The Scottish Journal of Criminal Justice Studies

The Journal of the Scottish Association for the Study of Delinquency

Editor Jason Ditton Scottish Centre for Criminology, First Floor, 19 Kelvinside Gardens East, Glasgow, G20 6BE Tel: 0141-946 4325 Email: [email protected]

Assistant Editor Michele Burman Sociology Department, Glasgow University, Adam Smith Building, Glasgow G12 8RT Tel: 0141-330 6983 Email: [email protected]

Volume 9, July, 2003.

1 2 EDITORIAL

This is the ninth volume of the Scottish Journal of Criminal Justice Studies.

In this issue, our branch generated article was initially aired at a meeting of the Edinburgh Branch in March, 2003.

For the first time in this volume, we reprint the content of posters that were on display at the Annual Conference.

In the final section, we reprint a note on the Objects and Membership of SASD, list the Associations’ Office Bearers and Branch Secretaries and add a note on how to start a new Branch.

In future volumes of the Journal, I hope to continue to publish as articles those papers presented at Branch Meetings or Day Conferences that Branch Secretaries think are worth offering to a wider audience. Original articles will also be considered for publication. There is no copy deadline. Branch Secretaries are invited to send suitable articles to me (in Word 2000 Ð or earlier versions - or in .rtf format) by attaching them to an email to me.

Jason Ditton

3 4 CONTENTS Page Editorial ...... 3

Keynote Article By Richard Simpson, MSP, Deputy Minister for Justice ...... 7

Conference Report “Sentencing” SASD’s 33rd Annual Conference. Conference Report by Carolyn McLeod ...... 19 “Sentencing fundamentals and the impact of Europe” by Nicky Padfield, Institute of Criminology, University of Cambridge...... 30 “What do the Scottish public think about sentencing and punishment?” by Neil Hutton, Centre for Sentencing Research, University of Strathclyde...... 41 “Drug Courts – The Scottish experience” by Sheriff Michael O’Grady ...... 55

Conference Posters ...... 69

Branch Generated Article “The Employability needs of young offenders”, by Bernadette Monaghan, Director of Apex Scotland ...... 78

Original Article “Worry about housebreaking: Is it affected by employment status?” by Jason Ditton, Director of the Scottish Centre for Criminology ...... 96

Book Reviews The Ferris Conspiracy Reviewed by Pat Quinn...... 100 Indictment: Trial by Fire, The Ferris Conspiracy, Deadly Divisions and Glasgow’s Hard Men Reviewed by Hazel Croall...... 104 A Human Rights approach to prison management: Handbook for prison staff Reviewed by Roger Houchin...... 113

Obituary ...... 120

SASD Objects and Membership...... 122 Office Bearers ...... 123 Branch Secretaries ...... 124 Starting a new branch ...... 125

5 6 Keynote Article by

Richard Simpson, MSP, Deputy Minister for Justice

Introduction I intend to cover 4 areas: The philosophy of sentencing. the way that philosophy applies in Scotland today, how the changes we have made and are making to sentencing will contribute to a safer and fairer Scotland, and my vision of where we should be going next.

Philosophy of sentencing Sentencing has never been a simple matter. Humans have realised for thousands of years that sentencing is a balancing act requiring the denunciation of crime, fairness to the individual, meeting the expectations of victims and society, and elements of deterrence, incapacitation and rehabilitation. Different societies have placed more or less emphasis on different aspects. The dilemmas of punishment are articulated in our heritage literature, from the Bible to Dostoevsky. Sometimes it appears that punishment is a metaphysical concept, rather than one which human agencies can achieve. It is bound up with psychological concepts of sin and repentance. This gives our sentencers a hard job and creates high expectations of them to have a God-like wisdom. We legislators try to help them, by prescribing penalties on the statute book and making a range of sentencing options available. But the dilemmas continue, as can be shown in the restless pursuing of new ideas on sentencing in various Western jurisdictions including the USA and our nearer neighbours England and Wales. Part of the driver of change is, in the modern world, cost. The state pays for the administration of penalties which vary greatly in cost. The limited availability of public resources creates one set of tensions. We also expect, nowadays, to live in safe communities, and we expect sentencing practices to contribute to making our community a safer place. At one time the criminal justice system tried to make the world safer by executing lots of

7 criminals, sending them abroad to the colonies, and leaving the rest to moulder away in horrendous prison conditions. The penal reforms of the 19th century changed all that. Obviously we can’t go backwards, but we are still fearful of criminals. The desire for ever more cautious disposals, which incapacitate or severely restrict the liberty of dangerous individuals, creates another set of tensions.

Indeterminate sentencing In an effort to reconcile these different pressures, during most of the 20th Century, a model has prevailed which is sometimes referred to as ‘indeterminate sentencing’. This should not be confused with passing an indeterminate or discretionary life sentence. It is, rather, the system whereby sentences for particular crimes are not prescribed in law. Indeterminate sentencing systems are characterised by multiple, overlapping discretion of prosecutors, judges, corrections agencies, and a parole board. They are premised on the need to make individualised decisions about offenders subject to sentencing and corrections goals that vary from case to case. In some jurisdictions, including Scotland, there have been attempts to nibble away at the edges of indeterminate sentencing by introducing concepts of mandatory minimum sentences, 3 strike rules, and truth in sentencing. B u t indeterminate sentencing regimes remain remarkably robust and the Scottish system is a classic example. It is a gloriously flexible model, allowing a number of different goals of sentencing to be achieved through the decisions of sentencers and the way they are implemented by the prison service, social workers and the voluntary sector. The disadvantages of indeterminate sentencing regimes are that by leaving a great deal to discretion, they may appear to under-emphasise the need for consistency in sentencing. Yet, by giving the offender individualised treatment, they may fail to acknowledge sufficiently the’ expectations of victims and society. This is also something we are grappling with in the Criminal Justice (Scotland) Bill.

Challenges to indeterminate sentencing There are various alternative approaches to sentencing which emphasise particular goals and so appear, superficially, to provide advantages over ‘indeterminate sentencing’. I intend to demonstrate that our current policies, particularly the measures we have already taken in the Scottish Parliament, and those we are taking in the Criminal Justice (Scotland) Bill, can deliver at least some of these goals.

8 ‘Comprehensive structured sentencing’ is an approach which sets sentencing standards for a range of crimes and offences. These standards are often expressed in sentencing guidelines or ranges which may nonetheless allow considerable discretion for sentencers. Such systems often contain concepts such as ‘truth in sentencing’ and may abolish parole, so as to make the meaning of sentences more transparent. Comprehensive structured sentencing has acquired growing popularity in the USA and I sense a move in that direction in England and Wales. I have in mind the Home Secretary’s decision, announced in ‘Justice for All’, to establish a Sentencing Guidelines Council, chaired by the Lord Chief Justice. ‘Justice for All’ also announces the decision in England and Wales to abolish discretionary early release from custody for all but high risk offenders, others serving a year or more being automatically released on licence at the half- way point. We in Scotland have never worried unduly about consistency; believing that in a small jurisdiction with a collegiate High Court, also acting as appeal court, consistency will emerge. Statutory provision exists for judicial sentencing guidelines but this has not really taken off. Nevertheless, periodic attempts are made to raise awareness of the issue, for example through our so-called ‘section 306 publication’. We are also still firmly committed to our Parole Board, and in the Criminal Justice (Scotland) Bill we are removing the last vestiges of political control over its decisions. The move towards ‘community/restorative justice’ is sometimes mentioned as a challenge to ‘indeterminate sentencing’ but my own view is that they are quite compatible. The ‘community/restorative justice’ concept means different things to different people and is at an early stage of development in a number of jurisdictions including Scotland. It can mean anything from a reliance on community correction projects not managed by state agencies or officials, to a radical dismantling of the criminal courts in favour of a more traditional form of justice dispensed within communities and neighbourhoods, sometimes based on age old ethnic practices. The advantage of this kind of approach is that it gives the victim and the community a much more central role, for example in victim/offender mediation and reparation programmes. For this reason, such systems can have a broad appeal. The challenge for us in Government is how to capture the best features of these systems in the existing framework of indeterminate sentencing.

9 We are trying to grasp this challenge in our own way. For example, the Criminal Justice (Scotland) Bill provides for pilots to allow victims to make a statement to court about the personal impact of the crime. This will help to give the victim a more central position in court proceedings. In putting this forward, however, we always stress that victims should and will have no direct say on the sentence. We have also given our backing to restorative justice conferencing as a method of dealing with young offenders who would normally go through the children’s hearing system rather than the courts. And there are schemes within the adults system also. As I shall say later, I think there is room to encapsulate the restorative justice approach in community penalties so as to provide credible alternatives to short periods of custody. But we are a long way from any radical shift away from judicial sentencing to a community/restorative approach across the board. Finally, there are systems, known as ‘comprehensive risk-based systems’, which emphasise public protection through risk assessment and management. This is in some ways a reconceptualisation of ‘indeterminate sentencing’ because it involves the sentencer devising a package of measures around a particular offender, with close supervision and rigorous sanctions for breach. The offender will typically be obliged to observe a set of restrictions, including restrictions on movement, to limit the risk that he poses to particular people, places and communities. Again the challenge for us in Government is how to capture the best features of the risk-based approach in the existing framework. I will come on at the end of my speech to the developments which have taken place and are taking place on risk assessment and minimisation within the penal system.

How the Scottish system measures up Our system is, I think, very good at letting the punishment fit the crime. The Scottish institution of deferred sentence would allow us to follow the Mikado in imposing some very individualised disposals and some sheriffs have done this, although it is not the norm.We respect the independence of the judiciary, and we have been sparing in our use of legislation to limit that discretion. In fact we have done the opposite, we have widened the scope for discretion by providing a whole range of community disposals that can be used in flexible combinations to deal appropriately with a range of crimes and criminals. But the legislature has not prescribed the circumstances for their use, other than providing, in particular cases, that they are direct alternatives to custody.

10 The fine has been eroded as the main penalty of the Scottish courts. It is still the most popular penalty but only covers 65 per cent of all main disposals, compared with 77,010 in 1990. By contrast, the use of other community disposals has increased from 5,010 to 11,010 of main disposals. The bad news is that custody has also increased to 13,010 and I will come on to that later.

Alternatives to custody I agree with Sherlock Holmes when he said in The Blue Carbuncle of the man who got the turkey to swallow the stolen jewel, ‘this fellow will not go wrong again. He is too terribly frightened. Send him to gaol now, and you make him a gaolbird for life.’ Even our Victorian forebears recognised that prison did nothing to rehabilitate offenders who were foolish rather than wicked. For first time or minor offenders a custodial sentence may result in a greater exposure to offending behaviour. For this reason alone we have a responsibility to ensure that minor offenders are not ‘up-tariffed’ into custody through a lack of credible alternatives. Custody is particularly damaging for young people. The reconviction rate for young people is particularly high. A recent SPS study showed that young offenders had a return to custody rate within 2 years of 57% for males and 60% for females. Locking up women, except for the most serious offences, is particularly harmful, as women offenders are particularly vulnerable and may also have family responsibilities which are disrupted by incarceration. For these reasons, we will not cease in our efforts to develop and improve the range of non-custodial options that are available to sentencers. This is not resource-driven, though of course the average cost of a community penalty is considerably lower than that of custody, and our prison numbers stand at a historical high. Despite this, it is not the short sentence population that is driving up the total figure - it is rather the long sentence population and remands. We are doing a great deal of work on why remands are rising and what can be done about it, but that is not what I am here to talk about today. I am not wanting to reduce the short term prison population to save money as we would need to get rid of very large numbers of short sentences before we could close even a hall of a prison or YOI, let alone a whole establishment. It is because I believe short sentences do very little to protect the public either through incapacitation or rehabilitation. I believe this is done at least as well and probably better through non-custodial sentences. Non-custodial sentences are intensive, closely monitored and will address

11 offending patterns and behaviour rather than simply punishing a criminal offence. They are not an easy option. Non-custodial sentences build not only on the skills of professionals, but also on the contribution the voluntary sector can make to the rehabilitation of offenders. The voluntary sector is particularly effective at tapping into the enthusiasm and expertise of ordinary people in the community. We have a number of organisations in Scotland who are committed to getting alongside and working with offenders in a way which is rigorous and challenges offending behaviour while treating the offender with respect as an individual of worth in his or her own right. Probation and even community service have been available for some time. More recently we have introduced a number of additional options. First, for those offenders who commit crime to fund drug misuse we have introduced the Drug Treatment and Testing Order. This is a very intensive disposal for offenders who might otherwise receive a custodial sentence. Preliminary research has already shown that the DTTO is not an easy option for the offender, but it does indeed lead to a reduction in drug use for a good number of those subject to it. DTTOs are available whether or not there is a dedicated drug court, but the drug court provides the additional advantages of preparation before the court process, follow up afterwards, and the involvement of a dedicated team. You will here more about this tomorrow from one of Glasgow’s drug court sheriffs. Second, for fine defaulters who might otherwise go to prison, the Supervised Attendance Order (SAO) has quickly become established as a credible alternative to imprisonment for fine default. Third, we also have Restriction of Liberty Orders which are Electronically Monitored. Following successful pilot schemes in 3 areas, these were rolled out to all courts across Scotland from 1 May 2002. The take up rate has been encouraging and courts are now beginning to show confidence in RLOs as an effective disposal. Provision has been made in the Criminal ]ustice Bill to make them a direct alternative to custody.

Short-term prison sentences Short prison sentences achieve little beyond punishing the offender. Short- term prisoners only serve half of their sentence in prison and someone sentenced to 3 months will serve just over 6 weeks in custody. The shorter the time in prison the less can be done with the offender. Short sentences are therefore ill equipped to tackle the factors underlying criminal behaviour. In

12 addition, they leave too little time for effective interventions/personal change programmes, and even short periods in, prison result in problems of reintegration in the community. There are social costs arising from the considerable disruption to daily life and the effects custody has on employment and families and possible loss of home. There is some statistical evidence to suggest that custody is less effective than community sanctions in terms of an offender’s subsequent convictions. Further, aftercare is not well-developed for this group - leading to an increased risk of re-offending. Short -term prison sentences may also result from exasperation on the part of the sentencer - Are short sentences used when nothing else seems to stop a petty offender from continuing to offend? It is equally frustrating that short- term prison sentences do not appear to work either. They might also stem from a believed need for respite care. A sentencer may on welfare grounds want to offer them a chance to escape, if only temporarily, from their chaotic lifestyles. Short prison sentences may seem to offer good medical care and screening, drug misuse support in terms of detoxification, maintenance and counselling. However this appears to be an argument for better community facilities rather than a custodial sentence. Are short prison sentences efficient? The high volume of short-term prisoners is putting pressure on an already stretched prison system. Efficiency is therefore impaired. Are they cost effective when reconviction rates are worse in comparison to community disposals?

The Way forward ¥ Encourage the increased use of community disposals by providing better information for sentencers on the broad range of disposals, their geographical availability and their effectiveness. ¥ Consider the repeated use, and public acceptance of, community disposals for offenders who are not high risk. ¥ Provide evidence of the effectiveness of community disposals in line with the “What Works” agenda. We are setting up an Accreditation Panel to ensure that intervention meets a rigorous standard and accords with what we know to be effective. We aim to have at least 3 community based accredited programmes in place by 2004. ¥ Increase the use of reparation and restorative justice approaches as a community penalty which will attract public support.

13 ¥ Better thoughcare services based on the recommendations of the Tripartite Group. We need to build a closer partnership between the prisons and criminal justice social work to prepare prisoners for release and to assist their reintegration back into a more stable life style. ¥ Proper weight should be given to the disruption, social and financial effects which short-term prison sentences can cause, and to the wider social costs. Community sentences can be just as, if not more effective, than short -term prison sentences. In the end the decision is for the judiciary, but I would want them to be aware of the limitations which exist to doing anything useful with an offender serving a short sentence and of the possible alternative approaches. This is not an exhortation to hand down longer sentences, but to consider community based alternatives.

Managing risk I have said a great deal about the possibility of developing and building on the community/restorative approach to sentencing. Now I want to move onto the comprehensive risk-based approach as it is developing in Scotland. Much has already been done to develop consistent methods of risk assessment and minimisation within the Scottish Prison Service and within local authorities. The main initiative I want to highlight today is the implementation of Lord MacLeans’s report on Serious Violent and Sexual Offenders in the current Criminal Justice Bill. There are three main elements to the high risk proposals. First, the new lifetime sentence - the order for lifelong restriction. Second, a new public: body - the Risk Management Authority to be expert in the assessment and minimisation of risk. Third, improved arrangements for assessing and minimising the risk posed by high risk offenders with a mental disorder and those found to be insane. The aim of these new arrangements is that after sentencing the risk posed by these offenders is assessed and minimised throughout their lives, whether they are in custody or have been released into the community.

Order for lifelong restriction (OLR) We are proposing to introduce a new sentence - the Order for Lifelong Restriction. This is a lifetime sentence which will comprise a period of imprisonment - the punishment part - set by the court to satisfy the

14 requirements of retribution and deterrence - in common with the arrangements introduced in the Convention Rights (Compliance) (Scotland) Act 2001 for all life sentences - which may, if the offender’s risk is suitably diminished, be followed by release into the community under supervision. It will only be imposed by the High Court, for a sexual, violent or life endangering offence and only where the court decides that the offender is high risk against statutory risk criteria. The court’s decision on whether the offender is high risk is informed by a risk assessment report prepared by a risk assessor accredited by the new public body we propose to set up - the Risk Management Authority. A Risk Management Plan will be prepared for each offender sentenced to an OLR by the lead authority with responsibility for that offender with input from the other agencies involved. For example if the offender is in prison the SPS will be the lead authority. The Risk Management Plan will assess the offender’s risk, what can be done to minimise that risk and the roles of those tasked with managing that risk. Decisions on release of OLR prisoners will be made by the Parole Board taking into account the Risk Management Plan. It can only order release if it is satisfied that the offender does not present an unacceptable risk to the safety of the public. The Risk Management Plan will then be adjusted by the new lead authority to take account of the change of circumstances. Although the number of offenders who will be sentenced to an OLR is likely to be small, these offenders pose a significant risk to the public. Current sentencing options do not provide the level of risk assessment and post release supervision which is required for this group.

Risk Management Authority Along with the sentence we will also set up a new public body - the Risk Management Authority. It will become an expert in the field of assessment and minimisation of risk. It has a number of statutory roles including developing policy, setting standards and issuing guidance, carrying out and monitoring research and carrying out training and education activities. The RMA will also have an operational role in relation to Risk Management Plans for those offenders who are sentenced to an OLR. It will provide support and guidance to the agencies preparing or adjusting Risk Management Plans. It will also approve the plans and will work with agencies to ensure that all the plans meet the necessary standards which they will set. The Bill provides Scottish Ministers with the power to extend this operational role to other categories of offender. These proposals have caused

15 some unease on the part of civil liberties interests, but I think that the unease can be allayed. Firstly an OLR will not be made unless the risk criteria are met, and the test is very high. Secondly, the very offenders who will be in the frame for an OLR in future will be those who may receive a discretionary life sentence at present. The research and evidence based approach to risk management will ensure in future that the decision to impose a life sentence for public protection is well grounded. There will not be a formulaic approach but a careful assessment of the risk factors in each individual case. Thirdly, the requirement to have in place a Risk Management Plan will ensure that the attention of the statutory agencies, and of the offender him or herself, is focused from day 1 on confronting and tackling the offending behaviour. Too often in the past we have seen discretionary life prisoners languish for many years in custody with no attempt made to deal with their offending until the Parole Board came to consider their case. The Government began to change that with the setting up of Discretionary Lifer Tribunals in 1993 and the Scottish Prison Service has improved its arrangements for the management and progression of all life prisoners. But there is still plenty of work to be done. For the future, the need for the lead authority to prepare a Risk Management Plan will drive this work. There will be no option not to have a Plan, and thus the offender’s interests in his or her own rehabilitation and eventual release will be taken into account from day 1 of the sentence.

Where we should be going next I have spoken to you about our existing programmes and policies and now is the time for me to set out my vision of where we should be going next. We must never lose sight of the need to build an inclusive Scotland, where everyone has an opportunity of a good start in life, education, training and employment. We must also continue to fight the war on drugs. All these factors can do much more to reduce crime and empty our courts and prisons than the function of sentencing. But realistically, we cannot achieve utopia and prevent all crime before it starts. Therefore I want to see more work on the risk factors for crime and why a significant proportion of young people growing up with the same risk factors as offenders, nevertheless do not offend. That is a whole subject for another conference.

16 In terms of the criminal justice system itself, I would like to see the use of remand and short sentences greatly reduced. Therefore I am keen to develop an ever-richer network of alternative facilities. I am very enthusiastic about intensive community programmes, about the Timeout Centre, about supported accommodation, and about tailored orders such as the Drug Treatment and Testing Orders. I want to see more widespread and imaginative use of electronic monitoring to restrict the liberty of offenders for the sake of public protection, while work is done to tackle their offending. I also think that electronic monitoring holds out good prospects of reducing the remand population, once the infrastructure is in place. And I also want to see an end to remands and short custodial sentences for women, in favour of a health and welfare driven approach to women’s offending, supported by the legal system.

Conclusion I believe strongly that Scotland has a good criminal justice system and I am proud of the independence and professionalism of our judiciary. Sentencing is a major task for the judiciary and one in which their independence must be respected at all times. But it is also an issue for society generally, and one in which a number of other agencies must assist, support and implement the decisions of the sentencers. I hope I have shown how our system of indeterminate sentencing can be developed to take on board the most modern ideas about the aims and objectives of sentencing, while not losing its essential character. I look forward to hearing how these themes are developed during the remainder of your conference.

17 18 Conference Reports

“Sentencing” SASD’s 33rd ANNUAL CONFERENCE

Conference Report by Carolyn McLeod

This year’s conference looked at the topic of sentencing and the topics ranged from the philosophy of sentencing, to the perceived future direction of sentencing in Scotland. Generally all of the speakers appeared to be in agreement that a move away from custodial sentences and a greater emphasis on community based disposals was the way forward.

Lord Gill, Lord Justice Clerk was a very apt choice as the Conference Chairman, given the theme and his impressive credentials. In addition to his obvious knowledge on the subject of sentencing, as one would expect he ensured the smooth and timeous running of the conference (and his authoritative capabilities were useful during some of the lively discussions following from the Speeches and the feedback from the discussion groups).

The format of the discussion groups differed slightly this year in that sentencing exercises were prepared in an effort to give the delegates practical experience of the considerations that are taken into account by a judge when imposing a sentence. Each of the discussion groups was chaired by a judge so that guidance could be given on the competent sentences available in each scenario. The exercises encouraged extremely animated debate amongst the participants in the discussion groups which included representatives from across the spectrum of the Criminal Justice System. It certainly provided “food for thought” regarding the purpose of sentencing, the various social considerations which must be taken into account and what might be achieved by various types of disposal. This was a new approach to the discussion groups and, apparently, well received.

The Conference Organisers had been delighted when Elish Angionlini QC, Solicitor General for Scotland agreed to deliver the after dinner speech on the Friday night. She was introduced by Honorary President of the SASD, Sheriff Principal Gordon Nicholson who outlined her glowing CV from her apprenticeship through to her installation as Solicitor General on 5th December 2001. He detailed her progression through the Crown Office and Procurator Fiscal Service (COPFS) which most notably included the position

19 of Head of Policy within Crown Office, and her ultimate appointment as Regional Procurator Fiscal for Grampian, Highlands and Islands in July 2000. This introduction also included reference to her particular interest in Child Witnesses and Offenders.

There were two firsts in relation to her installation as she is the first female Solicitor General for Scotland and also the first to be appointed from the COPFS and consequently, her speech was one which was awaited by the delegates with great anticipation. As expected, this was a highly informative and entertaining opening to the conference. As well as broaching several serious points, Elish Angiolini recounted some amusing anecdotes about the reaction of the press to her appointment as Solicitor General which raised a number of laughs from the audience.

Her speech praised the Scottish Legal System with its strict rules of evidence and tight custody limits but highlighted the challenges which face Criminal Practitioners in Scotland with the ever more sophisticated circles of crime that are emerging including international crime and crime involving the Internet; as well as the acute increase in serious crime including sexual offences, violent crime and drug related crime. She spoke of the fact that Confiscation would play a bigger part in the Prosecution Process as a way of taking out the “life-blood” of Criminals. Given the close ties that she had with COPFS, Elish Angiolini voiced her views on how “The Service” should be resourced in order to best serve the public. In particular she spoke of the increased use of Information Technology and the “Roll Out” of VIA (Victim Information and Advice) throughout Scotland to assist witnesses in Criminal Prosecutions. Inevitably, the success of the Lockerbie trial was applauded and reference was made to the international acclaim that it received from the Association of International Prosecutors.

The over-riding consideration was that COPFS remains independent and maintains its integrity, which is vital but that it should do so without appearing impenetrable. Further, any Prosecution must truly reflect the public interest. Regarding the sentencing process, she emphasised the profoundly deep impact that the decisions of lawyers within COPFS would have on this by their decisions on whether or not to prosecute cases however she stressed that she is not in favour of prosecutors suggesting the sentence which should be imposed on a convicted offender and that this should be left to Judges who have the necessary expertise and ability to give objective consideration to the matter of sentencing. The inspirational and informative content of her address was warmly received.

20 On Saturday morning proceedings officially commenced with an introduction by Lord Gill. He started by highlighting the fact that Scots have always taken great pride in their criminal justice system. His view was that the main focus at present should not be how to deal with crime in court but rather, how much crime we can actively deter; how to deal with convicted criminals at the time of sentencing to ensure that they and others are deterred from offending. He stated that the reasonable working rule in relation to criminal matters is that everyone including suspects, accused people and prisoners should be treated in accord with our own decent instincts, what we as a society know is right.

The first key note speaker was Dr Richard Simpson, a qualified GP and Psychiatrist who, at the time of the Conference was the Deputy Minister for Justice. He commenced by considering the philosophy of sentencing and listed a number of factors must be balanced and considered in the complex sentencing process, including denunciation of crime, fairness to the accused and the expectations of victims and society. Ideally, a sentence should contain elements of deterrence, incapacitation and rehabilitation. As well as the larger sociological issues, there is no escape from the fact that cost is also a relevant consideration. With so many issues to be taken into account, Society, rightly in his view, continually tries to develop new approaches to sentencing.

He looked at the “Indeterminate Sentencing” regime adopted in Scotland where sentences for particular offences are not prescribed by law but rather, involve a large degree of discretion on the part of a number of Criminal Justice Agencies to reach a sentence which is flexible in nature and tailored to the facts and circumstances of each particular case. The perceived disadvantage of such a regime is that it could result in a lack of consistency throughout the jurisdiction and perhaps place too much emphasis on the needs of the offender without sufficient focus on the views of the victim and society at large. Dr Simpson however believed that this should not be a particular concern for Scotland, as consistency would be more likely to occur due to the relatively small Scottish jurisdiction and pool of sentencers. For this reason, his view was that a system of Comprehensive Structured Sentencing which involves sentencing within specified parameters whilst usually still facilitating the sentencer with a large degree of discretion would not be necessary in Scotland.

It appears that Community/Restorative Justice is starting to develop in Scotland. This system gives the victim and community a much greater role

21 in sentencing for example through use of community correction projects or mediation and reparation programmes and generally, should allow useful input into the sentencing process from the victim and the community as a whole. Dr Simpson cited the Criminal Justice (Scotland) Bill as being a move in this direction as it contains a provision for “pilots” which would allow victims to make Personal Impact Statements to the court without having direct input into the sentence imposed. A global move to a Community/Restorative Justice approach seems to be a long way off at present and careful consideration will require to be given as to how it should be developed.

Emphasis was placed on the fact that the present Government respects the independence of the Judiciary and have therefore limited any legislation which may have the result of restricting their discretion. He explained that, in fact, the Judiciary’s scope for the use of their discretion has been widened by the increase in the range of disposals available to them in particular, community based disposals as an alternative to custody.

So, where next? The ideal would be to reduce crime however clearly, crime cannot be prevented completely. Dr Simpson stated that he wished to see an end to remands and short custodial sentences for women (the incarceration of females being reserved only for the most serious cases) and in their place a health and welfare driven approach to female offenders, in particular. He believed that the increased use of community disposals should generally be encouraged as should reparation and restorative justice approaches. It was pointed out that short sentences appear to have a very limited role in protecting the public when contrasted with the closely supervised non- custodial alternatives. In fact, research suggests that custody is less effective than non-custodial sentences in terms of an offender’s subsequent convictions. On this basis, Dr Simpson believed that the use of remand and short sentences should be reduced and the spectrum of alternative options increased, including intensive community programmes. He praised the recent introduction of Drug Treatment and Testing Orders and Restriction of Liberty Orders. Overall, he called for development of the existing system of indeterminate sentencing to take on the new ideas regarding the aims and objectives of sentencing.

The next key note address came from Nicola Padfield, Lecturer at the Institute of Criminology, University of Cambridge. She has also been the UK representative on a European Harmonisation of sentencing project which focussed on 3 main areas of offending namely, Terrorism, Cyber

22 Crime and Environmental Crimes due to their importance to the European Union. There were practical difficulties in comparing the approaches to these crimes by different countries given, for example, the variation in the rules of criminal procedure and evidence and the difference in the definition of crimes. Realistically, uniformity in these areas may be required as well as a common approach to the application of sentences before harmonisation in relation to sentencing could be effected. Primarily, for any sentencing framework to be agreed upon, it would require to incorporate the core principles of importance to member states.

When considering the aims of sentencing, Nicola Padfield looked at the 2 fundamental views on its purpose: the untilitarian/consequentialist approach which believes that the purpose of punishment is to reduce the commission of crime by example, and the retributive view that punishment should be determined by what the offender “deserves”. English sentencing law did, for a long time have utilitarian aims however in the last two decades or so has incorporated some retributivist ideals resulting in an “eclectic” approach to sentencing according to the particular circumstances of each case.

She looked at the issues of prevention or incapacitative sentencing by detention Ð reform, rehabilitation and deterrence Ð all of which are given detailed consideration in the text of her address which is reprinted in full in this issue of the Journal. The all-important question is whether sentencing can lead to a reduction in crime and she stated that it has been recognised, in some quarters at least, that there is limited scope for sentencing alone to achieve this aim.

Under the present English sentencing framework, all custodial sentences are already partially suspended sentences. Reference was made to the report by John Halliday which was published in July 2001 after he was Commissioned by the Government to review the sentencing framework of England and Wales which expressed the view that Courts should have involvement throughout the entire sentence, thereby having greater input to the second half of the sentence but Nicola Padfield had reservations about the huge implications which would result from such a role.

She agreed with Halliday’s view that the “intermediate estate” could strengthen the “tough end” of community penalties and help smooth the transition from prison into the community and his opinion that the number of people in prison is “appalling, expensive and ‘ineffective’”. Nicola Padfield believes that more resources are required to allow people to live in

23 conditions of minimum security through effective management of the risks that they present.

She noted that the Government’s white paper, Justice for All (Cm 5563 published in July 2001) which states that discretionary release will only apply to dangerous, sexual and violent offenders, was vague regarding the guidelines to be followed by the Parole Board. She expressed her concern about the Parole Board’s compliance with the European Convention on Human Rights and also had reservations about the recommendation in the white paper that “campus” style prisons are the way forward, opining instead that multi-functional prisons in the community are what are required. She also expressed her concerns about who was leading the review of correctional services.

The approach to the application of the Home Detention Curfew Scheme launched in January 1999 was mentioned and she stated that she is not particularly worried about the offending rate of those on the scheme as it appears to have little impact on re-offending but instead, she is worried by the large variation between the approaches adopted by different types of establishment. She believes that there needs to be closer monitoring and clearer procedures to safeguard the application of the scheme.

Turning back to the Harmonisation of Sentencing, Nicola Padfield was of the view that, given that there are different rules on the interpretation and application of sentences, there would be little point in harmonising the start of the process. In conclusion she stated that there are clear sentencing fundamentals: While the aim of a criminal justice system might legitimately be to reduce re-offending, it is unrealistic and inappropriate to make that the aim of sentencing. Further, effective sentences demand substantial resourcing as well as effective measures of effectiveness, which we do not have. In addition, she was fearful that it could be that current considerations and initiatives will lead to higher sentencing levels.

However her address finished on a more positive note in that the initiatives may lead to a clearer focus on the aims of punishment and also encourage consideration of the entire sentence, including not only what sentence is announced in court but also what sentence the offender actually serves.

Professor Neil Hutton who is Director of the Centre for Sentencing Research and a Professor in the School of Law at Strathclyde University

24 addressed the delegates on Saturday afternoon on the subject of “What do the Scottish Public Think About sentencing and Punishment?”

He started by saying that it is a common belief that the public want tougher punishment. This leads to pressure on the Political leaders and policy makers to favour certain regimes, even if they are not the most cost effective way of reducing crime. Research reveals the following points of which the public has little knowledge:

Punishment has little impact on crime rates;

Punishment does not deter offenders unless it is swift and certain which is practically impossible for most types of offences; and

Prisons are not effective at reducing crime.

The perception of the “Policy Makers” appears to be that even if these findings were explained to the public, it is likely that they would continue to support their views that harsh punishment is what is required to deal with offenders. There is an obligation on the political leaders to endeavour to reduce the ever-increasing prison populations and make more efficient use of the resources available to them. Neil Hutton believes that these resources should be re-directed to support social inclusion in areas where members of the public are most at risk of becoming victims of crime.

Details of the questionnaire survey carried out by NFO System Three (as part of the research conducted for the Justice 1 Committee of the Scottish Parliament) were reflected upon by him. This survey showed that despite most participants claiming to know very little about the level of crime and what happens to offenders in court or in prison, there was a lot of interest in this area in relation to which the public still form and express opinions. It appeared that, as a result of general anxieties and insecurities, crime and the control thereof became a focus for members of the public who wished to identify specific dangerous groups within the population which need greater control. They appear to have painted a picture based on “collective representations” rather than accurate information.

The public has misconceptions regarding the level of crime in Scotland and its causes. As discussions within the group developed, the initial “common narrative” was tailored slightly once the participants had time to reflect on their accounts.

25 The study also showed that there was little confidence in the courts and their effectiveness, the majority believing that judges were out of touch with the views of the general public and that the sentences imposed were not sufficiently harsh. It was however interesting to note that when they were given sentencing scenarios and were furnished with details of the full range of sentencing options, their opinion of the appropriate sentence was very similar to that of the Judiciary and that they were not significantly more punitive.

During the study, the public displayed considerable support for constructive community sanctions which could be shown to be effective. There was limited confidence that a change in the attitude of the offender could be brought about by sentencing, and there was disagreement regarding whether ”tougher” sentencing could stop offending behaviour. Saying that, there was still a large amount of support for incapacitation and retribution although they were the least popular options. There was also agreement that sentences should be cost effective. These trends were in line with the general view of the Judiciary as sentencers.

He also referred to the Civic Participation Exercise (CPE) organised by the Scottish Parliament which involved a more specific group of participants so the findings could not be regarded as indicative of the public view across Scotland. Generally, it appears that they preferred more punitive options when asked simple abstract questions but that their opinion altered when they were presented with more complex scenarios. The outcome of this study was that there is significant support for community based sanctions in Scotland for less serious offenders to reduce their offending behaviour.

These options are regarded as more effective and more cost effective than imprisonment. The “tough” approach (which realistically means longer prison sentences in prisons with harsher conditions) is seen as appropriate for serious and dangerous offenders. The participants tended to consider each case on its merits in a similar manner to the Judiciary, the over-riding consideration being to find the appropriate and just sentence for each case. It appears that the need for consistency was not a consideration.

The data from the study did not enable a conclusive statement of the view of the Scottish public to be made. What could be said is that the Scottish study supports the conclusions of a study in Canada that the public supports an approach which is based on rationality and fairness.

26 Looking to the immediate future, it appears from the work of Parliamentary Committees, and from the terms of reports from other Criminal Justice organizations, that there is support for the development of a more rational, cost effective penal policy with a reduction in the number of people serving short term prison sentences and the increased use of community sanctions as an alternative. The studies appear to show that the Scottish Public also supports such an approach.

In conclusion, despite the increasing prison population, there are indications that, in Scotland at least, there is support for an alternative future.

On Sunday morning Conference was addressed by Sheriff Michael O’Grady who is a Sheriff at Glasgow and one of the two Sheriffs of the Glasgow Drugs Court pilot project which is currently taking place. The first drugs court in Scotland sat on 12th November 2001 at Glasgow Sheriff Court, and was the fifth drug court in the world outside the USA. Such courts began in the USA in the late 1980s against a back-drop of other programmes which had tried to link offenders with drug treatment and are now functioning in Australia, Canada and Ireland. The Glasgow pilot has drawn on the experience of these other countries. The purpose is to reduce the level of drug related offending behaviour by reducing or eliminating the offender’s propensity to misuse drugs by the use of treatment sanctioned by the court rather than traditional sentencing. The hope is that the inevitable additional cost in running such courts will be offset by the savings to society through a reduction in crime. In his talk Sheriff O’Grady pointed out that, there are procedural and cultural differences in the operation of the drugs courts in different countries but he identified 15 principles which he regarded as being common to every drugs court.

Strict eligibility criteria have been identified on the basis of evidence of the type of person who is likely to achieve success under such a scheme as well as with the purpose of limiting the number of participants due to the restricted resources available given the pilot status of the scheme. These and the rationale behind them are considered fully in the text of Sheriff O’Grady’s talk which is also published in this edition of the Journal.

He outlined how potentially suitable offenders will be identified. All police have been issued with guidance in this regard and potentially suitable offenders would usually be identified by the arresting officers. Sheriff O’Grady added that it is also open to the accused’s solicitor or the Procurator Fiscal Depute “marking” the police report to ear-mark possible candidates.

27 In such situations, subject to the agreement of the Procurator Fiscal Depute taking the Drugs Court, a pre-court screening meeting will take place at 12 noon on the day of the accused’s court appearance. In attendance at such meetings will be the accused’s solicitor, the drugs court fiscal and representatives from the police and the Social Work Department. If there is agreement that the individual is a suitable candidate then the presiding sheriff will be advised at the point of the accused tendering a plea of guilty. Ultimately, it is a matter for the Sheriff whether he agrees to the accused’s participation in the scheme.

The practicalities are that the drugs court presently sits 4 times a week in Glasgow and any offender identified as suitable for participation in the scheme will appear in a drugs court for the first time 4 weeks after tendering his plea of guilty (such a plea being one of the aforementioned pre-requisites for acceptance onto the scheme). At this time he will be legally represented and various reports, including Social Enquiry, Community Service Assessment and drugs reports, will have been prepared. This is the point at which, if there is a recommendation in favour of the accused’s participation in the drug court scheme, his solicitor will address the court as to why this recommendation should be followed.

Generally the expected disposals are: Drug Treatment and Testing Orders; Probation Orders with condition of drug treatment; deferred sentences or a combination of all 3 disposals. These will usually run for between 12 and 18 months and will all be subject to the condition that the offender attends for regular reviews at court. At this point an effort will be made to “roll up” any other outstanding cases. Once such an order is imposed, the accused will be asked if he accepts the conditions and will be required to sign a number of consent forms to this effect.

The day before the review hearing there will be a pre-review hearing attended by a number of people involved in the implementation and review of the order, including the Sheriff as well as the offender’s solicitor if they wish. It has been his experience that the solicitors rarely attend these meetings due to Legal Aid implications. The offender is not permitted to attend but no decision adverse to him will be made at such a meeting. Although the review hearings usually take place on a monthly basis, they can be set fortnightly if there are problems with the offender complying. Various options are open to the bench depending on how the offender is faring on the scheme. Of particular note is the bill which was proceeding through the Scottish Parliament at the time Conference which will introduce sanctions for non-compliance without interrupting the order.

28 A particular and perhaps unique characteristic of the drugs court is the direct dialogue which takes place between the Sheriff and the offender. Sheriff O’Grady was firmly of the opinion that offenders will respond well to a severe reprimand from the Sheriff as well as praise when they are doing well. He spoke of plans to introduce a system of letters to the offender to confirm what progress had been made by him/her as a way of providing additional encouragement. He also spoke of the team spirit which appeared to develop amongst offenders who regularly attended their Drugs Courts Hearings on the same dates. Given the nature of the drugs court, a team approach by those involved in the drugs courts and implementation of the orders is an inherent part of its success.

This is an exciting development in Scotland and the results of the pilot will no doubt be eagerly awaited by many involved in the Criminal Justice system, in particular.

In conclusion it could be said that there appeared to be general agreement that in the majority of cases, there should be a reduction in the use of short- term custodial sentences with a move towards the increased us of non- custodial, closely supervised, community based disposals. On this basis it would appear that the ongoing search for effective alternative disposals is one which will continue. No doubt the future progress in this regard will be a subject which will be of great interest to the attendees at Conference as well as the Scottish public in general.

29 Sentencing Fundamentals and the Impact of Europe by

Nicky Padfield

This is the text of a paper given at the Annual Conference of the Scottish Association for the Study of Delinquency in November 2002. Some small parts have appeared in print before in Comments in Archbold News (published monthly by Sweet & Maxwell) and in an article ‘Sentencing and Fairness’ in (2000) Vol 13 Issue 4 Commonwealth Judicial Journal 28

Introduction It is a privilege to be invited to discuss with you today some thoughts on the impact of Europe on sentencing fundamentals. The impact of Europe for me in the last year has been large, as I have been the UK representative on a European harmonisation of sentencing project about which I shall talk shortly. But this project has forced me also to think again about the fundamental purposes of sentencing. At the same time, the British Government has been quite noisy on the same subject. So I therefore intend to divide my talk into three parts: first, on the harmonisation of sentencing in Europe; then a discussion of the aims of sentencing; and finally a comment on what is going on in England.

The European Context Let me start by stating that I am no expert on the sentencing laws of other countries. I am particularly conscious of the fact that I know little about sentencing in Scotland (perhaps I can suggest somewhat provocatively that it is not only the English who don’t listen enough to things north of the border, perhaps the Scots don’t shout loud enough?). I was approached this time last year, as an English academic interested in English sentencing law, and encouraged to join a project led by Professor Mierille Delmas Marty, of the University of Paris 1, who was bidding for Grotius funding. The project came at a time when there was clearly significant interest in sentencing in the European Commission and the project took off remarkably fast. We were

30 initially encouraged to concentrate on the harmonisation of sanctions in three areas: (i) Terrorism (ii) Cyber crime (iii) Environmental crimes Why were these three areas chosen? Because of their importance to the European Union. Article 29 of the Nice Treaty, adopted in 1992, states boldly that The Union’s objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial co-operation in criminal matters… Article 31 promises common action on judicial co-operation in criminal matters including compatibility in rules and ‘progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking. The interest in terrorism is obvious. I would highlight the proposed framework decision on combating terrorism adopted in Brussels in September 2001. And in April this year the Commission published a proposed framework decision on attacks against information systems, or cyber crime, which includes hacking in its various forms. If you want a European source document on the crimes against the environment, there is the Council of Europe’s Convention on the Protection of the Environment through criminal law, adopted at the end of 1998. However I don’t intend to explore these developments in European law. I’m more interested in exploring their implications. Representatives from 15 different European countries agreed to take part in the project. (I waged a lengthy campaign to be recognised as the representative not of the UK but merely of England and Wales). The first stage was a questionnaire (in French), which we all filled in asking us such questions as Does your law have minimum penalties? Does your law allow the sentence to reduce the punishment because of mitigating circumstances?

31 Does your law allow the judge to increase the punishment above the permitted maximum because of aggravating circumstances? Are life sentences permitted in your country? Please list all the ways in which sentences may be varied in your country? (The French word for ‘varied’ was ‘amenager’?) The suggested list to consider was: amnistie, grace, remise de peine, sursis probatoire, liberation consititionelle, execution de la peine a l’exterieur, placement sous surveillance electronique. The language of the project is French: frequently, I wasn’t sure whether my difficulties in responding were caused by the limitations of my French or the difficulties of comparative research in this area. We then met for two days in Paris in April. It was obvious that many country representatives were concentrating in their responses on the law found in statutes (la loi) and ignoring the actual sentences judges and or magistrates are likely to impose in practice. Perhaps even more importantly, responses often ignored the realities of sentences actually served, the implications of early release rules, for example. We tried to change our ground rules, looking at some hypothetical cases to explore what might actually happen to an offender in practice. It was also clear that different criminal justice systems had important different characteristics: Ð For example, in England there is no obligation on the Crown Prosecution Service, or other prosecuting authority, to prosecute. This would be most obvious in the case of environmental crimes, where non-criminal measures are often considered more effective. Ð the rules of criminal procedure and evidence are very different, the definition of individual crimes vary. If harmonisation is to be encouraged, I suspect a pre-requisite is the harmonisation of the general principles of criminal law (especially the mens rea, culpability, requirements) as well as the definition of individual offences, rules of criminal procedure and evidence. Ð The length of a sentence of imprisonment imposed by a judge is likely to be shorter in practice than the length stated in court. The reality is impossible to ascertain at the beginning of the sentence. A harmonisation of early release and the ways that punishments are applied in practice will be necessary if any real harmonisation is to take place1.

1 Perhaps a review of the way the Convention on the Transfer of Sentenced Persons 1983 would also be useful starting point. It is clear from the way the Convention applies in England that the those sentenced to similar periods at home and abroad may end up serving different lengths of sentence.

32 It is also obvious that the real fight against most crimes, especially those such as terrorism and cybercrime, will be carried out by the police and other intelligence officers. Harmonising sentencing law is not, to me, an obvious political priority. But if our political masters are determined, there is a really basic first question. Can the European countries agree a sentencing framework, based on core principles acceptable to all member states? What are the key principles, acceptable to all countries? Desert, proportionality, or rehabilitation, for example? A fundamental review of philosophical first principles is required.

Purposes of sentencing Let us now go back to basics. The two main traditional justifications for imposing punishments in the United Kingdom are utilitarian/consequentialist (a benefit to others) and retributive (‘just deserts’). Utilitarians argue that the justifying aim of punishment is the reduction of the frequency of crime whereas retributivists, on the other hand, argue that such utilitarian arguments can be unjust and punishment should be imposed simply because a proportionate punishment is deserved. The penalties of English sentencing law have long had utilitarian aims - the reduction of crime - but the law was increasingly influenced in the 1980s and 1990s by the politics and philosophy of retributivism, with a particular emphasis on ‘just deserts’. The most obvious example is the Criminal Justice Act 1991. Today just deserts is losing political popularity as the Government in particular concentrates on its crime reduction strategy2. However, whether sentencing itself can impact on crime reduction is an important question. Another is whether crime reduction strategies comply with the human rights of both offender and victim. It is worth raising at the outset that different justifications may exist at different ‘levels’ of penal theory. It was Hart who pointed out in his Concept of Law (1968) that we might identify three levels. We should distinguish the General Justifying Aim of the penal system, from justifying the amount of punishment, which again should be distinguished from questions of distribution (to whom should punishment be applied?). Thus, the prevention of crime may well be the general justifying aim of the penal system, but it would rarely be used by sentencers in fixing the amount of punishment.

2 See now clause 126 of the Criminal Justice Bill 2002 which will enact (controversially) the purposes of sentencing!

33 There are a number of different utilitarian aims, often difficult to distinguish one from the other: Prevention or incapacitative sentencing can be achieved with a high success- rate by detention, so long as it lasts. Reform. The individual may be reformed or corrected, either by deterrence or by other more subtle means; but what is important to notice is that the percentage of cases in which it matters whether imprisonment or non- custodial sentences are used seems to be small. This is both difficult to measure and to explain. Some types of offender - e.g. paedophiles, rapists or political activists - are unlikely to be corrected or reformed. Here I would stress the blunt instruments we have by which to measure effectiveness: normally, reconviction rates. If only perhaps 3% of reported offences result in a conviction, what does this tell us about the frequency of criminal activity? Rehabilitation can be distinguished from reform in that it is often used to describe efforts which are made to make it easier for offenders not to re- offend for example, by improving their employment skills. Both ideas went out of fashion in the 1970s for two main reasons: a concern for the human rights of individual offenders, and a view that ‘nothing works’, derived from Martinson’s influential What works? , 1974. Today there is more hope that some measures may work some of the time. The Prison and Probation services in England and Wales are for example heavily committed to various cognitive behavioural approaches, which attempt to reduce offender impulsivity. I would also mention Bottoms and Rex’s work which emphasises the importance of strengthening offenders’ community ties and of pro-social modelling. I would however urge a certain caution about expecting too much of these initiatives: growing up, a home, a job, a steady domestic life, all these are important factors in reducing re-offending. An aim much loved by sentencers has been Deterrence. We must distinguish Individual deterrence (the deterrence of the individual offender) from general deterrence (the deterrence of the general population). General deterrence can be achieved by some penalties for some length of time, some types of offence, some types of offender, and in some situations. However, more effective is a high probability of detection and conviction. Does deterrence through heavier sentencing work? In a major review of the literature on deterrence, Von Hirsch et al (1998) concluded that there were certain logical conditions which must exist before an increase in the severity of deterrents can work: (i) Potential offenders must realise sentence levels have increased

34 (ii) Potential offenders must think about heavier sentence levels when contemplating their offences (iii) Potential offenders must believe they have at least a reasonable chance of being caught (iv) Potential offenders must believe that if caught the heavier sentencing policy will be applied to them (v) Potential offenders must be prepared to desist where (i-iv) are present. All these conditions must be present for general deterrence through heavier sentencing to work. Thus, it will only rarely work. It also poses significant moral dilemmas. For example, should there be any upper limits to penalties if effective deterrence can be demonstrated? If it could be shown that imposing the death penalty on those who drive their cars too fast deterred others from speeding, it would still be considered wrong by most people. Another moral dilemma is whether it can be right to treat an individual as a means to an end (in deterring others from crime). These sorts of questions explain the rise in popularity of ‘just deserts’ or retributivist justifications in the 1970s and 1980s. The most famous exponent of modern retributivistism must be von Hirsch, whose Past or Future Crimes was published in 1986. The curious may find his more recent Censure and sanctions (1993) a swifter read. For von Hirsch, punishment is and should be a blaming institution; and the severity of the punishment expresses the stringency of the blame. The key concept of just deserts sentencing is proportionality. Anchoring offence severity in grids or frameworks is a challenge. This leaves the problem of what Walker (1991) calls ‘sensibility’: offenders of different genders, ages, states of health etc will suffer to different extents from the same penalty (especially imprisonment). There are also other dilemmas for those who argue for just deserts: do those with previous convictions or serial offenders deserve longer sentences than those who are first offenders, for example? How does one create a ‘ladder’ of non-custodial penalties? In practice, and not surprisingly given the complexity of the philosophical arguments, English sentencers seem to choose between desert and utility (when they conflict) according to the type of offence or even the circumstances of each case. Ashworth (2000) calls this the ‘cafeteria’ approach. There are of course compromise positions also amongst the penal philosophers, such as Morris (1998), a ‘limiting retributivist’, who argues that desert creates maximum and minimum limits of fairness: within these limits, consequentialist principles may be applied. I see nothing too wrong in a cafeteria approach, though I’d use Walker’s word Eclecticism ... “Unless

35 a sentencer is of the academic type which in every case has a single aim in view - just punishment, the reduction of crime or ritual satisfaction - he must be an eclectic. An eclectic selects his aim in the light of the circumstances of each case in which he has to sentence. His selection may be governed either by his emotional reaction to his information, or - preferably - by rules or principles which make his selection rational. One sensible rule ... is that aims which have some chance of being achieved should be preferred to aims which do not’ (Walker and Padfield (1996), at page 122). This reasoning seemed to satisfy John Halliday, the senior civil servant who was commissioned by the Government to review the sentencing framework of England and Wales in 2000. In his report which was published in July 2001, Halliday made it very clear that he was well aware of the limited scope for sentencing itself to reduce crime, and clearly articulated that there is no necessary connection between the content of a framework and its impact. He was happy to recommend a system of ‘limited retributivism’: desert should continue to set the upper limits of sentence severity, to provide, in his words, the ‘punitive envelope’. He is particularly critical of sentences of less than 12 months’ imprisonment for their lack of ‘utility’, and recommends a new ‘custody plus’ sentence, to include work in the community to reduce re-offending. There is, of course, an inherent tension facing the sentencer: whether the sentence imposed is tied to the seriousness of the offence, or whether the sentencer should take into account the offenders’ propensity to re-offend. Should the sentencer take into account how offenders respond to measures taken during previous sentences or indeed their degree of remorse? Things are moving all the time. The Queen’s Speech announced a Bill to reform sentencing arrangements and criminal procedure. All we are told there is that ‘sentencing will be reformed to ensure that the punishment is appropriate for the offender. New types of sentence will be introduced to protect the public from dangerous offenders, help reduce re-offending and deal with young offenders’. There is nothing obviously new here.

The New Sentencing Framework All custodial sentences are already in fact partially suspended sentences: served partly inside and partly outside. Halliday took a realistic approach to the limited scope for sentencing itself to reduce crime. His call for a review of the existing ‘intermediate estate’ for accommodating and managing offenders in the community, to include voluntary sector as well as Prison and Probation Service accommodation, whether used for prisoners on

36 conditional release or by those on community sentences, is long overdue. For example, many of the courses available in prisons could be more effectively and more cheaply available in the community. The main challenges in the report come in the discussions of sentence management and early release. So far “the idea of a prison sentence that is served partly in prison and partly in the community ‘seamlessly’ to reduce re-offending has not taken root….. Legitimacy and transparency would be served by the courts having more say in the content of the second half of the sentence”. This leads Halliday to conclude that there should be a review by a court prior to a prisoner’s release, so that a court would decide whether to endorse proposals developed jointly by Prison and Probation Service, or whether to commission advice on further options. Whilst it may be widely accepted that pre-release planning and the monitoring of an offender’s ‘progress’ throughout the sentence period are currently often inadequate, the involvement of the criminal courts throughout the sentence has enormous implications which should not be under-estimated. Halliday is unconvinced by the concept of discretionary release. “Earned early release may be helpful in prison management, but if not accompanied by strict risk assessment, can increase crime … Requiring resources to be devoted to ‘getting the release date right’ within limited budgets, is likely to divert energy and resource from the much more important tasks of seamless pre and post release sentence planning”. Therefore Halliday concludes the advantages of fixed release dates win, except for ‘dangerous offenders’. Halliday accepts that there is no quick fix to ‘making punishments work’, but he highlights important stumbling blocks along the way. Looking at the White Paper, Justice for All Cm 5563 of last July, it seems unlikely that the Home Secretary will accept the dramatic potential of Halliday’s report, and genuinely welcome further serious discussion. I thought that Halliday’s recommendation 23 was the most exciting. A review of the intermediate estate has the potential for strengthening the ‘tough end’ of community penalties (increasing credibility partly by increasing resources?) and for smoothing the ‘leap’ from custody to community. There is a huge need to give priority to what goes on in the community… the number of people in prison is appalling, expensive and ‘ineffective’. What is also needed is a serious commitment of resources to allow people to live in conditions of minimum security. Surely many ‘dangerous’ people can be helped to live in the community if there is a culture which allows the risks that they present to be effectively managed? Judges should remain wary of sanctioning the indefinite detention of those who may or may not be dangerous.

37 Discretionary release will now apply only to dangerous, sexual and violent offenders. The White Paper is wonderfully vague. It says: The Board is preparing itself for the challenges ahead by participating in a comprehensive improvement programme, which include: Continuing scrutiny of processes to achieve improved efficiency and to ensure that decisions are based on the best available evidence; Reappraisal of the balance of skills and experience needed for the Board to deliver its reform agenda which will inform future recruitment and training strategies; and Improvements to the appointment processes to ensure that the Board’s membership properly reflects the whole community A Chapter in my recently published Beyond the Tariff: Human Rights and Life Sentence Prisoners explores whether the Parole Board really complies with the requirement of the European Convention of Human Rights. I doubt it. My scepticism was strengthened when the Home Secretary invited the Prison Service to carry out a Comprehensive Review of Parole and Lifer Processes (2000-01) looking at the efficiency and effectiveness of the Parole Board’s operations! To me it was pretty shocking that the Prison Service should carry out such an activity: what does that say for independence? The White Paper announces “a major independent review of correctional services…. Too many prisons are Victorian, too small, expensive to run, and are in the wrong place… new multi-functional community prisons… ‘campus’ style prisons…”. I’m nervous here, too, surely what need are multi-functional community prisons in the community NOT middle of nowhere large campus prisons. And who is leading this ‘independent’ review…. I’d like to add a few words on the Home Detention Curfew Scheme launched in January 1999: up to 30 days early release for those sentenced to 3 months to 4 years (NB 30 days before the normal half-way mark: taking into account pre-conviction remand, this means some very short sentences). Initial forecasts were that 30,000 of the 45,000 eligible prisoners would be released in the first year: However, fewer than 14, 000 prisoners were released: i.e. there was a release rate of 31%, more than 50% lower than anticipated. This was due to last minute advice to governors urging caution, as well as the awareness of individual prison governors that they would be blamed if things went wrong. The rates are now rising, and, as the Government sees the use of the scheme in cutting prison numbers, is being extended. Earlier this year the Home Secretary announced that the scheme would become ‘presumptive’. On 30 October 2002, the changes announced

38 earlier in the year to allow prisoners to be released up to 90 days early was introduced3. This has serious implications for those interested in consistency in sentencing. Release rates continue to vary considerably between different types of establishment and prisoner. My concern is not the offending rate of those on HDC: Dodgson et al (2001) suggest the scheme has very little impact on re-offending. Only 5% are recalled, and very few of these because they posed a risk of serious harm to the public. The vast majority are recalled because they were in breach of conditions: Dodgson et al classify the underlying causes under the heads equipment problems, psychological issues, housing and domestic problems and lifestyle. My concern is the wide discretionary power the scheme gives to the prison authorities. Unsurprisingly, local prisons have a low release rate: they are very busy places. The statistics on sentence variations suggest that the longer the sentence, the more likely the prisoner has been to get HDC. There needs to be much greater monitoring of HDC, and an introduction of clearer due process safeguards (legal advice?) for those facing HDC assessments. International sentencing comparisons I have wandered a long way from my starting point, the European harmonisation of criminal sanctions. But what I have said about both the philosophy of punishment and recent developments in England confirm my concerns at the European level. As I said earlier, no country has a system where what the judge says is actually and precisely what is served. Therefore if you have different rules on end of sentence/changing sentences, there is little point in harmonising what happens in the beginning. Statistics disguise as much as they reveal when our definitions of crimes vary so much. So where does that leave us? The title of my talk was ‘Sentencing Fundamentals and the Impact of Europe’. Perhaps I can end with 3 sentencing fundamentals Ð while the aim of a criminal justice system might legitimately be to reduce re-offending, it is unrealistic and inappropriate to make that the aim of sentencing Ðeffective sentences demand substantial resourcing as well as effective measures of effectiveness, which we do not have

3 see www.hmprisons.gov.uk/news:

39 Ð There is little point having clear guidelines on sentencing frameworks if there is no such clarity on the interpretation and application of those sentences. On a negative note I fear that current initiatives will lead inexorably to higher sentencing levels. On a more positive note, they may lead also lead to a clearer understanding of the need for much greater clarity not only in what we may see as the aims of punishment but also in our thinking about the totality of the sentence, including not only what a sentencer announces, but also what sentence an offender actually serves.

References Ashworth, A. (2000) Sentencing and Criminal Justice, (3rd edition) Bottoms, A. E. and Rex, S. (1998) Pro-social modelling and Legitimacy, in Pro-social modelling and Legitimacy ed S. Rex and A. Matravers, Cambridge: Institute of Criminology) Dodgson, K. et al., Electronic monitoring of released prisoners: an evaluation of the HDC scheme (HO Research Study 222, 2001) Halliday Report (2001), Making Punishment Work (HMSO) Hart, H. L. A., Punishment and Responsibility (1968) London, Oxford University Press Morris, N. (1998) Desert as a Limiting Principle in Von Hirsch, A and Ashworth, A (eds) (1998) Principled Sentencing Hart Publishing Padfield, N. (2002), Beyond the Tariff: Human Rights and the release of life sentence prisoners (Willan Publishing) von Hirsch, A. (1986) Past or Future Crimes? von Hirsch, A. (1993) Censure and Sanctions Oxford: Clarendon Press. von Hirsch, A. et al. (1998) Criminal Deterrence and Sentence Severity, Oxford, Hart Walker, N. (1991) Why Punish?, Oxford Paperback Walker, N. (1995) Legislating the Transcendental: von Hirsch’s Proportionality, 51 CLJ 530 Walker, N. and Padfield, N. (1996) Sentencing Theory, Law and Practice, Butterworth, London

40 What do the Scottish public think about Sentencing and Punishment? by

Neil Hutton, Centre for Sentencing Research, University of Strathclyde

Introduction One of the main obstacles to the development of a more rational, evidence- based penal policy in Scotland, has been the perception by political leaders, policy makers, newspaper editors and others that the Scottish public want tougher punishment. It is difficult for politicians to support a policy which appears, on the basis of the available evidence, to be the most cost effective way of reducing crime, when this same policy is perceived as being overly lenient in the eyes of the electorate. There is a perception that the public is not able to cope with the evidence generated by research into the criminal justice system. Here are a few examples of some “unpalatable” facts. ¥ Punishment has little impact on crime rates. ¥ Punishment does not deter offenders unless it is swift and certain which is practically impossible for most types of offences. ¥ Prisons are not effective at reducing crime. The public is largely ignorant of these facts and even when they are explained to them continue to believe in familiar myths about crime and punishment. As prison populations rise, and the costs of criminal justice escalate, there is a challenge to Scottish political leaders to find a way of reducing the prison population, getting better value for money from the revenues spent on criminal justice and releasing resources to be used where they are desperately needed to promote social inclusion in those areas of our cities where citizens are most likely to become victims of crime. Is the Scottish public as punitive as politicians seem to think? Is there any evidence of support for a more rational and less punitive approach to penal policy? How much do the Scottish public know about crime and punishment and how accurate is their knowledge?

41 The Research Study This article reports briefly on some of the main findings of a piece of research conducted for the Justice 1 Committee of the Scottish Parliament. There were three parts to this study. NFO System Three carried out a questionnaire survey of a sample of 700 people. This survey data was supplemented by nine focus groups of between 8-10 people. The focus groups were segmented according to age, sex and socio-economic group to provide a wide range of views and experiences while ensuring that each group was reasonably homogenous (Anderson, et al., 2002). The final part of the study was a civic participation event facilitated for the Parliament by Inter-ed Ltd. The 86 participants (none of whom had been involved in the other parts of the research) were asked to complete short sentencing exercises before attending the day-long seminar. They were then given short presentations by “experts” on aspects of crime and punishment along with more detailed information on the case studies which they had worked on earlier. There followed further seminars and open-space workshops. The broad aim was to find out if citizens’ views on sentencing would change as they were presented with different types of information (Inter-ed, 2002).

Knowledge and Views about Crime The survey showed that there is a high level of interest in crime and justice with 88% of respondents either fairly or very interested in the issues. However, most claimed to know “not very much” or “nothing at all” about the level of crime (54%, 5%), what happens to offenders in court (61%, 9%) or in prison (60%, 23%). This confirms the findings of research elsewhere which shows high levels of ignorance about crime and punishment (Mattinson and Mirrlees-Black, 2000). The research shows that people have an accurate picture of their ignorance of these issues in so far as they hold significant misconceptions about the nature and extent of crime and how it is dealt with by the criminal justice system. However, this does not stop them from forming and expressing opinions. “Public knowledge and opinion about criminal justice are based upon collective representations rather than accurate information…” (Garland, 2001, p. 158). Seventy five percent of the sample thought that crime had risen over the last five years when in fact it has fallen steadily over the last ten years. There were 27% fewer crimes recorded in Scotland in 2001 than in 1991. Three specific issues which arose in the search for an explanation for this perceived

42 rise in crime: violence, drugs and youth offending. When asked to guess the proportion of crimes recorded by the police that involve violence Ð (correct answer 6%) Ð the average response was 54%. The focus group data showed agreement that violence was not only increasingly prevalent but that it was more unpredictable and that victims were more like to be women and the elderly. A recurrent theme in the discussions was that the more orderly violence of previous years, a “fair fight” between consenting opponents, had been replaced by a less predictable and more vicious form of violence perpetrated on innocent stranger and much of it related to the desperate needs of drug addicts. This in turn is perceived to be related to an increased lawlessness of young people who are seen to pose a general threat of violence and disorder. This might be described as a narrative of insecurity. With a few exceptions, respondents had little first hand experience of violent or drug related crime. However the discussions produced a tale of heightened insecurity arising from a perceived threat of random violence from (young) drug addicts. This might be interpreted as a specific local example of the kind of responses to broad changes in the social and cultural conditions of late modern societies. Garland (2001) has described how these conditions have given rise to a distinctive approach to criminal justice amongst citizens. Crime and its control become a focus for general diffuse anxieties and insecurities. In particular citizens wish to identify and define dangerous populations which appear to need greater social control. The respondents in this study can thus be seen as reproducing broader anxieties and fears, which are not based on accurate information about crime and risk but on collective representations about the dangers presented by the contemporary social world. There were however alternative narratives which emerged from the focus groups, particularly when they had been presented with information about actual crime rates. There were a number of explanations offered for the feelings of heightened anxiety. These told a different story. People accept that their views may reflect the information they receive about crime. There is more open public discourse about certain forms of violence (eg, against women and children), than there was twenty years ago. This may lead to perceptions that violence is increasing when in fact it is just more openly acknowledged. Communication media have also expanded very rapidly over the last twenty years bringing their distinctive treatment of crime issues with the focus on “news values” and entertainment. Finally, some reflective respondents were aware that their own views might have changed as they have got older, and that they were now expressing the same anxiety about the

43 younger generation that their own parents had expressed about their generation twenty years ago. The groups quickly generated, through discussion, a shared narrative of insecurity. They appeared to be reproducing a familiar story to which they could all relate, affirm and contribute. Once this was established and as discussions developed, individuals became reflective and developed other narratives which were partly contradictory of the established narrative but which might best be understood as providing a richer and more nuanced story. The research certainly confirms a perception of heightened anxiety and insecurity around crime issues amongst the Scottish public. However this is tempered by more reflective and sophisticated accounts which challenged elements of the dominant narrative.

Knowledge and Views of the Criminal Justice System Seventy nine percent of respondents felt judges were “out of touch” with what ordinary people think. Seventy percent thought that sentencing was too lenient. This confirms research findings in other jurisdictions. There was little confidence expressed in the effectiveness of the courts. Respondents felt that the system was overbalanced in favour of offenders and that wealthy offenders or offenders with clever lawyers “get off on technicalities”.

Sentencing Decisions The study provides some evidence of the lack of knowledge of sentencing. Around 80% admitted they knew not very much or nothing at all about the range of sentences available to Scottish Courts. Before prompting, 72% were able to name Community Service Orders as a sentencing option other than prison or fine. Only 24% were able to name Probation and 12% electronic tagging. Less than 10% could name absolute discharge, drug treatment and testing orders or compensation orders. In focus groups, it became clear that people were very surprised to learn that CSOs were only used in 6% of cases in Scottish Courts. They had expected the proportion to be much higher. This supports the research evidence from other jurisdictions.

A Sentencing Scenario Respondents were presented with brief details, followed later by additional information. The aim was to examine changes in respondents’ choice of sentence after the provision of further information.

44 The basic information was that “John”, a first offender aged 18, entered a house through an open window and stole a video. The additional information was that the video had been recovered and that John had a drug habit with which he wanted to seek help. Based on the limited version of the scenario the respondents were asked what should happen to John. The most commonly selected disposal was a Community Service Order (35%), followed by Compensation (29%), Fine (27%), Probation (21%) and Prison (20%) (multiple responses were allowed). However when the additional information was added, 51% selected a Drug Treatment and Testing Order, even though there was a relatively low awareness of the availability of this sanction. The focus group discussions suggested that prison was not appropriate because he was a first offender, and an addict who wanted treatment. The strong feelings from the focus groups were that if he received treatment he would be unlikely to re- offend. Respondents were concerned with the effectiveness of sentencing in reducing offending and making the community safer. This scenario suggests that the public is not too far away from the judiciary in sentencing. (This case would have been likely to produce a sentence of probation or perhaps a fine). There is certainly little evidence that the public is significantly more punitive than judges. It also suggests that the public is prepared to support constructive community based sentences which stand the best chance of reducing offending. The choice of the DTTO, when the drug habit information is provided, suggests that the public look for effective punishment which will have an impact on offending behaviour. Indeed when respondents were asked in the survey about the aims of sentencing in this case, the most significant support was for “changing John’s attitudes and behaviour so he is less likely to commit more crime”. There was more general support for rehabilitative and reparative aims than for incapacitation or simple retribution. There has been considerable controversy recently in England and Wales over a guideline judgement on domestic burglary issued by the Court of Appeal in December 2002 (http://www.courtservice.gov.uk/judgementsfiles/ j1464/mcinerney_keating_v_r.htm). The guideline suggests that the starting point for sentencing first time domestic burglars where there are no serious aggravations (such as the case above) should be a community order. The evidence from the Scottish survey suggests that the great majority of the Scottish public would agree with this policy.

45 46 Attitudes towards sentencing Respondents were presented with seven statements describing possible aims of sentencing using non-technical language, eg, individual deterrence was represented by “scaring John so that he won’t do it again”. There was strong support for all of the traditional aims of sentencing, as is shown in Table 1. At the top of the list were “changing John’s attitudes and behaviour so he is less likely to commit more crime” and “making amends to the victim for the harm done”. This supports Roberts’ conclusions that there is considerable support for community sanctions which can be shown to achieve constructive outcomes, in this case victim compensation and crime reduction through a change in the offender (Roberts, 2002). Incapacitation and retribution were the least popular aims although these still received positive support from at least 75% of respondents. This suggests that the Scottish public share the judiciary’s support for the full range of aims of sentencing, but also demonstrates that their favoured approaches are those which offer constructive and positive outcomes in terms of victim compensation and crime reduction.

Table 1: How important each of the following should be in sentencing John (%)

Extremely Very Fairly Not very Not at all Don’t important important important important important know Changing John’s attitudes and behaviour so he is less likely to commit more crime 49 43 5 2 1 0

Making amends to the victim for the harm done 34 42 20 4 0 0

Showing that the public disapproves of John’s crime 30 48 16 4 2 0

Scaring John so he won’t do it again 34 36 17 9 4 0

Scaring other people so they won’t commit the same crime as John 24 35 22 14 3 1

Making it difficult for John to commit more crimes (for example by imprisoning him) 20 37 22 17 3 1

Punishing John simply because he deserves it 13 30 33 19 5 1

Base: All respondent (n=720) Note: Table presents row percentages

47 Respondents were presented with five statements about sentencing and asked about the extent of their agreement or disagreement with each statement. The results (here see Table 2) again demonstrate the complexity of the public’s views on sentencing. A number of points illustrate this complexity. Although there was strong support for changing the offender’s attitudes and behaviour, there was limited confidence that this could be achieved, 43% agreed that offenders can be helped to changes their attitudes and behaviour and 33% disagreed. Despite the public’s belief that the courts are too lenient and that tougher sentencing is required, people are not unanimous that this is an effective way to stop offending. Although 55% of respondents agreed that “the tougher the sentence the less likely an offender is to commit more crime”, 31% disagreed.

Table 2: Attitudes towards sentencing (%)

Strongly Agree Neither/ Disagree Strongly Don’t agree nor disagree know

The tougher the sentence, the less likely an offender is to commit more crime 16 39 13 28 3 0

Victims should have a say in the type of sentence an offender receives 21 28 12 30 7 1

Most offenders can be helped to change their attitudes and behaviour 4 39 22 29 4 2

If offenders knew more about their victims they would be less likely to commit more crime 7 33 18 36 7 1

Prisoners should be given time off their sentence for good behaviour 2 32 11 41 13 1

Base: All respondent (n=720) Note: Table presents row percentages

48 Punishment Eighty three percent of respondents said they know not very much or nothing at all about Scotland’s prisons. Half the respondents agreed that prison life is “too soft” and this received widespread support in the focus groups. However, 67% of respondents thought that being put in prison punishes offenders and only 18% did not think prison was a punishment. Many people also have doubts about prison’s effectiveness in preventing re-offending, particularly for less serious offenders and for drug related offenders. For example, 68% agreed that prisons were “schools for crime” and while 36% said that prison was the best way to prevent re-offending, 43% disagreed. While there is scepticism about the effectiveness of Community Service Orders in the way they are currently administered, there is widespread support for the principle of the disposal especially if the punishment could be made more visible to the public. There was also wide support for reparative and mediation approaches provided these were directed to appropriate (less serious) offenders. When the focus groups were invited to take costs into account and presented with information about the relative costs of imprisonment and community- based sanctions, there was general agreement that punishment ought to be more cost effective. Two main means of achieving cost effectiveness emerged: cutting the costs of imprisonment by making the regimes more austere and making more extensive use of constructive community based disposals instead of short prison sentences for less serious offenders.

Civic Participation Exercise This was the first civic participation event (CPE) organised by the Scottish Parliament. The event was organised by a private company, Inter-ed. A total of 86 citizens attended. They were recruited through invitations issued to about 150 civic organisations in and around Glasgow. The aim was to involve individuals with an interest and a history of involvement in community issues. The number and profile of the participants do not allow the results to be generalised across the Scottish population. In general, this stage of the study provides information about the views on crime and punishment of a group of civic minded, slightly older people and examines how these views change as different information is presented to them and they discuss their views with each other.

49 Summary of findings from the CPE The main finding from this part of the study is that when respondents are presented with more detailed information which contains mitigating circumstances which make the case seem less serious, particularly because the offender is portrayed as less culpable for the offence, their choice of sentence changes. There is a significant movement towards more rehabilitative sentences and away from the more punitive sanctions (prison, electronic monitoring, fines). This is in contrast to data from England and Wales (Hough, 1996), where there was little support or understanding of rehabilitation. This provides further support for the argument that when asked simple abstract questions, people tend to react with more punitive views than when faced with more complex situations. Further it supports Hough and Park’s (2002) view that “too much credence tends to be given to the results of polls that manage to chart only people’s unreflecting views.” (p. 16). It suggests that when faced with the simple case, people tend to imagine this as a more serious case rather than a less serious case. Typically they will imagine a more culpable offender, someone whom they perceive as more morally responsible for their actions. However even in the serious versions of the cases, the respondents still demonstrated strong support for non-custodial sanctions. This study suggests that there is significant support for community-based sanctions in Scotland. A recent review of the international research literature on public attitudes to community sanctions shows that support is growing in many jurisdictions (Roberts, 2002; see also Mayhew and van Kesteren, 2002). The contrasts between the more and less serious scenarios in this study were very marked. The more serious cases portrayed the offender as more “criminal” in the sense that the offending behaviour was intended to cause criminal harm. The less serious cases portrayed the offender as a victim of circumstances or as “not really criminal” (eg, a student anti-GM crop protester.) This perhaps makes the reductions in punitiveness unsurprising. Having said that, one of the main findings of the research would have to be the enthusiastic pursuit of justice by the participants for the individual case with which they were presented. They approached the sentencing task in a very individualised manner much as judges would have done. There were no requests reported for information about sentencing patterns and no concern expressed about the need for consistency. Discussion in the workshops appears to have focused on trying to find a “just” sentence for the case. Again this supports other research evidence that when the public are given more information, their choice of sentence comes close to that chosen by judges. In other words it is quite possible for punitiveness at a general or abstract

50 level to co-exist with more rehabilitative or restorative views at the level of particular cases. This reflects the complexity of moral sensibilities.

Beyond Populist Punitiveness in Scotland? There seems little value in trying to reach a conclusive statement of the views of the Scottish public on crime and punishment. The data from this study do not support such a statement. The Scottish public does express punitive sentiments, but when given the opportunity, it can also respond to crime in a much more rational manner. There has been a tendency to assume that the public appetite for more severe punishment is a given and that politicians therefore have no choice but to adopt “tough” policies (or at least tough penal rhetoric) which will appeal to the electorate. The results of this study suggest that while the Scottish public appears to support “tough” approaches to punishment, at the same time and in the same breath, they also support alternative approaches. Toughness, which in practice means longer prison sentences in prisons with harsher conditions, is seen as appropriate but only for serious and dangerous offenders. There is also widespread support for community based sanctions which offer the opportunity for less serious offenders to reduce their offending behaviour. These options are seen as being more effective and in particular more cost effective than imprisonment. Doob has suggested that there is an opportunity in Canada to move away from an simplistic debate about whether the criminal justice system is “too tough” or “too lenient” to a discussion about how to construct a criminal justice system that is intelligent and fair (Doob, 2002). He argues that the evidence from his research suggests that there is public support for an approach which is based on rationality and fairness. This study in Scotland supports Doob’s conclusions. It was particularly evident from the civic participation exercise that the public have a keen sense of justice and a desire to secure just outcomes in individual cases. This approach is shared by the judiciary in Scotland. This suggests that, at least in Scotland, politicians who wish to introduce a more rational, cost-effective penal policy are likely to find support for this amongst the electorate. The public understands that short prison sentences are not the most effective way of reducing crime and that properly funded community based programmes offer the Scottish public a more cost effective way of building a safer community. There are some signs that political, social and cultural conditions in contemporary Scotland may be conducive to the development of a more rational penal policy. There is only space here to sketch some of the most significant conditions. The second elections to the Scottish Parliament will

51 be held in the spring of 2003. There was no single majority party in the first government which was a coalition between New Labour and the Liberal Democrats, with the Scottish National Party as the main opposition. Thus far, there have only been relatively minor differences between all three of these parties on criminal justice issues. There is a possibility that law and order may not be a central issue of party political difference during the run up to the election. The work of the two Justice committees in Parliament suggests that there is broad cross party agreement on criminal justice which would support the development of more rational policy. The Scottish Prison Service has stated that a reduced short-term prison population would allow them to work more effectively with long-term prisoners (Scottish Prison Service, 2002). A report produced by the Criminal Justice Forum of the Scottish Executive recommends the increased use of community sanctions as an alternative to short custodial sentences (Criminal Justice Forum, 2001). A consortium of non-government criminal justice organisations in Scotland has produced ambitious proposals for a rational reductionist penal policy which has received widespread attention (SCCCJ, 2001). There is thus widespread support from a range of stakeholders for a more rational approach to penal policy, and the results of the research study reported here, for the first time provides evidence of support from this approach amongst the Scottish public. Although global trends point to ever increasing prison populations and increasing populism in criminal justice politics, there are local conditions in Scotland, and no doubt elsewhere, which suggest that an alternative future is at least a possibility.

References Anderson, S., Ingram, D. and Hutton, N. (2002) Public Attitudes towards Sentencing and Alternatives to Imprisonment. Scottish Parliament Paper 488 session 1 2002. Edinburgh: HMSO http://www.scottish.parliament.uk/ official_report/cttee/just1-02/j1r02-pats-01.htm Criminal Justice Forum (2001) Report to the Criminal Justice Forum on Short Term Prison Sentences. Edinburgh: Scottish Executive Justice Department. Doob, A. (2000) ‘Transforming the punishment environment: Understanding public views of what should be accomplished at sentencing’ Canadian Journal of Criminology, pp. 323-340.

52 Garland, D., (2001) The Culture of Control, Oxford University Press, Oxford. Hough, M., (1996) ‘People Talking about Punishment ‘ Howard Journal of Criminal Justice, 35, p. 191. Hough, M. and Park, A. (2002) ‘How malleable are attitudes to crime and punishment? Findings from a British Deliberative Poll.’ in Roberts, J. and Hough, M. (eds) (2002) Changing Attitudes to Punishment: Public Opinion, Crime and Justice. Cullompton: Willan Publishing. Inter-ed. Ltd (2002) Civic Participation Event for the Justice 1 Committee of the Scottish Parliament: Facilitators Proceedings Report, Edinburgh, Scottish Executive. Mattinson, J. and Mirrlees-Black,C. (2000) Attitudes to Crime and Criminal Justice: Findings from the 1998 British Crime Survey, Home Office Research Study No. 200. London: Home Office. Mayhew, P. and Van Kesteren, J, (2002) ‘Cross National Attitudes Towards Punishment’ in Roberts, J. and Hough, M. (eds) (2002) Changing Attitudes to Punishment: Public Opinion, Crime and Justice. Cullompton: Willan Publishing. Roberts, J., (2002) ‘Public Opinion and the Nature of Community Penalties’ in Roberts, J. and Hough, M. (eds) (2002) Changing Attitudes to Punishment: Public Opinion, Crime and Justice. Cullompton: Willan Publishing. Scottish Consortium on Crime and Criminal Justice (SCCCJ) (2001) Rethinking Criminal Justice in Scotland http://www.scccj.org. Scottish Prison Service (2002) Making a Difference. Edinburgh: Scottish Prison Service.

53 54 Drug Courts Ð The Scottish experience by

Sheriff Michael O’Grady

Introduction

On Monday, 12th November 2001 a young man in his mid-20s with a string of previous convictions and facing a total of ten summary complaints became the first person to be made the subjects of an order by the Glasgow Drug Court. The court inaugurated that day became only the fifth Drug Court in the world outside the United States. Making the first Drug Court order, my colleague Sheriff Hugh Matthews told the offender “This is not a court of miracles. We know that coming off a long established pattern of drug dependence is not easy, but we will support your efforts with treatment. You must keep your appointments for drugs testing, treatment and supervision. Don’t be afraid if you relapse. The court is realistic. As long as you are upfront and honest about it and accept your responsibilities you’ve nothing to fear”.

In those few words Hugh Matthews encapsulated the essence of the Drug Court and its approach to dealing with drug related crime.

The first meeting of the working group which examined the feasibility of a Drug Court in Scotland using existing law and procedures was held on 22nd February 2001. It is perhaps a tribute to the flexibility of our system and those who operate within it that the group was able to report favorably to the Minister by May 2001 and a detailed reference manual was in place by October of that year.

What is a Drug Court?

Drug Courts began in the United States in the late 1980s. They did not of course emerge from a vacuum. Other methods and programmes had tried to link offenders with drug treatment. But the model which emerged in the United States was viewed as the most promising way of cuffing through the frustration of the “revolving door” of drugs and crime. The courts have now

55 spread to other jurisdictions and countries and Drug Courts are now functioning in Australia, Canada and Ireland. The purpose is self-evidently to reduce the level of drug related offending behaviour by reducing or eliminating the offender’s propensity to misuse drugs by the use of court sanctioned treatment rather than traditional sentencing. It is hoped that the additional cost of such courts will be offset by the savings to the public brought about by the reduction in crime.

Common features

The Drug Court in Glasgow has been highly influenced by its study of the international experience of Drug Courts. It looked at their operation and identified what appeared to be the principal common features in a wide range of courts. There are of course procedural and (sometimes significant) cultural differences. Nonetheless certain features appear time and again as vital component parts of the approach.

These common features are as follows:

1. Recognition that most drug abusers doe not commit crimes in order to use drugs so much as they commit crimes because they use drugs.

2. A belief that the reduction or ending of drug related criminal behaviour is more likely to be achieved through tackling an offender’s drug dependence.

3. An imposition of mandatory, regular and random drug tests on the offender.

4. Treatment programmes enforced by the court.

5. Supervision in the community again enforced by the court.

6. Regular and direct oversight by the Bench and in the presence of the offender of his progress.

7. Small specialist Bench with a consistent member overseeing each case.

8. A multi-disciplinary Drug Court team with a consistent core membership to monitor and review all the cases.

56 9. Regular use by the courts of instant summary sanctions for non- compliance including short periods in custody or community service. In each case such sanctions would allow the programme to continue.

10. Using the court not only as a sanction but also as a motivator and including in the approach judicial approval for progress and success.

11. Acceptance by all concerned that relapsing is a normal part of the recovery process.

12. Acceptance that relapsing will attract judicial disapproval or some sanction where it is accompanied by denial or dishonesty about the facts or circumstances of relapse.

13. Recognising that relapse in itself will be unlikely to terminate the treatment.

14. A recognition that to be treated properly the offender must enter treatment rapidly.

15. The importance of recognising that the offender requires to be dealt with as a “whole” person including not only drug treatment but also addressing housing, social, employment, health and other needs.

These then are the features which invariably appear wherever a Drug Court is in operation.

The Glasgow pilot

The Glasgow scheme is, as you will be aware, a Pilot scheme. We can cater for only 150 to 200 orders per annum and it will be self-evident that there are many people in Glasgow who may be suitable but who simply cannot be accommodated within these restricted numbers.

We therefore proceeded to set certain criteria for admission to the Drug Court. These criteria were in part arbitrary to deal with the limitation on numbers but other criteria are based upon experience of what type of individual is likely to succeed.

57 The criteria we have set out are as follows:

1. The offender must be over 21.

2. There must be an established relationship between the pattern of serious drug misuse and the pattern of offending.

3. We will not deal with first offenders.

4. The nature of the drug misuse must be susceptible to treatment.

5. Cannabis abuse alone will not qualify.

6. No case on indictment will be considered and the existence of outstanding matters on petition will exclude an offender.

7. Persons with a dual diagnosis of drug misuse and mental health problems will generally be excluded.

8. The trigger case must have started life in the Custody Court and must involve a substantive offence committed after 15th October 2001 (although if there are other outstanding matters these can be rolled up and dealt with).

9. Cases will proceed on the basis of a plea of guilty.

Sifting process

How do we identify offenders who may be suitable for a Drug Court?

The offender will normally have been identified as potentially suitable by the police who have arrested him. The police in all Divisions and in all stations have been issued with guidance on the kind of individuals who may well be suitable for diversion to the Drug Court. They have been asked to carefully consider the individuals arrested and in custody and if prima facie they are suitable candidates this will be flagged up and a dedicated member of the Procurator Fiscal’s staff will be alerted. However, the defence agent may also alert the Fiscal to potential cases if the police have missed them and indeed those in the Fiscal’s office marking papers may also do so. If having been alerted to potential candidates who are presently in custody and the Drug

58 Court Fiscal agrees, she will convene a pre-court screening meeting at 12 noon on the day when the offender is due to appear in the Custody Court.

At the pre-court screening meeting the Fiscal will be present along with the offender’s solicitor, the police and representatives of the Social Work Department. If a suitable plea is negotiated and if there is general agreement that the offender’s suitability is worthy of investigation then this will be intimated to the Custody Court sheriff when the offender appears and tenders a plea.

The sheriff will be invited to defer the case for a full assessment, including drug testing, for a period of 4 weeks to call before one of the Drug Court sheriffs. The sheriff will also be invited to admit the offender to bail pending such reports.

Whether or not the Custody sheriff agrees will of course be entirely a matter for him.

First Drug Court appearance

Four weeks after first appearing in the Custody Court and pleading guilty the offender will appear one of the two dedicated Drug Court sheriffs. The court sits at 2.00 pm Monday to Thursday each week. The offender will be represented by his solicitor and there will be available for the court a Social Enquiry Report, Community Service Assessment and drug reports.

The sheriff having not heard the facts before will require to hear them from the Procurator Fiscal. Thereafter the offender’s solicitor will address the sheriff on the basis of the reports and, generally speaking, seek to persuade the sheriff that if there is a recommendation for a Drug Court order it should be followed in the terms set out in those reports.

What kind of disposals can be expected?

Obviously each case will be dealt with on its merits. There is of course no guarantee that a case calling in a Drug Court will result in the offender’s participation in the programme. However the staple disposals are:

1. Drug Treatment & Testing Orders.

59 2. Probation Orders with condition of drug treatment.

3. Deferred sentences.

4. Combinations of these disposals.

It will be a standard condition of any of these disposals that the offender reports to the court for frequent reviews.

So far as these reviews are concerned, they are generally monthly. The review of DTTOs are of course are a creature of statute. So far as probation reviews are concerned, we take the view that Section 229 of the 1995 Act which allows a Probation Order to contain “such requirements as the court, having regard to the circumstances of the case, considers…conducive to securing the good conduct of the offender or for preventing a repetition by him of the offence or the commission of other offences...” covers the matter.

If the sheriff is satisfied that it is appropriate, he will impose an order generally for 12 or 18 months. As you will appreciate, it is not uncommon for individuals to be appearing on several complaints at this stage. In the period between the trigger case and the first appearance in the Drug Court it is common and indeed desirable that the defence solicitor and the Procurator Fiscal should trawl for any outstanding cases which can be rolled up and dealt with at the same time as the trigger case.

That being so, it is usual for us to impose either a DTTO or Probation Order in respect of one or two complaints and in respect of the other complaints to defer sentence to run in tandem with the reviews and the orders. The reasons for that may already be apparent but I shall expand on them in due course.

The offender will be told the terms of the order, asked if he accepts the conditions and will thereafter sign a series of consent forms which will be countersigned by the sheriff. He will be given a diary and an appointment card telling him the date of the first review.

Pre-Review meetings

The pre-review meeting is a unique aspect of the Drug Court.

Reviews take place at 2.00 pm. At 11.30 am on the day of the review a pre- review meeting is convened. This is attended by the social worker, addiction

60 worker, representative of the medical team and sheriff. The offender is not entitled to attend but he is entitled to have his solicitor present. There is available to the sheriff the up to date review report. This contains results of drug tests during the review period and a report and observations by the medical team and addiction team. There takes place a discussion among all those present as to the offender’s progress to date, what difficulties there have been, how those difficulties might be dealt with and what may be the appropriate way forward.

I should emphasise that no decision adverse to the offender will be made at a pre-court hearing. I shall come back to that later.

Review Hearing

The Review Hearing takes place at 2.00 pm. The offender will be present and also his solicitor. He will have had the opportunity of seeing the reports and discussing them with his solicitor beforehand.

One of the principles of the Drug Court approach is to achieve a direct dialogue between the Bench and the offender. At the review it may well be the case that the solicitor will not require to say a great deal. The same may not be true for the offender. Again I will deal with this later.

In any event, having heard the solicitor and the offender the sheriff will then proceed as is appropriate. Hopefully, this will mean continuing the order for a further month and to a further review. It may from time to time involve varying the conditions of the order.

It may also of course involve dealing with new matters. The sad fact is that some of those appearing in the Drug Court do not immediately cease offending behaviour and it is not unheard of to be confronted with a new complaint which has arisen since the previous review and requires to be dealt with.

As I have already suggested, the review is normally fixed for a month, hence. Sometimes however where there are problems, for example, some measure of non-compliance, we will continue the matter for two weeks only in order to more closely monitor the situation.

As I have already indicated, orders are for 12 or 18 months and there will therefore logically be 11 or 17 pre-review meetings and review hearings.

61 62 Observations

That is the general over-view of how the Court works. But it might be worth my while mentioning one or two particular aspects of a process.

1. Candidates: As I have already mentioned, we do not deal with first offenders, in practice we are dealing with high tariff offenders, they invariably have lengthy records, usually for dishonesty, and have usually been through the Court system on many occasions. They will likewise have had many different disposals in the past. They are usually between aged 25 and 40. They are in a sense “mature”. They are the kind of people who have now reached rock bottom. It may be indeed that they have hit rock bottom not for the first time but perhaps just harder than before. They may have had previous treatment which has been more or less successful. But experience in research shows it is just these kinds of “mature” addicts who can be successfully treated. They are in a sense “ready” as never before to address their addiction. This can of course raise questions. One criticism levelled at the Court might be that offenders with bad records are being ‘’rewarded” with intensive and extensive treatment unavailable to those whose criminality has been less. That I think is a misguided approach.

2. Plea of Guilty: As I have already noted, the trigger case at present is a case appearing in the Custody Court and proceeding on a plea of guilty. The reason for this is that experience is again shown that the length of time between commission of offence and treatment commencing is vital. The quicker the intervention the more likely it is to succeed. Accordingly, one needs to strike while the iron is hot, hence this particular criterion. There is however a problem. Pleas of guilty are very rare in Glasgow Sheriff Custody Court. The only consideration for individuals appearing from custody is bail. There is some evidence that in the light of the Drug Court this is changing but it remains a difficulty and we are considering at present widening the criteria.

3. Bail: You will already have seen the kind of people we are dealing with and the kind of records that they have. Their records will invariably contain previous contraventions of the Bail Act and on one view they

63 are the kind of people who would not normally get bail. However, those treating the addiction in both this country and in other jurisdictions are firmly of the view that reports have to be prepared while the offender is at liberty. They have to properly assess all of his needs and circumstances and see the full context in which they are expected to provide assistance. The assessment period is also a good test of the offender’s commitment to addressing his problem and his ability to do so. It also enables the defender from his point of view to experience the regime likely to be encountered if a Drug Court order should be made. These are all good and pressing reasons why he should be at liberty for assessment. Bail always of course represents a risk. It has to be in any case a question of balance. Naturally, we do not consider that we would ever take any unnecessary or unacceptable risk in admitting an individual to bail but we do recognise the importance of doing so if possible.

4. Disposals: As I have already suggested many individuals appear on a number of complaints. Our practice is to impose a Drug Court order in respect of one or two complaints but to defer sentence for good behaviour in respect of other complaints. This is a very useful technique. In the first place, if the individual is not of good behaviour during that period then when he appears for the sentence deferred I do not require to wait for a breach report but can sentence him immediately. I always explain this to offenders when I place them in deferred sentence initially. They know therefore that the deferred sentence is hanging over them. Likewise however the deferred sentence can be an incentive. On a number of occasions if an individual has been of good behaviour for say, 6 months then at the sixth review I may well simply admonish him in relation to a matter explaining that this is in recognition of his good behaviour and of his not betraying the trust of the Court.

5. Interim Sanctions: As some of you may know there is a bill presently proceeding through the Scottish Parliament which inter alia will introduce interim sanctions for the Drug Court. That is to say there will be sanctions which can be imposed for non-compliance without interrupting the order. These will be up to 28 days’ imprisonment or 40 hours’ community service. In our view these will be very useful tools and indeed have proven to be so in other jurisdictions.

64 6. Pre-Review Meetings: I have already alluded to the fact that these are in my view very important. They enable those who prepared the reports and dealt with the offender to expand on those reports and to discuss the way forward. They are a way to resolve the occasional disagreements between medical and addiction staff. Those taking part are able to discuss issues more freely and also from time to time to discuss ‘delicate issues’ which might affect the offender, for example, a history of child abuse. Most important of all they are an opportunity to discuss the way forward and an opportunity for me to discover which buttons to push. It is a matter of great regret that almost no solicitors attend at these. I am told this is because they are not paid for this by the Scottish Legal Aid Board.

7. Direct Contact: At review hearings we seek to have a direct dialogue from the Bench with the offender. We do not cut out the solicitor completely but nonetheless generally prefer to be engaging with the offender directly. This is I suppose double-edged for the accused. On the one hand it can be to his advantage. There is no doubt that by doing this we can better assess his commitment to the whole process. If he is committed that of course is good from his view-point. If he has not then the reverse is true. We are not of course naive. We know that addicts are endlessly manipulative and we realise that what we are seeing in front of us may be to some extent tailored for the Court. Nonetheless, it is possible to a considerable degree to form an impression of the individual and it is even possible to build up a relationship with that individual which is meaningful in the context of the Court. I have absolutely no doubt from the information I have received from the Drug Court team and from the results that I have seen that offenders do respond to a severe roasting from the Bench. I have also no doubt that they respond to praise. That is a very important part of the process. These are people who have done nothing much in the past few years worthy of praise. They are not used to it. They do not expect it. And when it does come it clearly has an affect. It is not unusual to see people bringing members of their own family to Court when they have a good report so that the family, who may have been estranged for many years and suffered very much, to see that the offender is capable of doing something good.

65 8. Rewards: Unlike other jurisdictions we do not have a formal system of rewards. There are no tickets for football matches or hugs from the Bench. I have already mentioned the use of deferred sentences as rewards. And also praise for the individual offender. We are also about to introduce a system of periodic letters to the offender to confirm the progress he or she has made to date. We have also noticed that since the same offenders are appearing at the same month the review is in the same Court. Some of them have developed a kind of team spirit and are encouraging each other. We may also seek at a later stage to introduce the system of mentors.

9. Team Approach: There is no doubt that a team approach is a very necessary part of the Drug Court. This is unfamiliar to many lawyers and particularly to Sheriffs. It may even in some cases go against the grain. It is however a matter of the greatest importance to understand how the other professionals operate. In this respect we have spent a good deal of time training to have a better understanding of what others have to do to carry out our decisions. We have also made visits to a number of service providers again to gain a greater understanding of their role.

10. Addicts Themselves: Hugh and I have also made an effort to speak to recovering addicts. This has been a process which I can only describe as eye-opening. As a lawyer, I have been dealing with drugs in one or other of my incarnations for 25 years. Nonetheless I have still found talking to these people a complete revelation, not least in understanding the difficulties they face in overcoming their addition.

11. Part of the Problem: This is a problem for women especially. We do not as yet have many women in the programme but if and when do there is little doubt that this is a problem of considerable proportions and, as I understand it, common to all types of Social Work intervention.

12. Treatment Time Delay - Is this a Problem? At the moment it is 4 weeks.

66 13. Holistic Approach: I hate that word but it is an appropriate word to use. We cannot deal with drugs in isolation. We have to consider, for example, homelessness, living in hostel accommodation, abusive relationships with men/women, bereavement, abuse.

14. Success: What is it? Is it complete for everyone? Is it partial? Do we need to have different definitions of success?

67 68 Conference Posters

The Provision of Medical Services to Persons in Police Custody: A Survey of Lothian and Borders Police by D. Hunter and Dr T. Squires, Forensic Medicine Section, University of Edinburgh.

Aim To assess the health-care needs of persons held in police custody.

Methods The study reviewed all custody cases admitted to St Leonard’s Custody Suite between 1st January and 30th June 2000. Data were collated from the custody recording system of Lothian and Borders Police and were divided into “medical” and “non-medical” categories according to whether the detainee requested or required medical consultation and/or treatment (including the dispensing of medication previously prescribed).

Results Of the 9,922 persons taken into custody during the study period, 993 were classified as being medical cases. Females were more likely to be medical cases than males. An outstanding warrant was the most common reason for custody and approximately half the medical cases had been detained for that reason. Methadone was dispensed to 16.5% of medical cases whereas almost half of such cases received a benzodiazepine. Drug and alcohol withdrawal accounted for two-thirds of medical examinations. Persons held in custody as a result of a warrant and those who have medical conditions associated with drug use and/or drug withdrawal constitute a significant burden on the police and forensic medical services.

Conclusion Health care provision for persons detained in police custody should be monitored and audited, both for the quality of service provided and to assess the impact on the police and forensic medical services. Specialist training for custody officers should be available and a Scottish-wide uniform system should be adopted. Alternative ways of dealing with persons arrested on warrants should be investigated.

Presenting Author: Sergeant Dennis Hunter, Lothian and Borders Police Force, postgraduate student Forensic Medicine Section, University of Edinburgh. Mailing Address: Mr D. Hunter, Forensic Medicine Section, Teviot Place, Edinburgh EH8 9AG. Tel 0131 650 3284. Fax 0131 650 6529. Email [email protected]

69 The Edinburgh Study of Youth Transitions and Crime: Teenage Lifestyles and Delinquency by Paul Bradshaw

Abstract It has been firmly established in criminological research that there are certain aspects of an individual’s life which have a long-term influence on their participation in criminal behaviour. However, it is also noted by many theorists and researchers that short-term, more immediate circumstances can also influence an individual’s propensity to commit crime.

Within the specific domain of youth crime research, several of these shorter-term influences have been well documented and each is supported by data from our own Study. First, it is known that the vast majority of juvenile delinquents commit crime as part of a group. Second, and clearly related to the first, level of peer delinquency influences the offending behaviour of any individual. Third, there is a strong relationship proven between victimisation and offending, suggesting that delinquency often arises from crime-related interactions with others.

Each of these influences are related to the immediate situations that young people find themselves in and suggest that the social scene surrounding offending is very important in understanding a young person’s involvement in offending behaviour.

The Edinburgh Study of Youth Transitions and Crime involves a cohort of 4,300 young people who started attending secondary schools within the City of Edinburgh in the autumn of 1998, at approximately age 12. In the course of our research we have collected information on young people’s offending behaviour and on their leisure pursuits and how they spend their free time. This data can be used to explore teenage lifestyle patterns and ‘social scenes’ including membership in clubs and groups, employment and financial situations and the more risky anti-social activities associated with simply ‘hanging around’ public spaces.

We have already established that certain leisure patterns and pursuits have an influence on delinquency. Less conventional activities such as going weekly to discos or nightclubs and amusement arcades are strongly related to delinquency, whereas attending an organised club, group or sports centre is less so. This poster will explore this relationship in more detail by examining the lifestyle patterns which emerge from the data collected by the Study and how these patterns are related to a young person’s involvement in delinquency.

Presenting Author: Paul Bradshaw, Research Fellow, The Edinburgh Study of Youth Transitions and Crime, University of Edinburgh School of Law, Minto House, Chambers Street, Edinburgh EH1 1JZ. Tel: 0131 650 9173 Email: [email protected]

70 Crime and punishment (Scotland) Act, 1997: A survey of psychiatrists’ views towards the Scottish “Hybrid order” by Dr. Rajan Darjee, University of Edinburgh; Dr. John Crichton, Royal Edinburgh Hospital; Dr Lindsay Thomson, University of Edinburgh.

The Crime and Punishment (Scotland) Act 1997 introduced the hospital direction, Scotland’s “hybrid order”; so called because it allows the courts to simultaneously send a mentally disordered offender to hospital and impose a prison sentence, to be completed after hospital discharge. Similar legislation has been introduced in England and Wales for offenders with psychopathic disorder, but the Scottish legislation applies to all legal categories of mental disorder. There was opposition to the introduction of the hospital direction from psychiatrists in Scotland. In this survey psychiatrists engaged in forensic work in Scotland were identified (n = 51). Respondents (n = 41) completed a decision making exercise based on fictional case vignettes, designed to elicit their attitudes towards hospital directions. The majority of respondents favoured the introduction of a hospital direction (n = 29). It was felt to be useful in cases where personality disorder coexisted with mental illness, which was brief, drug-induced or not related to offending. It was not felt to be useful in cases of antisocial personality disorder alone. However, there were concerns about the working of the new legislation: whether it would be used appropriately by courts and whether psychiatrists should recommend a disposal that includes imprisonment.

Darjee, R., Crichton, J. and Thomson, L. (2000) Crime and Punishment (Scotland) Act 1997: A study of psychiatrists’ views towards the hospital direction. Journal of Forensic Psychiatry 11: 608-620.

71 Understanding Offending Among Young People by Janet Jamieson, University of Lancaster, Prof. Gill McIvor and Cathy Murray, University of Stirling.

Aims and methods The link between youth and crime has proved enduring and involvement in criminal activities is an integral part of adolescence for many young people. This study explored various aspects of offending among people through a survey of 3rd and 4th year pupils and through in-depth interviews with young people in three age groups (14-15 years, 18-19 years and 22-25 years). Respondents included young people who have never offended (resisters), those who had stopped offending (desisters) and those who continued to offend (persisters).

Results Most pupils said they had offended, though the types of offences committed were generally not very serious. Girls were less likely than boys to report committing offences and they reported doing so less frequently. There was, however, a striking similarity in the types of offences reportedly committed by boys and girls.

Young people attributed offending to factors such as upbringing, drug use, peer pressure, shortage of money, a wish for attention/notoriety or excitement. There was an escalation in the severity and frequency of substance use and drug-related offending with age. Drug addiction was the most common explanation for continued offending in the older age groups.

Resistance to becoming involved in offending was usually attributed by young people to a belief that offending was intrinsically wrong or to a fear of the consequences. The latter also featured in accounts of desistance, which was also explained with reference to maturation, the experience of adult transitions and changes in lifestyle.

Conclusion Gender provides only a partial explanation for offending among young people. Although some gender differences were identified, more surprising were the many similarities between male and female respondents. The phenomenon of youth crime is complex and defies simplistic solutions. A strategic, integrated will be required if offending and related problems, such as drug abuse, are to be successfully addressed.

Presenting author: Prof. Gill McIvor, Director, Social Work Research Centre, Department of Applied Social Science, University of Stirling, Stirling FK9 4LA. Tel:01786 467724. Fax: 01786 466319. Email: [email protected]

72 Women’s Experiences of Community Service by Prof. Gill McIvor, University of Stirling and Kathryn Mullet, Home Office Research and Statistics Directorate.

Aims Community service has proved to be a popular sentencing option since its introduction in Scotland in 1977. It has, however, typically been used as a young man’s disposal and women offenders have consistently been under-represented on community service schemes. This study aimed to examine women’s experiences of and attitudes towards community service; to identify factors which impact upon their experiences of community service; and to identify the implications for policy and practice.

Methods The first stage consisted of a postal survey of thirty-seven women who had completed community service orders during the previous 12 months and in-depth interviews with a sub-sample of seven questionnaire respondents. The interviews built partly upon issues identified by women in their questionnaires, including their views about the quality and range of community service placements and difficulties encountered in successfully completing the work ordered by the court.

Results The women had most often received their community service orders for offences involving dishonesty (most commonly fraud, embezzlement and theft) or breaches of public order (including common assaults). Placement allocation generally reflected women’s interests and skills but choice was often constrained by practical issues such as accessibility and childcare commitments. Most women completed all or most of their order in individual placements. Those who were allocated to team placements often found themselves to be the only woman in the team.

While most women had enjoyed their experience of community service, many also encountered a range of practical difficulties in completing their orders, including arranging care for their children while undertaking unpaid work. Some women suggested that crèche provision would have been helpful, however most expressed a preference for informal childcare arrangements and regretted that they were unable to claim financial support to pay friends, neighbours or relatives who took on this task.

Presenting author: Prof. Gill McIvor, Director, Social Work Research Centre, Department of Applied Social Science, University of Stirling, Stirling FK9 4LA. Tel:01786 467724. Fax: 01786 466319. Email: [email protected]

73 The Effectiveness of Supervision with Female Offenders by Prof. Gill McIvor, University of Stirling and Nicole Westmarland, University of Sunderland; with Janet Jamieson, University of Lancaster and Kristina Moodie, independent researcher.

Aim The importance of establishing effective and credible community-based alternatives for women who offend is now widely recognised. However it cannot be assumed that interventions that have been developed for young men are appropriate for young women. This study sought, therefore, to examine the relative effectiveness of different models of supervision with female offenders.

Methods The research was conducted in six Scottish local authorities The methods included the collection of data from social work files; interviews with women who had been on probation; interviews with supervising social workers; the completion of questionnaires by supervising social workers; and the analysis of reconviction data.

Findings A high proportion of women made subject to probation orders had drug problems. Social workers generally focused upon criminogenic needs (that is, those needs related to offending) exclusively or in conjunction with wider problems. An exclusive focus upon ‘welfare’ issues was rare.

Social workers were found to be grappling with a wide range of complex issues in their supervision of female probationers, often in the face of limited resources. Most women valued their experiences of probation and singled out their relationship with their social worker as the aspect of probation they liked most. The majority of women received one-to-one supervision. However though those who attended groups for women were generally appreciative of the support received.

Overall, most women (67%) were thought to be at less risk of offending since being placed on probation, though most women (60%) were also though fairly or very likely to re-offend. There were no differences in outcomes between different models of supervision, though the low number of cases involving a welfare approach made such comparison difficult. However it appeared that for the effectiveness of supervision to be maximised, women need access to services that facilitate their inclusion in society

Presenting author: Prof. Gill McIvor, Director, Social Work Research Centre, Department of Applied Social Science, University of Stirling, Stirling FK9 4LA. Tel:01786 467724. Fax: 01786 466319. Email: [email protected]

74 Drug Treatment and Testing Orders by Dr. Susan Eley, Kathryn Gallop, Professor Gill McIvor, Kerry Morgan and Rowdy Yates, University of Stirling.

Aims Drug Treatment and Testing Orders (DTTOs) are aimed at providing courts with a further option to deal with offenders who commit crimes to fund their drug habit. The first pilot DTTO scheme in Scotland came into operation in Glasgow in October 1999 and a second pilot site was established in Fife in July 2000. This study was commissioned to evaluate the operation and effectiveness of the pilot schemes.

Methods The methods employed included the collection of information from social enquiry reports and DTTO files; observation of review hearings; interviews with offenders, DTTO staff, social workers, service providers and sentencers; and the completion of questionnaires by DTTO staff and service providers.

Findings A DTTO was considered to be a high tariff disposal that was appropriate for drug users who offended rather than for offenders who used drugs. 47 DTTOs had been imposed in Glasgow and 49 in Fife. In both schemes almost all recommendations for DTTOs resulted in the making of an order. Orders were imposed on offenders who were likely otherwise to receive a custodial sentence.

In both pilot schemes most offenders received a methadone prescription. Although drug services were considered to be generally adequate, it is possible that treatment was determined by availability rather than being needs-led. The proportion of positive drug tests for opiates decreased over time. Offenders regarded drug testing and face-to-face reviews both as a deterrent to continued drug use and as an incentive to becoming and remaining drug free.

Professionals were optimistic that DTTOs could impact positively on drug use, offending and other aspects of offenders’ lives. Offenders reported marked reductions in drug use and drug-related offending that were sustained for at least six months. For example, weekly reported expenditure on drugs decreased from £490 before the DTTO to £57 after six months on an order.

Presenting author: Prof. Gill McIvor, Director, Social Work Research Centre, Department of Applied Social Science, University of Stirling, Stirling FK9 4LA. Tel:01786 467724. Fax: 01786 466319. Email: [email protected]

75 National Evaluation of supervised attendance orders By Dr. Liz Levy, Scottish Executive CRU and Prof. Gill McIvor, University of Stirling.

Aim Supervised attendance orders (SAOs) are a community-based alternative to imprisonment for fine default. They substitute the unpaid portion of a fine for a period of constructive activity and were introduced throughout Scotland in the late 1990s. The aim of the research was to evaluate the national roll-out of SAOs.

Methods The first phase of the study consisted of a national audit of SAO provision, practice and activity and an examination of the use of SAOs and custodial alternatives to default across Scottish courts. In the second phase of the research six schemes with differing characteristics were selected for more detailed scrutiny.

Findings The SAO had become established as a credible alternative to imprisonment for fine default, commanding the support of sentencers, social work staff and offenders. The national roll-out of SAO reduced the use of the custodial alternative for fine default in the sheriff and district courts.

Little use was made of Section 237 orders (SAO as an alternative with more time to pay). Sentencers preferred to have the offender in court when making an order. Offenders given Section 237 orders were difficult to engage on an SAO and were more likely to be breached.

SAO activities were usually educational in nature or unpaid work. Models of SAO activity varied across the country but there was no evidence that one model of provision was to be preferred over another. Most offenders given an SAO completed their orders (85%). Those who did were less likely to be convicted in the 12 months after being given an order than in the 12 months before and the mean cost of an SAO (£733) was lower than the cost of an average custodial sentence for fine default (£837).

Presenting author: Prof. Gill McIvor, Director, Social Work Research Centre, Department of Applied Social Science, University of Stirling, Stirling FK9 4LA. Tel:01786 467724. Fax: 01786 466319. Email: [email protected]

76 Evaluation of the Pilot Drug Court in Glasgow by Lee Barnsdale, Dr. Alison Brown, Dr. Susan Eley, Dr. Margaret Malloch, Prof. Gill McIvor and Rowdy Yates, University of Stirling.

Aims Drug Courts aim to reduce drug misuse and associated offending by offering treatment based options outwith the traditional court setting. In October 2001 Scotland’s first Drug Court was established in Glasgow Sheriff Court. The aim of this research was to document the operation of the Drug Court during its first six months.

Methods The fieldwork included interviews with 38 professionals associated with the Drug Court and eight Drug Court clients; the collection of information from records; and observations of screening group meetings, first callings, pre-court review meetings and review hearings.

Results The Drug Court referral criteria were thought to be realistic and appropriate. Despite a lower than expected number of police referrals, by May 2002, 77 cases had been referred to a screening group and 68 cases had been referred for a Drug Court assessment.

Although the Drug Court has the same disposals available to it as the Sheriff Court under summary proceedings, the ethos of the former differs significantly. It was seen by all involved to be less punitive and more constructive, a situation considerably enhanced by the direct dialogue which took place between the Sheriff and offender. There was optimism among those involved in the operation of the Drug Court that it would be successful in reducing drug use and associated offending. Its main strengths were perceived to be the ‘fast-tracking’ of offenders, the existence of a trained and dedicated team in regular contact with each other and the system of pre-court review meetings and reviews. By contrast, issues around multi- disciplinary team working and a reliance on substitute prescribing were believed to have undermined the effectiveness of the services provided. Sheriffs were satisfied with the enforcement of orders but would welcome a wider range of sanctions in the event of non-compliance.

Presenting author: Lee Barnsdale, Research Fellow, Social Work Research Centre, Department of Applied Social Science, University of Stirling, Stirling FK9 4LA. Tel: 01786 467724. Fax: 01786 466319. Email: [email protected]

77 Branch Generated Article

The Employability Needs of Young Offenders

by

Bernadette Monaghan, Director, Apex Scotland

Background

Apex Scotland was set up in 1987 to reduce offending by addressing the employability needs of (ex) offenders and young people at risk in order to move them on to a positive outcome such as employment, education or training.

We deliver a range of services from units across Scotland that are tailored to individual need. These cover work on calculating convictions that need to be disclosed under the Rehabilitation of Offenders Act 1974, writing disclosure letters for prospective employers, preparing CVs, setting up mock interviews, Job Search and undertaking pre and vocational training. In addition, we also provide assistance with Basic Skills of reading, writing and numeracy, Life Skills such as confidence building and assertiveness and Work Skills that are recognised as attitudes and motivation, adaptability, trainability and reliability.

Between April 2002 and the end of January 2003, we received a total of 4625 referrals from which 2955 clients started on our programmes, giving a conversion rate of 62%. The number of clients who completed programmes in this period is 1750 and 602 achieved positive outcomes to date. We believe that we achieve best results with clients who attend for an optimum of 7 appointments. For the period outlined above, this equates to 497 clients of whom 254 or 47% progressed to positive outcomes. If we remove prison service and Supervised Attendance Order (SAO) clients, this increases to 65% or 93 clients who achieved positive outcomes from a total of 143. In addition, Apex negotiated a process with SCRO to carry out recidivism checks on our clients in order to provide some measure of the impact of our work on their re-offending. Our first report is discussed at the end of this article.

78 Range of Services

Our services can be broken down into the following groups:

Employment and Guidance: We provide Employment and Guidance services to 13 local authorities in partnership with criminal justice social work teams, to those on community- based orders such as probation and community service. Between April 2002 and January 2003, we received a total of 1,012 referrals for Employment and Guidance, from which 540 clients started work with us, 288 completed programmes and 148 have so far achieved the following outcomes (All statistics cover the period 1st April 2002 to 31st January 2003):

84 Ð full time employment 5 Ð part-time employment 30 Ð further training 25 Ð further education 4 Ð voluntary work.

Our Lothian Unit received 250 referrals for this service for the same period, from which 108 clients started working with us and to date, 35 of them have achieved the following positive outcomes:

26 Ð full-time employment 2 Ð part-time employment 5 Ð further training 2 Ð further education

In addition to Employment and Guidance, the Lothian Unit also provides an Inclusiveness Project, New Deal Initiatives, elements of supervised attendance orders (20 clients) and is sub-contracted by Cranstoun Drugs Services to provide Transitional Care to SPS.

Supervised Attendance Orders are delivered on behalf of 8 local authorities (Dundee, Glasgow, North and East Ayrshire, Moray, North Lanarkshire, Renfrewshire and East Lothian). The supervising social worker holds the order and deals with statutory issues such as enforcement. Apex staff provide feedback to social work departments at the end of an order or in the event of non-compliance.

There are 3 components to the order, each of which is designed to provide education and training. The first is a core 10-hour module focussing on

79 offending related issues such as debt, employment and welfare, followed by needs-related education and training and then by some form of community activity. Where possible, this reflects the client’s interests and skills, is intended to be of constructive value to them as well as the community and generally involves charity, conservation or environmental work.

We received 744 referrals in total for the period April 2002 to January 2003, which converted into 659 starters and 452 who successfully completed. The order is not explicitly aimed at progressing clients into positive outcomes or reducing their offending behaviour. However, 139 of the completers had the following positive outcomes in place at the end of this 8-month period:

63 Ð full-time employment 15 Ð part-time employment 13 Ð further training 13 Ð further education 32 Ð voluntary work 3 Ð Intermediate Labour Market (ILM) placement

The National Evaluation of the Operation and Impact of Supervised Attendance Orders was published by the Scottish Executive in 2001. It highlights that the mean length of custodial sentence for fine default in 1999 was 11 days and estimates the cost to be £837. The mean direct cost of an SAO is £425 and the cost per order, when additional costs associated with breaches and reviews are taken into account, is £733. Successfully completed orders are obviously less expensive. The report concludes that SAOs are therefore a cost-effective addition to the range of options available to the courts to deal with offenders who default on payment of their fines. The Criminal Justice (Scotland) Bill will allow SAOs to be piloted as a disposal of first instance and will also allow courts to make mandatory use of them for fine defaulters.

Prison based services in 12 establishments. This includes services delivered by full time members of staff within HMP Edinburgh and Greenock and HMYOI Polmont and other services provided to Aberdeen, Noranside, Dumfries (awaiting outcome of Community Fund application), Glenochil, Inverness, Perth, Barlinnie, Cornton Vale, Peterhead and Shotts (awaiting outcome of proposal). We also submitted an application to the New Opportunities Fund (“Better Off” Initiative) to set up a Throughcare Centre in HMP Kilmarnock.

80 Over the last 8 months, our prison-based services received a total of 1045 referrals from which 623 people started working with us and 450 completed to date. Tracking is ad hoc and depends on getting a mobile phone number for someone before they are released. However, we have the following outcomes for 107 of the completers:

37 Ð full-time employment 3 Ð part-time employment 26 Ð further training 40 Ð further education 1 Ð ILM placement

Apex played a pivotal role in the setting up of the Throughcare centre or the “Chance for Change” Initiative in HMP Edinburgh in 1998 and has 4 full- time members of staff based there. By addressing needs and providing a link with the outside community, the Centre aims to make a positive impact on men’s lives: an impact that would, in the longer term, reduce the likelihood of their re-offending.

Between April 2002 and January 2003, we received 153 referrals and worked with 146 clients in that period, 119 of whom have now completed. Again, given the difficulties in tracking clients after release, we can provide information on outcomes for 18 of our clients:

5 Ð full-time employment 1 Ð further training 11 Ð further education 1 Ð ILM placement

We can also provide an indication of the impact of the Centre in relation to short term return to custody, although not in relation to further offending or reconviction rates. We carried out a study on return to custody rates for Apex clients for the evaluation report on the Centre and have agreed to repeat this on a quarterly basis for SPS.

The study collected information on Apex clients who were liberated between 1st April 2001 and 2nd February 2002. Excluding remand prisoners and those with outstanding convictions, the sample consisted of 51 clients with an average liberation date of 2nd September 2001. Six of the sample returned to custody within 6 months (one on remand), whilst a further 6 returned to custody more than 6 months after liberation (one on remand). We

81 can therefore conclude that 12% of Apex clients returned to custody within 6 months or to put it another way, 88% of clients did not. This compares favourably with the SPS average of 22% for adult prisoners returning to custody within 6 months.

This provides a crude measure of the effectiveness of the Centre but we recognise that any measure of success needs to take account of whether an offender’s time in the community between prison sentences increases, whether the nature and seriousness of their offending decreases and whether they feel that they have made progress in changing some areas of their lives that are associated with offending.

We secured Community Fund monies until June 2003 to provide an employability service to HMP Greenock that also involves signposting clients to other community-based services on release. We received 240 referrals between April 2002 and January 2003 of which 126 worked with us and 59 have completed the course to date. No outcome data is available at present.

Services in HMYOI Polmont are delivered by 2 members of staff and a recently appointed Learning Support Worker. From April 2002 until the end of January 2003, 563 young people were referred to our staff in Polmont: 200 completed our courses with the following outcomes:

35 progressed to full time employment 4 progressed to part-time employment 31 went into further education 32 took up vocational training 89 were referred to local Apex units throughout Scotland for additional support and aftercare 6 moved to England 3 re-offended.

In addition, 107 young people left Polmont before completing and 256 did not start work with us. The latter figure includes 102 young people who were transferred to other establishments before we could begin work with them, 36 who were released on interim liberation and did not return, 46 who were referred but refused assistance and 72 individuals that we were unable to assess due to limited staff resources.

82 Transitional Care We provide community-based Transitional Care workers as part on the Cranstoun drugs throughcare initiative in Edinburgh and Fife. These take referrals from HMP Edinburgh and Perth. We have had 321 referrals (216 to Lothian and 105 to Fife) and 231 starters (147 in Lothian and 84 in Fife) of which 60 completed work with us (27 in Lothian and 33 in Fife). Positive outcome data is available for 11 of these ( 8 in Fife and 3 in Lothian):

3 Ð full-time employment 3 Ð part-time employment 3 Ð further training 2 Ð further education

We provide the following initiatives on behalf of Jobcentre Plus:

New Deal (Gateway) is aimed at long term unemployed aged 18 to 24 years to prepare them for access to one of the four options of New Deal. The programme lasts up to 3 months. New Deal (Options) follows on from the previous programme and aims to build on previous experience in preparation for employment over 6 to 12 months. New Deal (Follow Through) provides one to one intensive support for those who do not secure a job on the previous programme.

Progress2Work received funding for 18 months and aims to work with those with a history of drug misuse who are stabilised or have obtained a measure of control over their use, including those leaving prison who have been through drug interventions within prison. It aims to help them progress to mainstream education, training or employment. Apex is the largest provider in Scotland and is the lead agency in the Borders, Fife and Forth Valley (in partnership with Phoenix House), Ayrshire (in partnership with The Bridge) and Inverness (in partnership with Beechwood House) as well as the Lanarkshire Consortium.

Services provided under the Scottish Enterprise New Futures Fund work with 16 to 35 year olds who are severely disadvantaged and aim to help them access mainstream training programmes, further education or employment.

Local Enterprise Companies contracts include Skillseekers, which aims to provide vocational training and work experience for 16 to 18 year olds (can extend up to 25 years) and Training for Work which is aimed at the long term unemployed over 25 years.

83 Client Group

Our average client will be aged 19, offending since the age of 14, with 12 previous convictions on average. They will also have a history of school exclusion and truanting, no educational or vocational qualifications and poor literacy and numeracy skills. Other issues likely to feature in their lives include substance misuse, lack of accommodation and periods of homelessness, lack of family and other support and low self-confidence and expectations.

We know that 70% of prisoners are unemployed at the time of reception into prison. We also know that over 1 in 10 prisoners lack functional reading skills and that over 1 in 5 have poor numeracy skills: Ten thousand prisoners and young offenders were screened for basic skills between April 2000 and September 2002, using the Basic Skills Agency for England and Wales “Initial Assessment” Tool. Bearing in mind the difficulties associated with applying an English assessment tool within a Scottish context, this means that approximately 25% of prisoners in Scotland have literacy problems and 33% have numeracy problems. It is accepted that this is a conservative estimate and that the extent of these problems is likely to be higher.

Our Learning Support worker in HMP Edinburgh is currently working with 21 clients, 4 of whom were assessed as being below Entry Level in reading and 8 of whom were assessed as below Entry level in writing. Eight clients are also receiving help with handwriting. Since June 2002, we assessed 72 clients, 7 of which are at Entry Level 1 for reading and 13 of whom are below Entry Level for writing.

Youth Crime in Context

Recent political and media hype suggests that there has been an upsurge in youth crime that demands tough and effective action against those responsible. We must remember that the vast majority of our young people are law abiding, that most offending by young people is relatively minor and that they usually grow out of it. Therefore, only 1.5% of Scotland’s 900,000 young people will ever be referred to the Children’s Reporter on offence grounds and 60% of that tiny proportion will offend only once.

That said, it is also true that a few young people commit a large number of offences: about 40% of all recorded crime in Scotland is committed by

84 young people, predominantly males, aged between 16 and 24. Yet males in this age group make up only 12% of the total population. In addition, the 16 to 24 year olds are also the most likely victims of serious crimes and the same young person can be both a victim and an offender, because they tend to offend against other young people, often as part of a fight. The Edinburgh Study of Youth Transitions and Crime which has tracked over 4000 pupils from primary school since 1998, highlights that being a victim at the age of 12 is one of the best predictors of involvement in offending at age 15.

Taking the Scottish Executive definition of a persistent offender Ð i.e. a young person with 5 offending episodes within a 6-month period and applying it to the 85,000 young people in Edinburgh, police figures tell us that there are only 24 young people who would fall into this category. However, between them they were responsible for over 1000 crimes last year.

An analysis undertaken by the Youth Crime Review Reference Group (YCRRG) in Edinburgh in November 2002 indicated that 150 young people met the criteria of a serious and / or persistent offender, using the definition of 10 or more offences within the previous 12 months.

Research tells us that these young people tend to have a full-blown set of problems that sets them apart from others who get into trouble once or twice. As well as involvement in crime at an early age, these include family break- up and experience of residential care, exclusion from school and truanting, health problems and substance misuse.

The child who is referred to the Reporter on child protection grounds is often the same child or young person who is referred for offending later on. To separate those children who offend from those who have other problems is artificial in terms of understanding and addressing the root causes of crime.

The now-defunct pilot to deal with 16 and 17 year old offenders within the hearing system is a missed opportunity to prevent these young people from progressing into the adult criminal justice system and to avoid criminalizing them unnecessarily in the first place. The whole person approach of the hearing system is equally as valid for 16 and 17 year olds who offend as it is for 15 year olds.

Whatever the process for dealing with young people who offend, be it children’s hearings or youth courts, this is not what will impact on or

85 ultimately reduce their offending behaviour: There is evidence that community based options are more effective than custody in reducing offending and are cheaper. We know that the number of 16 year olds sent to custody has steadily reduced Ð from 226 in 1992 to 92 in 2001 Ð because local authorities, in partnership with the voluntary sector, have developed effective programmes for young people who offend as alternatives.

Eighty per cent of all prison sentences are for 6 months or less and 60% of those sent to young offender institutions are sentenced to less than 6 months. This means that they will serve less than 3 months, not long enough to benefit from any programmes to address their behaviour. They will come back to the community without any of their needs having been addressed and sadly, SPS Return to Custody rates show that 59% of young men and 60% of young women under 21 will return to custody within 2 years of release.

Reducing Offending by Young People

Youth Justice teams are now in place in every local authority, as well as a multi-agency strategy group, comprising senior representatives from the local authority, police, children’s reporter and the voluntary sector. Pilot specialist children’s hearings have been introduced in 3 areas (Ayrshire, Dundee and East Lothian/Borders) to provide a fast-track process for young people aged between 8 and 16 who have 5 or more offending episodes within 6 months, although the Reporter has discretion for those in the 3 offences or more category whose offending is in danger of escalating. The pilot areas are expected to deal with over 100 young people per year.

A pilot Youth Court has been announced for Hamilton Sheriff (Summary) Court that will target 16 or 17 Year olds who have at least 3 separate incidents of offending which have resulted in criminal charges within a 6- month period. The Court will be serviced by multi-disciplinary local authority youth justice teams in both North and South Lanarkshire and will have access to a range of specialist resources.

Considerable resources are being spent on youth crime and on reducing the number of persistent offenders in particular: Start-up costs for the fast-track hearings are estimated at £220,000 and annual costs (excluding SCRA direct funding and police IT costs) will run to about £2.5m. Funding allocated to the National Youth Crime Prevention Fund and the Intensive Support Fund amounts to £11.9m and £8.9m respectively over 3 years. The total investment in youth justice between 2000-04 amounts to £25.5m.

86 However, increasing the number and range of offending behaviour programmes is, by itself, not enough: These need to take account of the nature and timing of local crime problems and be developed within a broader community safety framework. There must also be co-ordination and a case management approach to ensure that services are appropriately targeted and that a young person is able to access the right kind of service at the right time in their life.

In Edinburgh, a Youth Crime Review Reference Group has been set up to take forward Edinburgh’s Youth Crime Strategy and to oversee the Scottish Executive’s funding allocation. The multi-agency group comprises representatives from the Children’s reporter, police, social work, housing, education / community education and the Council’s Community Safety Unit. Expert advice is drawn on when required in relation to issues of research, drugs, victims and child protection. A Youth Crime Reduction Co-ordinator was appointed in November 2001 to support the development of the strategy and access to individual services is co-ordinated by a Youth Justice Assessment Team, located within social work, who are responsible for the assessment, case management and referral of all cases to appropriate services.

Neither is it enough that programmes focus on making young people aware of the damage they have done to themselves and others and attempt to give them the thinking skills necessary to change their behaviour: Change in a young person’s life also depends on having the opportunities to use those skills: It is usually associated with acquiring something of value that gives them a reason to re-evaluate their life and resolve their difficulties.

The recent Audit Scotland report: “Dealing with Offending by Young People” suggests that it is more important to develop young people’s skills and opportunities for employment and to strengthen their capacity for positive personal relationships. It recognises that young people will only sustain positive change beyond the life of a programme if a wider range of issues central to their lives, such as education, family relationships and the ability to get and hold down a job, are also addressed. In this way, any intervention will aim to move a young person forward in their life, rather than simply revisiting what they have done wrong and trying to work out why.

Gaining employment will not guarantee that a young person stops offending, but evidence suggests that it does serve to reduce it. This is not simply

87 because people commit crime because they are out of work and employment takes away the need to offend: for many young people, employment structures their daily lives in such a way as to reduce some of the opportunities for offending.

Integrating an employability component into offending behaviour programmes can therefore add value and ensure that positive change is sustained. Apex Scotland aims to achieve this through partnership working with the Airborne Initiative and with Glasgow City Council and NCH in the Glasgow Community Justice and Employment Project.

Airborne is an alternative to custody, 9-week residential programme for 18 to 25 year old persistent offenders. Apex provides an Employment Development Service delivered by a full-time member of staff, as well as aftercare support for clients. Our input includes work on the Rehabilitation of offenders Act 1974, the Police Act (Part V). Disclosure letters, Conviction Relevance, Job Seeking Skills (including CV preparation and mock interviews), Lifeskills and Throughcare.

Between December 2000 and October 2002, we worked with 83 young men, 16 of whom failed to complete the programme; 12 were still receiving services from us at that time and 57 completed the programme with the following positive outcomes:

13 (23%) gained full time employment 5 ( 9%) gained part-time employment 13 (23%) progressed to further training 7 (12%) progressed to further education 1 progressed to voluntary work

Sixty eight per cent of clients who completed the programme achieved a positive outcome. SCRO have informed us that this sample is large enough to carry out a recidivism check and we will be progressing this in due course.

The Glasgow Community Justice and Employment project provides integrated supervision for young people aged 15 to 21 who are at risk of custody either immediately or through early entry into the criminal justice system. Up until February 2002, 182 young people had been referred to the project: 130 to the criminal justice programme and 52 to the children’s hearing system programme. The vast majority of these young people were at high risk of entering secure accommodation or custody.

88 The Audit Scotland report tells us that some 73% or £62.2 m of expenditure on services for offenders is spent on the estimated 1,200 young people in residential schools with offending behaviour and those in custodial settings. The project evaluation report highlights that the average cost of a place at the project is £6,764, which represents significant savings if compared with the costs of custody or secure accommodation and with other intensive community based disposals.

Barriers to Employment

Research shows that employment is the single most important factor in reducing re-offending (CIPD), reducing the risk by between a third and a half, yet two-thirds of prisoners arrive in prison from unemployment and three quarters leave prison with no job to go to.

Home Office statistics show that ex-offenders face considerable difficulties in finding work and that, out of 22,000 job applications made by ex- offenders, less than 1% of applicants actually revealed that they had a criminal record. There is, however, no evidence to indicate that ex-offenders are any more likely to offend in the workplace than others (National Institute for Economic and Social Research: “Barriers to Employment for offenders and Ex-Offenders”).

The vocational training and employment opportunities available in prison do not match current needs in the labour market. However, a report published in January 2003 by the SPS Learning, Skills and Employability Policy Subgroup sets out a commitment to securing “a real and sustained improvement in prisoners learning, skills and employability, both while in prison and in the crucial period after their release into the community”. This is to be achieved by, amongst other things, modernising prison industries to take account of the demands of the external labour market.

Work is underway in HMPBarlinnie to develop a training and employment initiative to enable prisoners to access employment in the construction and building sector on release. This initiative is being assisted by Laing O’Rourke Scotland in partnership with statutory and voluntary agencies. Apex will play a leading role in preparing prisoners for this work and supporting them after release.

89 For many prisoners, finding employment is just one of a number of problems they will be confronted with on release. Unless dealt with effectively, issues such as a lack of housing or problems of drug and alcohol misuse are likely to add to the difficulty of finding and keeping a job. The Fifth Prison Survey (2002) asked prisoners to identify 3 things, from a list of 9 items, which they considered most important to them before release. Housing was rated the issue of most importance with half of all prisoners selecting this option, followed by employment (40%) and contact with family (38%).

With the advent of Part V of the Police Act 1997 and the setting up of Disclosure Scotland, fewer people will now be able to hide criminal convictions. The Act introduced 3 levels of Disclosure: Basic, Standard and Enhanced. Standard and Enhanced Disclosures apply to those seeking to work with children and vulnerable adults or in other positions of trust. In these cases, all previous convictions, including spent convictions and in the case of Enhanced Disclosures, local police information, are included. Standard and Enhanced Disclosures are issued directly to organisations who have registered with the Central Registered Body for Scotland (CRBS), with the consent of the individual concerned. Basic Disclosures only show unspent convictions and can be applied for by individuals.

The Rehabilitation of Offenders Act 1974 requires ex-offenders, if asked, to disclose their previous convictions to employers. This requirement lasts until a period of time has passed without further convictions, when they become spent. However, for many ex-offenders, this process takes 10 years and for those sentenced to over two and a half years, the requirement to disclose lasts for the rest of their lives.

There is a need to strike a balance between protecting the public and reducing the barriers to employment for ex-offenders. We welcome the review of the ROA that was carried out in England and Wales and is underway in Scotland. It proposes the replacement of the rehabilitation periods with shorter disclosure periods based on sentence, the abolition of the two and a half year tariff, the application of different disclosure periods to custodial and non-custodial sentences and that the requirement to disclose should be explained as part of the sentencing process.

Disclosure

The Review of the Rehabilitation of Offenders Act also recommends the development of a voluntary code of practice for employers to govern the use

90 of Disclosures in the recruitment process. Part of Apex Scotland’s role is to work with employers to promote fair recruitment policies and practices and to encourage them to assess and manage risk. We ask employers to consider several factors:

Whether the criminal conviction or any other matter revealed is relevant to the post in question; The seriousness of the offence; The length of time since it occurred; The circumstances surrounding the offence and the explanation offered; Any pattern of offending behaviour; and Steps taken by the offender to address his/her behaviour and lifestyle.

We believe that a Disclosure letter addressing all these issues is more important than the information contained in a Disclosure certificate and we encourage and assist our clients to provide them for prospective employers.

The following gives an example of one such letter, all of which begin with the statement: “I am providing this in accordance with the Rehabilitation of Offenders Act 1974”:

“Between the ages of 15 and 26, I was convicted of a number of offences associated with my addiction to heroin. As a result, I have spent the majority of my adult life in prison. My last offence was in February 2002, for which I received an 18 month sentence”.

“At the time of my first offence, my parents relationship had broken down and I started hanging about with an older group of boys and trying to impress them. I am not making excuses but I feel it did contribute to my fall in to addiction and offending behaviour”.

“During my last 18 month sentence of which I served 9 months, I decided to address my drug abuse and lifestyle. I went into full time education in prison and completed Level 1 of an NVQ in bricklaying and a Cognitive Skills Programme. I was also hand picked to contribute to a video for school age children educating them on the dangers of drugs and a life of crime”.

“When I was released from prison, I sought treatment for my addiction and began to regularly attend appointments at Apex Scotland to further develop my employability skills, explore the types of employment I could access and to learn the correct methods of disclosing my criminal record to future

91 employers. My progress and increased confidence is due to my own self- motivation to provide a positive role model for my two young children”.

“I am keen and motivated to work and would welcome the opportunity to discuss any of the above”.

The young man who composed this letter secured a job in a call centre and continues to progress.

Outcomes

Our first recidivism report covers a sample of 106 clients who completed programmes within the following community based employability services:

Supervised Attendance Orders (59%) Employment and Guidance (26%) New Futures (8%) New Deal (5%) Training for Work (2%).

All clients in the sample registered for their first appointment in the 6-month period between 18th September 2001 and 17th March 2002 and all achieved positive outcomes with 45% of the sample progressing to full-time employment and 8% progressing to part-time employment. Other outcomes achieved included further training (14%), further education (10%), an Intermediate Labour Market placement (10%) and voluntary work (13%).

The age profile of the sample when they began working with Apex is as follows:

16 Ð 18 9% 19 Ð 21 25% 22 Ð 29 24% 30 or over 42%

Forty eight per cent of the sample has no qualifications at all and 32% of them left school before the age of 16. There is also a range in the seriousness and number of offences of the group with 42% having less than 10 convictions, 49% having between 10 and 50 convictions and 9% with over 50 convictions.

92 Recidivism information was returned from SCRO on 90 out of the 106 clients in relation to three time periods: the first period measures offending in the period prior to the sample starting work with Apex Scotland; the second provides results for the period during which they were working with Apex (it should be noted that 39% of clients reported that they had outstanding charges against them in this period) and the third tracks their offending patterns in the 6 month period after they completed Apex programmes and moved on to positive outcomes.

Between 18th March 2001 and 17th September 2001, 47 clients (52%) have a conviction and the total number of convictions amongst the group is 128. Of the 47, 21 have one conviction for this period, 26 have more than one conviction and 11 have more than 4 convictions at this point. Between 18th September 2001 and 17th March 2002, 33 clients (37%) have a conviction and the total number amongst the group is 121. Eight of the 33 clients have one conviction, 25 have more than one and 10 have more than 4 convictions at this time. Between 18th March 2002 and 17th September 2002, 24 of the sample (22%) have a conviction and the total number amongst the group is 96. Eleven out of the 24 have one conviction at this time(an increase on the previous period, which may relate to outstanding charges), while 13 have more than one and 5 have more than 4.

The data therefore highlights a significant decline in offending by this sample of clients over the time periods covered. Bearing in mind that 39% still had outstanding charges when they were working with us, the actual offending that took place after they moved on to positive outcomes (period 3) is likely to be even less than the figures suggest.

A dataset covering a sample of 275 SAO clients, all of whom registered for their first appointment between 18th September 2001 and 17th March 2002 was also submitted to SCRO. The average client age is 26 years old, with the youngest aged 16 and the oldest aged 57. The majority are long-term unemployed and many have never worked, although 6% of the sample reported that they were in employment when they started working with Apex. Forty per cent of the sample has less than 10 convictions, while 53% have between 10 to 50 convictions and 7% have over 50. SCRO were unable to provide recidivism data on 13.5% of the dataset, leaving a sample of 238 clients.

In the period before they began working with Apex (18th March 2001 to 17th September 2001), 39% of the sample have one conviction, 61% have

93 more than one and 22% have 4 or more convictions. In the period that they were working with Apex (18th September 2001 to 17th March 2002), 34% of the sample have one conviction, while 66% have more than one and 28% have 4 or more. The latter two figures are higher than for the first time period and are likely to relate to outstanding charges. In the period after they completed work with Apex (18th March 2002 to 17th September 2002), 42% of the sample have one conviction, 58% have more than one and 21% have 4 or more. Therefore the percentage of clients with one conviction in this time period has increased, while the numbers with more than one or 4 or more convictions has decreased.

Analysis of reconviction data on 186 offenders who received SAOs in the National Evaluation reveals that 55% (102) of this sample was reconvicted within 6 months and 69% (126) within 12 months. While these figures may appear high, a high proportion will be convictions for offences that pre-date the SAO. Indeed, 48% of the Apex sample reported that they had outstanding charges when they registered with Apex. It could therefore be concluded that the decline in their offending at period 3 (6 months after referral) is even more significant.

Success Stories from HMYOI Polmont

Thomas, Edinburgh: Thomas completed a Job Seeking Skills with Apex and enrolled on a “People with Potential” course before release that was provided by the Cyrenians. During the course, he completed a six-month work placement and was subsequently offered and took up full-time employment.

Vaseem, Glasgow: Vaseem also completed a pre-release Job Seeking Skills course with Apex and went on to complete an HNC in Travel and Tourism. He is now in full-time employment and owns his own home and car.

James, Aberdeen: James had a drug problem when he arrived in Polmont, for which he received help while in custody. He remained drug-free after release, secured employment and settled down to married life.

Darren, Oban: Darren completed a Job Seeking Skills course during his sentence, followed by an Open learning Course in IT on release and is now in employment.

94 Alan, Paisley: Alan was undertaking a catering course when he was sentenced to custody. He finished his course after release, secured full-time employment, was offered a job by another company and now owns his own home and is happily married.

References Apex Scotland Business Performance Report: February, 2003. Apex Scotland Client Recidivism Report: January, 2003. Audit Scotland: “Dealing with Offending by Young People”: December, 2002. Barry, M. et al: “Evaluation of the Glasgow Partnership Community Justice and Employment Project”: Final Report, Social Work Research Centre, University of Stirling: February, 2002. City Of Edinburgh Council: “Youth Crime Strategy Position Statement”: September, 2002. Criminal Justice Social Work Development Centre for Scotland: “Beyond What Works: How and Why do people Stop Offending”: Paper 5, August, 2002. Farrall, S.: “Rethinking What Works with Offenders: Probation, Social Context and Desistance from Crime”: 2002. Home Office: “Breaking the Circle: A Report of the Review of the Rehabilitation of Offenders Act”: July, 2002. National Institute for Social and Economic Research: “Barriers to Employment for Offenders and Ex-Offenders”. Scottish Executive: “National Evaluation of the Operation and Impact of Supervised Attendance Orders”: Social Work Research Centre, University of Stirling, 2001. Scottish Executive: “Short Term Prison Sentences”: Report to the Criminal Justice Forum: November, 2001. Scottish Executive: “Throughcare – Developing the Service”: Report of the Tripartite Group: December, 2002. Scottish Executive: “Youth Court Feasibility Project Group Report”: December, 2002. Scottish Executive: “Improving the Effectiveness of the Youth Justice System”: Report to the Youth Justice Steering Group: October, 2002. Scottish Prison Service: Learning Skills and Employability Policy Subgroup: Working Group Report: January, 2003. Scottish Prison Service: Fifth Prison Survey.

95 Original article

Worry about housebreaking: Is it affected by employment status?

by

Jason Ditton, Director, Scottish Centre for Criminology

It is clear, from any review of the literature (Hale, 1996), that research on the fear of crime has chiefly been based on data that has been collected in and been concerned with residential locations. Hence most research findings relate to fears about crime either at home or in the vicinity of home. Information on levels of fear about becoming the victim of domestic housebreaking, for example, are typically gathered by asking respondents questions about their homes when they are in them. A recent British Crime Survey (Kershaw, et al., 2000, p. 44), which collects data in this way, suggests that 57% of those interviewed in their homes are either “very worried” or “fairly worried” that they might become a housebreaking victim.

However, for many, home is not where most working, or indeed most waking hours are spent. How much do people worry about housebreaking when they are not at home?

Results reported below are drawn from a large survey conducted as part of one research project funded within ESRC’s Crime and Social Order research programme. Standard fear of housebreaking questions were administered, and in addition (and unusually) those respondents who were in employment were asked how much they worried about having their home broken into while they were at work.

Sample

The unweighted sample was of 1,629 Scottish respondents. Since the intention here is to compare the responses of the employed with the “unemployed”, those 472 respondents aged 60 and over were excluded from

96 subsequent analysis. Most of these older respondents were, indeed, unemployed, with only 13 over-60 males and 20 over-60 females claiming to be in work. About half of the residual 1,157 16-59 year old respondents were employed (n=605; 52%) and half unemployed (n=552; 48%). Of the 605 employed, 447 were full time, and 158 were part time. Classified as “unemployed” were the 93 who claimed that status, 104 who were retired, 78 who were long term sick or disabled, 237 who classified themselves as a houseperson, 32 who were full time students, and 8 other.

Two possible hypotheses suggest themselves:

1. The employed, being away from home for long periods, will fear housebreaking less (perhaps because they don’t think about home when at work).

2. The employed, being away from home for long periods, will fear housebreaking more (perhaps because their homes are unprotected in their absence).

Results

Worrying about housebreaking when at home

Excluding (temporarily) the 158 part time employees and the 32 students from analysis, it is clear that full time employees worry significantly less than do the unemployed. Only 38% of the employed, but 50% of the unemployed worry some or all of the time about somebody breaking into their home.1 Slight confirmation of the relevance of employment status is provided by the fact that levels of housebreaking worry reported by the part time employed lies, at 45%, neatly between the levels reported by the full time employed and by the unemployed.

However, confounding independent variables might be: gender (women presumably fear more than men); age (middle aged might fear more than the young, or vice versa); household composition (eg, those who go to work full time, but live in households with other adults and children in them might worry less than those who work full time, but live alone); income (the wealthier might worry more because they have more property to lose, but the

1 p<0.001, 1df.

97 poorer might worry more because they might find it harder to replace stolen items); house type (those in detached houses might worry more than those in flats) and victim status (prior year housebreaking victims might fear more than non-victims).

In fact, only two of these variables have any independent effect on levels of housebreaking worry: gender (49% of women worry about it some or all of the time, compared to only 38% of males),2 and prior housebreaking victim status. Although employment doesn’t predict victim status (12% of the full time employed and 13% of the unemployed had suffered a housebreaking in the past year), housebreaking victims were much more likely to worry about housebreaking some or all of the time (60% of them did), than were non- victims (only 42% did).3

Worry about housebreaking when at work

Analysis here is restricted to the 447 full time and 158 part time employed. Data from an additional question asked of these respondents (how much they worried about having their home broken into while they were at work) can here be brought into play. Of the 558 of the 605 employees that responded substantively to both questions, most (332, 60%) claim not to worry about housebreaking when asked at home, and claim not to worry about housebreaking when at work. Some (100, 18%) worry about it both at home, and at work. A few (14, 3%) worry about housebreaking when they are at work, but not when they are at home. An interesting 112 (20%) claim to worry some or all of the time about housebreaking when asked about it at home, but say that they don’t worry about housebreaking to their home when they are at work. Note, however, that they are being asked in their homes about how much they worry about housebreaking - they are not being asked when they are at work. The same variables (gender, past year housebreaking victimization) that were associated with general housebreaking worry were associated with worry while at work. A similar attempt was made to establish higher order interactions, but was abandoned for the same reason.

2 p<0.001, 1df 3 p<0.0001, 1df. Log-linear analysis of the three variables that had a modest association with general levels of worry about housebreaking (employment status, gender and prior housebreaking victim status) established that there were no significant higher order interactions, suggesting that worry about housebreaking was an additive function of these variables. The temptation existed to generate a simple checklist of additive factors to predict worry levels, and this was attempted. However, it was impossible to generate a checklist that would correctly classify a majority of the respondents. Because the number of correct classifications into worriers and non-worriers (taking the three variables individually) was only 58%, 54% and 52%, the attempt was abandoned.

98 Conclusion

These data offer some support for the first of the two hypotheses. That is, those in employment worry less than those who are not about having their homes broken into. However, any general effect that, for example, rising levels of employment might have on depressing general levels of fear uncovered by major research efforts such as the British Crime Survey may well be masked by the fact that appreciable numbers of those who claim not to worry about housebreaking when at work also claim to worry Ð when asked when they are back in their homes in the evening Ð that they worry about it some or all of the time.

Clearly, and generally, people worry more about housebreaking to their homes when questioned about it when they are in them, and this is amplified the more they spend their waking hours there (although this itself makes them no more likely to be housebreaking victims). If anything, the sheer fact of interviewing people in their homes may increase the level of housebreaking worry.

References Hale, C. (1996) Fear of crime: A review of the literature, International Review of Victimology, Vol. 4, pp. 79-150. Kershaw, C., Budd, T., Kinshott, G., Mattinson, J., Mayhew, P. & Myhill, A. (2000) The 2000 British Crime Survey: England and Wales, Home Office Statistical Bulletin, 18/00.

99 Reviews

The Ferris Conspiracy by Paul Ferris with Reg McKay, Mainstream Publishing, Edinburgh, 2001.

Reviewed by Pat Quinn

The Ferris Conspiracy is one of many recent books (both literary and academic) that have as their focus contemporary experiences of crime, prison, and violence. Being a ‘Hard Bastard’ appears to have a certain traditional literary and cultural authority, which in turn now also appears to be a mainstream marketable asset - a cultural commodity for some (with reformative powers). This book is mainly written by Ferris, a Glaswegian ‘hard man’ with a reputation for his high level involvement in crime and his own self-publicized lack of emotion and efficacy in the craft of using razors to slash and stab fellow ‘combatants’ (p. 23).

The book was first released while Ferris was still in prison having gained the status of maximum security prisoner. Reg McKay, a former social worker and investigative journalist, accompanies Ferris as he tells his story (Reg McKay has also co-authored with another high profile Glaswegian prisoner, T.C. Campbell, Indictment: Trial by Fire (Canongate, Edinburgh, 2001). What this means is that Ferris supplies most of the material, his narrative set out in a bold italicized text, contrasting with McKay’s more formal font sized summaries, and over the shoulder interpretations of Ferris’ point of view.

It should be said that I thought this contrast in presentation has the effect of legitimizing the narrative as truth, and at the same time giving credence to Ferris’ understanding and moral stance on the events in his life that are expressed in the book. Indeed, McKay’s portrayal of Ferris is never anything less than favourable, and at one point he implicitly casts Ferris in the mould of a modern day hero and freedom fighter representing the people of the ‘street’ (p. 13).

Actually, this is really where The Ferris Conspiracy is coming from. Paul Ferris’ memoirs of growing up in the testing ground of Blackhill’s streets in the 1960s and 1970s (the ‘Leper Colony’ as McKay refers to it) and his

100 path into a life of crime and violence as a career choice (p. 25). Crime, like violence, is often stressed as an opportunity for not only self-preservation of both honour and life, but also as self-advancement- ‘a way out’. When he began working as, amongst other things, a debt collector for Arthur Thompson senior Ferris describes it like getting ‘promoted to the premier division’ (p. 58).

The chapters are mainly chronological and set out in biographical fashion the answer to Ferris’ question at the end of the opening prologue, ‘How the fuck did I get here? Where the hell did this all start? (p. 7)’ The ‘here’ of the prologue is Ferris being dragged out of a car window by armed police on suspicion of gun running. Guns were found in Ferris’ car, although he denied knowledge of this. He was found guilty, and given the ten years in prison during which he wrote this book.

Ferris’ and McKay’s reply to these existential questions takes the reader into a world of masculine honour, absolutes, necessities, double dealing, corruption and good old fashioned ‘hack and slash’ business practices. This is a world in which the ‘totally mental’ (p. 47) is, if not a virtue, then a sought after moniker. In The Ferris Conspiracy, the good guy/wanker metaphor is enshrined in a code of practice that has severe consequences for those who are deemed to have stepped out of line, as well as symbolic and life extending benefits of adherence. It is hard to believe that a book about active involvement in crime, corruption and graphic violence could espouse a strong moral theme, but that’s what this book does, and rightly so.

Ferris largely understands his life in crime and violence as one of choice and he reduces this choice to a rational decision he made on one particular night (p. 25). He maintains this book is not ‘a story of a poor boy went wrong’ (p. 4). But at the same time he is continually reconciled to external points of reference: his early understanding and hatred of the police (p. 8); being bullied and beaten for most of his childhood by a local family (pp. 16-17); lack of legitimate opportunities (p. 45); socioeconomic conditions (p 25, esp. p. 244); peer pressure (p. 22) and an unwritten code of the streets (p. 40).

The code of the streets comes across almost like an old fashioned work ethic whose stress is to never ‘grass’ to the police or give implicating evidence in court. It also includes; don’t harm women or children; and do not harm ‘non-combatants’ or ‘innocents’ (terms Ferris uses to describe those not immediately involved in crime or violence - the allusion to war is

101 mentioned numerous times throughout the book especially in reference to his relations with long term rival Tam McGraw). The most obvious paradox here is that, throughout the book, names are named (although in cases with the potential for libel - mostly Police Officers - Ferris uses ‘descriptive’ pseudonyms) and various accusations are made. Ferris himself also mentions the occasions in which he stabbed ‘non-combatants’ (p. 65, p. 83), and took part in the systematic beatings of a sex offence prisoner he now believes was innocent (p. 41).

For Ferris, the people on the street (and those in prison), especially fellow criminals and combatants, are measured and defined according to this code. To be accused or labeled as one of the ‘nonces and ponces’ (p. 40) is when Ferris’ idea of the criminal leaves the sacred and enters the profane - a point Ferris equates to a death warrant on the streets. Indeed, this can be described as one of the main themes in the book: Ferris’ own justification, explanation and measurement of himself and others as men of honour and strong moral beliefs (I stress men because this is a book almost exclusively about men in their relationships with other men, not to mention a particular notion of what makes a man).

Once in this catalogue of honour/dishonour there is no appeal to a higher court. A whole litany of names is judged and sometimes horrific evidence is marshaled to support Ferris’ case for and against the accused (the near decapitation of George Welsh at the ice cream van stands out as a gruesome example). On the side of Ferris are people like his mother and father (‘tiny with the hearts of lions’, p. 15) as well as his two murdered friends, Joe Hanlon and Bobby Glover. Against him are fellow ‘combatants’ and infamous Glasgow criminals, his former employers, Arthur Thompson (Jnr and Snr- Thompson senior is accused of slashing Ferris’ disabled father as he lay on the road), and his rival Tam McGraw (‘The Licensee’): men who Ferris accuses of ‘trading in flesh’. Both McGraw and Thompson stand accused by Ferris of colluding with the police and the criminal justice system in what he describes as an ‘unholy alliance’ (p. 103). And this is the second main theme of the book.

The disclaimer at the beginning of it, and the blurb on the back cover, outline Ferris’ grievance with Strathclyde Police. It is a theme that is suffused throughout the book, from his early childhood memories of police brutality in Blackhill to his ironic take on Sir David McNee’s advocacy of ‘pious perjury’ in the final chapter. His brief is that Strathclyde Police are brutally corrupt from the top down and operate in a world of their own, one largely oblivious to the ideals of justice and the rule of law they

102 represent. In his damning of Strathclyde Police Ferris cites numerous examples of their dubious practices and corruption, the most notable being his account of their armed raid on him and his pregnant partner while they were lying low in Arthur Thompson Senior’s flat in Rothesay.

The unfolding narrative rarely allows itself to stray beyond the image of the almost claustrophobic world of everyday violence that Ferris depicts. Although The Ferris Conspiracy is written in a clear and accessible manner, it is not an easy read. There is very little feeling in the book at all, as exemplified by the way Ferris describes his own approach to the violence of his ‘work’. The logic of violence predominates over all other concerns, and is visible in almost everything Ferris writes. This isn’t a criticism as such; the theme of the book is, after all, Ferris’ involvement in a world of violence and crime and his experience of the various arms of the criminal justice system. His aim is to show what living in this world means from a particular point of view.

It is, though, a reminder that the metaphor that is the ‘street’, whether that be Blackhill, Easterhouse or Barlanark, is not the homogenous or stereotype of place that Ferris and McKay often imply. For example, McKay’s representation of Blackhill as an area whose sole economic activity was crime seems to function more as a literary device to assist the narrative, rather than as a description of the different ways in which people actually got on with their lives.

For obvious reasons, The Ferris Conspiracy will interest all those mentioned in the book, and all those who know those mentioned in the book. It will also be of interest to students and practitioners of criminology and criminal justice matters in general in that it not only offers an understanding of the criminal justice system from a particular perspective, but also it offers an account of the everyday values and motives of a self- proclaimed criminal and hardman. Similarly, despite Ferris’ voice and point of view dominating all other perspectives in the book, the narrative does offer a particular rendition of the working relations between criminals within the criminal justice system, and those employed by it.

In the final instance, though, and like many biographical accounts, The Ferris Conspiracy should be understood for what it is, and that is one man’s representation of how it is and how it was at a particular time. Ferris’ field was crime and violence and in this regard the book does a good job of getting both the utility and destruction of this field across.

103 Indictment: Trial by Fire by T. C.Campbell with Reg McKay, Edinburgh, Canongate, 2001.

The Ferris Conspiracy by Paul Ferris with Reg McKay, Edinburgh, Mainstream Publishing, 2002.

Deadly Divisions by Paul Ferris with Reg McKay, Edinburgh, Mainstream Publishing 2002.

Glasgow’s Hard Men by Robert Jeffrey, Edinburgh, Black and White Publishing 2002.

Reviewed by Hazel Croall

Glasgow’s reputation for gang violence predates its more contemporary cultural reputation and images of ice cream wars and organised crime have led to an almost boastful description of the city as the ‘Chicago of Europe’. A number of recently published books on aspects of crime follow the tradition of academic works such as James Patrick’s A Glasgow Gang Observed (Patrick, 1973), accounts of the former residents of the Barlinnie special unit such as Jimmy Boyle’s A Sense of Freedom (1977) and the fictional No Mean City - a novel once denounced, according to Jeffrey, by former Mayor Pat Lally, yet still prominently on sale in a central Glasgow cut price book store. This review covers a selection of these latest additions which provide a variety of perspectives - Jeffrey’s is a journalistic account, Ferris and Campbell, both in collaboration with former social worker and investigative journalist Reg McKay, present autobiographical accounts and Ferris, again with McKay, has produced a novel based on his knowledge and experience.

Hard Men, introduced as a tribute to the crime reporters and feature writers of the Herald, Evening Times and Sunday Herald, consists of a series of portraits based on archival material. The Hard Men of the title include Glasgow’s most celebrated murderers such as Peter Manuel and Bible John,

104 gangs such as the Brigton Billy Boys, the Tongs and the Norman Conks and professional criminals including Ferris and Campbell and the legendary Arthur Thompson who, with his reputed links to London’s gangland, was regarded as Glasgow’s Godfather. It also includes the hard men of the law, police officers such as the ‘Big Fellow’ Sir Percy Sillitoe, Chief Constable during the 1930s, whose use of forceful tactics against the gangs was legendary and who also tackled graft in the then Glasgow Corporation. ‘Hard’ Judges such as Judge John Carmont who dispensed long sentences to razor slashers, and defence lawyers such as the legendary Dowdall, ‘the Great Defender’ and Joseph Beltrami are also featured. High profile trials and miscarriages of justice are detailed as is the ‘hardness’ of prisons - the account of Barlinnie includes a description of its celebrated hangings before turning to its well known Special Unit. The book provides interesting slices of Glasgow’s criminal history although it does not attempt to set them in a wider social context.

Alleged injustice is the main theme of Indictment in which T. C. Campbell, convicted along with Joseph Steele for the murders of six members of the Doyle family, stridently protests his innocence. He and Steele became known as the ‘Glasgow Two’ and have a long history of protests and appeals. The first part of this book consists of tales of assorted criminal incidents in which Campbell portrays himself as a victim, and perpetrator, of violence so much so that, he recalls, ‘it began to seem to me that every time I turned a corner, somebody was having a stab at me with something’ (p. 11). It provides pen portraits of Campbell’s friends and associates, some humorous, although this can mask, and appear to be insensitive to, the appalling violence which is involved. Campbell’s encounters with the police are accompanied by recurrent descriptions of alleged ‘fit ups’ although he acknowledges his criminal history, describing for example his involvement in Post Office robberies. He then turns to a detailed account of the so called ‘Ice Cream Wars’ and the fire which killed members of the Doyle family in 1984 accompanied by expressions of sympathy for the family. Lengthy accounts of his subsequent arrest and trial for these killings follow, along with detailed refutation of the evidence. His time in prison and first appeal are also dealt with, later appeals and protests being the subject of a sequel, The Wilderness Years, also written with McKay (Campbell and McKay, 2002). Campbell’s descriptions of his feelings of injustice and his struggles to resist both conviction and imprisonment are coloured with very strong emotions.

Accounts of violence, conspiracies, corruption and unsafe convictions also feature in The Ferris Conspiracy, reviewed at greater length in this issue by

105 Pat Quinn. Ferris starts by outlining his early life in Blackhill and his choice to enter a life of crime. His early involvement in violence, following bullying by a local gang, is described and he goes on to recount his association with Arthur Thompson and his friendship with his son Arthur Junior. His subsequent split with the Thompsons was followed by his trial and then acquittal for the murder of Arthur Junior. He then moves on to describe a variety of legitimate and illegitimate businesses and his later conviction and imprisonment for gun related offences. As with Campbell’s account, there are recurrent images of police violence and corruption, which Ferris at one time attempted to expose, and tales of paid informers, betrayals and ‘fit ups’. Like Campbell, while alleging miscarriages of justice he does not deny his criminal career and he also adds his support to the ‘Glasgow Two’.

Ferris also co-authored Deadly Divisions, a novel dealing with murder, violence, theft and graft in Glasgow in 1989. This paints a sordid picture of Glasgow’s under life, with a cast of characters including self styled ‘hit men’, criminal employees, a ‘businessman’ who runs a variety of legitimate and illegitimate enterprises, a corrupt and violent police officer, corrupt city councillors and prostitutes. One of the central characters is a criminal who metes out what he sees as ‘justice’ - killing those who step out of line and exploit innocents. There are some humorous moments in this tale of somewhat incompetent criminals and revealing cameos of Glasgow street life, although other characters, such as the lesbian policewoman and the corrupt left wing councillor, are somewhat stereotypical and there is much gratuitous sex and violence.

What can be learnt from these various accounts of crime and criminal justice? A major problem facing anyone interested in objective accounts of the ‘underworld’ is that it is relatively impenetrable by the ‘upperworld’, particularly academics. Those, like criminal justice practitioners or journalists, who have some contact with its members, may only obtain a partial and scarcely unbiased view with participants unveiling only that which they choose to reveal. Journalistic accounts and participants’ memoirs do therefore become valuable sources of data (Croall, 1998) although the latter may well consist of self justifying accounts, written with a variety of agendas including profit or, as is the case with Indictment, furthering campaigns against conviction. Nonetheless they can provide some insight into the background and experiences of criminals, into their culture, their relationships with the police and their experiences of courts and prisons. Ferris, justifying a television appearance, comments that

106 understanding why someone should choose a life of crime is ‘not a job for psychologists, sociologists or journalists but for an ex criminal’ (p. 230).

In the first place, there are the criminals themselves, or, as Ferris describes them, the ‘combatants’. With the exception of Ferris, there are few attempts in these books to explain involvement in crime - Jeffrey focuses more on the crimes themselves, on public pen portraits of celebrated characters and on the public arena of trials and Campbell focuses more on legal proceedings. The seriousness of the violence perpetrated among the gangs might appear to lend support to popular perceptions of ‘mindlessness’ and to the view of perpetrators as pathological. In his study of the Glasgow gangs of the 1960s, Patrick (1973) agreed with other criminologists of the time that there were a hard core of psychologically disturbed individuals surrounded by a group of less committed followers. The portraits of participants, some of whom are described as ‘psychos’ and ‘weirdos’, might lend some support to this, along with the dispassionate way in which both Ferris and Campbell describe horrendously violent incidents. Yet to seek explanations only at this level is to neglect the codes and rules surrounding their crimes and their wider social and economic context.

The books also depict a cultural setting in which some kinds of violence are acceptable, a sign of ‘manhood’, a means of settling grievances, a form of economic control and of meting out rough justice. Carrying a knife, explains Ferris, is to be one of the lads and rules surrounded their use - ‘slashing was in, and stabbing out’ (p. 22). Scars became a mark of respect, with apocryphal tales of victims exaggerating the extent of their injuries. Ferris recounts his long and violent campaign of revenge against those who bullied him along with others against whom he had what to him was a legitimate grievance. Violence can also be a source of excitement and pride. Ferris recalls feeling good about himself after one particularly violent incident (p. 31), and in the novel, perpetrators are described as being on a high following a successful killing. Grasses are justifiable targets, having breached the code of honour. Violence against ‘civilians’ and non combatants, who include women, is disdained and sexual violence is abhorred - attacks on sexual offenders being justified.

In such a culture, violence is a means of enforcing rules, including ‘frighteners’ against competitors in either illegal or legal markets such as the ice cream trade. There are also limits - in the novel a ‘hit man’ refuses to obey orders to kill an old man who unwittingly became involved in a vendetta. A rather rosy picture is painted by Ferris of the culture of the

107 underworld, a world in which there is mutual respect, ready assistance for fugitives and a code of honour however brutal the violence. This is somewhat contradicted however by the long history which all books reveal of recurrent wars, betrayals and conspiracies.

The local nature of this violent culture is accompanied by its own vocabulary. Various participants are described as the ‘big Yin’ or the ‘wee man’ and Glasgow slang is used. To Campbell the ‘Glesca kiss is a heeder to the nose but the Glesca kiss-off is a bullet up the arse’ (p. 59), the latter also being described by Jeffrey (p. 164) as a ‘Glasgow goodbye’, referring to the habit in Glasgow of putting a bullet in the buttocks of victims. National and global influences are also revealed with Ferris discussing his various contacts with English gangs who shielded and protected him and others, and there are many references to images of Chicago and American gang warfare. Ferris is on several occasions mocking of Arthur Thompson junior’s fixation with the Godfather movies and Chicago style tactics. Jeffrey’s description of the Ferris case includes references to his ‘Mafia Don’ image and the nicknames of the witnesses at the trial, comments Jeffrey, ‘might have jumped straight out of the pages of a Damon Runyon short story’ (p. 157).

The crime and violence described in these books is also related to working class masculinity (Hobbs, 1995) - the tales are of ‘hard men’. While Jeffrey refers to the ‘She Tongs’ of the 1940s and instances of street crime among girls he acknowledges that it is largely a male phenomenon. Women appear in these books largely as wives and mothers and as such to be protected. Ferris recounts his outrage at being attacked and arrested while in hiding in Rothesay with his partner. He also recounts that an attempt on Arthur Thompson senior’s life had to be abandoned as he was at the time accompanied by his daughter, a woman and non combatant. An exception to this exclusion of women is one of the central characters in Deadly Divisions, Maggie, a highly intelligent woman and graduate who has an excellent grasp of the business side of her employer’s operations, and who runs a group of ‘girls’. She uses her sexuality as a weapon and is also revealed, along with a policewoman with whom she develops a sexual relationship, as a lesbian - thus excluding what to this culture at any rate would be regarded as ‘normal’ women.

Such criminal ‘subcultures’ are often associated with poverty, deprivation and social exclusion and Glasgow, with its long history of poverty and its large bleak peripheral estates, is often taken as a good illustration of such an

108 association. Ferris and Campbell’s books paint a grim picture of estates like Garthamlock and Blackhill and the poverty of the environment and the population provide a background for involvement in crime, although the portrayal of Blackhill as an area dominated by crime is, as Quinn also points out, somewhat overstated and unfair to its law abiding residents. Nonetheless this is a world in which crime provides a career choice and in which something as seemingly innocent as vans selling ice cream in the schemes can become the basis for cut throat competition and violent attacks. Throughout his book Ferris accounts for his participation in a criminal career as a choice enabling him to make money more speedily and with more excitement than the legitimate job opportunities available to him. In the classic style of professional criminals he sees himself as a villain making a living from crime, moving up a career hierarchy and developing new business opportunities. Campbell also recounts his involvement in legitimate as well as illegitimate business opportunities.

This echoes contemporary criminological accounts of the relationship between crime and local and global markets, in which skilled criminal ‘entrepreneurs’ adapt to the new opportunities presented in the post industrial economy (Hobbs, 2002), in which a criminal labour market operates alongside the legitimate market and many are involved in a combination of legal and illegal business enterprises (Ruggiero, 2000). Figures such as Ferris, Thompson and others mentioned in the accounts, are examples of such ‘entrepreneurs’, moving from the more traditional areas of protection and robberies into the drugs and counterfeit markets with legitimate businesses providing fronts for illegitimate ones. One of the central characters in the novel, Grimes, is involved simultaneously in protection rackets, a lap dancing club, prostitution, property ownership and letting, drugs and other multifarious businesses. He hires hit men to deal with opposition at the same time as ‘entertaining’ local politicians and officials with a view to influencing planning decisions for his own advantage. Ferris himself provides a good example of the Post Fordist criminal operator - moving from one business opportunity to another, across Britain and beyond, with a wide network of connections. He recounts his involvement in both legitimate and illegitimate businesses, ranging from a car business and the provision of security services, to drugs, arms and oil, including connections with Iranian and Iraqi businessmen. He also asserts a desire to go straight, to develop his legitimate businesses and look after his family. He has become a ‘celebrity gangster’, and his TV appearances have occasioned considerable public comment (Sunday Mail, 27th January, 2002).

109 Hard men require ‘hard policing’ and the books present very different images of the police. To Jeffrey they are unquestionably the ‘good guys’, committed to the fight against crime, violence and corruption - claiming that they have successfully limited the activities of some of the gangs. The other books however present a starkly contrasting image of police corruption and violence. Incident after incident is recounted in which the police are ever ready with bags of drugs to plant on suspects and where care has to be taken to avoid the placing of fingerprints and other evidence. Ferris and Campbell allege police violence, the misrepresentation of witness statements, evidence and interviews and claim to have been convicted on the evidence of informers who have subsequently gained immunity from prosecution. The central police officer in Deadly Divisions is violent, a Freemason and clearly corrupt. These go further than implying the existence of a few ‘bent coppers’ or ‘rotten apples’ but suggest an institutional culture of corruption and violence.

Whatever the substance of these allegations, and inevitably a police perspective is not provided, they are consistent with academic accounts which locate these issues in the context of the difficulties of policing these kinds of crime. Organised crime has long been associated with corruption, and its control necessitates the use of policing strategies in which the use of informers and contacts with participants are essential to gain information. High profile cases such as the Doyle murders or that of Arthur Thompson Junior which, it was feared, might lead to an outpouring of violence, produce additional pressures to be seen to act swiftly and to secure convictions. These pressures, also present in high profile cases following terrorist killings, may be associated with a tendency to bend or break the rules, departures from due process which are justified by the greater goal of securing convictions against those assumed to be guilty. Many of the incidents described took place before legal reforms such as the Police and Criminal Evidence Act (PACE) and the tape recording of interviews, introduced in part to address these problems. Nonetheless, the ‘war’ on organised crime requires the adoption of ‘hard’ policing methods which require careful monitoring.

The description of Steele and Campbell as the ‘Glasgow Two’ also echoes the era in which many miscarriages of justice were uncovered. Jeffrey details the case of Paddy Meehan who was eventually freed following a lengthy appeal process. Ferris alleges a ‘conspiracy’ and Steele and Campbell’s saga remains unresolved although it was recently announced that they would be given the chance of a further appeal (The Herald, 20th

110 February, 2002). Both Ferris and Campbell recount their difficulties in coming to terms with being convicted for crimes they claim not to have committed and Campbell in particular describes his recurrent feelings of having been betrayed in a system in which he found little evidence of the presumption of innocence. Rather Campbell’s previous convictions and involvement in crime led, he feels, to a presumption of guilt. Although acknowledging that his memory of the original trial is vague, Campbell vividly describes his emotional state as one charge after another was dropped only to be followed by new interpretations of the evidence - all of which incriminated himself. Throughout the book he strongly disputes the evidence of key witnesses some of which relate to conversations taken out of context. Campbell conducted his own appeal and he provides selected transcripts of this along with expressing the difficulties of being a lay person in front of judicial experts - although he did receive legal assistance prior to the appeal. Campbell and Steele’s persistence, the subsequent discrediting of the chief prosecution witness, and the circumstantial nature of the evidence at the original trial lead Jeffrey to comment that this case does indeed raise questions about the nature of Scottish justice at the time (p. 132).

Also emerging from the books is a hard and uncompromising picture of prisons, with Jeffrey starting with descriptions of the death cell. Ferris and Campbell’s accounts also echo the now familiar criticism of prisons as ‘universities’ of crime - the exercise yard of Barlinnie emerges as a crucial area for exchanging information and Ferris details prison friendships and alliances which laid the basis for further criminal schemes. Hard men remain hard men in prison which makes it a violent environment and both give details of involvement in prison protests and riots and allege violence on the part of officers. Campbell provides an extremely vitriolic account of Hell Block PH S/C, the solitary confinement area of Peterhead, described as the ‘arsehole of the Universe’ (p. 331). He also alleges many beatings by officers, following one of which he nearly died. To Ferris, Scottish Prisons are tougher than English ones. As for the police, there is no prison perspective in these books, but they do signal the many problems of dealing with ‘hard men’ in prison, although both men found the time and space to write these books while inside.

None of the books make particularly pleasant reading and they arouse mixed feelings. How much credit should be given to self-confessed offenders who may, by writing such books, be seeking to profit from their crimes? To what extent do they glamorise and provide an appearance of legitimacy to serious crime and exaggerate Glasgow’s criminal reputation? Do they provide an

111 unnecessarily negative picture of its police and justice system? On the other hand, both Ferris and Campbell’s memoirs could be justified on the grounds that they claim injustice, and Ferris does attempt to provide some kind of an understanding, from the inside, of the world of crime. They provide a more rounded picture of the participants in the underworld, and reveal something about the adaptability of criminal enterprises in the late modern city. They also ask important questions about the nature of policing and justice, however much these may have changed with the advent of reforms such as PACE and the introduction of new arrangements for appeal. Yet the use of informers remains a necessary part of current ‘intelligence led policing’ particularly in relation to serious crime, and the long running case of Campbell and Steele is scarcely an advertisement for attempts to speed up the process of justice. The books will be of interest to students, criminologists and practitioners as well as having a popular appeal. They were, it has been reported, of great interest to former and current participants - many of whom obtained copies of the Ferris Conspiracy in an outbreak of shoplifting! This underlines the abiding fascination of accounts of crime and punishment in what one character in Deadly Divisions ironically describes as the ‘dear harsh place’.

References Boyle, J. (1977) A sense of Freedom, Edinburgh, Canongate. Campbell, T. C. and McKay. R. (2002) The Wilderness Years, Edinburgh, Canongate. Croall, H. (1998) Crime and Society in Britain, London, Longman. Hobbs, D. (1995) Bad Business: Professional crime in Modern Britain, Oxford, Oxford University Press. Hobbs, D. (2002) “The Firm: Organizational Logic and Criminal Culture on a Shifting Terrain”, British Journal of Criminology,Vol. 42, No. 1. Patrick, J. (1973) AGlasgow Gang Observed, London, Eyre Methuen. Ruggiero, V. (2000) Crime and Markets, Oxford, Oxford University Press

112 A Human Rights Approach to Prison Management: Handbook for Prison Staff by Andrew Coyle, International Centre for Prison Studies, London, 2002.

Reviewed by Roger Houchin

Andrew Coyle’s Handbook for Prison Staff is a milestone both in his own work and in the work of the International Centre for Prison Studies that he founded. It is a milestone in two senses. Firstly it concludes work that has been a central concern for him and the Centre for a number of years. Secondly, albeit less explicitly, it gives indications as to the direction that work should now take. The author and the Centre are interdependent: Andrew dominates the Centre’s work and the practical work carried out by the Centre fuels Andrew’s development as the leading international authority on the use and management of prisons.

Two core values inform this work. The first is that the only acceptable basis for discussion of the uses and management of prisons is ethical. The second is that ethical principles provide a practical basis for prisons practices and procedures. Those principles are as polemical as they are self-evidently innocent. Noone reading the book should remain naïve as to its polemic content. In the book’s assiduous referencing of authority and emphasis on the practicality of its advice it recommends itself to the conscientious policy maker. Its sub-text, however, is a robust challenge to the managerialism and value-neutral pragmatism that underscores much current political and policy development in the ‘developed’ western jurisdictions. I shall come back to both those values and their development in the handbook in my discussion later in this review. At this point, I would simply wish to emphasise the point with a short quotation from the introduction to the handbook given in the Centre’s Annual Report for 2002.

“There is a general need to recognise that the management of prisons is a key public service and that staff who work in prisons need to be professionally competent. It is important that prisons should be well- managed but this is not sufficient in itself. It is also necessary to check constantly that what is being done and the changes that are being introduced are within an ethical context.”

The first of the two published aims of the Centre is “[t]o develop a body of knowledge, based on international covenants and instruments, about the

113 principles on which the use of imprisonment should be based, which can be used as a sound basis for policies on prison issues”. The second is “[t]o build up a resource network for the spread of best practice in prison management worldwide to which prison administrators can turn for practical advice on how to manage prison systems that are just, decent, humane and cost effective”.

The Handbook is central to both of those aims. It records current best practice in the application of international standards to specific areas of prison management. It is intended for an international audience, was sponsored by the Foreign and Commonwealth Office, has been available since publication in Arabic, French, Portuguese, Russian, Spanish and Turkish as well as English. It has been since translated into Chinese and is distributed worldwide through British embassies. The Centre’s Annual Report considers it their most important document of the year. It is, arguably, their most important to date.

It is intended primarily for those who “work directly with prisons and prisoners”, especially those who “deal with prisoners on a day to day basis”. It is also intended for those with political accountability for prisons and their oversight, for their policy officials, for intergovernmental organisations with responsibilities in this area and for non-governmental organisations with an interest in prison matters. It is an essential book of reference for all those whose work leads them to consider or challenge the way in which prisons operate.

How, then, does the handbook work?

Its form will not be unusual to anyone familiar with Prison Rules. In 17 chapters it considers a range of areas of prison management. Following an introduction that sets the style, the chapters fall into 6 groups:

One on human rights considerations as they effect the management of staff;

One on fundamental issues of humanity: the prohibition on torture and other inhuman treatment; the need for humane and thorough admission procedures; the need for a threshold level of decency and the need for recognition of religious autonomy;

Six on specific areas of management: health care; security and order;

114 disciplinary procedures; provision of activities and preparation for release; communications and contact with the outside world; requests and complaints;

One on inspection;

Five on particular groups of prisoners: pre-trial prisoners; juveniles and young people; women; life and long-term prisoners; those under sentence of death;

Two brief concluding chapters: diversity in the prisoner population; the use of prison and alternative sentences.

Each chapter follows a similar format under three headings:

“The framework” and then, looking individually where appropriate, at specific issues in the general area,

“What the international instruments say”, and

“Putting it into practice”.

Each chapter offers a valuable survey of areas in which prison managers need pay attention to the consequences of their decisions for the rights of those in their charge and gives advice on how international standards can be effectively implemented. The authority of this advice comes from two sources: the standards themselves and the considerable international experience of the Centre in working with prison managers in developing practical ways in which to implement them. The text is consequently punctuated throughout by brief references to improvements to prison conditions that have been found possible in jurisdictions across the world.

Within this schema, international instruments are largely restricted to instruments that have been developed under the aegis of the United Nations. A slight and rare inconsistency in this practice has been allowed where regional instruments such as the African Charter on Human and Peoples Rights, The American Convention on Human Rights, the European Prison Rules and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment give emphasis to the truly international position.

115 Let me briefly summarise one chapter to give a flavour of the books style. The chapter “Constructive Activities and Social Reintegration” starts with discussion of a framework of concerns in this area. Prisons should be run in a way that prevents the deterioration of prisoners. They should provide opportunities for prisoners to develop. They are required to provide a range of activities. The two overarching requirements Ð from the International Covenant on Civil and Political Rights (ICCPR) and the Standard Minimum Rules (SMR) Ð are then quoted. Two issues have been found to be of particular importance, the handbook then suggests, in meeting these requirements: that prisons maintain a consistent focus on the prisoner’s return to the community and that prisons collaborate effectively with the other agencies of civil society in working with prisoners. The remainder of the chapter is in four sections, each of which looks at a particular area of prison activity: recognising the individuality of each prisoner and designing the prison’s response in terms of individual needs; providing work and skills training for prisoners; providing educational and cultural activities and preparing the prisoner for release. Each section follows a framework introduction by direct quotations from relevant instruments and then illustrates how these are put into effect in practice. In looking at prison work and skills training, for example, discussion of the importance of employability for offenders’ rehabilitation is followed by quotations from the ICCPR, the Basic Principles for the Treatment of Prisoners and a selection of relevant rules from the SMR. The section then discusses subjects such as forms of work that are appropriate in prison, steps that can be taken to enable prisoners to go into work on release, prisoners’ pay, health and safety in prison work and the special employment needs of women and remand prisoners. Examples are given from Senegal, Turkey, Andhra Pradesh and Kansas. Each chapter is in a similar form.

The text concludes with an Appendix listing relevant Human Rights instruments. It would have been helpful to give the dates on which each of these came into force Ð spanning as they do the nearly sixty years of the current era of international supervision in this area Ð and to cite where they can be referred to in full; all of them, I think, being readily accessible on the internet. The book concludes with a helpful, if somewhat quirky, index.

So useful is the handbook that it seems ‘dog in the manger’ to record here any disappointment. If I were to do so, it would be at the brevity of the final two chapters.

The inclusion of a chapter on “Recognising Diversity” provided an opportunity to explore in some depth the guidance existing instruments offer

116 national jurisdictions in developing their penal systems so as to accommodate prisoner populations of increasing national and cultural heterogeneity and to reflect the particular challenge that prisons face in societies in which cultural consensus cannot be assumed. The principles of individualisation of management and treatment that are being explored by the European institutions are particularly helpful in this area. The chapter might also have suggested, however, that the problems posed prison services by the growing cultural diversity of their client groups are so pressing that a need exists for the agreement of specific standards in this area.

Similarly, while it is possible to conclude, as the handbook does, that it is not the role of prison officials and nor, consequently, the function of a handbook for their use, to decide how prisons will be used or where they will fit among the range of sentences available to a criminal justice system, I can’t help feeling that an opportunity is lost in the final chapter to place the issue of levels of use of imprisonment and the abuse of individual rights inherent both in that and in the levels of overcrowding endemic to the institution at the centre of the books agenda. The deprivation of liberty of a fellow human being as a consequence of a legal process is a limitation of the most elementary of his or her rights and is properly subject to elaborate procedural safeguards. Consideration of the information that India finds it necessary to impose this limitation on 28 out every 100,000 of its population while the United States of America finds it necessary for 700 out of every 100,000 of its population is not an activity that any prison official should feel is peripheral to the competent discharge of their duties.

A firm ethical foundation for the management of prisons cannot restrict itself only to what happens internally; it must be firmly located within consideration of the circumstances in which sending a person to prison effects the best available balance between the rights of offenders and those of the community to whom offence is given. The development in full of such an argument is certainly beyond the scope of a handbook such as this. Personally, however, I would have welcomed a stronger assertion of that principle than I found in the conclusion to the book. If the book is to be used successfully, after all, by those who work in prisons, its contents will have been considered by senior policy makers. No opportunity should be lost to remind those who develop criminal justice policy that the most fundamental issue of human rights on which they have to decide is how far they wish to use the most painful punishment available to them as their response to unwanted behaviours.

117 The publication of the handbook is greatly to be welcomed. Unpublished predecessors have now been in use by Centre staff working in jurisdictions from Chile to Siberia. They have been welcomed by prison managers and policy makers in those countries in underpinning the development of staff training, auditing of existing practices and planning improvements. In each of these roles, the new publication is extensive in its coverage and authoritative both as a quick guide to relevant standards and as a source of practical advice.

As a result of its global distribution by the Foreign and Commonwealth Office it would be easy to think of the handbook as primarily of relevance to other jurisdictions. That would be consistent with British practice and short-sightedness. The UK was the prime mover following World War Two of the movement to establish international supervision of human rights. The European Convention of Human Rights was drafted in this country. The European Prison Rules are redolent of the reformatory instincts of the British administration of the time. British experts are disproportionately represented across the world today in projects to improve the standards of respect for individual rights in prisons. In that sense, this handbook is the latest in a long line of international endeavour by British reformers in this field. But Britain has also been for many years the most fertile source of European case law on human rights abuse and is still among the countries that are most frequently found in breach of guarantees given in 1951 to protect a set of rights conceptualised largely within our own cultural traditions.

I know of noone with knowledge of a range of jurisdictions who does not find, even in the bleakest of prisons, practices that challenge our own assumptions as to the restrictions it is necessary to impose on those who are detained. Prisons from Russia to Brazil would find it inhuman to deprive prisoners of all intimate and private contact with their partners; from Turkey to Uganda to keep prisoners, other than those subject to special conditions, in circumstances of isolation as pervasive as are normal in remand prisons in Northern Europe and throughout much of the world to maintain such efficient scrutiny and deprivation of privacy as characterises our prisons.

The UN principles and standards that are the basis of the Handbook are given effect in the community of 45 countries that are now members of the Council of Europe through the jurisdiction of the European Court of Human Rights and the supervision of the Committee for the Prevention of Torture and Inhuman or degrading Treatment or Punishment. As a consequence of

118 its global perspective, the Handbook only refers to these institutions as regional exemplars of the way in which the underpinning principles have been taken forward. For us, however, their position is more central. They differ, moreover, from the UN framework in two important respects. Firstly, they are living institutions that apply standards that are subject to development. Secondly, they can require, albeit in different ways, either compliance with their decisions or the co-operation of national authorities.

It came as a considerable surprise to the UK during the late 1970s and 1980s in particular when the instrument, in the design of which it had played the lead part in its mission to improve the protection of rights on mainland Europe, was used successfully by prisoners here to challenge the level of control to which they had been made subject in UK prisons. It has to be anticipated that practices we now view as normal will become subject to the critical scrutiny and likely reform by judges and members of the Committee for the Prevention of Torture nominated by the new members of the Council. Those countries in which there has until recently been extensive abuse of prisoners and official disregard for their plight are now bringing to their reform a commitment comparable to that of European reformers coming out of the abuses of the Second World War. The handbook will be welcomed and widely used in these jurisdictions. They will interpret it in the light of their own social sensitivities. Through the European institutions those sensitivities will find expression in the development of Court of Human Rights jurisprudence and Committee for the Prevention of Torture ‘standards’.

We may expect that practices we now find normal and necessary will be found abusive in the eyes of others motivated more acutely than ourselves, at present, to protect members of the public, even those who give offence, from excesses of judicial and executive control.

A jurisdiction that is confident in the legitimacy of its institutions runs the risk of allowing a certain ethical complacency to enter discussion of the management of even those institutions that are as morally delicate as prisons and to restrict their concerns to considerations of internal compliance and economy. Andrew Coyle’s Handbook should be read and used critically by those to whom it is addressed in this country as a reminder of that risk.

119 Obituary

William Ratcliffe

by Evelyn Schaffer

It is with great regret that I learned of the death of William Ratcliffe on the 8th October 2002, aged 94. I first met Willie Ratcliffe in 1966 when I approached the Chief Constable of Glasgow Police for support for a research project on runaway girls. I had found that I had many runaways on my hands at the Forensic Clinic and had been working closely with the women police Ð then a separate branch. I was invited to Police HQ to discuss the project. It was quite a shock when I found myself at one end of a long table, the Chief Constable, James Robertson, at the other end and all his senior officers around. I was questioned closely about plans and it was obvious that everyone was awaiting the response of a tall, white haired man on my right. He suddenly beamed, said he thought this was a good idea and he would take charge of me. Everyone else made positive comments and Willie made sure that all went well.

One of the first things Willie told me Ð and I later discovered it was his favourite opening gambit – ‘I am a most unusual policeman – I am a fully paid up member of the Communist party and I was born in the Irish Republic’. He was unusual: always ready to start a good argument and always irritated if he won too easily! He was a terrible driver and I gather the most terrifying experience of young cops in the traffic department was when they stopped him after some dodgy driving. ‘Treat me as an ordinary member of the public’ Willie would roar, and give them hell if they did otherwise!

Willie was feared and respected by many senior officers, most of whom were too nervous to disagree with him. He initially was very hostile to Juvenile Liaison but when he managed to think up his own version, promoted it with enthusiasm and gave Glasgow police the best Community Policing in Scotland Ð others may not agree!

SASD owes Willie an enormous debt. When we were setting up the Scottish Branch of ISTD he gave us his full backing and carried many other senior police officers with him. When we declared independence from ISTD and

120 became SASD Willie was a foremost fighter who caused certain ISTD people in London to develop a firm dislike of Scottish policemen and judges!

Willie served on most of the early SASD working parties and always ensured we got access to any material we wished and funds to support us. He also served as Chairman from 1970-73 and Treasurer from 1973-77. He was an unusual treasurer as he refused to produce accounts, saying it was quite unnecessary. This caused us some problems at AGMs but no one ever won a battle like that with Willie.

After he moved down to Kent we only saw him once at a conference. He was a changed man and lacked the fire that he used to exude. I sent him a copy of ‘Times Past’ in 1999. I got a typical rocket back to the effect that I might be a clever psychologist but I was pretty stupid to have forgotten that Sheriff Johnston had been a Chairman of SASD. He got a rocket back as the Sheriff had been chairman of a working party and not of the organisation. I did not hear from Willie again but I like to think that our last exchange was like all the others we had had in the past Ð one of the main reasons why we got on so well! We shall not see his like again.

121 The SASD Ð Objects, Membership, Office Bearers and Branch Secretaries

Objects

The formal objects of the SASD are: “to initiate, encourage and promote as an independent Scottish body, study and research by all means into the causes, prevention and treatment of delinquency and crime, and to co- ordinate and consolidate existing work of that and the like nature, and to give publicity to such work, and to secure co-operation between bodies, association or persons engaged in any research or work or activity having objects similar or akin to those of the Association”.

The Association is managed by a Council. In addition, there are branches in Aberdeen, Dumfries, Dundee, Edinburgh, Perth, Glasgow, Lanarkshire, and in Orkney & Shetland. Each branch carries out its own programme of meetings and local conferences. The Association organises a residential conference each year at Peebles on the third weekend in November. It is Scotland’s main criminal justice conference and attracts distinguished speakers from both within and outwith Scotland.

The basic aim of the Association, both nationally and locally, is to create a common meeting ground for the many professional groups and individuals interested in the field of crime and criminology. The membership is drawn from the Judiciary, the Legal Profession, the Police, the Prison Service, Social Work Services, Administrators, Academics, Teachers, Reporters to Childrens’ Panels, Childrens’ Panel Members, Doctors, Clergy, Psychologists, Prison Visiting Committees, Central and Local Government. It provides an opportunity for an exchange of views by its members, enabling them to explain their own problems and to appreciate the problems of others engaged in related fields. SASD has no agenda other than to make possible and encourage purposeful dialogue within the Scottish criminal justice system in ways which will contribute to its improvement.

Through study groups and conferences, communication between the professional groups is encouraged and individual members gain the opportunity to meet experts in different fields of study, and to discuss with them matters of mutual interest. In the working parties it is possible for the

122 members to contribute their own specialist knowledge or experience. Among the most valuable results of membership are the opportunity to meet and know others with whom it may be necessary to make contact during the course of one’s professional life, and the consequent building of trust and confidence between members.

Membership

SASD has over 500 members. Those wishing to join should contact the Administrator, Carol McNeill, 56 Ava Street, Kirkcaldy, Fife KY1 1PN. 01592 641951 Email: [email protected]

Office Bearers Honorary Life Patron: The Hon Lord Hunter

Honorary President: The Rt Hon Lord Gill

Honorary Vice-Presidents: Mrs E B Schaffer, The Hon Lord Caplan, Professor Fred Edwards, Mrs M Dobie, Mrs I Guild.

Chairman: Niall Campbell, 15 Warriston Crescent, Edinburgh EH3 5LA. 0131 56 2895. Email: [email protected]

Vice-Chairman: Dan Gunn, HM Young Offenders Institution, Brightons, Falkirk FK2 0AB. 01324 711 558. Email: [email protected]

Honorary Secretary: Margaret Small, Scottish Children’s Reporter Administration, 10/20 Bell Street, Glasgow G1 1LG. 0141 567 7900

Honorary Treasurer: Alasdair McVitie, TD WS, Haig-Sctt and Co, WS, 16 Corstorphine Road, Edinburgh EH12 6HN. 0131 313 5757

Conference Organiser: Sally Kuenssberg, 6 Cleveden Drive, Glasgow G12 0SE. 0141 339 8345

Journal Editor: Jason Ditton

Journal Assistant Editor: Michele Burman

123 Branch secretaries

Aberdeen Contact: Sheriff KA McLernan, Sheriff’s Chambers, Sheriff Court House, Peterhead.

Dumfries Andrew Hawes, Locharbriggs, Martinton Place, Heathhall, Dumfries, DG17 3QN. 01387 252112 ext 64563. Email: [email protected]

Dundee Contact: Sheriff Frank Crowe, Sheriff’s Chambers, Sheriff Court House, 6 West Bell Street, Dundee, DD1 9AD

Edinburgh Bernadette Monaghan, c/o APEX, 9 Great Stuart, Edinburgh. 0131 220 0130.

Glasgow Carol Kelly, c/o Scottish Criminal Cases Review Commission, Portland House, 5th Floor, 17 Renfield Street, Glasgow G2 5AH. 0141 270 7030

Lanarkshire Contact: Alex Davidson, SW Resources, South Lanarkshire Council, Almada Street, Hamilton ML3 OAA

Perth Eilidh Murray, JP, 191 Oakbank Road, Perth PH1 1EG 01738 621 044 Email: [email protected]

Falkirk Contact: Dan Gunn, HM YOI, Polmont, Brightons, Falkirk FK2 0AB 01324 711558 email: [email protected]

Orkney & Shetland Contact: Sheriff Colin Scott Mackenzie, Sheriff Court, King Erik Street, Lerwick.

124 Starting a new branch

The Council of SASD is very keen to encourage the establishment of new local Branches of SASD. Local Branches and local Branch activities are the life blood of the Association. The Council recently had a full discussion on what it could do to help and has prepared a pack of material for any member or group of members wanting to set up a new local Branch.

If you are interested in setting up a new Branch, do get in touch with SASD’s Chairman, Niall Campbell, or the Secretary, Margaret Small. Our names and addresses are in the Office Bearers section of this report. We will be very glad to hear from you and to discuss what we can do to help. The SASD has funds which can be used to help new branches get started. For instance, it may be necessary to spend money on initial publicity material. We can provide membership lists so that a new branch knows which members live within its area. We can also provide names and addresses of the criminal justice agencies, organisations and individuals in the area who might be interested in becoming involved in a local branch of SASD. Membership forms for recruiting new members and copies of the programmes of other branches to suggest ideas for new Branches can be provided. We can put you in touch with the office bearers of other Branches who can discuss with you direct how to set up a new branch.

SASD can make an important contribution to improved communication within the criminal justice system and it is one of the declared aims of the Association to do this. An increased number of lively local Branches is one of the most effective way for the Association to make its contribution to the important aim of improved communication within the criminal justice system in Scotland. Do not hesitate to get in touch with us if you would like to start a new Branch.

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