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UK: A study of the impact of a presumption against custodial sentences of three months or less in Scotland

8th May 2019

In February 2011, Scotland introduced a presumption against the use of custodial sentences of three months or less. A recent study completed by Crest 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.

The evaluation suggests that the presumption against short custodial sentences is likely to have had a modest impact on target measures in the Scottish justice system. However, the study notes that it is not possible to ascertain whether these improvements are due to the introduction of the presumption, rather than other factors, such as a decline in numbers coming before the courts. The study also notes that some of the positive trends that followed the introduction of the presumption has already begun before 2011.

Although there have been positive trends in Scotland since the introduction of the presumption (a decline in reoffending rate, prison population and number of short sentences; as well as an increase in community sentences), the evaluation also found that the proportion of custodial sentences given to female offenders has increased.

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.

In an Irish context, the Criminal Justice (Community Service) (Amendment) Act 2011 introduced a requirement that the courts consider imposing Community Service Orders for offences that would ordinarily attract a sentence of 12 months’ imprisonment or less. This legislation supports the guiding principle of imprisonment as a last resort. However, a rage of indicators demonstrate that this is not being considered in practice. For example, SPACE statistics for 2016 show Ireland’s high prison ‘turnover ratio’ of 82.8 compared to a European average of 52.3. High turnover rates (where individuals move in and out of the prison system quickly) indicate that imprisonment is not being used as a sanction of last resort.

‘A study of the impact of a presumption against custodial sentences of three months or less in Scotland’ is available to read in full on the Crest website here.

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