Irish Penal Reform Trust

Scotland: Extension of the presumption against short custodial sentences

17th May 2019

The Scottish Government has today officially announced plans to extend the current presumption against short custodial sentences. An affirmative order has been published that, subject to the approval of Parliament, will extend the existing presumption from 3 to 12 months.

The current statutory presumption against short-term sentences was approved by the Scottish Parliament through the Criminal Justice and Licensing (Scotland) Act 2010. The Act requires that the court must not pass a sentence of imprisonment for three months or less unless it considers that no other sentence is appropriate. The court must record the reasons for its sentencing decision.

A public consultation on the existing presumption against short prison sentences found 85% were in favour of extending it beyond the three months. It is expected that extending the presumption against short prison sentences will encourage the greater use of more effective community sentences and break cycles of reoffending.

In Ireland, a presumption against custodial sentences was introduced through the Criminal Justice (Community Service) (Amendment) Act 2011. However, this legislation is not as strong as that in Scotland. In Ireland, judges shall consider community service orders where a prison sentence of less than 12 months would normally be applied, whereas the extension of the legislation in Scotland will mean that judges must first consider a non-custodial alternative and pass a custodial sentence of less than 12 months only if no other sanction can be deemed appropriate. As noted above, if handing down a custodial sentence of less than 3 months (to be raised to 12) judges in Scotland must have their reasons for doing so inserted into the official record. No equivalent written requirement exists in Ireland, although this was recommended by the Strategic Review of Penal Policy in 2014 and by IPRT in our ‘Community Service in Ireland’ report in 2017.

Despite the introduction of the Criminal Justice (Community Service) (Amendment) Act 2011, there has been a reduction in the number of Community Service Orders in Ireland since 2011.

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