Scottish Penal Reform since Devolution: Reflections and Prospects for Change

By Dr Katrina Morrison, Lecturer in Criminology at Edinburgh Napier University and Board Member at Howard League Scotland

The 20^th anniversary of the opening of the Scottish Parliament allows us to pause and reflect on the progress of penal reform in this time. While criminal justice was under the jurisdiction of Scottish administrative structures prior to devolution, the establishment of the Scottish Parliament created policy instruments which could enable more radical change, and the political and civic arena in which to affect them.

Assessing anything, including penal reform, is ultimately a comparative endeavour, everything is relative. In Scotland, our inevitable comparison is with England and Wales, where we like to compare ourselves (often favourably). We do much less comparison with Northern Ireland or the Republic of Ireland, our Celtic neighbours, or with mainland Europe – we know many of the same assessments we make of ourselves would be less favourable if we did, whether in rates of imprisonment (that most dominant penal metric), or in numbers under penal supervision, a less visible, yet still powerful indictor of Scotland’s approach to punishment. Whilst not ignoring the perhaps justifiable comparison with England and Wales given geographical proximity and shared histories, we could be more ambitious and seek a different measuring rod in our efforts of comparative analysis.

What assessment can we make around Scottish penal reform over the past 20 years?

Over the past twenty years, Scotland can rightfully be proud of:

• The Whole System Approach, which has diverted young people out of the justice system, though gaps between policy and practice remain.
• The fact that statutory probation continues to be delivered by qualified social workers, with an emphasis on collaboration with the third sector – much celebrated (certainly when viewed in comparison with marketisation and decimation of probation in England). However, community sanctions continue to struggle to position themselves as an alternative to imprisonment – within parts of the Scottish legal community, the belief that prison is only used when no other sentence is considered appropriate, continues, despite the best efforts of organisations including Community Justice Scotland to change these perceptions.
• Commitments for a new prison estate for women in custody, Community Custody Units (CCUs), which are small, community facing, and designed to look and feel like domestic accommodation, rather than a prison. The decision to build CCUs follows a 2015 Scottish Government decision not to proceed with a large single prison for women following a sustained campaign by women’s and penal reform organisations.

The proposed Community Custodial Unit for women in Maryhill, Glasgow

• The move to a human rights based prison inspection and monitoring, in which human rights based standards and quality indicators are now used to assess the standards of prisons in Scotland.
• A political declaration that our prison population levels are too high , and legislation to encourage a reduction in the use of short prison sentences.
• After a significant period of Scottish Government disagreement that people in custody should have the right to vote, (decisions taken for purely political rather than moral reasons), the Scottish Government have finally proposed that those serving short sentences (4 years or less) should be able to vote in local and Scottish elections.

• The development of problem-solving justice in particular for young people, women, repeat offending, domestic abuse, and alcohol abuse, with a recent evaluation showing just how successful such approaches can be.

Whilst we in Scotland can rightly celebrate these developments, we must also recognise the limits to more radical and progressive reforms over this time, including:

• Most pressingly, the growth in the prison population which now stands at rates last seen in 2012.  It would be easy to point to the criminal justice arrangements which have given rise to this (including use of remand, end of automatic early release, reduction in HDC, increase in length of longer sentences), but there is a cultural context in which this is sustained and legitimated, which should also not be forgotten.
• Punishment continues to be used disproportionately for the most disadvantaged in society – on this issue, failings in the CJS come at the end of a very long train of other social and public failures. Though there are things which can be addressed within the criminal justice system to alleviate this, for example, providing access to justice through access to legal aid, we need to look beyond the criminal justice system to the wider welfare state and consider bigger questions about the society in which we live.

Table from Howard League Scotland’s article; Critical Issues Critical Issues in Scottish Penal Policy: Inequality & Imprisonment, published Sept 2018

• Over the past 20 years, some groups have been considered more ‘worthy’ of reform than others. Whilst penal reforms for young people and women are certainly welcome and it may indeed be true that these groups have particular needs and routes in and out of the system, the biggest demographic in custody (men with an average age of 33) also have significant prior experiences of exposure to violence, victimisation, and experiences of care as a child. Yet the calls for reform for these groups is far less frequently heard (with the possible exception of the ACEs agenda, though its application within criminal justice has prompted some critical concern). The partial focus of penal reform on women and young people is illustrated, for example, by the fact that the creation of the Community Justice Units and the reversal of the decision to build HMP Inverclyde, is unlikely to be repeated in the male estate, with the proposals for a new large prison to replace HMP Barlinnie.
• Some reforms are piecemeal and contradictory. For example,
  • The plans around reforms of the women’s estate are predicated on a female prison population very much smaller than the size that it currently is.
  • Scotland recently raised the age of criminal responsibility from a shamefully low 8 to 12 (still below the lowest age of 14 recommended by the UNCRC), yet a High Court judge chose to lift the anonymity given to a 16 year old (still a child) convicted of murder – a practice out of step with how children are treated on mainland Europe, and a decision which seems to be of interest to the public, rather than in the public interest.

These examples are by no means exhaustive, but reflect some key issues captured from my viewpoint (as someone who has worked in universities, criminal justice and in penal reform), which represent both developments of which we can be rightly proud in Scotland, and also the distance we still have to travel. What then does this mean for the prospects for penal reform in Scotland over the next 20 years and beyond? I think we need to be looking at reform which is both top-down, and bottom-up, and also somewhere in between.

First, as we have seen, difficult decisions on penal reform can be taken by political leaders, or by senior people working in the system and in this sense, reform can indeed be ‘top-down’. Take the example of the Whole System Approach which has contributed to the significant reduction of young people involved in the justice system in Scotland through diversion from prosecution, or changes to Stop and Search following the exposure of Police Scotland’s use of these practices, or the recent consultation on prisoner voting which demonstrates the real possibility that the Scottish Government will finally comply with ECHR ruling on this topic. Though it has been recently argued that there are limits to the change of front-line practices as a result of political action, the examples above would suggest these can have some impact. The constitution of the Scottish Parliament allows for a more consensual style of policy-making, which, it has been argued, supports a more moderate approach to penal policy-making, and at this very moment, all Scottish political parties (bar the Conservatives) seem in favour of nudging penal reform in a more progressive direction.

Current political party composition of Scottish Parliament

However, we cannot rely on change as a result of political action alone, there is a socio-cultural context which sustains Scotland’s penal approach which must also be addressed.  Despite concern over the way we punish in Scotland for many years, ‘policy fixes’ have so far not had the traction we would hope. Perhaps this could be because the story Scottish people tell themselves about who they are, and the values they hold, is not always reflected in the data we have about the way Scottish people feel about a range of social issues. In 2015, difference in views between Scotland and England and Wales towards free tuition fees and the EU were much less marked than one might think, and in 2018, social attitude data also revealed that views towards immigration were very similar in both Scotland and England and Wales (though views were translated into different voting preferences). In relation to views on crime and justice, the latest Scottish Crime and Justice Survey showed that nearly 75% of the representative sample of the Scottish population did not know ‘very much’ or ‘anything at all’ about the criminal justice system. Despite this, 75% of those surveyed also felt either confident or very confident in the delivery of criminal justice across a range of indicators, an opinion which did not change much between victims and non-victims. Data showed that the public believed that support should be provided to people in prison to assist with later reintegration, but only 53% agreed that only those who commit the most serious crimes should be in prison. These are indicators that with careful conversations, and the right information, public opinion can be led to think about punishment in a different way than one might first think when reading some of the more sensationalist headlines.

How then can the cultural context in which the penal system operates be shaped, in order that positive changes in practice and outcomes be realised? Possibilities might lie in attempts to engage citizens more deeply in conversations about crime, punishment, and more broadly, in social justice. Such work was undertaken as part of the ‘Creating Spaces for Change’ project, described as ‘part knowledge exchange, part social experiment’, which sought to capitalise on increased civic engagement in Scotland in the wake of the 2014 independence referendum, a project which resulted in a range of collaborative initiatives, dialogues around justice and influence on practice. However, the very ‘success’ or progress realised through such projects is difficult to measure according to conventual methods of evaluation.  Nonetheless, such an approach may have traction in Scotland at this moment: there is an appetite for deliberative dialogue to facilitate better Scottish public policy reform, and the commitment to more participatory means of civic engagement has been further strengthened in the recent announcement for Scotland’s first ever Citizens Assembly which will focus on the future of Scotland. There is no reason that conversations around crime, punishment and citizenship, cannot be included into those processes. This could compliment other smaller scale means of engaging with the public around these questions which have recently been launched, including efforts by the Scottish Sentencing Council, Community Justice Scotland, and Release Scotland. Other recent initiatives seeking to engage civic society around justice reform employ more creative methods, such as Distant Voices, a song-writing project involving groups of people with convictions, criminal justice staff, victims, academics, artists and musicians, and families affected by imprisonment, or A Life in Pieces , a graphic novel which conveys routes into custody and the experiences of punishment to different audiences.

Sustained progressive penal change lies in a range of different factors, both within, and out with the criminal justice system. For example, Finland succeeded in radically changing the way it uses imprisonment in the 20th Century by legal and sentencing reform which was also enabled by becoming part of the Nordic welfare model and building a political consensus for change involving criminal justice elites, sentencers and experts. However, there was also a cultural context, including a moderate media, which facilitated this too. In Scotland, we need both changes to law and policy around punishment, but also attention to wider questions around welfare and support, and finally also more deliberate and deliberative efforts at changing the cultural context in which these all occur. Devolution is still in its infancy, and the political sphere is maturing after initial haste and impatience in reform across a range of areas including criminal justice. There is much that be achieved by politicians and policy-makers in this moment of Scottish history, but solutions to the problems of Scotland’s enduring approaches to punishment lie outside the political sphere as well. The growing confidence of Scotland as a nation, both civically and politically, provide the space and incentives to enable a different approach (in: rhetoric, policy, values, and ultimately, in practices and experiences) to the way we respond to harm in Scotland.

Katrina is a part-time lecturer in criminology at Edinburgh Napier, where she has been since December 2012.
https://www.napier.ac.uk/people/katrina-morrison