Justice for All: Do community alternatives to prison actually work?

James Wright had been “unlawfully at large” for five months when he murdered Craig McClelland in Paisley in 2017. McClelland, 31, a father of three, was simply walking along the street when he encountered the man who was to end his life, someone with a string of convictions who had removed an electronic tag within days of being released from prison earlier that year.  

As with so many other tragic incidents, McClelland was just in the wrong place at the wrong time. And yet that characterisation of events disguises a multitude of failings that meant Wright was free to walk the streets when he should have been safely back behind bars.

While rare, cases like these are hard to forget – they linger long in the public consciousness and impact the debate on early release and the use of community sentences. But they also help feed a narrative that Scotland’s justice system is soft on crime, a suggestion belied by statistics showing Scotland has among the highest rates of imprisonment in Europe.

According to figures published last year by the Council of Europe, Scotland’s prison population is higher than England and Wales, and considerably above the Europe-wide median.
In fact, Scotland’s imprisonment rate of 146.6 per 100,000 of population is not only the highest in western Europe, but often significantly above near neighbours, including France (105.3), Ireland (81.6), Norway (58.8) and Sweden (65.0). The figure for England and Wales is 138.

Perhaps more worrying is that while some countries have seen significant falls in the rate of their prison population in the past decade, Scotland’s has remained relatively stable, actually beginning to grow again around 2017/18 after a number of years of progress.

A sizeable proportion of those being held at any one time have not been convicted of an offence. Of the 7,469 people being held in Scotland’s prisons at the start of this month, 1,975 (more than a quarter) were untried. Often that means individuals who are not a risk to society being held for months on end awaiting a court date.

Hannah Graham, a criminologist based at Stirling University, says the number of people being held on remand is a “major concern”.

“It’s a concern in terms of human rights, access to justice and the potential harm to individuals, families and witnesses,” she says.

In an attempt to address this, the Scottish Government has sought alternatives to remand. Last month it announced an extra £3.2m to improve the assessment and supervision of those on bail, including the use of electronic monitoring.

Announcing the funding, justice secretary Keith Brown said: “We are transforming the way we view and deliver justice, and increasing the availability of alternatives to remand across all parts of Scotland is a key part of that.

“This is smart, compassionate justice that recognises the effectiveness of community justice interventions in protecting people affected by crime and supporting the administration of justice.”

The government has recently been consulting on its plans to reform bail and the release from custody. It hopes that more of those awaiting trial, who are not a risk to the public, can be managed in the community, helping to reduce the overall prison population. 

“I support a move to more community-based supervision and support,” says Graham. “I’m not suggesting everyone should be on bail in all cases because any blanket approach in criminal justice is often problematic…but the scale of remand is concerning.

“I’ve heard stories of people, and we have statistics, of people being remanded and their main charge is shoplifting or vandalism. You can’t tell me persuasively that that offending pattern is a grave public safety risk. It’s a concern – I don’t want people to be shoplifting or conducting vandalism, but that’s very different to some who has carried out serious violence.”

But according to the Scottish Conservatives, who are critical of the SNP’s bail reforms, those are exactly the sort of people who are being released to carry out further crimes. The party said there were more than 31,000 offences carried out over the past three years by those on bail – the equivalent of roughly one in eight crimes. According to the Tories, that included 29 cases of murder or homicide, 19 cases of rape and 557 attempted murders or serious assaults. 

Indeed, in its response to the Scottish Government consultation, the Scottish Police Federation (SPF), which represents rank and files officers, suggested changes to the bail system would be problematic. The SPF said it was “not convinced” the infrastructure is in place for the tagging and monitoring of those on bail, adding that “offending whilst on bail continues to be an exceptional problem, demanding exceptional police time and attention”.

In a withering assessment of the consultation overall, Calum Steele, the SPF’s general secretary, wrote: “We consider that the consultation proposals offer little in terms of the administration of justice, other than to complicate it; offer little to victims of crime, other than to increase their disillusionment with the criminal justice system; and offer little to the police, other than adding burden, risk, and bureaucracy to an already overstretched and underfunded service. 

“We agree that the use of bail and remand have to be carefully considered, not least as the difference between suspect and convicted criminal is, or ought to be, abundantly clear; we have seen no evidence to suggest the current approaches to bail and remand do not currently receive this careful consideration.”

It’s common to hear the phrase “prison doesn’t work” in criminal justice circles, used like a mantra by those who believe in community alternatives to incarceration. But in one obvious way prison does work – by taking the most dangerous offenders off our streets where they pose the most risk.

Yet while it’s unequivocally the case that prison is effective in delivering punishment for those who have broken the law, its role in rehabilitation is much less clear. That is particularly the case for those serving short sentences who are in and out of custody before any kind of intervention can be made to help address possible causes of offending.

After years of progress, the number of prisoners being reconvicted within a year of being released from their sentence is on the rise again. More than 28 per cent offended again within a year of release, according to the most recent official figures, with those given a sentence of three months or less significantly more likely to re-offend.

A presumption against short sentences of up to a year was introduced in 2019, but there’s plenty of evidence to suggest it hasn’t stopped them being used. 

But there are also practical measures that can be taken to make sure those released from custody do not find themselves sliding back into criminality, such as stopping the practice of release at weekends when access to vital services is limited. 

One scheme which works with those leaving custody is New Routes, a mentoring programme run by the Wise Group, a social enterprise. The scheme, which receives funding from the Scottish Government, provides support for those leaving prison after a short-term sentence by linking them up with a mentor, often someone who has their own experience of the criminal justice system.

Amid the talk of reducing offending, there is a growing narrative around the impact of trauma, particularly that experienced in childhood, with some evidence showing that so-called “toxic stress” in the early years of a child’s life can impact on brain development.

Key to the discussion around the impact of trauma on those in the justice system has been the adoption of Adverse Childhood Experience (ACEs), an idea which has been seized on by some with a near-religious fervour.

First hypothesised by doctors studying obesity in the US in the 1980s, the concept tries to explain destructive behaviour in adulthood by the impact of experiences such as abuse, bereavement, or domestic violence in childhood. 

While the idea has its adherents – and a better understanding of trauma is surely to be welcomed – there are those who worry it is overly prescriptive and fails to properly explain why many who experience such privations in childhood do not go on to become involved in the criminal justice system.

Indeed, while the concept of ACEs was enthusiastically adopted by some senior figures in Police Scotland, it’s clear many are yet to be convinced. In its submission to the bail consultation, the SPF noted that while it is important to be aware of the disadvantages many people face, there “are many more people who come from disadvantaged backgrounds who do not find themselves encountering the criminal justice system other than as victims”.

Graham admits the issue of trauma is currently a “hot topic” in criminal justice circles but says community justice must work for both offenders and those offended against.

“Community justice responses need to show a humanity to people who have had childhood trauma and adversity,” she says. “Community justice responses that communicate to the person that what they’ve done is wrong, but also emphasise rehabilitation and reparation, those are worthwhile and they’re not completely addressed through having a sole individualistic focus on things like neurobiology, people’s brains and their childhood narrative. 

“I have a great deal of empathy for victims – their perspectives and voices should matter. The empathy towards people who have history and circumstances that have ended up in the criminal justice system…that can constructively look like supporting them to leave crime behind, which means fewer victims in future.”