WITH many of Scottish Government's plans for justice, the devil will very clearly be in the detail.
Extending the presumption against short sentences from three to 12 months seems a futile exercise given that the existing law has not achieved what it was intended to do.
In 2010, the law was changed to say courts should not impose a sentence of three month or less
"unless the court considers that no other method of dealing with the person is appropriate".
Critics warned this was far too open to interpretation, allowing any sheriff who lacks faith in community alternatives to simply ignore the presumption.
So it has proved - the measure has had little effect on the numbers going to jail for short stretches, despite the fact that virtually noone in the criminal justice system believe this is effective. If it protects the community it only does so for a short period, while disrupting the lives of offenders, often catastrophically. Loss of benefits or housing or a job or a relationship due to a short prison sentence make someone more not less likely to re-offend, it is often argued.
So much hinges on what is in a new Management of Offenders Bill which promises to extend community monitoring. Justice secretary Michael Matheson could use this to be truly radical, but at the very least it needs to reassure the courts that alternatives to short sentences can be effective. There will almost certainly need to be a shift in spending to fund community alternatives.
Likewise with the offer of a free vote on the physical punishment of children. There is a consensus among children's charities and human rights groups that the law as it stands is untenable – it leaves children as the only group in Scotland unprotected from physical assault, as their parents can use the defence of "justifiable assault", if accused of smacking their child.
Quite apart from arguments about the effectiveness of smacking, Scotland is increasingly isolated on this, one of only five countries in Europe which does not now protect children from physical punishment.
But the outcome of a free vote is hard to predict. Any smacking ban would undoubtedly be seen by many Scots as an interference in the rights of parents to determine how to raise their children. The same alliance of Christian charities, Conservative politicians and the right wing press as have campaigned against the Named Person policy are likely to resist a ban.
Much depends therefore on how it is presented to MSPs and the public. The argument from Scotland's former and current children's commissioner has been that a change need not criminalise parents, who are more likely to be offered advice and support than they are to be prosecuted. Instead a ban would achieve a change in culture, as it has in other countries, slowly shifting what is seen as acceptable, just as drink drive laws and the smoking ban led to wider changes in attitudes.
A Minimum Age of Criminal Responsibility Bill is no surprise, with the Government's intention to raise the age in Scotland from eight to 12 having been well-trailed. This will be welcomed by children's rights campaigners, although many would like to see the age at which young people can be held criminally responsible raised higher still. What is being done is the bare minimum to meet international standards on children's rights.
The management of offenders bill will allow the extension of electronic monitoring and should also support the presumption against short sentences – allowing more people to serve sentences at home, protecting the public at home while avoiding the damage a prison sentence can do to personal relationships, jobs and other circumstances.
The bill's measures to overhaul the rehabilitation of offenders act is long overdue, more than four decades since the original act. By cutting the period during which individuals have to report past offences, it will attempt to encourage their reintegration into society. Until we know what other measures it will contain, the likely effectiveness of this is hard to judge.
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