Scotland: Impact of Presumption Against Short Sentences (PASS)

5th March 2020

There is emerging consensus that short prison sentences do more harm than good, and that non-custodial sanctions are more appropriate, more effective, and less damaging responses to less serious offending.

This is recognised in Irish law, which has required judges to consider community service in lieu of prison sentences of less than 12 months since autumn 2011. Nevertheless, Ireland’s over-reliance on short prison sentences endures: there were more committals to prison for short sentences (3,104) than community orders served (2,499) in 2018.

IPRT has been monitoring the recent extension in Scotland of the Presumption Against Short Sentences (or PASS) from sentences of less than three months to 12 months, and its potential impact on reducing the use of short sentences. The extended presumption came into effect on 4th July 2019 under the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019. 

The purpose of PASS is to encourage greater use of community-based sanctions as an alternative to imposing short-term prison sentences. Statistics from Scotland shows that people released from a short-term prison sentence are twice as likely to be reconvicted as individuals serving a Community Payback Order.

The Scottish Government has now published monitoring information for the period of July-December 2019. While the report cautions that it is too early to attribute changes in sentencing patterns to the extended PASS, there is emerging evidence that the number of short custodial sentences have been reduced in Scotland.              

The monitoring information published by the Scottish Government highlights sentencing patterns in the courts following the commencement of the extended presumption. It provides information regarding all the charges disposed of for every individual brought before the court from the period of 4th July 2019 to 31st December 2019. [NB: This period covers the first six months of the commencement of the extended presumption. Therefore, only a small number of offences that would be subject to the new policy were disposed by the courts in the period covered.]  

Key Findings

Based on statistics compiled by Scotland’s Chief Statistician, key findings are:         

• Numbers of community disposals reached their highest level since April 2017, with community orders comprising 24% (1,841) of all disposals in October 2019.   
• Custodial disposals have been decreasing since April 2019 and reached a low (900 per month) in November/December 2019.
• The decrease in custodial sentences was as a result of a decrease in custodial disposals given to males.
• The number of custodial sentences of 12 months or less has been decreasing since April 2017. The number of sentences of 12 months or less was estimated to be approximately 665 in November and December 2019 (lowest since April 2017).
• The proportion of all disposals accounted for by prison sentences of 12 months or less has decreased from 12.8% (April 2019) to 9.5% (November 2019).

Conclusion

While caution must be taken in crediting any changes in sentencing patterns to the extended presumption, there is emerging evidence that prison sentences of less than 12 months are decreasing in Scotland, which is a promising development.   

There are clear differences between Scotland’s PASS Order and relevant legislation in Ireland, the Criminal Justice (Community Service) (Amendment) Act 2011. Under Scottish legislation, the court “must not pass” a custodial sentences of less than 12 months unless it is considered that no other method of dealing with the person is appropriate. Comparatively, in Ireland, if the court is of the opinion that a sentence of less than 12 months is appropriate they “shall, as an alternative to that sentence” consider a Community Service Order. In Scotland, if the court passes a sentence of 12 months or less they must state the reason for their opinion that no other alternative is appropriate. IPRT notes that the Penal Policy Review Group recommended that where a custodial sentence is imposed by a court, the court should set out its reasons for doing so and this should be set out in law. However, this has never been legislated for in Ireland.                 

IPRT calls for the principle of imprisonment as a last resort to be enshrined in domestic legislation, as recommended by the Penal Policy Review Group, and looks towards Scotland as an example of promising practice.    

ENDS

Scottish Government (2020) Extended Presumption Against Short Sentences: Monitoring Information July2019 - December 2019. Official Statistics publication for Scotland, https://www.gov.scot/news/data-on-effects-of-presumption-against-short-sentences/