CHAPTER THREE MAIN FINDINGS
Setting the Context
- Overall there is a widely held belief that crime in Scotland is increasing and has been doing so over a protracted period of time. In addition, there is a belief that crime is becoming progressively violent in nature: previous fisticuffs have been displaced by knives and, to a lesser extent, guns.
- These beliefs are driven by a combination of everyday experience 1 and the media. Experience coupled with local newspaper articles are the key drivers of opinion regarding local crime. National media (and newspapers in particular) confirm suspicions and expectations that local crime culture is broadly reflective of the national picture.
- Regardless of title, both local and national newspapers are generally accepted as authoritative, trustworthy sources of information: there is no implication of the media, even tabloids, sensationalising crime and, since the coverage is broadly in line with their own every day experiences, there is seen to be no reason to challenge its validity. Hence experience and media conspire to support the belief that crime, and the severity of crime, is increasing across Scotland. Any government statistics suggesting otherwise do little to challenge this conviction: such figures are typically viewed cynically as government propaganda. In essence a paradox exists: although official crime figures are decreasing, fear of crime is increasing.
- Social deterioration is thought to lie at the heart of the current crime culture. A perceived meltdown in shared moral values and social norms is felt to have resulted in a detrimental switching of roles: young people are increasingly more empowered and adults are felt to be undermined. This empowerment has led to a lack of respect for authority and a depleted sense of moral and social obligation by "today's youth". As such, youths are perceived, and believed to perceive themselves, as "untouchable". The government is largely held accountable for this situation through the introduction of policies which foster this youth-empowered, untouchable culture.
- This is most keenly felt by members of more rural areas who feel their sense of community is diminishing and any community spirit, and local ways of dealing with 'wee rogues', has been relegated to the history books. An influx of "outsiders/foreigners" means there is no longer a sense of "everyone knowing each other" working as a natural deterrent to crime.
- Anti-social behaviour is viewed as evidence of this societal breakdown and, this research suggests, is of key concern to the Scottish public. Anti-social behaviour receives this arguably elevated status for two key reasons. Firstly, it is felt to be an everyday frequent occurrence and the issue closest to their world, directly impacting their lives. It is the cumulative effect of anti-social behaviour, rather than isolated examples, which results in a culture of fear and helplessness. Consistent minor crime is irritating in itself and there is a strong sense it is currently tolerated beyond an acceptable level. Secondly, and perhaps more significantly, there is a real sense that minor crime can be the root cause of more serious crime: in other words, that there is a continuum effect with anti-social behaviour leading to minor crime which, if not dealt with effectively, can lead to more serious crime. This is not to say that respondents believe all minor offences lead to serious crime, but there is a sense that 'they have to start somewhere' and that not enough is being done to curb this trend at an early stage.
- Opinions and attitudes concerning the continuum effect go some way in explaining the high levels of intolerance, fear and frustration of petty crime and, perhaps more crucially, opinions towards re-offending. Respondents tend to be more sympathetic towards first time offenders on the moral grounds that "we all make mistakes". For first time minor offences, there is a sense that the offender might respond to appropriate sentencing and should be given the benefit of the doubt and a "second chance". We explore what respondents feel constitutes appropriate sentencing below. However, the converse is true for re-offending: their repeat offence suggests they have not learned their lesson and are "making a mockery of the system". This lack of respect for the system, coupled with trepidation that repeat offending can lead to more serious crime ( i.e. the continuum effect), informs the rationale that the severity of punishment for repeat offences should take into account the repetitive aspect as well as the offence itself. Dealing with minor crimes and repeat offences is to some extent viewed as a preventative measure for more serious crime.
- As mentioned above, the government is largely held accountable for the perceived breakdown of society and the resultant increase in crime through policies which are seen to have contributed to and to perpetuate the current power imbalance. Policies concerning discipline in school, general social policies involving the rights of the ordinary public, as well as more recent parenting policies are felt to favour disproportionately the rights of youths over the adult population and are seen as fostering the current 'untouchable' culture, with many youths seen as 'knowing' and using their rights to their own end benefit. Therefore, not only is the current climate one of fear, but also one of helplessness, hopelessness and a sense of being betrayed and let down by the very system that should be protecting them.
- In addition, the government is held culpable on a second count by having a criminal justice system which is deemed ineffective and often criticised for fostering a culture of tolerance and of putting offenders' rights before those of the victim. This combination of ineffectively dealing with youth and adult crime does little to inspire confidence and there is a sense of foreboding that the situation is spiralling out of control and will only get worse.
- Once raised, people tend to have strong opinions concerning sentencing. These opinions are typically based on hearsay and media coverage, rather than knowledge. 2 This limited knowledge does not, however, prevent respondents from having strong opinions as to the perceived effectiveness of the system.
- There is a climate of mistrust and a lack of confidence in the courts to deal effectively with crime.
- Several criticisms are levelled at the sentencing process and judiciary generally:
- Most crucially, sentences are felt to be failing to punish and deter effectively because they are too lenient: this belief is supported by the perception of high re-offending rates (even though this does not match government figures on re-offending and crime rates generally).
- Sentences are often felt inappropriate: the logic driving sentencing decisions is not always apparent to the public. Some mentioned occasions when offenders who committed violent crimes, such as manslaughter, were given a lesser sentence than someone who committed fraud, for example.
- Judges are seen as being inconsistent and out of touch with reality. While this view was more keenly felt across C2D social grades, there was some evidence of this opinion across all audiences. This hints at concerns of individual judges having too much autonomy in determining an individual's fate, resulting in unfair inconsistencies in sentencing.
- This research suggests that the issue of early release ( i.e. not serving the full prison term) is of particular concern to members of the Scottish public. There is a real lack of support for the concept of early release. While the objective is understood, i.e., reward for good behaviour, there is a strong feeling that good behaviour should be a minimum requirement, with bad behaviour being punishable by an extension of the sentence. Early release is seen as making a mockery of the system and giving out the wrong message that the law is negotiable. There is also some cynicism that early release is a response to the current problem of over-crowded prisons as opposed to being genuinely considered an appropriate course of action. As such, there is a call for full sentences to be adhered to.
- To overcome some of these concerns surrounding sentencing, there is some demand for a more consistent and universal approach to sentencing. However, upon further discussion, it emerges that this is at odds with the general belief that circumstances, not only in terms of the offender's background but also in terms of the situation surrounding the criminal act itself, should be taken into consideration when determining the sentence.
- Despite the general belief that courts are too lenient and inconsistent, when asked to consider specific scenarios, respondents' opinions in terms of which forms of sentencing would be appropriate were broadly in line with what the court rulings would be. This suggests that the distance between what the courts and the public deem as appropriate sentencing is not as great as the public currently perceive. There is some sense this could be a result of perceptions being driven by a minority of extreme cases which tend to attract media attention, rather than reflecting the overall picture.
- Across all groups respondents felt they had a reasonable idea of what prison life involves, albeit based on word-of-mouth or media coverage. However, opinions were based on broad strokes rather than detailed understanding and perceptions outstripped informed knowledge.
- Punishment, deterrence, rehabilitation and protection of the public are seen to be the core objectives of prison, with a skew towards punishment and deterrence in the form of restriction of liberty.
- However, there is a widely held belief that the prison system is failing to fulfil these objectives, fuelled by the perception of high re-offending rates and the revolving prison door.
- One of the key criticisms of the prison system is the view that it has become 'too soft'. The introduction of increased privileges, such as television and game boys, is often seen as giving prisoners an easy life, rewarding them for their crime and doing little to deter people from committing crime or re-offending. Nor do these activities represent a productive use of time, i.e. developing skills aimed at successful reintegration with society. These privileges are essentially seen as giving out the wrong signals, undermining the punitive value of prison and compounding the perceived 'softly softly' approach of government policies.
- Rehabilitation in the context of a custodial sentence is seen as a more long term structured programme aimed at arming the offender with specific skills to increase their chances of employment and successful reintegration to society.
- All recognise the long term advantages of rehabilitation to society and to the individual. A rehabilitative element is seen as crucial in ensuring prison life is making effective use of tax payers' money. In addition, rehabilitation is seen as adding the necessary human touch and providing long term aspirational opportunities to encourage offenders to better themselves. However, there is a strong sense that this must not outweigh the punitive element. Similarly, recognition of the benefits of rehabilitation is also countered by the feeling that criminals are given opportunities beyond the reach of law abiding citizens.
- As might be expected, debating the pros and cons of prison is often contradictory. While many believe the physical environment of prison can be too comfortable, there is also recognition that it can be emotionally detrimental and challenging. Thus those who receive a prison sentence for a minor offence may be exposed to hardened criminals, the repercussions of which may be long lasting and ultimately detrimental to the individual and society.
- There is recognition of the high cost attached to custodial sentences. However, while the financial benefits of a non-custodial sentence are recognised, it is felt these should not be a key factor in determining the sentence: if the crime fits a custodial sentence, then a custodial sentence should be imposed.
- Given the potentially detrimental effects of prison, many conclude that a custodial sentence is not appropriate for minor non-violent (first) offences. The logic behind non-custodial sentences is understood in theory. However, reassurance is required to allay any fears or apprehensions in adopting these alternative approaches.
- The terms 'community sentencing' and 'community penalties' are not familiar or fully understood. Community sentencing is assumed to be 'the latest government jargon' for community service, while the term 'community penalties' is somewhat misleading, since for some it suggests financial penalties.
- Therefore there was practically no awareness of community sentencing as an umbrella term encompassing a range of sentencing options. Spontaneous discussion tended to focus on the aspect of community service only.
- Community service is thought to be punishment for minor non-violent crimes where prison is not required. Typically respondents do not view community service as an alternative to prison, but rather a suitable first option of punishment for minor crimes.
- The dividing line between which crimes should come under the remit of community service and which should be the remit of prison is somewhat blurred. Initially, community service is deemed appropriate for low-level, non-violent crimes, or crimes against the state or property, such as vandalism, graffiti, breach of the peace, minor driving offences, shop lifting, joy riding, car theft, fraud or burglary. The emphasis is on 'non-violent', where the offender is not considered an immediate threat to the public's safety. All violent crimes ( e.g. rape, murder, serious bodily assault, knife and gun crime) are seen to be the sole remit of prison, regardless of whether or not it is a first offence. However, further discussion reveals the view that some non-violent crimes, such as burglary, can result in serious emotional consequences for the victim and therefore community service is too lenient an option.
- The issue of repeat offending also impacts views on the appropriateness of community sentencing as an option. Repeat offenders, who have served a community service which has failed to deter, are also seen to potentially come under the remit of prison. For reasons already discussed, betrayal of the good will of the public in giving an offender a second chance triggers an automatic call for a prison sentence. However, the recognised detrimental effects of prison often challenge this instinctive response to re-offending.
- In addition, the perception by some that community service is currently being extended to potentially more serious crimes (such as assault) can lead some to conclude and fear that this is likely to be more commonplace in the future. There is a firm body of opinion that community service should only be used for minor offences.
- Community service is typically thought to involve 'a few hours' of litter picking or environmental cleaning of some form ( e.g., cleaning graffiti). These perceptions are driven by indirect experience and/or media coverage, often of high profile cases, e.g., Boy George, Naomi Campbell.
- Based on this, community service is seen as a soft option, which is perceived to accomplish little in the way of punishing or deterring offenders. This view is driven by the perception of high levels of re-offending and no obvious reduction in crime. For the public, the impact on re-offending is the key measure of success or failure of an initiative. However, the source of such data is key to credibility.
- Requirements of community service as an effective deterrent are high (arguably higher than prison). If it is not seen to be an effective deterrent the natural tendency is to revert back to traditional methods of punishment i.e. prison. Herein lies the contradiction, since many see prison as ineffective and often perpetuating the cycle of crime. Perhaps this is more reflective of the perceived hopelessness of the situation rather than a real desire to punish severely.
- The lack of any concrete knowledge or understanding of what community service involves means it is difficult for many to appreciate how it can fulfil a deterring role. Thus it is felt to be failing on one of its key objectives.
- While levels of understanding regarding the exact workings of community service are vague at best, thoughts and opinions regarding the purpose behind it are consistent and are felt to encompass a combination of five key areas:
- Punishment: sense that this should be graded in terms of the severity of the crime and should match the crime.
- Deterrent: mostly to repeat offenders since the lack of knowledge, as mentioned above, limits its potential to work as a deterrent for first time offenders.
- Recompense: giving something back to the community through the work carried out.
- Corrective/reformative: teaching/showing the offender the error of their ways.
- Compassion: giving the offender a second chance, as opposed to an immediate prison sentence.
- The importance and potential benefits of all these elements working in unison is widely acknowledged, in principle. Enlightening the offender and giving them moral guidance, which they concede they may often have lacked in their lives and played some part in where they are now, is in line with their own moral values. A task which requires the offender giving something back to the community is recognised as not only beneficial to the community, but also as a means of helping the offender re-connect with society and understand he/she has a role to play. Similarly, a corrective and reformative programme is seen as being designed to improve the offender's social and life skills, ultimately having long term benefits for the individual and society. However, it is felt there is a current imbalance between the punitive/deterrent elements and the softer elements involved in community service in favour of the latter, which raises concerns and fuels the belief that it is ineffective at tackling crime.
- In summary, the concept of community sentencing, or rather community service as it is currently widely interpreted, for minor non-violent crimes is generally welcomed and advocated. However, in practice, it is perceived to be ineffective. Beyond somewhat vague and arguably ill-informed perceptions, there is no provision of information to educate the public as to the actual role, remit and effectiveness of community service. Community service remains a largely intangible, unknown entity. There is no evidence that community service is being carried out locally and no awareness of the beneficial impact on the community and/or offender.
After initial spontaneous exploration, respondents were given brief descriptions of the following five key components of community sentencing. It is important to note that no further deliberation was conducted regarding the exact definitions of these as the aim was to explore awareness and understanding at a probed level rather than at a fully informed level.
- Probation Order
- Community Service Orders
- Supervised Attendance Orders
- Restriction of Liberty Orders (Tagging)
- Drug Treatment and Testing Orders
It is assumed that these alternative orders are aimed at giving judges greater options and more flexibility, enabling them to fit the punishment not only to the crime, but also the criminal. In theory this is commendable. However, there is a strong suspicion that, in reality, these options are less effective in their application than desired. Learning more about the alternative orders through the course of the groups often confirmed respondents' initial suspicions that the orders are too lenient, with a disproportionate focus on helping the offender at the neglect of a strong punitive and deterrent element.
Each of the five components is discussed below in order of awareness and understanding.
Community Service Order
The offender is required to carry out unpaid work to benefit the community for between 80 - 300 hours depending on the offence.
- As discussed, community service was for most thought to be the same as community sentencing. Much of the discussion on the subject is covered above.
- The information provided in the groups was broadly in line with perceptions and expectations. It was felt, however, that the lower end of the hours scale was too lenient and would do little to deter (repeat) offenders.
- In the absence of further information, respondents remain none the wiser to the nature of community service. To fully inform and challenge opinions, there is a requirement for more specific information regarding the circumstances in which it is administered and what it entails.
Restriction of Liberty Orders (Tagging)
The offender may be restricted to a particular place or from specific places for up to 12 hours per day for up to 12 months. His movements are monitored using an electronic tagging device.
- There is no awareness of the term 'restriction of liberty orders', although people accurately deduce its meaning from the title.
- However, there is high awareness of the term 'tagging', driven by second-hand experience and/or media coverage.
- Respondents are broadly receptive to the tagging initiative: the concept of restriction of liberties is in line with the key objective of prison. Tagging is, therefore, felt to be a suitable approach to keeping criminals out of prison while punishing them in a similar manner.
- However, several concerns conspire to undermine the perceived effectiveness of tagging. There is some concern, especially from younger C2D respondents, that tagging is ineffective and viewed as a trophy by the offender and his/her peers. Others, however, feel the trophy effect diminishes, at least to some extent, when the harsh reality of a curfew kicks in. There is also some perception that offenders are only monitored between the hours of 7pm and 7am, which is broadly criticised as it is felt that the offender could easily re-offend during daylight hours. Additionally, there is a misconception that the tagging device can be removed.
Drug Treatment and Testing Order ( DTTO)
Offenders are required for a period of between six months and three years to undertake regular drug treatment and testing. They also reappear before the Sheriff every month to account for their behaviour.
- Across all audiences, drug misuse was spontaneously mentioned and is seen to some extent as another manifestation of social deterioration. Increased drug misuse is seen as directly linked to an increase in crime, especially acquisition crime to 'feed the habit'. However, there is often a sympathetic undertone towards drug addicts, with many believing them to be a victim of their own circumstances. The degree to which people view drug addicts as victims of their own circumstances influences opinions regarding sentencing. Those viewing the drug addict as the victim are far more likely to focus on the rehabilitative nature. Others accept the requirement for a rehabilitative element, but not at the expense of a punitive element. For these, regardless of the circumstances, all crimes must be punished to teach a lesson, to deter and to reassure the public that justice prevails. In addition, some are concerned about 'claims' of drug problems being used by offenders to abuse the system and secure a more lenient sentence.
- Respondents also felt the word 'drugs' was ambiguous: for example, an appropriate course of action for a heroin-fuelled crime would be expected to be treated differently to one concerning cocaine. There is some sense that sympathy would be limited for anything less than a severe heroin addiction.
- DDTO is widely valued as a component of non-custodial sentencing but, for most, only in conjunction with a more overtly punitive element in order to satisfy the need for recompense and deterrence.
An offender is matched with a supervising officer who works with the offender to help him/her learn new behaviours and to deal with the problems associated with offending (rehabilitation). Additional conditions can be attached: unpaid work, electronic tagging, financial recompense to the victim, specialist programme, e.g., alcohol or drug treatment. Probation can be between 6 months to 3 years in length.
- There is high familiarity with the term 'probation', but a lack of real understanding of its role and remit.
- Several interpretations and a high degree of inconsistency in understanding emerged:
- Probation as a means of allowing the offender to serve part of a custodial sentence in the community while being supervised. It is felt this is used as a reward for good behaviour in prison. While early release for good behaviour is a contentious issue (as discussed), probation after a custodial term is considered appropriate. Punishment has already been served in prison, so some are more willing to accept the relative level of freedom that probation affords an offender.
- Probation as an automatic component following every prison sentence.
- Probation as an alternative to a custodial sentence. Where this is the case, there is real concern and anger at the perceived absence of a punitive element. This is compounded by the lack of awareness of a probation order potentially operating in conjunction with community sentence options, e.g., unpaid work.
- Probation as a synonym for a deferred sentence.
- With these levels of confusion, it is perhaps not surprising that people are non-committal as to the effectiveness of probation. Taking into account the five core areas that sentencing is expected to fulfil, respondents conclude that probation as an isolated order only satisfies the deterrent component for the duration of the order.
Supervised Attendance Orders
Fine on time: the offender undertakes a programme of activities which aim to result in good use of time. This can include an educative element and/or unpaid work in the community. The maximum number of hours is 100 completed over 12 months.
Please note that since it was difficult for respondents to grasp how this differs from community service, it was briefly pointed out that supervised attendance orders are served when an offender refuses to or cannot pay a financial fine.
- Of all the components of community sentencing, supervised attendance orders generated the greatest controversy. There was a real sense that the focus is disproportionately on rehabilitation and some felt it went as far as rewarding the offender. This triggered a deep emotional response and resentment at the unfairness of a system that provides opportunities which are beyond the reach of law abiding individuals, in the form of the educative element.
- Similarly, the maximum of 100 hours completed over 12 months was thought nonsensical, falling far short of the requirement to punish and deter.
- The concept of offenders being permitted to refuse to pay a fine and instead receive a supervised attendance order is viewed as farcical, undermining authority, and pandering to offenders. This is seen to exemplify key concerns and frustration with the CJS in general.
- Overall, there are concerns as to the ability of community sentencing to provide an effective alternative to a custodial sentence. Nevertheless, in the absence of other alternatives, there is a reluctance to completely reject the concept behind community sentencing: there is a willingness to consider it a viable option providing current initiatives are redesigned to incorporate sufficiently punitive elements. Again, it is worth bearing in mind that, even following discussion of the various components of community sentencing, most respondents continued to have community service top of mind.
- Several redesign ideas were suggested for community sentencing, with the greatest focus on the community service aspect:
- Simply making the task harsher and lengthening the term may prove invaluable in repositioning community service from too soft an option to a serious contender. This research suggests that inclusion of a stronger punitive element would make respondents more predisposed and receptive to some of the 'softer' rehabilitative elements.
- Having the punishment involve a task that is skill-based would furnish the individual with usable skills, with obvious benefits to both the individual and society. In the process of learning these skills, the offender may also gain a sense of pride in his/her work which could facilitate reintegration into society.
- Actively involving local organisations in determining the community service could prove worthwhile for two key reasons: the benefits to the community would be seen to be more relevant and community involvement would help make community service more tangible.
- Although not introduced as a specific initiative, across all groups respondents suggested the offender should meet his/her victim. The key reason for this is to show the offender the real impact of their crimes, and that there is no such thing as a victimless crime. This is especially the case for crimes in which it could be easy for offenders not to consider the wider repercussions of their crime, e.g., burglary. This strongly suggests that, contrary to initial knee-jerk reactions, most understand the importance of helping the individual understand the error of their ways in the hope of deterring him/her from a life of crime. There is an expectation that this would be coupled with a more obviously punitive element. However, respondents view reparation of this kind (although they did not use this specific term) almost as a punishment in its own right, likening it to being in trouble with parents, with the worst aspect being 'having to face the music'.
- 'Naming and shaming' was mooted as a potential aspect of community service, using humiliation as both a punishment and deterrent. However, some of those in the lower social-economic grouping, who might find themselves in that situation or be close to some in that situation, were uncomfortable with this approach.