Author believes that the Custodial Sentences etc Bill will fail in its objective of providing greater clarity and certainty

The Custodial Sentences and Weapons (Scotland) Bill, which Scottish Ministers are anxious to see passed before the May election, has attracted little scrutiny from lawyers. This is surprising on two counts. First, as we shall see, the bill sets out a series of changes which, if passed, will have major impacts on the effective sentence to be served. This will mean that defence lawyers will need to consider changing how they advise their clients; and prosecution and defence negotiation tactics are also likely to have to alter. Secondly, at a broader level which affects the reputation of all lawyers, public confidence in our legal system is undermined by a feeling that sentencing is not “honest” (i.e. the sentence passed does not match the time served). Research highlights that this is at the top of the reasons for public cynicism. So we have to deal with this apparent “dishonesty” and also protect the public. This, according to its proponents, is what the bill aims to do. But will it?

The fundamental aims of the bill, to increase transparency and public safety, are contradicted by the detail of the bill. There are a series of key questions and problems which proponents of the bill have so far failed to address.

1. Automatic release ended in name only

Proponents of the bill have proclaimed that it sees the complete abolition of unconditional automatic release. We are told that that under the new clearer, safer regime there will be “tough, tailored” supervision in the community, based on risk assessment. However, the Executive has quietly had to concede that, with most short term prisoners (especially those serving six months or less, but probably others), risk assessment and individualised supervision will simply not be achievable. For these, the licence will be merely nominal (for example to “be of good behaviour”). “Tough, tailored” licences not only require much more funding but also more time: it is practically impossible to carry out proper risk assessment and “tailored” supervision with people who have a few weeks of their sentence to go. As the Risk Management Authority and senior criminal justice social workers have reminded us, proper risk assessment is a complex process, not a 10 minute box-ticking task. So the claim will not be matched by the reality – a point quietly conceded in the background documentation. It seems that the Executive is hoping that no one will notice that a promise is being made which it knows cannot be kept.

2. Perverse effects

While those sentenced to 15 days or more will be released early on licence, those serving less than 15 days will have to serve their sentence in full. As a result, someone sentenced to, for example, 14 days will end up serving more time than someone supposedly punished more severely (for example 21 days), who will be out after 50% of their sentence. Plainly this will be absurd. How does it assist in making the system more intelligible to offenders, victims and the wider public? Moreover, this 15 day cut-off contradicts the fundamental principle of proportionality in punishment. We might well expect that someone sentenced to 14 days or less will wish to challenge the basis of a system which leads to such perverse results.

The 15 day cut-off gives rise to other dilemmas which lawyers and sentencers will have to face. To promote the best interests of clients, will defence lawyers see themselves in the unique position of having to request that if a short custodial sentence is to be passed, that it be made longer than the court would otherwise have passed? In considering a custodial sentence, should the courts be cognisant of the effective sentence to be served, or should they ignore that the sentence passed will, in effect, be subverted by the proposed release structure? Will different practices emerge among different sentencers? 

Given that the Scottish Executive acknowledges that with sentences of between 15 days and six months the licence will be nominal, why have the 15 day cut-off point at all?

3. The 50%-75% rules will add confusion

A: Double sentencing
Section 6 of the bill aims to provide that the “custody part” must be a minimum of 50% of the overall sentence, but that this may be increased up to 75% if the individual sentencing judge considers it appropriate. On what grounds would such variation be “appropriate”? Section 6(4) states that the custody element may be increased up to 75% on three grounds: the seriousness of the offence(s); previous convictions; the timing and nature of a guilty plea. Yet all these criteria currently form (and will continue to form) the basis of determining the overall headline sentence.  Why should sentencers be asked to make the same judgment twice?

It will also lead to more substantive questions, such as the impact on the practice of discounting for a guilty plea – should this be done twice? Is an offender to be punished twice on the same criteria (once in the overall headline sentence and again in the minimum point of release)? Clearly this will lead to confusion, and disparate approaches and practices emerging. Despite these problems having been pointed out, the Executive has found itself wholly unable to explain why this double sentencing practice is proposed. What is the rationale for inviting individual sentencers to increase the custody element up to 75%?

B. Seriousness and protection: an artificial distinction
Section 6(5) provides that in setting the “custody part”, the court “must ignore any period of confinement which is necessary for the protection of public”. Background documentation indicates that this is supposed to require sentencers only to include the “punishment element”, and thereby subtract the “risk element” from the sentence. This seems, as the Sheriffs’ Association suggests, both confusing and odd. It might start to make some sense (at least in terms of incapacitation) if sentencers were allowed to consider “public protection” in setting the punishment part. But this is expressly ruled out and, as we saw above, sentencers can only set the punishment element on the same grounds as the “headline” sentence. 

In any event, it is hard to see how this strict separation between “risk” and “seriousness” will work. The categories of public protection and seriousness will continue to be very difficult to distinguish in determinate sentence cases. The bill’s attempt to draw this distinction will be seen to be artificial and confusing.

C: Will public safety really be paramount?
Supervision and support in the community is, as the Executive says, important in helping people go straight, thereby increasing public safety. While imprisonment is necessary in some cases, its experience typically breaks family, social and other ties, which are so important to helping people go straight. One in two prisoners is homeless on release. If we want people not to re-offend, we need not only to monitor but to help them rebuild their lives. This is an important objective. However, as we have seen, s 6 of the bill also allows individual sentencers to cut from 50% to 25% the very period of support and supervision which we are told is so vital to public protection, for those who will most need it. The reason for this provision is wholly obscure.

4. The explanation in open court: an unknown outcome

Proponents of the bill claim that it will finally ensure that offenders, victims, and the public will be given a clear explanation what the sentence actually means. In fact it achieves less clarity and certainty. Currently, this lack of certainty is true of sentences of four years or more, but the bill extends uncertainty of the point of release to all prisoners serving 15 days or more. The Sheriffs’ Association has observed: “This situation would not appear to be conducive or consistent with a policy of clarity, certainty and transparency.” This is because at the time of passing sentence it will not normally be possible to predict the duration a person will serve in custody – such decisions will also be in the hands of the prison and parole authorities.

Dealing with reality

These, then, are just some of the contradictions in the bill which will affect court practitioners directly. To be fair to the Executive, release and the management of sentences is both a technically complex and controversial area. But it surely cannot help public confidence (which proponents of the bill cite as their primary motivation) to make grand promises which cannot be kept. The bill will create further gaps between appearance and reality.

If we really want to produce a more transparent system based on public safety, we have to stop fiddling about with back door exit points from prison and start thinking seriously about front door entry points as well.

Cyrus Tata is Director of the Centre for Sentencing Research and Senior Lecturer in Law at Strathclyde University e:


Currently prisoners sentenced to less than four years’ imprisonment are normally released automatically and unconditionally after half their sentence. Those sentenced to four years or more are normally released on licence after up to two thirds of their sentence has elapsed.

The bill aims to make the system more certain, clearer and more transparent. When passing sentence, the court will have to state that the sentence comprises a “custody part” and a “community part”. Everyone sentenced to 15 days or more will be released “on licence” (subject to recall for breach of licence conditions) after they have served between 50% and 75% of their sentence. However, the Parole Board will be able to order that someone is kept in prison (on grounds of risk) beyond the “custody part” determined by the court (but not beyond the 75% point – at which he or she must be released). The “community part” is to involve both closer supervision and support for the needs of people leaving a period of imprisonment.

The bill does not make any real changes to life sentenced prisoners. However, readers familiar with the life licence system will note that the bill seeks to import the logic of that system into the system dealing with all determinate sentence prisoners. The key difference is that determinate sentence prisoners must be released from all restrictions after the completion of 100% of their sentence.

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