Release and Post Custody Management of Offenders

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PROPOSALS

RELEASE AND POST-CUSTODY MANAGEMENT OF OFFENDERS

1. The current arrangements for releasing offenders are set out in the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended. These measures are explained in detail in Annex A. In summary, offenders sentenced to less than 4 years (unless given a supervised release order or sex offenders sentenced to 6 months or more) will be released automatically and unconditionally after serving one-half of their sentence. Unconditional release means that an offender is released from custody without a licence or any form of supervision. Offenders sentenced to 4 years or more may be released on licence at the half-way point of sentence if this is directed by the Parole Board for Scotland. If not released at that stage on parole, these offenders, depending on the length of their sentence either have a further parole hearing where release on licence can be directed or will be released on licence automatically at the two-thirds point of their sentence.

Case for Change

2. The existing system is no longer fit for purpose. It determines an offender's release by length of sentence, not the risk to the public that he or she may pose. The system is difficult for the public to understand. Release can be automatic and unconditional, or automatic but with conditions, or be discretionary on parole. This lack of clarity in what sentences actually mean is undermining the credibility of the criminal justice system.

3. The First Minister confirmed in 2004 that retaining the status quo was not an option and that the current system would change. The Sentencing Commission for Scotland was asked to look at the question of release of offenders as a priority. It produced its report in January 2006. The measures proposed in this paper take account of the Commission's report.

Principles

4. Scottish Ministers are committed to delivering a criminal justice system that will serve Scotland's people in the 21st century. Society expects wrongdoers to be punished appropriately for the crimes they commit. However, it is equally important that we do whatever we can to get offenders to address their behaviour and take responsibility for their lives. One of the best ways to keep the public safe is to reduce offending. The proposals in this paper seek to achieve just that. They are not just about locking up offenders. But where the courts have decided that prison is the appropriate punishment, these measures will ensure that the sentence is able to be tailored to address the risk and needs of the offender in a way that contributes to reducing re-offending and enhancing public safety.

5. As the proposals in this paper show, we intend to build on the structure introduced in the Management of Offenders etc (Scotland) Act 2005 to secure end to end sentence management. Offenders will no longer simply be processed by one part of the system before being handed on to the next part. Instead, the offender's sentence will be managed in an integrated way, beginning in custody and continuing on into the community, allowing a structured plan specific to the individual's needs to be followed. A key component of that objective is to ensure that the arrangements for the release and management of these offenders are fit for purpose. The proposals in this paper create a new regime that will:

  • end the current inflexible system of automatic and sometimes unconditional release determined by sentence length not risk;
  • provide a clearer, more understandable system that will increase public confidence, enhance public protection and reduce re-offending through end to end management of sentences;
  • take account of public safety by targeting risk;
  • have victims' interests at its heart; and
  • fulfil society's expectations for punishment and deterrence but also give offenders rehabilitative opportunities.

Summary of Proposals

6. The proposals reflect a number of aspects of the Sentencing Commission's recommendations. A comparison is at Annex B.

7. We propose to legislate for the following framework:

  • Apart from offenders who are sentenced to 14 days or less, a combined structure for managing sentences comprising a period in custody (the custody part) and a period on licence in the community (the community part). The custody part will be a minimum of 50% of the sentence.
  • It will be made clear at the time of sentence that the minimum custody part will be 50% of the total sentence. This will be for the purposes of punishment and deterrence. However, the court will have the power to increase the statutory minimum 50% if required in any particular case.
  • Offenders will be subject to continuous review during the custody part. Where Scottish Ministers consider that an offender should not be released at the end of the custody part on grounds of risk, they will refer such cases to the Parole Board with a recommendation that the offender should be kept in custody for longer.
  • At the end of the custody part, the offender will be on licence for the entire community part of the sentence. The licence conditions will enable provision for a variable and flexible package of measures including supervision if required and will detail what obligations the offender has to meet. Breach of a licence condition will be taken very seriously and could result in return to custody. For the first time all offenders will be under some form of restriction for the full sentence.

Combined Structure

8. The combined sentence is not a new disposal. It is a structure that, starting at the point of sentence, will enable offender management to be tailored to the risk and needs of individual offenders to optimise the chances of enhancing public protection and reducing re-offending. The courts will have the same range of punishments at their disposal as they have currently - including community disposals such as community service orders, probation and drug treatment and testing orders. Courts will continue to impose the sentence considered appropriate for the circumstances of the offence and the offender.

9. Sentences of more than 14 days will attract the combined structure approach. This will mean that the offender will spend a minimum period in prison (the custody part) and the remaining part of the sentence on licence in the community (the community part). For the first time all offenders will be under some form of restriction for the full sentence. Legislation will provide that the minimum period of the custody part will be 50% of the sentence. However, it will also provide that the court may at the point of sentence increase the custody part beyond the 50% point if this is considered appropriate for the purposes of punishment and deterrence. The court's decision to increase the custody part of the sentence will relate to the circumstances of the crime and the offender. The effects of the combined structure will be explained in full at the point of sentence.

10. Assessing and managing an offender's risk and needs will be an ongoing process in prison throughout the court imposed minimum custody part. Once in prison, offenders will undergo risk assessment and review as part of the sentence management process. Those who present as a high risk of re-offending and/or who pose an unacceptable threat to public safety will be referred to the Parole Board by Scottish Ministers with a recommendation that the offender's custody part should be extended beyond the minimum term set down by the court at time of sentence. The law requires that continued detention is considered by a court-like body such as the Parole Board. This process will apply regardless of whether the custody part is the statutory minimum or whether it was increased beyond the 50% point at the time of sentence. If the Parole Board supports the Scottish Ministers' recommendation, the offender will be detained in custody beyond the custody part set at the time of sentence.

11. The current system gives Scottish Ministers a role, in practice carried out under delegated authority by the Scottish Prison Service and Scottish Executive Justice Department, in the referral of cases to the Parole Board and recall to custody arrangements. We will look at whether this remains the best way of dealing with such cases, or whether there are alternatives that might be considered.

Custody Part

12. The minimum period of the custody part will be 50%. The proposals are as follows:

  • The court at time of conviction will continue to impose the sentence it considers most appropriate for the circumstances of the offence and the offender.
  • If that sentence is for a period of more than 14 days, the combined structure will apply to the sentence and, unless the court increases the proportion, the custody part will be a minimum of 50% of the sentence.
  • The court can increase the custody part beyond the statutory minimum of 50% on punishment and deterrence grounds such as seriousness or culpability.
  • To achieve clarity in sentencing, the court will state at point of sentence the minimum period of the custody part (ie 50% or more).
  • Once in prison, all offenders will be reviewed as part of the sentence management process. If that assessment against statutory criteria shows that an offender may be a high risk of re-offending and/or poses an unacceptable risk to the public, Scottish Ministers will refer the case to the Parole Board with a recommendation to consider continued detention.

Assessing Risk

13. The proper assessment and management of risk lies at the core of good practice with offenders and provides the base from which we will build this new approach to sentence management. In Scotland, we are fortunate to have the Risk Management Authority as a reservoir of expertise with a remit to develop best practice for working with serious violent and sexual offenders. Against this background, provision will be made for Scottish Ministers to refer offenders who, at the end of the court imposed minimum custody part, are assessed against statutory criteria as being a high risk of re-offending and/or who pose an unacceptable threat to public safety, to the Parole Board with a recommendation that the offender is detained in custody for a portion of what otherwise would be the community part of the sentence. Such cases could (but not exclusively) arise where there is a lengthy custody part and/or the offender has not responded to (or refused to undertake) offence related interventions whilst in custody. The final decision about release will be taken by the Parole Board. It could direct the offender's release or agree to continued detention. Scottish Ministers must comply with the Parole Board's direction. Provision will be made for further reviews of the continued detention as appropriate.

14. The following examples show how the process will work in practice:

Example 1: The court sentences an offender to 3 months. It does not vary the statutory 50% minimum custody part at time of sentence. The offender is assessed towards the end of the custody part as being an acceptable risk:

  • Offender convicted of an offence and sentenced to 3 months.
  • Court does not vary minimum 50% custody part. Court therefore states that the minimum period of the custody part of the sentence will be 11/2 months.
  • Offender undergoes risk assessment in prison as part of the sentence management programme. The assessment indicates that the offender presents as an acceptable risk at the end of the minimum 11/2 months custody part and he or she is released on a licence. Risk assessment indicates a low risk therefore multiple licence conditions not required. Possibly single 'good behaviour' condition.

Example 2: The court does not vary the statutory 50% minimum custody part at time of sentence but the offender is assessed later by Scottish Ministers as likely to be unsuitable on grounds of risk to be released at the end of the 50% minimum custody part:

  • Offender convicted of assault and sentenced to 6 years.
  • Court does not vary minimum 50% custody part. Court states that the minimum period of the custody part of the sentence will be 3 years.
  • Offender undergoes risk assessment as part of the sentence management programme. The assessment indicates that the offender remains an unacceptable risk at the end of the minimum 3 year custody part.
  • Scottish Ministers refer the case to the Parole Board with a recommendation for continued detention.
  • The Parole Board considers the case fully and agrees with the Scottish Ministers' assessment. The Parole Board directs that the offender is kept in custody beyond the minimum 50% point and specifies the further period.
  • Depending on the length of sentence and the risk he/she presents, the offender will be subject to further reviews by the Parole Board to determine whether the offender should continue to be kept in custody.
  • To ensure appropriate sentence management, the offender will always serve a part of the sentence on licence in the community. The conditions could for example require him or her to be under the supervision of a fully qualified social worker and to undertake alcohol/drug counselling.

Example 3: The court extends the custody part beyond the statutory minimum.

  • Offender convicted of assault and sentenced to 6 years.
  • Court considers that in this particular case the statutory minimum custody part should be extended because of the circumstances of the crime or the offender's culpability. Court states that the minimum period of the custody part of the sentence will, on this occasion, be 4 years.
  • Offender undergoes risk assessment as part of the sentence management programme. The assessment indicates that the offender is an acceptable risk at the expiry of the court imposed custody part of 4 years.
  • The offender begins the community part of the sentence at the end of the 4 year custody part.

or

  • Offender undergoes risk assessment as part of the sentence management programme. The assessment indicates that the offender is an unacceptable risk at the end of the court imposed minimum 4 year custody part.
  • Scottish Ministers refer the case to the Parole Board with a recommendation for continued detention.
  • The Parole Board considers the case fully and agrees with the Scottish Ministers' assessment. The Parole Board directs that the offender is kept in custody beyond the court imposed 4 year custody part and specifies the further period.
  • Depending on the length of sentence and the risk he/she presents, the offender will be subject to further reviews by the Parole Board to determine whether the offender should continue to be kept in custody.
  • The offender will always serve a part of the sentence on licence in the community. The conditions could for example require him or her to be under the supervision of a fully qualified social worker, to undertake alcohol/drug counselling and be subject to electronic monitoring.

15. The structure will be supported by an appropriate risk assessment/management framework. It will build on the systems being developed through the Management of Offenders etc (Scotland) Act 2005 arrangements and the SPS's new Integrated Case Management System. The constitution and title of the Parole Board will be reviewed to ensure that it is fit for purpose.

Community Part

16. To enable continued risk management and to ensure that the offender does not simply walk away at the end of the sentence, offenders will always spend a portion of the sentence under licence restrictions in the community. The legislation will set out the minimum portion of the sentence to be spent on licence in the community.

17. Throughout the community element, the offender will always be on licence and subject to restrictions. The licence will have conditions attached to it which will take account of the particular factors of the crime and the offender and reflect the outcomes of the sentence management assessments. The licence remains in force for however long the community part has to run. Conditions can be varied during the community part if required. A list of the types of conditions that could be imposed on the community licence is attached at Appendix 1.

18. There will be a supporting framework for the community element that will allow for a variable package of measures in the community to manage the offender's individual risk and needs. This combined structure will allow for the work begun in prison, such as offence focused counselling, or drug and alcohol treatment, to be carried over into the community. This will ensure ongoing sentence management. The concept of "supervision" as it is currently understood, with intensive intervention by fully qualified social workers, will be reserved for those offenders whose risk requires such an intervention. We will examine imaginative ways of making best use of the resources at our disposal - both money and staff - and of utilising the new flexibilities which come from more integrated arrangements in the Management of Offenders etc. (Scotland) Act 2005.

19. The new Community Justice Authorities assume their full functions from April 2007 and we are already looking at ways of reshaping services around the needs and risks of particular groups of offenders overall within these new structural arrangements. The introduction of the combined structure will provide a longer period to work with offenders but the focus will be on them taking responsibility for their own future behaviour. The implementation plan for the new arrangements will devise the best framework to achieve this new approach.

Breach of Community Licence

20. While offenders will therefore always be given the opportunity to serve at least some of their sentence in the community, provision will be made for a framework to deal with breaches of community licence conditions. There will be a hierarchy of actions available for dealing with breaches of the community licence. Sanctions for breaches will include warnings for minor/technical breaches, additional or varied licence conditions (e.g. offence related interventions and electronic monitoring) or immediate return to custody for serious breaches of licence without further prosecution or referral to the court.

21. Under the current release regime in the Prisoners and Criminal Proceedings (Scotland) Act 1993 both Scottish Ministers and the Parole Board exercise powers over the return to custody for breaches of licence. The Parole Board will then consider the case for the (recalled) offender's continued detention. Under the new arrangements Scottish Ministers will be responsible solely for recalling an offender to custody for a serious breach of a licence condition. The Parole Board will continue to consider the case for re-release. The separation of the power to recall to custody and the power to direct re-release - which must remain with a court-like body - will result in a more transparent, effective and swifter recall system.

Extended Sentences

22. The current arrangements that give courts the power to order an additional period of supervision (extended sentence) under section 210A of the Criminal Procedure (Scotland) Act 1995 will be retained. This disposal is available presently for sexual or serious violent offences. It is used where the court considers that the period that would otherwise be spent on licence (the community part under the new proposals) is not adequate for the purposes of protecting the public from serious harm. This valuable disposal will ensure that there is still a comprehensive menu of measures available to the courts to deal with public protection. This menu was enhanced further by the Order for Lifelong Restriction which became available to the courts on 19 June 2006.

Home Detention Curfew

23. The Home Detention Curfew arrangements introduced through the Management of Offenders etc (Scotland) Act 2005 will be retained. These measures can provide a useful incentive in appropriate cases and it is sensible therefore to keep the option. However, exercise of this option would be subject to strict controls. For example - high-risk offenders and sex offenders will be automatically excluded.

Life Sentences

24. The law covering the treatment of offenders sentenced to life imprisonment was changed by the Convention Rights (Compliance) (Scotland) Act 2001. A life prisoner is one sentenced to life imprisonment for murder (mandatory) or for a crime other than murder (discretionary) and has a "punishment part" set by the court. This is the period that the court considers appropriate to satisfy the requirements for retribution and deterrence, ignoring the period of confinement, if any, which may be necessary for the protection of the public. The life prisoner is reviewed for release by the Parole Board after serving the punishment part in full and will continue to be confined for the protection of the public, if this is deemed necessary by a tribunal of the Parole Board. Further reviews of a life prisoner's case are undertaken on a date determined by the Parole Board, subject to each review taking place at not more than two-yearly intervals. Under the new arrangements, life prisoners who breach the terms of their life licence (which exists to the end of the person's natural life) will be liable to be recalled to custody by the Scottish Ministers. On return to custody the grounds for the (recalled) offender's continued detention will continue to be reviewed by a tribunal of the Parole Board. There is now substantial jurisprudence to suggest that it remains fit for purpose. Consequently, there will be no change to the current law.

Victims

25. Victims' rights and interests remain a paramount consideration. The implementation framework will take full account of the need to keep victims' interests at the heart of the process.

Resources

26. The new arrangements will have financial and resource implications for the Scottish Prison Service and Local Authority Criminal Justice Services. In developing the combined structure approach, we have tried to strike the right balance between achieving our overall objectives and affordability. However, while there will be cost implications, these proposals will focus much more on matching resources to the risk posed and dealing with offenders' risks and needs in a more targeted way.

Conclusion

27. We have committed to legislating to end unconditional automatic early release. Legislation will be introduced in the Parliament in the Autumn. Our proposals will develop a sentence structure which targets resources in a more strategic manner. The proposals will ensure that offenders are punished appropriately but will also provide rehabilitative opportunities. We will have a system that is simple, that is easily understood and that punishes the offence while at the same time seeks to help the offender. Through this, we will help to reduce re-offending, we will deliver smarter justice and we will all live in safer communities.

Page updated: Thursday, June 22, 2006