

Why introduce this Bill? Rationales behind the reforms

Why introduce this Bill? It seems to be anchored in a few lines of rationale.

This Bill is relevant to a fair swathe of the population. An estimated 1 in 3 men and 1 in 10 women in Scotland have at least one criminal conviction. Disclosure can substantially affect prospects of getting a job, education or volunteering, as well as getting a bank account or insurance. SCCJR research shows that employment is one of the most strongly correlated predictors of reduced reoffending, and it can be a positive factor in desistance processes of leaving crime behind.

The Scottish Government aptly argue that ‘reforms of the disclosure periods should be seen as a social justice issue as well as a criminal justice issue.’ Reducing disclosure times and allowing custodial sentences up to four years to eventually become spent convictions (rather than disclosure forever, whether it’s relevant or not) is a pragmatic way to recognise rehabilitation and try to reduce these barriers to reintegration.
There’s a compelling need to reduce persistently high rates of imprisonment in Scotland, and use community-based options to seek more diversion from prison and decarceration. The Government are framing the proposed legislation to expand uses of electronic monitoring as one approach (among others) to seek to do this.

Tagging is less costly than imprisonment, and this may prove a persuasive political motivator to embrace more uses of it in times of austerity. Any discussions of money must be tempered by earnest reflection on privatisation and the probable prospect of more electronic monitoring in Scotland meaning more public funds being awarded to private companies subcontracted to deliver EM services.

A refreshing feature in early discussions so far has been an emphasis on victims of crime as well as families of offenders, who do not always feature in policy, media or societal debates about the management of offenders and, if they do, they can sometimes be caricatured in populist and homogenising ways. Future decisions on whether or not to use EM and, if so, what type will need to continue to rely on skilful suitability assessments.

Nancy Loucks, Chief Executive of the charity Families Outside, has welcomed the Bill and the prospect of increased uses of EM, saying “prison fractures families, whereas with the right support in place, electronic monitoring can keep families together.” Loucks’ comments echo discussions of family perspectives of electronic monitoring which she co-facilitated at the Scottish Parliament Cross-Party Group on Families Affected by Imprisonment. Families and victims need to be considered, alongside offenders, practitioners and communities in this policy debate, as all are affected, and for whom this Bill (and any amendments to it) needs to carefully balance interests and rights.

Dr Hannah Graham is a Lecturer in Criminology in the Scottish Centre for Crime and Justice Research, Faculty of Social Sciences at the University of Stirling.
Twitter: @DrHannahGraham

Image kindly provided by Hannah Graham