Do We Still Believe in our Prisons?

Kaitlin Dryburgh

This week a rather disturbing news story came to light. A 21 year old male has been found guilty of raping a 13 year old girl when he was 17. An awful thing to have happened, one of the most sickening crimes. Perhaps though one of the most shocking aspects of the case was that the male didn’t receive a custodial sentence for his actions. He avoided prison and was instead given 270 hours of community service and a spot on the sex offenders register for a couple of years. For many working within the Scottish justice system this was the first time they had encountered a crime so abhorrent not to be sentenced with a prison term. For organisations such as Rape Crisis Scotland there was a strong condemnation as what they viewed as an unduly lenient sentence. One that they believed doesn’t provide justice for the victim, especially considering the fact they will live with the trauma for perhaps the rest of their life. The organisation as well as many others believes that this lack of custodial sentence doesn’t encourage other victims to come forward and report such incedents. Overall it could send the completely wrong message to both victims and abusers.

It should also be noted that this case took four years to be heard in court, although there would have been delays due to Covid this is absolutely not acceptable. Showing little regard for the wellbeing of the victim and the holes in our justice system.

The judge as at any sentencing hearing provided his reasoning as to why he had chosen to handout community service. It mostly came down to the fairly new law which means under 25s are subject to an assumption of more “blamelessness” than had they been older. Not to mention a primary focus on rehabilitation. The judge therefore believed that the perpetrator in question would be more likely to be rehabilitated if they didn’t go to prison. Prison, in the judges’ eyes wouldn’t give him the chance to be rehabilitated. Now it could be easily argued that although we should always be looking to rehabilitate every person found guilty in our justice system so in the end they can re-enter society a better person ready to contribute as a citizen, there must be a sense of justice for the victim. Picking litter or scrubbing off graffiti doesn’t exactly scream justice.

The balance between rehabilitation and justice is definitely an ongoing wrangle in both the court of public opinion and in parliament. Yet the thing that stuck out for me is the fact that the judge obviously had little confidence in the prisons’ ability to aide rehabilitation. Which throws into question why is anyone being sent there if rehabilitation is not achievable inside? Of course we have the question of justice and public safety, yet it does seem strange that we continue to maintain the same strategy towards Scotland’s prisons if even some judges have little confidence in them.

Although this story may lead some to believe that Scotland may have gone soft or has turned it’s back on prisons, don’t be fooled. We still have one of the highest prison populations per head in Western Europe (especially among women), our rate of imprisonment is higher than that of the rest of UK and doesn’t seem to be budging all that much.

The problems facing Scottish prisons are no secret. We currently have an arsenal of Victorian prisons, buildings that are no longer fit for purpose and need to change to be in line with what we now know about rehabilitation. Funnily enough knowledge has moved on since the 1880’s so our buildings need to adapt with this, we have an aging prison population, we appreciate the importance of physical and mental health provision and we now focus on rehabilitation. Although it can be argued that our current approach to rehabilitation doesn’t go far enough, the investment needed to produce results and cut re-offending rates is currently not being met. In order to stop the revolving door of institutionalized prisoners which we currently experience we need change, and quickly.

Just about every public service right now is plagued with underfunding, staffing issues and bureaucratic messes that make efficient management impossible, prisons are no different and this continues to make it harder to deliver proper rehabilitation for prisoners.   

One of the most disturbing problems facing Scottish prisons currently is the record number of people dying, over the past three years the numbers have never been higher. Be that from suicide or drug deaths, the numbers have continued to rise and are considerably higher than the rates in England. Although there were unfortunately deaths due to Covid other causes of deaths that were outside illness continued to rise. The hard truth is someone who is sent to jail today is twice more likely to die in prison than someone in 2008. That is simply not good enough, we don’t have the death penalty in Scotland and prison shouldn’t be a substitute for it.

Trying to keep drugs out of prisons can be a cat and mouse game for prison guards, who have to stay on top of new techniques. Unfortunately, Scotland is experiencing a worrying rise in the use of drones being used to transport drugs into prisons, as well as other paraphernalia such as mobile phones. The Scottish Prison Service (SPS) released figures that shows an increasing trend in the use of drones. The unfortunate thing is they will always be a few steps behind without the proper funding to get a head of the game. Between August 2021 and July 2022 the SPS recorded 9000 instances where mail tested positive for an illegal drug. This has resulted in many prisons preferring to photocopy mail for prisoners, however some have struggled to keep up with this as funding doesn’t always stretch to a new photocopier.

In one of the most recent prison inspectors annual report it was noted that there are still ongoing issues with the effects of Covid, the most important being the decline in prisoners partaking in work, study or skills work. Between 2021-22 the numbers were close to half of what they were in 2019-2020 in some instances. The importance of work and study influencing re-offending rates cannot be understated, meaningful work that incorporates transferable skills that can be applied to prisoner’s life upon release. Rehabilitation in prisons will never be effected if prisoners cannot access work or study. Some of the most successful prison services in the world (you wont be surprised to know they are Scandinavian) place so much emphasis on this due to the fact it mimics outside life, by bringing reality into prison this allows for much lower reoffending rates as prisoners find it easier to integrate back into society upon release.

Thankfully Scotland is moving away from the privatisation of prisons with several soon to move back into public ownership. This is good news as over a decade ago Scotland was barrelling towards having one of the most privatised prison sectors in the world. Yet in some respects there still haven’t been lessons learnt. In the most recent Prison Inspectors annual report it was noted that the poorest overall service performance came from GEOamey, the private security firm in charge of prisoner escort. The report noted, lack of staff training, poor management and major issues with staff shortages resulting in prisoners missing out on doctors’ appointments etc. The contract worth £238 million still underperforms and fails to meet the service standards they are excepted to meet. Unfortunately this is an example of a private company entrusted to provide a public service which time after time doesn’t meet standards and there seems to be little consequence for them doing so.

At the core it seems our approach to prisons is fundamentally misguided and not fit for purpose anymore. Punishment for the sake of punishment is not useful, however that being said some crimes need to demonstrate justice for the victim and a sense of punishment is usually part of that. But rehabilitation is key to everything and if we no longer believe our current prisons deliver this, it’s time for a re-think.

9 thoughts on “Do We Still Believe in our Prisons?”

  1. This case has generated a lot of outrage and concern regarding the practical dispensing of Justice in Scotland. However, it is often a very dangerous policy to extrapolate wholesale concerns about the justice system based upon a single case.
    Firstly, there is no new law that mandates Judges to assume blamelessness for someone under 25. The Scottish Sentencing Council, an Independent body currently made up of legal experts, Police Representation and a respected criminologist as the lay member, published guidelines that were supported by extensive research and evidence. Please note that these are “GUIDELINES”. The independence of the judiciary to decide each and every case upon the merits of that individual case are an important aspect of our justice system. It would be folly to have a system where politicians and victim supporting organisations get to decide the appropriate levels of punishment. And in this case the Judge chose not to ignore the guidance even though they often do so.
    I am also concerned at the stereotyping and trivialisation of community punishment as “litter picking and graffiti removal”. If we, as the writer seems to support, want to move Scotland away from our over reliance on prisons then we need to develop a discourse that values and understands the advantages of disposals in the community. A work order can include many elements, and this includes work on rehabilitative elements. It is up to the supervising criminal justice social worker to decide on the actual content and what fits best for each individual. It is also no secret that community sentences generally have a better outcome at reducing reoffending. Short term prison sentences are ineffective and often cause more harm than good. This is clearly something the Judge thought about but not the writer of the above piece. The presumption against short term sentences is another guideline and again it is often ignored by those who hand down sentences who feel that prison is an appropriate disposal for a whole load of offences. As Professor of Social Work and Criminology Fergus McNeill stated on twitter “If anyone thinks 3 years’ of mandatory supervision, Sexual Offender registration, unpaid work and (perhaps) other unreported conditions = ‘walking free’, well, either they don’t understand ‘freedom’, or they don’t understand community sentences or they don’t care about accuracy. I’m *not* expressing a view here about the appropriateness of the sentence in this case (unlike the judge, I don’t have all the facts); I am expressing a view about the persistent mis-reporting and misunderstanding of what supervisory sanctions entail: i.e. NOT ‘WALKING FREE’! “.
    I also take issue with the assertion that the Judge does not believe rehabilitation is effective in our prisons. in this particular case then I might agree that the circumstances surrounding it has led the Judge to that conclusion for this particular offender. However, it is a huge stretch to suggest that this applies across the board in every case that he hears. And even if there is actually one judge that does think this, it is clear we also have many others who do not – hence one of the reasons why our prison population is amongst the highest in Western Europe. We also have a media onslaught that accords with the public view that punishment is soft and that sending people to prison for longer works. There is a lack of evidence that supports this. I would have also hoped that Common Weal would not have jumped onto this moral panic as well…

    1. Sorry, but I just do not accept that a rapist should ever be spared having to spend time in prison, Young Offenders Institute or Secure Unit – and I feel this even more strongly when the victim of the rape is a child. Rape is one of the most serious violent crimes against a person that there is, often causing damage that lasts a lifetime. We want women and girls to be confident that the legal system treats rape as the serious offence it is – not depriving the perpetrator of their liberty as part of their sentence completely undermines this message. Indeed, it says that the interests of the perpetrator are more important than those of the victim. Yes, intensive rehabilitation should be done with rapists to seek to prevent any repeat after release, but that rehabilitation work should be done while detained.

      1. I think that individual cases should always be judged based upon the facts of that case. The punishment handed out has to be proportionate and fair. That is essentially why the Judge should have no links to either the defendant or the accused. Unless you have sat through the whole case and listened to the evidence, read the background report on the accused and then used your experience and knowledge to come up with an appropriate disposal, then it is very difficult to agree with something that offends your inbuilt sense of fairness. I do understand why people are outraged by this disposal but at the same time I simply do not have enough of the information I outlined to assess fully if it is fair or not. I do not agree with politically mandated sentencing – this can had very adverse affects on individuals, systems and society as a whole. The focus and effort should be on rehabilitation and this is something that mandatory sentencing can impact upon. As for prison being the only place to work with sex offenders, it was not that long ago where they found the sex offenders mandatory programme in prisons in England and Wales was actually leading to an increase in reoffending – and not surprisingly the Ministry of Justice sat on that report for about three years too.

    2. florian albert

      Jim Watson is concerned at the ‘trivialization of community punishment.’ I feel sure that there will be far more people concerned with the trivialization of the rape of a 13 year old girl.

      1. I understand the upset and co0ncern at the sentence and at no point have I ever suggested that rape is something to be trivialised. However, if you read what I said again there is no comment from me on the actual case – I am concerned regarding the reactions to this disposal and the generalisation of arguments about the criminal justice system based upon one case. Judges are only human and therefore fallible, they can and do make mistakes. Hence the reason for an appeal system that can challenge severe sentences, wrongful convictions and also lenient sentences. I would imagine that this case is not yet finished…

        1. florian albert

          I agree that judges can and do make mistakes. In the case which at the heart of Kaitlin Dryburgh’s article the judge said that his decision on a non-custodial sentence was linked to judicial guidelines.
          These guidelines, as reported in the press, come close to instructing judges not to impose a prison sentence – even for the dreadful crime of raping a child.

          By coincidence, reports, in the press today, on non-custodial sentences suggest that this is another area where the
          criminal justice system shows alarming evidence of failure.

          1. The guidelines are just that – to be used for guidance. A judge can set aside their provisions if they think it is in the interests of justice. The press are liable to distort elements within criminal justice under the guise of a moral panic or to follow their usual agenda of not liking the party in charge and it is a big stick to bet them with, even though the judiciary are independent. If you have not done so then I would humbly suggest that you take an actual look at the guidelines and decide for yourself…
            I disagree with your take on the “evidence of failure” as well. Where they are followed, community sentences still have a lower reoffending rate than short term prison sentences. The failure here is with engagement from people – they are not putting in the hours required or are blatantly ignoring their orders. This will have consequence for the person involved, or not involved as the case actually is…

  2. “We still have one of the highest prison populations per head in Western Europe (especially among women), our rate of imprisonment is higher than that of the rest of UK and doesn’t seem to be budging all that much.”

    I’m surprised at this claim. The number of females in prison in Scotland is currently hovering between 250 and 300, out of a total prison population of between 7,200 to 7,400. That is a rate of less than 4% of the total and compares favourably with the European female incarceration rate of 5.9% and the World average of 6.9%. It is also worth pointing out that while ‘violent offences’ are the largest single category of offence that resulted in incarceration for both males and females, the proportion of females incarcerated for this reason is actually higher than for males (suggesting that women are not being disproportionally imprisoned for more minor offences that is often claimed.)

  3. Great article, thought-provoking stuff.

    It sounds like the judge made the decision purely on the basis of the perpetrator’s best interest.

    However a trial has several stakeholders:
    – the victim
    – the victim’s family
    – other people who identify with the victim (ie women scared they might get raped then the guy gets off with a slap on the wrist (as they could perceive it).
    – the public
    – other potential rapists weighing up whether attempting the crime is worth the risk
    – their victims
    – the police

    And no doubt more.

    In delivering a verdict tailored to the needs of the young man in the dock has the judge not failed some or most of these other interested parties? Is the guidance that they should only consider the interests of the accused?

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