Response to Consultations

Response to the Scottish Sentencing Council consultation on sentencing young people

Submission from Social Work Scotland to the Scottish Sentencing Council consultation on sentencing young people

21.08.2020

Social Work Scotland is the professional body for social work leaders and managers, working closely with partners in all sectors to shape policy and practice, with a view to continuously improving the quality and experience of social services in Scotland. We welcome this opportunity to comment on the proposed sentencing guidelines for young people.

Q1. Do you agree or disagree that a principle-based approach to the guideline is the right approach?

Agree. For the reasons set out in the consultation paper. The value of a sentencing guideline for young people is the opportunity it presents to emphasise the relevant developmental and contextual factors which should be taken into account when sentences are considered. Those developmental and contextual factors apply in all circumstances, regardless of the type of offence, so it makes sense to utilise a principle-based approach.

Q2. Do you agree or disagree that the guideline should apply to people under the age of 25?

Agree. If there was an option, our response would be ‘strongly agree’. The consultation paper summarises well the breadth and weight of evidence in support of an expansive definition of ‘young person’, including all those under the age of 25. Scotland’s criminal justice system must reflect the best available evidence about why people commit offences, and what measures are effective in deterring such behaviour in the future. If our central objective remains securing justice for victims through appropriate sentencing, we are failing victims, the individuals involved in offending and society at large, if we demand ineffective measures of punishment (which for most children and young people includes incarceration).

The age of 25 is also consistent with Scottish law for children in care, which recognises the evolving capacity of young people, and their continued need for assistance and supportive relationships well into adulthood.

Indeed we hope that future guidelines will make clear that for everyone, capacity is an evolving, unfixed thing, determined by a range of factors. Although we can accept that an age bracket be applied in this instance, our hope is that this ‘threshold’ will not actually mean much, as in all instances courts will give detailed and careful consideration to an individual’s capacity, regardless of their age. Specific guidelines for young people are welcome in that they will cement such considerations into practice for cases involving under 25 year olds, but such practice should be standard in all cases.

We can also accept the restriction of the guidelines to those individuals who are young at the time of sentencing, for the reasons given in the consultation paper. However, this detail underlines the importance – albeit outwith the Scottish Sentencing Council’s purview – of ensuring the process from charge to trial is swift and efficient. It would be palpably unfair (and potential open to appeal) for an individual to potentially receive, for the same offence, materially different kinds of sentence at two different points in time, determined purely on the basis of whether the individual is considered a ‘young person’ or ‘adult’ at the time of sentencing.

Q3. If you disagree that the guideline should apply to people under the age of 25, at what age should the guideline cease to apply?

N/A

Q4. Do you agree or disagree that the relationship between this guideline and the ‘Principles and purposes of sentencing’ guideline is set out clearly?

Agree. The proposal to make direct links between the two documents, allowing this guideline to be kept brief, seems sensible.

Q5. Do you agree or disagree that paragraph 7 of the guideline gives enough information about the factors that should be taken into account when sentencing a young person?

Disagree. While we welcome the Sentencing Council’s efforts to keep the guidelines brief and concise, we feel an opportunity may be missed (perhaps in the form of an annex or appendix) to set out, in more detail, the types of factors which should be taken into account. For example, the guideline could highlight the higher incidence of mental health issues among young people involved in offending, or the impact of abuse, neglect and loss. There is no explicit mention of the relevance of care experience, and perhaps more importantly, how this should be considered.

Ideally the proposed level of information in the guideline would be sufficient, prompting further inquiry and investigation into the evidence underpinning it. However, remaining aware of the pressures judges are under, a guideline which itself provides a clear introduction to these factors may be necessary.

For comparison, the ‘Welfare’ section of the Sentencing Council’s Sentencing Children and Young People Guideline provides significantly more detail on the factors which the court should consider when determining a sentence.

Q6. If you do not agree that paragraph 7 of the guideline gives enough information about the factors that should be taken into account when sentencing a young person, what additional information should it provide?

Provided answer in response to question 5.

Q7. Do you agree or disagree that rehabilitation should be given greater emphasis than other purposes of sentencing in this guideline?

Agree. Rehabilitation is rightly described as the primary consideration, and we welcome the fact that the guideline clearly frames the purpose of sentencing as the identification of a disposal most likely to reduce the risk of reoffending. As the evidence summarised in the consultation paper suggests, this should encourage decisions which seek to address the young person’s needs, rather than punish their actions.

Q8. Do you agree or disagree that rehabilitation should be a primary consideration when sentencing a young person?

Agree. Reasons given in response to question 7.

Q9. Which, if any, other purposes of sentencing should be emphasised in this guideline?

In light of the fact that 50% of respondents thought that protecting the public was the most important purpose of sentencing in general, it may be worthwhile to include a paragraph in the guideline explaining how a focus on effective rehabilitation of young people contributes to public safety, through reductions in recidivism, reduced inequality, etc.

Q10. Is the section on the assessment of seriousness helpful?

Disagree. A section on assessing seriousness is necessary and has the potential to be very helpful in securing the objectives of this guideline, however the current two paragraphs provide little information on why a young person’s maturity will be generally lower than that of an older person. This being a guideline covering individuals widely considered ‘adults’ by society, it is important that relevant opportunities are taken (in the guideline) to explain about an individual’s ‘evolving capacity’, and the now scientifically evidenced distinctions between young adult’s neurobiology and that of older adults.

Although it is acknowledged that readers are encouraged to read the guideline ‘The Sentencing Process’ (para 11), the ‘assessment of seriousness’ section’s utility may be improved by providing a few additional paragraphs on the factors which should be considered when assessing culpability, as well as providing some indication of how maturity should be determined by the court. In respect of the latter process, in our opinion this would be difficult through a court process alone, and will likely depend on external, expert assessments, provided to the judge via reports, etc.

Q11. Do you agree or disagree that paragraph 13 of the guideline identifies the information which is of most relevance to sentencing a young person?

Disagree. As the guideline itself says, the four bullet points of paragraph 13 are provided ‘for example’, and should not be considered the totality of relevant information. Each young person is unique, and the guideline should stress that a judge should seek to secure whatever contextual and background information they require in order to identify an appropriate sentence (the primary purpose of which is rehabilitation).

With the existing bullet points, we would also recommend some re-working. Our suggestions below:
The physical and mental health of the young person, including addictions,
disabilities, etc.

• Accommodation issues
• Childhood background, including care history (if the young person is or was ‘looked after’), prior professional involvement with the family, etc.
• Whether any proposed sentence is likely to be effectively implemented, and what
  steps can be taken to increase the likelihood of effective implementation.

Q12. Do you agree or disagree with paragraph 14 of the guideline stating that cases should be referred to a children’s hearing for advice where it is competent to do so?

Agree.

Q13. Do you agree or disagree with the proposed features of an appropriate sentence for a young person set out at paragraph 15 of the guideline?

Agree. However, would recommend some re-ordering and re-wording, to help achieve the guidelines objectives. The ordering and wording of lists such as this play a significant part in ‘framing’ people and issues in reader’s minds, and so it is important careful attention is given to the impression such a list gives.

For example, starting with ‘Increase the likelihood of aiding the reintegration of the young person into society’ suggests to the reader that the individual concerned is not integrated into society, and is therefore somehow ‘apart from it’. This is not a helpful framing to place around young people who offend, many of whom may be firmly part of their society /community. A judges’ consideration of what is an appropriate sentence may differ for someone they feel is part of society, and for someone who sits ‘outside’ of society.

Similarly, the last bullet point, ‘Assist in developing or maintaining positive connections between the young person and society’, again implies that the young person is somehow separate to the society of which they are part. Some careful rewording could convey the message without inadvertently suggesting things about the young person / young people. We would recommend placing ‘Address the underlying causes of offending behaviour’ as the first bullet point, as from the perspective of rehabilitation being the primary purpose of sentencing, this feature seems of primary importance.

In respect of paragraph 16, the guideline states that the judge should clearly explain the sentence of the young person, to increase the likelihood of the sentence being effective. However, the clarity of the explanation is not, in itself, what is going to make a difference. Rather it is the quality of the young person’s understanding. Therefore we would recommend amending this paragraph so that it encourages judges to make sure the young person has clearly understood the reasons for, and the aims of, of the sentence. Depending on the individual’s maturity and communication needs, that may require external (to the judge / court) support.

Q14. Do you agree or disagree that the approach set out in paragraphs 17 and 18 of the guideline is appropriate?

Agree.

Q15. Do you agree or disagree that judges should consider remitting each case to a children’s hearing for disposal, where it is competent to do so?

Agree. Judges should give this option consideration, where it is competent to do so, helping to ensure that young people’s actions and needs are considered through a welfare lens, with suitably tailored responses / interventions.

Q16. Do you think the guideline will influence sentencing practice in Scotland?

We welcome the introduction of the guideline (and accompanying guidelines), representing as it does, in our view, an important component in the broad effort to ensure the best available evidence and knowledge underpins our justice system. Although we appreciate the document is only a guideline, it provides those operating within and alongside the justice system with clarity about how (and on what basis) the system should operate. Not only should it encourage deeper engagement with the evidence about young people’s offending and rehabilitation, it should also, helpfully, provide for greater consistency and a constructive framing around judges’ decision making.

In assessing whether the guideline has influenced sentencing practice, we encourage the Sentencing Council to consider a formal evaluation, perhaps combining data already collected by the Scottish Courts and Tribunal Service (on disposals, etc.) with some qualitative element capturing the experiences of young people involved in sentencing.

Q17. Do you agree or disagree that the guideline will increase public understanding of how sentencing decisions in respect of young people are made?

Agree that the guideline has the potential to increase public understanding. In itself the guideline does not provide much information to the casual reader, but with some modifications (such as those recommended in our previous answers) and clear links through to the underlying evidence base, it could make a really valuable contribution.

Considering the public’s interest in offending by children and young people, the guideline is certainly likely to illicit some attention and public debate. We hope that such an opportunity to improve public understanding is not missed.

Q18. Do you agree or disagree that the guideline will increase public confidence in the sentencing of young people?

Do not know. We suspect that in some parts of society the guideline is likely to diminish public confidence in sentencing of young people; particularly with the definition of young people extending to 25 years old. In the view of some in the public, crime should be met by punishment, and a focus on rehabilitation is to pander to offenders and disregard victims.

Often this narrative extends to children and young people, about whom it is argued that, if they are hold enough to commit certain crimes, they are old enough to take responsibility for them (by which they mean adult, custodial sentences). However, while public confidence in the justice system (and sentencing as a key part of that) is absolutely critical, the role of the Scottish Sentencing Council is to support judges to make the best decisions with a view to securing justice. That involves marshalling evidence which shows that ‘punishment’ (often crudely associated with custodial sentences) is often ineffective in changing behaviour, reducing public risk, etc. Other parts of the public, focused on a securing a justice system which reduces crime and increases public safety, will welcome an evidence
based guideline, and will likely have increased confidence in the sentencing of young people.

Q19. Do you agree or disagree with the assessment of the specific, identified impacts
the guideline is expected to have?

Disagree. The impact assessment, understandably, focuses on the impacts within the justice system. There are mentions of the impact on social work, but the conclusion is always that these will be minimal. We have welcomed engagement by the Scottish Sentencing Council to date, seeking to understand the likely impact on social work, but do not feel this has gone far enough to properly articulate the issues local authorities and others may face. For example, in respect to paragraph 50 of the assessment, it states that:

It should be noted that this may require a movement of resources from criminal justice social work departments to children and families’ social work departments. We anticipate this impact will be spread across local authorities and will not be a significant impact compared to the absolute number of cases dealt with by social work departments.

However, local authority resourcing of social work is not as simple as this implies. Justice Social Work funding is, to a significant degree, provided by Scottish Government and ring-fenced for specific purposes. While some local authorities do augment this allocation, not all do. And ring-fenced funding cannot simply moved around between departments.

Similarly, while we agree that a relatively small percentage increase in compulsory supervision orders is unlikely to provoke any long-term structural issues (as noted in paragraph 51 of the impact assessment), the fact of short term resource impact should not be summarily skipped over. Children and families social work, like all social work, is under significant resource pressures, with services being reduced and capacity constrained. At the same time, expectations (particularly through recent legislative measures) are increasing the demand on social work team s in general, and on social workers’ time specifically.

These issues apply equally to paragraph 58 of the impact statement, where it notes that “social work departments may incur additional costs over the short term if the information requested by courts is expanded to include an assessment of maturity”. Our hope and expectation is that, in implementing this guideline, courts will have to request more input from social work. This would be welcome, in the interests of providing the judge with a broad assessment of maturity and therefore culpability. But there will still be an impact, and while after a few years the system will have realigned itself in order to accommodate the demand, over those initial years there will be work in addition to (rather than instead of) current activity. Individuals and teams will either have to absorb this, or other activity will have to be reduced. In planning for the introduction of the guideline, stakeholders should try to better identify the likely impact, and put in place measures to facilitate the transition over the next few years.

But perhaps most significantly, and missing entirely in the impact assessment, is consideration of the additional costs to the system of managing non-custodial disposals for young people with very serious care needs. Such disposals will, in the majority of cases, be the more effective option (in terms of securing rehabilitation), but only if the wider system has the capacity / resources to meet those needs. The care and risk management of young people who may have caused serious harm, but who are simultaneously at risk of harm to themselves and from others, requires teams of highly skilled professionals, working in integrated teams. As the principles underpinning such an approach are better aligned to the available evidence, and the outcomes from it (in respect of recidivism, etc.) superior to
custodial sentences, such teams are better value for money than prisons. But it does not simply equate that the capacity is sitting ready to accommodate the potential increase in work. The Scottish court system should seek confidence that the wider public sector, responsible for implementing its disposals, is equipped to do so. (For further information in this area we recommend discussions the University of Strathclyde’s Centre for Youth and Criminal Justice, and with the Kibble team managing the Interventions for Vulnerable Youth (IVY) project.)

We appreciate these issues are not in the purview of the Sentencing Council directly, but the impact statement should still attempt to quantify or illustrate the expected impact on key related services like social work. That work will help facilitate discussions among relevant other parties, such as Scottish Government and local authorities.

Q20. What benefits do you think will come from the introduction of this guideline, if any?

Primarily, the broadening out and cementing of current judicial best practice, with full and proper consideration given to the young person’s background, context, characteristics and needs when determining sentences. This is likely to require the increased involvement of a range of professionals in the work of the court, providing assessments and expertise.

Q21. What costs (financial or otherwise) do you think will come from the introduction of this guideline, if any?

As noted in our answer to question 19, we believe the impact assessment has underestimated the costs involved. In too many instances, in the absence of hard data, the likely financial and human impact is marginalised as ‘short-term’. This should be readdressed, with a deeper examination of impact undertaken.

However, we reassert our opinion that the additional costs so far identified are welcome, in so much as they represent a move in our justice system towards a more evidence-based, welfare-orientated model.

Q22. Would you like to make any other comments about any matter arising from this consultation?

Feedback from Social Work Scotland members noted:

• In view of the guideline’s explicit recognition of UNCRC, recommend renaming the document ‘Sentencing Children and Young People’. The title and text of the document should reflect the fact that, under the UNCRC, persons are considered children up to age of 18.
• No mention in the guideline of the role or input of parents or carers. Seemed an omission, particularly in relation to those aged 17 – 18.
• No mention of cultural considerations, which should form part of background assessments.
• Recommend explicit references to gender, and how that is taken into account in respect to sentencing.
• Greater emphasis on disability, within the context of assessment of needs, and approaches to rehabilitation.

For further information, please do not hesitate to contact:

Ben Farrugia
Director, Social Work Scotland

ben.farrugia@socialworkscotland.org

Consultation response: Youth Justice standards

Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services.

We welcome the opportunity to comment on the Youth Justice Standards. Within the membership of Social Work Scotland there will have been a range of local responses. The views below  do not capture the insights and expertise of all of them.  Suggestions below focus on views about general emphasis,  and specific strengths and concerns about content, meaning and impact.

1. Do the proposed Youth Justice Standards reflect national youth justice priorities?

Yes, ( broadly and allowing for caveats and considerations below, some of which are fundamental)

• The draft Standards are helpfully introduced by integrated reference to national strategy, the Whole System approach, GIRFEC and the National Performance Framework. The preamble/introduction, which focusses upon principles, gives due centrality to UNCRC.
• There is a good  opportunity to strengthen both systems and professional judgement  having some of the UNCRC articles more embedded. (For example in relation to best interests; wellbeing; participation and non-discrimination.)
• However, The Independent Care Review reports have been published just as the Consultation on these Standards have closed and, continuing in the spirit of Kilbrandon, YJ Services have a wave to catch. The Standards have an opportunity to allude to some intersections between the way young people’s holistic needs relate to their needs within YJ services.  A selection of relevant extracts are appended in the box below
• Scotland’s Ambition for children and young people that “ We grow up loved, safe, and respected so that we realise our full potential.” Is a headline that captures the intended outcome for all relevant standards.

2. Do the proposed Youth Justice Standards allow for flexibility to meet local needs?

Yes :

• The draft standards seem functional. They provide a business-like sort hand which could be applied and developed locally within procedures and systems to good effect. Some of the standards are framed already as procedural requirements. Others allow for flexibility in approach

3. What aspects stood out as being the most helpful?

• You provide a strong message by introducing by Lord Kilbrandon’s injunction to respond to deeds in the context of needs.
• The introductory statement about responsibilities of organisations who are listed as “corporate parents” for the purposes of Part 9 of the 2014 is helpful, as is reference to the strategic planning landscape.
• Consideration of supported transitions
• The draft standards are not over lengthy

4. What aspects stood out might benefit from rephrasing or supplement?

• There is reference to a common language and understanding,  the standards depend on an assumed appreciation  of terms within the youth justice landscape. It would be a struggle for some young people to know what some of the standards mean for them.  (“Standard 3 Where appropriate, children should be dealt with out with formal Where that is not possible consideration must be given to the use of alternatives to prosecutorial action, which includes diversion.”) There is a stark contrast with, for example, the tone and accessibility of  secure standards or the ‘new’ standards for health and social care . This is simply a different sort of document. However even, the extent of the meaning/scope of some very helpful references (eg ‘restorative justice’ , or ‘transitions’) might be defined in a glossary. These terms have different meanings in different contexts.
• It would be helpful to give more explicit emphasis to the people/ relationships which are most significant to the young person. These people are not just supports or parts of a holistic assessment, but the most crucial partners in assessment, planning and intervention, and potential elements in the resilience,  growth and recovery from trauma for many young people. The concept of encouraging the skills and relationships that foster resilience could be usefully embedded in the standards.
• It would be appropriate to reference ‘context’ in the core of the standards. This can include appreciation of the young person’s perceptions of risk and resource in place,  family and community.
• It may be appropriate to expect practice that is responsive to cultural and language differences; and explicitly reference a trauma informed approach within the body of the standards.
• There are 2 helpful references to child protection within the standards. However they sound as though they are referencing completely different systems and needs, whereas for a significant number of children, the needs underpinning harmful  and/or offending behaviours will relate to a history of or current abuse or neglect.   The wellbeing of the young person are primary considerations through all assessment, decision making  and action and this emphasis is fairly clear. The phrasing ( regarding wellbeing) in the Age of Criminal Responsibility (Scotland) Act might usefully be echoed  here
• Would the new (forthcoming) national Guidance on CaRM be referenced ?

5. With reference to the core principles and data sets, will the proposed Youth Justice Standards allow for reliable local and national evaluation of services?

Don’t know

If the issues above are transparently captured in the way that services are self- evaluated and inspected  then it will be possible to answer this question positively.

6. Having read the background information above, do you think the current key questions are sufficient to ensure appropriate scrutiny of services provided to children involved in or at risk of offending, if no then please provide further reasoning and suggested alternatives below?

Don’t know

As above

See references and points made above in relation to relevance of extracts below

Response to Victim Statements Scottish Government consultation

Victim Statements

SUBMISSION FROM SOCIAL WORK SCOTLAND, TO SCOTTISH GOVERNMENT CONSULTATION

28 NOVEMBER 2019

Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services.

1. Do you have a favoured option for how we could extend eligibility to make a victim statement?

Option A – expanding eligibility to include the list of serious offences at section 4 of the consultation paper

Option B – expanding eligibility to all cases heard under solemn proceedings

Option C – as per Option B but also including a list of offences which would be eligible for a victim statement even if they were tried as summary proceedings

We favour Option C, in that it ensures the widest extension of the scheme and puts victims more firmly at the centre of the criminal justice system.  The right to make a Victim Impact Statement should be open to all victims, allowing their voice to be heard.

If you favour option C, which offences do you think should be considered for inclusion so they would be eligible for a victim statement even if tried as summary proceedings?

We think all offences in the extended list should be included.

We understand the complexity and resource implications of allowing a victim statement to be made for any offence, and that there is evidence to suggest there is less demand for less serious crimes.  However, the principle of giving every victim the right to say how any offence has impacted on them is one we think Scotland should consider, as is the case in other jurisdictions.

2. To help us decide how to extend the list of current offences for which a victim statement can be made, we need to identify any potential impacts that the changes may have.

No

3. Victim statements must currently be made in writing by the victim. Do you think we should look at piloting new ways for victim statements to be made?

Victims reading their statement in court

We think there is some merit in exploring this option as it would provide the victim with an opportunity to be directly involved and in control of the statement they wish to make, and to express their thoughts and feelings as they would wish.

However, we are also cautious about this option.  Victims would need to be well supported to make an informed choice, as well as prepared and supported through the process itself.  There is a risk, potentially significant, that victims are are retraumatised by the experience of reading out their statement in court.  Ensuring support workers are trained in trauma-informed practice would be essential.

Some victims may also have difficulty with reading, which would impact on their ability to articulate their statement clearly.  We know that a sentencing diet can be postponed for many reasons, including at very short notice and on the day of the court.  This may happen more than once.  This may engender considerable frustration, even anger on the part of the victim, and may prevent victims being able to move forward with their lives.   It is a balance between respecting the rights of victims and the unintended consequence of causing more harm.

Pre-recording the statement on video

There is less risk with this option than physically reading a statement, but it would maintain the value of victims feeling in full control of their statement and its delivery.  It would allow the victim to record their statement safely and without undue pressure and to directly express themselves without the potential pitfalls expressed above.  It would address the issues around literacy.

Pre-recording the statement with audio only 

Like a video statement, but this option offers a degree of anonymity whilst still allowing the victim’s ‘voice’ to be directly heard.

The judge reading the statement aloud to the court  

Whilst precluding physically seeing and/or hearing the voice of a victim, it is a safe option that offers protection for the victim and certainty that their written statement will be heard.

Other options

We think another option should be for a relative or friend of the victim to read the statement out in court.  In situations where the victim, for whatever reason, felt unable to do this him/herself, being able to select a person of their own choosing to act on their behalf means they would retain more ownership and control over the Victim Statement than, for example, if it was read out by a judge or sheriff.

Another option would be for Victim Support Scotland given their current role and expertise in supporting victims and offering advice and guidance on Victim Statements, to offer a service to facilitate the provision of Victime Statements to the court.

For options (1) – (5) there would need to be clear guidelines as to how they are conducted, e.g. use of language, tone of voice, use of self, etc.

4. To help us decide whether we should pilot news ways for victim statements to be made, we need to identify any potential impacts that any changes may have.

No

5. Are there any other aspects of the current victim statement scheme which you consider could be improved?

Victims often question the extent to which their voice is heard within the criminal justice system.  The system is seen as all about the individual that has offended, with little attention paid to victims.

We believe there is some truth in this, and that more could and should be done to put victims at the heart of the criminal justice system. Victim Statements offer a potentially powerful took with which to articulate the impact on victims at different points in the journey, and to hold people to account for their actions, decisions, etc.

For example, justice social work (JSW) prepared 28,400 criminal justice social work reports (CJSWR) in 2017/18 to assist the court in determining the right sentence for the individual.  Each report analyses the offence(s) and requires an explicit analysis of ‘the level of recognition by the offender on the impact/consequences of the offence(s) on the victim/community’ (question taken from the national CSJWR template, Scottish government 2011).  However, in most cases the justice social worker is reliant on the terms of the charge(s) and what the individual tells them in interview.  The social worker does not receive the Crown Office’s Summary of Evidence or any other independent and objective account of an offence and the consequences for a victim.  (There are exceptions to this, for example some sexual and domestic offences.)  This not only disadvantages the social worker in providing a fully informed analysis and assessment of risk and need, but also denies the victim an opportunity to articulate how the crime has impacted them.

Notwithstanding GDPR and setting out the terms of information sharing and use, with the consent of the victim the statement could be shared with JSW to help inform the CJSWR and supervision with the individual on a Community Payback Order, and his or her progression through a prison sentence, including the parole process (and we welcome the clear consensus to strengthen the voice of victims in the parole process as summarised in the Transforming Parole in Scotland: consultation report [Scottish government, November 2019]).  This information would better ensure people are held to account for their crimes and ensure the victim’s voice is heard.

This change would cost little but the impact would be considerable and ensure the rights of victims are continually heard throughout an individual’s order or sentence.  We think this is worth considering with victims and Victim’s organisations.

Similarly, there is also the potential to consider how Victim Statements can enhance Restorative Justice processes.

We also think this is an opportunity to review the Victim Statement template, its availability (it’s not currently freely available, including on-line), the timing of when it is done and ensuring victims know what happens to their statement.

6. Do you have any views on whether we should consider amending the definition of who is eligible to make a victim statement (as set out in section 14 of the 2003 Act), to help ensure all relevant victims are able to make a statement if they wish?

Although this is not something being planned alongside changes to the current scheme, SWS think there is merit in reviewing the current eligibility set out in the 2003 Act.  Specifically, this should consider extending this to children, or their parent/carer on their behalf, as is the case in victim statement schemes in other jurisdictions.  This is in accordance with the principle of respecting the rights of children (including UNCRC Article 12) and in acknowledgment of the impact of domestic abuse and other crimes upon them.

7. Are there any data protection related issues that you feel could arise from the proposals set out in this paper?

GDPR legislation came into force in 2018 and any revised statement would require to be proofed against this. This would also apply to the implications if people other than the victim were involved in, for example, recording or reading out a victim’s statement.

As referred to at (5) above careful consideration would be required of widening out the scheme as described.

8. Are there any equality related issues that you feel could arise from the proposals set out in this paper?

No.

For further information, please do not hesitate to contact:

admin@socialworkscotland.org

0131 281 0853

Financial redress for historical child abuse in care – pre-legislative consultation

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Priorities for 2020-21 Budget – SWS Justice Submission

This paper has been written in response to the pre-Budget Scrutiny request for the Justice Committee. With further change expected on the horizon, our submission calls for the Scottish Government and its partners to take a forensic look at how the justice system is working (and CJSW place within it), with a view to establishing a clearer, collective vision of what we are trying to build in Scotland.

• Download a referenced copy of the submission here.

Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services. We welcome this opportunity to feed into the Justice Committee’s scrutiny of the Scottish Government’s budget for 2020-21.

Budgets provided to the public, third and voluntary sectors for health, education, employment, through-care, family-contact, rehabilitation/re-offending, in-cell technology and other services provided to prisoners

Criminal justice social work (CJSW) provides a range of statutory services to individuals in
the community and prison at different stages of the criminal justice system. These include:

• Bail supervision;
• Alternatives to prosecution measures such as Fiscal Work Orders and Diversion
  from Prosecution;
• Criminal justice social work reports;
• Risk and need assessments using accredited tools, e.g. the Level of Case Management Inventory (LS/CMI), Stable & Acute 2007 (SA07), Spousal Assault Risk Assessment (SARA;
• Community Payback Orders (CPO);
• Delivery of accredited programmes, e.g. Moving Forward: Making Changes and the
  Caledonian System;
• Throughcare services to statutory prisoners (i.e. long-term prisoners serving more than 4 years or short-term sex offenders released on licence), including community and prison-based assessments and reports for parole;
• Supervision of individuals released from custody on licence, e.g. parole, extended sentence, supervised release order, Order of Lifelong Restriction); and
• Voluntary Throughcare to short-term prisoners and the Throughcare Addictions
  Service.

CJSW therefore plays a central role in the justice system, and in particular the rehabilitation and management of individuals subject to community-based supervision. As the responsible agency for managing the risk of serious harm and the needs of people subject to statutory supervision, the ‘risk’ sits squarely with CJSW.

Funding is provided to local authorities in a ring-fenced grant provided under sections 27A
and 27B of the Social Work (Scotland) Act 1968 as amended (referred to hereafter as the
S27 grant). There are currently a number of acute pressures on local authority CJSW. Scottish
Government Justice Analytical Services estimate a 7.5% increase in CPOs as a result of the extension of the Presumption Against Short Term Sentences (PASS). As Community Justice Scotland (CJS) point out:

“Of the forecasts provided by Justice Analytical Services, even a ‘LOW’ uptake would result in approximately 1,300 additional people across Scotland receiving community sentences. If the policy has greater impact, then numbers could further increase. It is likely some of this number will require additional support to complete their sentence successfully. Local Authority areas and service providers need to be able to meet this demand for support.”

The report goes on to argue that research undertaken by Progressive Partnerships, an independent research organisation, suggests that “a proportion of these people (i.e. those currently receiving a prison sentence of up to 12 months that might now get a CPO) may have more complex needs that will require more support than the current ‘average’ person completing a CPO”.

It is true the total number of CPOs in Scotland has declined since their introduction in 2011 from a peak of 19, 451 in 2015-16 to 17,834 in 2017-18.3 However, notwithstanding the impact of PASS described above, there have been several practice developments in the last 10 – 15 years that have had a significant impact on CJSW workloads and the ability of services to work effectively with individuals and are not fully funded. These include, but not limited to:

• Structured and accredited risk assessment tools – a range of tools have been introduced, all of which require substantive training and time to complete. To reference only three:
  • (1) the introduction of the Level of Service & Case Management Inventory (LS/CMI) at the turn of the decade, an assessment and case management tool completed on all individuals which underpins all CJSW statutory work with individuals at both the criminal justice social work report stage and postsentence (it requires a 5 – 6 training course);
  • (2) Stable & Acute 2007 and Risk 1 Sentenced to Smart Justice: A report on proposed extension of the Presumption Against Short Sentences, May 2019. Scottish Government, Criminal Justice Social Work Statistics in Scotland, 4/2/19 Matrix 2000 for sex offenders (requires 3 day training); and
  • (3) the Spousal Assault Risk Assessment (SARA v3) for domestic abuse, again resource intensive.
• ViSOR – this electronic Home Office sex and violent offender register requires social
  workers to regularly input information.
• MAPPA – the Multi-Agency Public Protection Arrangements require significant commitment from CJSW, from joint visits and assessment with Police Scotland, attendance at meetings to comprehensive risk management plans.
• Order of Lifelong Restriction (OLR) – introduced to manage the risk of individuals posing the very highest risk of serious harm, local authorities are responsible for managing individuals in the community subject to an OLR and are required to commit significant resources to manage these individuals and submit ongoing detailed risk management plans to the Risk Management Authority for approval. Whilst the numbers in the community are currently small, this will only increase in coming years.
• Moving Forward: Making Changes (MF:MF) – this (no longer) accredited sex offender programme (currently being reviewed and revised) requires significant resource both from teams delivering the group work programme, but also, and crucially, CJSW social worker case managers.
• Caledonian System – whilst funding is provided separately by Scottish Government, this accredited domestic abuse programme, available only to approximately two-thirds of local authority CJSW due to lack of central funding, places significant demands on CJSW social worker case managers (for example, they are responsible for delivering the lengthy pre-group programme work that is not covered by the Caledonian funding).
• Multi Agency Risk Assessment Conferences (MARAC) – protecting victims of domestic abuse, MARAC requires significant input from CJSW, including chairing and attending meetings, providing background information and contributing to action plans.
• Multi-Agency Task & Coordination (MATAC) – focussing on perpetrators of domestic abuse, this is a further additional commitment for CJSW.

Additionally, other developments in the justice environment continue to increase workload and pressure on a strained and over-stretched CJSW system. Many of these developments are, in themselves, welcome. But most are driven forward in isolation, with too little consideration given to the compound effect they collectively impose on CJSW. For example, Social Work Scotland members report a very significant rise in the requirement for CJSW to attend Parole Tribunals and Hearings in prisons. As this mostly requires attendance in person this development absorbs worker’s time. Relatedly, the lack of availability in the Scottish Prison Service of reliable connectivity limits CJSW ability to use videoconferencing with prisoners, for both Integrated Case Management (the process by which SPS manage statutory prisoners) and the development of CJSW report. Other examples of developments putting pressure on CJSW is the push to increase bail supervision numbers, and to offer Diversion to greater numbers.

Despite the seismic change in the demands and requirements placed on CJSW since the early 2000s, there has not been a comprehensive review to quantify and accurately cost the component parts of the work CJSW does. The S27 funding formula has been reviewed, but this was limited to how the grant is distributed. (In simple terms, the workload element was reduced from two-thirds to half, a rurality element was introduced and social and economic indicators are applied.) We believe the funding formula now requires comprehensive review.

Under the current formula, CJSW are actually penalised for reducing re-offending, as retrospective three year activity levels are the basis for allocation. Moreover, there is a clear case to consider more than one year grant allocations, as the current approach limits effective planning, being confirmed only in December of the preceding year (limiting our ability to respond constructively to reduced allocations). Previously, under the previous funding formula, whilst not entirely satisfactory, there was a mechanism to ‘soften’ any significant reductions in allocation from one year to the next.

We believe there is also a clear case for removing the separation of Part 1 and Part 2 funding, and instead providing local authorities with one S27 grant allocation. This would enable greater flexibility to allocate resources in accordance with local strategic plans and priorities.

In 2014 the Scottish government initiated research into the unit cost of a Community Payback Order (CPO). We are not aware that the final report was published, perhaps reflecting the complexity of establishing a ‘unit cost’ of a CPO, given the diversity and geography of Scotland and/or the difficulty of assimilating all the relevant expenditure/resources involved in delivering CPOs. In the absence of that research, in 2015-16 the cost of a CPO was estimated at £1,771. This figure was calculated by dividing
total recorded expenditure on Community Payback Orders across the 8 Community Justice Authority’s by the volume of those disposals. Importantly, the expenditure figure did not include the costs of delivering some services which may be accessed by offenders as a consequence of requirements imposed with these orders. Working off this basis, over the past four years the cost of managing an individual CPO has increased to approximately £2,000+. But as noted above, we would strongly suggest that this is a significant underestimate of the average cost of a CPO.

Indeed looking at the system as a whole, the actual cost of delivering CJSW services in line with National Outcomes and Standards for social work services in the criminal justice system and associated Scottish Government practice guidance, including the alternatives to prosecution schemes (Diversion, Fiscal Work Orders) and statutory community supervision (e.g. Throughcare services both during a prison sentence and post release) has not been accurately costed this century. Despite the fact that since 2000 the demands on CJSW have increased exponentially, driven by successive waves of criminal justice policy innovation and reform. Such an analysis, to identify the current actual cost of CJSW, could be done by conducting a time and motion study to assess the cost of producing a CJSW report, completing LS/CMI (including the extensive risk of serious harm component), managing an individual on a prison licence, etc.

This is not a call for a return to a justice system (and associated policies and practice) of the 1990’s. Social Work Scotland, along with many other informed stakeholders, strongly support many of the developments of recent years, encouraged that policies are driven by evidence and a commitment to human rights. But we cannot build or maintain a system on the strength of ideas alone. The system must be built methodically, on robust, appropriately resourced foundations; of which CJSW is one. This argument was made repeatedly in the written submissions and oral evidence (including from Victim Support Scotland and the Sheriff’s Association) heard by the Justice Committee this year, in considering the proposed extension to PASS. These made explicit reference to the need for more resources for
CJSW, without which it is difficult to see how the extension of PASS will succeed. Social Work Scotland supports the principle of community justice partners leveraging and sharing resources (in its broadest sense, including money, accommodation, data etc.) but this assumes there is significant spare capacity across the criminal justice system. There is not.

In considering the resource requirements of the criminal justice system, another factor which must be taken into account is the recent national public sector pay award. This has not been funded by Scottish Government, and in the six months since coming into effect Social Work Scotland members are reporting a serious impact on budgets. A survey of local authorities showed that, of the 23 that responded, 21 are required to fund the pay award from the S27 grant. One local authority calculates that they will have to find almost £1 million to cover the pay award between 2018 and 2021; that money will have to come from CJSW budgets. In another local authority, their small uplift in Part 1 funding in 2019-20 of £50,000 is less than the cost of the pay award. This situation creates serious challenges in filling posts when they become vacant, and creates pressure to re-design or re-organise services to meet the budget short fall. However, the time required to do this properly, with the requirement to consult and work with staff and unions, inevitably means that savings are not going to be achieved until future financial years. And in that time there will no doubt be further changes and funding reductions.

It is understood the S27 grant is made up of the ‘criminal justice social work’ allocation in the Scottish Government budget, topped up from money in the community justice ‘offender services’ budget. The former budget has remained static for several years at £86.5 million.

In 2017-18 the total allocation to CJSW including money from ‘offender services’ was £98,819,949; since then there have been marginal increases to £100,080,038 in 2018-19 and £100,115,038 in 2019-20. As set out in the paragraphs above, we believe that this has led to significant, systemic underfunding of CJSW. This is impacting on the ability of CJSW to deliver on the three key outcomes set out in NOS – reducing reoffending; promoting social inclusion; and public protection and community safety. And this will, in turn, impact on the system’s collective ability to deliver key Scottish government policy initiatives, such as PASS, community justice and bail supervision. CJSW is centre stage in efforts to
modernise Scotland’s justice system, and under the spotlight in managing the risk of individuals subject to statutory supervision, or coordinating interventions and services to rehabilitate and transform lives.

The resource requirements of such a key player must be properly understood and fully met. Longer-term challenges and financial requirements to tackle issues such as staffing levels in prisons, over-crowding, drug use, safety and security of staff and prisoners, the use of the open estate and an ageing prison population.

A number of developments are currently underway which will present financial challenges. Perhaps most significant is the work instigated by the Health and Justice collaboration Board to integrate health and social care in prisons. This is a programme Social Work Scotland is proud to be involved in, and tests of change are currently underway in six prisons. The integrated health and social care in prisons programme gives us a valuable opportunity to explore how health, well-being and social need affect the risk of offending in the future, and to work across statutory and voluntary throughcare systems to deliver a more holistic, individualised and integrated response to individuals, reducing the risk of
reoffending. Following an evaluation report in autumn 2020, the responsibility for integrated
health and social care services in prisons is likely to fall to local health and social care partnerships. Only 13 partnerships have prisons in their areas, but these partnerships will in due course face a significant pocket of need for services.

Elsewhere in the justice landscape, there are some potential efficiencies to be made in developing integrated, multi-disciplinary services and by reviewing and aligning third sector services in prison. To date these have grown organically, rather than through any strategic needs assessment and commissioning plan. It is likely, therefore, that they will not cover all current (and the expected increase) in needs which we will see in our prisons. In the context of integrated health and social care provision in our prisons (as described in paragraph above) we will need to review which and how services have been delivered in prison, and consider provision within the wider commissioning and procurement framework.

There remains a lack of data around the health and social care needs of people in prison, which some tests of change and a Government commissioned strategic needs assessment will seek to rectify in the next few months. Like the Scottish population as a whole, the prison population is ageing, meaning there will continue to be a greater number of people who are frail, and require additional support. But the prison population also has significant levels of need in terms of mental health, addiction, learning disability and neuro-diversity.

These needs impact on people’s capacity to make use of any opportunities for learning and development in prisons and then to successfully reintegrate into their communities on release. The prison estate does not currently have the capacity to meet the needs of a growing population of people with complex age and/or health related conditions. Without investment in the estate, this means care will likely be delivered in inappropriate settings, potentially without the equipment that would be deemed necessary in community settings. This not only places people in receipt of services at risk, but workers too. The Justice Committee may want to consider the elements both of the prison estate and the delivery of a whole systems approach to health and social care in a justice setting in its future planning.

Views on how to achieve a rebalancing over the longer-term in expenditure on prisons and that of community-based alternatives to incarceration and preventative spend, including the challenges of provision in remote or rural areas.

If we are to achieve this re-balancing, and potentially unlock resources to re-distribute to community-based alternatives, Scotland needs first to agree and articulate what the role of prison is. If our national aim, as articulated by Professor Cyrus Tata and others, is that imprisonment should be used sparingly, only where warranted on the grounds that the risk of serious harm is so great as to require confinement, and never on the basis of ‘rehabilitation’ or ‘self-improvement’, we should say so clearly, and work out the policies to achieve it. Over time we would see a reduction in the prison population, freeing up
resources to be transferred elsewhere.

With such an agreement about the role of prison in place, the change itself would require robust strategy, energy, collaboration, and, perhaps most importantly, bold leadership and financial investment. The newly established Community Justice Leadership Group, co-chaired by the Cabinet Secretary and COSLA’s Community and Wellbeing Spokesperson, offers an opportunity to explore whether this is possible. The group could set a clear vision for what the justice system in Scotland to look like in 20 – 30 years’ time, and agree the outlines of how we get there. (An example of this scale of ambition is the Housing to 2040 vision.) The group could crystallise what a compassionate justice system looks like, how it balances responsibilities, and identify the milestones on the journey to achieve it. Critically, the group could set coherent ‘stretch aims’ for the system, such as limits on the number of
people in prison by a certain time. Without such clear stretch aims it is too difficult for a disparate system to coalesce around a shared vision, or agree on the scale of change needed.

However, to do this right requires both time and investment. A system built up over decades, which itself reflects public attitudes and culture with roots which go even further, cannot be transformed through policy documents and rhetoric. Vested interests will need to be challenged, all parts of the system be open to radical change, and resources made available to facilitate the transition. Simply put, the current system will need to continue to be maintained (and improved) while the new one is built. That cannot be done (or at least cannot be done quickly) with no increase in overall spending. For example, to win public (and some professional) support for a compassionate justice system, significant investment will be needed in deploying and evaluating the effectiveness of community-based interventions. We know such interventions work, but to fundamentally rebalance the system Scottish Government and its partners will need to go further than securing the support of experts.

The alternative is that public sector money will continue to be invested in an increasingly complicated version of the current system, with policy innovations woven into a prison-centric infrastructure. That will fail to unlock the potential of those policy innovations, and make it less likely that we develop across Scotland the integrated services needed to prevent offending and re-offending in our communities. It will also mean we fail to unlock the significant resources allocated to a growing and aging prison population.

For further information, please do not hesitate to contact:
James Maybee
Chair of Social Work Scotland’s Justice Standing Committee & Head of Criminal Justice
Social Work, Highland Council

Consultation response: Age of Criminal Responsibility (Scotland) Act

Consultation response: Presumption against Short Sentences

Consultation Response: Transforming Parole in Scotland

Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill

Response to Call for Views on the Management of Offenders Bill

Response to Scottish Government Consultation