PRISON sentencing should shift from a culture of retribution to one that took greater account of the impact on inmates and wider society, according to a leading judge.
Lord Carloway, the Lord Justice Clerk, hinted that Scotland's prison population is too high and the wrong people were sometimes behind bars.
Scotland's second most senior judge also said agencies should look to models in Scandinavia where prison populations have been significantly reduced. In addition, he said judges and sheriffs would go on courses to deal with aspects of sentencing to take them out of the courtroom.
In the recent annual Sacro lecture in Edinburgh, Lord Carloway said: "A culture of retribution is not what society ought to be aiming at as a generality …
"However, a prevailing retributive dynamic across the board restrains the proper use of discretion. What ought to be considered is a move away from this type of approach, designed to stigmatise the offender … to a model in which the sentences are far more tailored to the individual offender and more inclusive in taking account of the needs of the community."
Lord Carloway's comments mirror those of Colin McConnell, chief executive of the Scottish Prison Service, who in November last year called for a shake-up of the way prisoners are treated, with jail "used as a punishment" and "not for punishment".
In a wide-ranging interview with The Herald yesterday, Lord Carloway said: "We need to engage, to a degree, with other agencies in understanding the effects of our decisions. That is not compromising independence but informing ourselves of what happens when, say, a community payback order is imposed."
He said it would be hard to disagree with the "generality" that the prison population is too high and that in some instances the wrong people are behind bars. Rather than just locking people up, involved agencies needed to work at modifying people's behaviour, although Lord Carloway conceded that would have cost implications.
"I don't think we've reached a situation where a cap on prisoner numbers is here yet. You can see the benefits to prisoner management if the person sentenced did not require to go to prison immediately then that would make it easier for them to manage numbers, but would the public accept that?
"I'm sure there would be some concerns expressed. I'm conscious that it is done in other countries where you might be invited to go to prison only at weekends.
"We have to look at other systems that are coping, especially those with population bases similar to our own, and the Scandinavian model is a useful one to look at.
"The use of prison as a punishment or deterrence and its effectiveness is certainly something we have modified our views on over the years and rightly so."
Last year Sweden, known for its focus on rehabilitation and humane approach to sentencing, announced plans to close four of its prisons due to a significant fall in the population. Its reoffending rate is roughly half that of Scotland's.
Of the 47,000 Scots convicted in 2009/10, some 30% were reconvicted within one year, and more than one in five had 10 or more previous convictions.
Despite repeated calls from Scottish ministers, including Justice Secretary Kenny MacAskill, for a reduction in the prison population, Scotland has one of the highest rates of imprisonment and recidivism of any country in western Europe.
The numbers have continued to rise and are expected to reach 9500 by 2020. This is despite the fact crime is at a 39-year low.
Lord Carloway said that if there were a gap in the criminological knowledge of a particular judge then they could be asked to attend specific courses.
"Our judicial institute is working on educational programmes to give judges much more information about what is going on in the field of criminology and improvements to prisons and programmes available for offenders.
"Rather than the judge or sheriff just remaining in his or her courtroom, he or she will now be going on courses which deal with aspects of sentencing," he said. "We have to make sure that the people involved are up to speed on modern thinking and practice.
"Everyone has to refresh their ideas in terms of what is available in terms of punishment."
Lord Carloway's recent review of the law controversially called for the abolition of corroboration. It formed the basis of the Criminal Justice (Scotland) Bill which is being debated in Parliament.