The McLeish Report stands in the same category as the 1964 Kilbrandon Report on Young Offenders which introduced the Children’s Panel system. Just as Kilbrandon was a rational, radical and humane response to dealing with young offenders, stressing that there was no clear-cut divide between the young person offending and the young person in need of care and protection, so McLeish proposes a rational, radical and humane response to dealing with the large proportion of inadequates who go in and out of the revolving doors of our prisons. Kilbrandon had to face the populist posturing of some of the politicians and media of the period and we can see from initial responses to the McLeish Report that the same culprits will be back in action forty years on. The reason to be optimistic is that there is no-one else with any other answers except to spend more and more money on more and more prison places with no significant impact on the incidence of crime. Also this is a very well-argued analysis with no shortage of evidence to help the Minister and other supporters to present the case for change.

The Problem

Scotland is certainly not close to being the worst in the world in rates of imprisonment (i.e. the number per 100,000 of population). The astonishing numbers in prison in the United States is far and away the most extreme in the world. While China has a rate of 189 including those awaiting trial, the American rate is 754 (2.3 million in prison with a disproportionate number who are black). Yet we hear no international outcry about human rights issues in relation to the brutal US penal system. The Scottish rate is now 141 but 10 years ago it was only 118 so we have experienced a substantial increase in a short period during which the main trend in most crime rates was static or downwards. How do we compare to other European countries? In Western Europe, Spain and England are highest and Scotland is close behind. Denmark, Ireland, Finland, Switzerland, Sweden, Norway have rates that are close to half the Scottish level. This clearly begs the question of why our society puts so many people in prison. In a decade there has been a 90 per cent increase in the number of women in prison and a 15 per cent increase in males. The annual cost per prisoner is £31-£40 thousand and if we continue to go down this path of ever-increasing prison numbers, that money has to come out of other budgets and there will be little for preventative and rehabilitation work. The current prison system has a very low success rate in changing behaviour. Only one third avoid reconviction within two years after release.

Who Goes to Prison?

The Report argues that prisons are acting as a catch-all for the social problems we have failed to deal with elsewhere. The growth in numbers has been driven by those receiving short sentences, not by long-term prisoners. 83 per cent of sentences were for six months or less.

Some indicators of prisoner profiles:

• 90 per cent of women in prison have drug or alcohol problems and 75 per cent have a history of abuse and serious health problems.

• Compared to the general population, prisoners are:

13 times more likely to have been in care as children

13 times more likely to have been unemployed

15 times more likely to be HIV positive

• 70 per cent have suffered from mental disorders

• 20 per cent of men and 37 per cent of women have attempted suicide

• 80 per cent have writing skills of 11 year-olds

• 65 per cent have numeracy skills of 11 year-olds

• 50 per cent have reading skills of 11 year-olds

For prisoners under 20, the problems are even more intense.

Although the figures were not available until after the Report was published, over 9 per cent of prisoners in the UK have previously been in the armed forces, most having served in Iraq and Afghanistan so there are clearly issues around the impact of war and the armed services.

Prisoners also come primarily from a small number of poor areas. Half of those in prison came from 155 of the 1,222 local government wards in Scotland. Glasgow, Dundee and Inverclyde have around double the Scottish average rate and this correlates with the high levels of poverty. Periods of imprisonment can cause further problems for other family members in these communities and once someone has a prison record, the prospects of work become even more problematic.

For prison staff and other professionals in the penal system, these over-crowded, revolving door institutions provide little opportunity for the job satisfaction of positive work.

The Solutions

Since high prison numbers don’t reduce crime and fail to do so at a high cost, the alternative has to be to keep prison for “people whose offences are so serious that no other forms of punishment will do and for those who pose a threat of serious harm to the public”. The aim should be to reduce the prison population from an average of around 8,000 a day to 5,000. The standard punishment for less serious offenders should be ‘payback’ in the community, supervised by court-based social work units. But for this to work there must be an extension in the types and availability of suitable options, both in prosecution as well as sentencing. By payback is meant “constructive ways to compensate or repair harms caused by crime”. This can take the form of:

• Making good to the victim

• Making good to the community

• Working towards personal change to reduce offending behaviour

• Restriction on activities

There should be a three-stage approach to sentencing and managing CSS. The first stage would be deciding how much payback, then what kind and then provision for checking progress. To do the latter, there should be progress courts established to ensure quick and regular review of compliance.

In order to ensure that there is a radical shift in sentencing, judges who would otherwise have imposed a sentence of six months imprisonment or less, should be required to impose a CSS instead, except in particular circumstances. Also there should be legislation to enable the use of conditional sentences, suspending implementation subject to specific conditions. As well as alternatives to sentencing, there should be more alternatives to prosecution to reduce the delays before court appearances, ensuring that justice is swift.

The new system will require institutional developments at the national level to manage the change effectively:

National Community Justice Council. This would lead the implementation of the new CSS and develop improved services for ex-prisoners. This would involve representatives of the various stakeholders – social work, criminal justice, police, etc. It should be appointed by the Scottish Government but be at arms length from it.

National Sentencing Council. This would have responsibility for developing clear sentencing guidelines that can be applied nationally to improve the consistency of sentencing. This is already in the legislative programme.

Both of these bodies would work with the Parole Board for Scotland and the Scottish Prison Service. An important part of their role would be to develop better communication with the public and the media to increase public understanding and confidence in sentencing and resettlement. The Report emphasised the importance of being proactive in engaging with the public so that there is a wide understanding of what the new approach is trying to achieve.

16- to 18-Year-Olds. We should consider new arrangements for this age range. There should be options in secure youth facilities separate from older offenders and under-16s. There should also be a re-examination of the case for diverting 16-17 year-olds to specialised youth hearings.

Will It Work?

The evidence from other countries suggests that this approach can work but it will need investment in alternative services. This will, certainly in the medium term, be more than compensated for financially by the reduction in prison numbers. But there will be a short period of transition when the investment in alternatives will need to come before the savings in reduced prison numbers. The development of Community Service Sentence options will need to be imaginative, varied and well-prepared. The development work will also have to be primarily local since the demand and the work potential will vary from area to area. Engaging with local organisations will be central, not just in developing CSS programmes but in promoting informed opinion about the objectives of the system. The approach least likely to work will be to confine the discussion and planning of ‘payback’ to a small group of professionals.

A combination of useful work programmes plus skills training and personal development sessions will be the most appropriate payback package for many but they will need to be visible and significant in the outputs. They will often have to be delivered at peak ‘recreational’ time, partly for punitive reasons and partly to help those who have jobs to retain them and they will need good supervision. This will be a challenge to deliver.

Another major threat will come from those in politics and the media who will not be able to resist playing on public ignorance and fear. We can expect this from most of the unreconstructed Tories in the Bill Aitken mode but how Labour and Liberal Democrats respond will be crucial. The initial response by Labour’s Pauline McNeil was disgraceful. In the 1960s Labour at Westminster was in the forefront in delivering reform in youth justice in Scotland. In recent years people like Cathy Jamieson and Margaret Curran have tried to play to the tabloid gallery and we can only hope that this is modified when the decisions have to be made. All of this will have to be handled with political skill. Kenny McAskill has shown courage in promoting change. He should call on the services of those on the McLeish Commission to promote the proposals at Holyrood, local government and in the media. They have a strong case to present.

There is likely to be another source of opposition. The Sunday Herald’s revelation that the Glasgow Bar Association hired a PR company to attack the existing summary justice measures designed to keep more people out of court is an indication of one vested interest which will not like the reforms because overall they should result in fewer conventional court appearances and fewer legal aid fees. It’s PR company trawled the records to identify a few cases where the disposals appeared to have been used inappropriately and fed these to the media with no indication, of course, as to whom their clients were. On the other hand the Prison Service, social work and voluntary organisation involved in preventative and rehabilitation work should be supportive voices in this debate.

It would be a terrible reflection on Scotland if Westminster in the 1960s could pass rational, reforming legislation on penal policy but Holyrood in 2009 could not.

Isobel Lindsay is Chair of Wiston Lodge, a residential centre engaged in development and training work with young people.