A study of the impact of a presumption against custodial sentences of three months or less in Scotland
Published 8 May 2019
In February 2011, Scotland introduced a presumption against the use of custodial sentences of three months or less. Crest Advisory has undertaken a study to evaluate the impact of this presumption on Scotland’s reoffending rates prison population and sentencing patterns and to explore whether similar reforms could and/or should be replicated in England and Wales.
Since 2011 there has been little evaluation of the impact of the presumption against custodial sentences of three months or less. Our own study suggests that the question is a nuanced one and not straightforward to untangle, not least because most of the positive trends that followed the introduction of the presumption (notably declines in the reoffending rate and the number of short custodial sentences, and an increase in the use of community sentences) had begun before 2011.
Our report attempts to interpret these trends in their broader context.
The presumption against very short custodial sentences has coincided with a decline in the reoffending rate, prison population and the number of short custodial sentences handed out.
It has also coincided with an increase in the use of community sentences - Scotland has prioritised the use of tough community sentences, including through the work of Community Justice Scotland, established in 2016.
The majority of the above trends had already begun in the years prior to the introduction of the presumption.
General demand on the courts has also decreased significantly since the presumption was introduced, which is likely to have had a greater effect on the measures concerned than the presumption itself.
Though the number of short custodial sentences given to women offenders has decreased, the proportion (as a total of all custodial sentences) has increased since it came into effect. Both have declined for male offenders.
Applying learnings to the criminal justice system in England and Wales also requires taking into account differences in the nature of the legal system in Scotland.
Our evaluation suggests that the presumption against short custodial sentences is likely to have had a modest impact on certain target measures in the Scottish justice system, though it is impossible to determine to what extent these improvements are due to the presumption specifically, rather than to other factors.
Given that positive trends on these measures 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 change is likely to have had an impact, albeit limited.
However, it is not possible, at this stage, to delineate to what extent the presumption specifically has contributed to the continuation of positive trends in the Scottish justice system, compared to other factors such as the large decline in the number of people coming before the courts.
In terms of possible lessons to be learned from the Scottish presumption against short custodial sentences, policy makers in England and Wales should also be mindful that the Scottish Government is now moving towards a presumption against custodial sentences of less than 12 months as part of a series of further reforms.