A study of the impact of a presumption against custodial sentences of three months or less in Scotland
Report authors: Jo Coles, Manon Roberts, Callum Tipple
Wednesday 8 May 2019
In February 2011, Scotland introduced a presumption against custodial sentences of three months or less. This study aims to evaluate the impact of the presumption on Scotland’s reoffending rates and prison population, and to explore whether similar reforms could and/or should be replicated in England and Wales.
Summary of findings
There has been little evaluation of the impact of the presumption against custodial sentences of three months or less. Rob Allen’s blog, ‘Unlocking potential: Six months to go’, which provided 1 a brief review of the presumption’s impact (in the context of proposed reforms in England and Wales), concluded that the presumption has had little to no effect on sentencing decisions in Scotland, and “so Scotland may not provide the best model” for replication in England and Wales.
Our own study suggests that while Allen’s scepticism about the impact of the presumption is broadly justified, the question is a nuanced one and not straightforward to untangle. The presumption has correlated with a number of positive trends in Scotland since its introduction in 2011, most notably:
a decline in the reoffending rate;
a decline in the overall prison population;
a decline in the number of short custodial sentences handed out; and
an increase in the use of community sentences.
However, these trends need to be interpreted in a broader context. For example, most of these declines had begun before 2011, apart from the overall prison population, which had previously been increasing. While it is likely that the presumption played a small role in the falling prison population, this is likely to have been outweighed by broader factors relating to shifts in the number of offenders coming before the courts. Moreover, with respect to the use of very short custodial sentences (less than 3 months), the impact of the presumption appears to have been mixed, at best. It appears to have had a negative effect on women offenders (with a growth in the proportion of custodial sentences of under 3 months since 2011) and only a modest effect on the proportion of such sentences handed out to male offenders.
The impact of the presumption also needs to be interpreted alongside a number of wider criminal justice and public policy reforms (see chapter 3 for more detail), including a greater focus on problem-solving justice in Scotland, which is likely to have incentivised judges to reduce the use of custody in favour of community sentences.
These caveats notwithstanding, given that the positive trends have continued following the introduction of the presumption (its impact on women offenders aside), particularly the continued decrease in the number and proportion of <3 month sentences given to male offenders and the decline in the overall prison population following years of growth, the weight of the evidence suggests that the presumption is likely to have had a modest impact. However, it is not possible to delineate to what extent the presumption specifically has contributed to these continued positive trends, compared to other, potentially more significant factors, such as the large decline in the number of people coming before the courts.
1. Rob Allen (2019). Unlocking Potential: Six months to go. Available at: https://reformingprisons.blogspot.com/2019/01/six-months-to-go.html?m=1