Scotland’s independent think tank
Scotland’s independent think tank

If we don’t want short jail terms we should ban them

This article by Alison Payne first appeared in The Times on 29 June 2019.

This week the Scottish parliament voted to extend the presumption against short prison sentences from three to 12 months. Due to automatic early release, a 12-month prison sentence actually means six months in prison. Therefore, the vote should mean fewer people spending six months or less in jail.

As much as we might wish it wasn’t the case, prisons are an unavoidable part of our society. For many crimes there simply isn’t any alternative to properly protect the public in Scotland.

However, while prison undoubtedly protects the public from our worst offenders, for others there is a danger that it becomes a revolving door in a life of crime.

Prisons are not just there to punish and protect the public. They also need to rehabilitate and to work with prisoners to help to prevent reoffending and offer training to help them gain employment once released. Unfortunately, for people in prison for six months or less there are little, if any, opportunities to take part in such programmes.

Some will argue that the individual should not have broken the law so brought the situation on themselves. However, punishment needs to be proportionate and sending someone to prison while offering no opportunity for rehabilitation is not proportionate. Others have argued that the presumption will mean a risk to public safety. However, if someone is a danger to the public they should be in prison for more than the six months they would serve.


So while Reform Scotland would agree with the theory behind the Scottish government’s decision, we would question the method.

A presumption against something is not a ban. The Criminal Justice and Licensing (Scotland) Act 2010 first introduced the presumption against prison sentences of less than three months. It requires a court to only pass a sentence of this length if there is no other appropriate disposal available and to record the reasons.

However, despite the presumption, since 2011-12 nearly 30,000 people have been given a sentence of less than three months. In 2017-18 26 per cent of people sent to prison got a sentence of three months or less.

The number of short sentences is undoubtedly falling but still far too many people are sent to prison for a very short period without the ability to engage in rehabilitation while facing the potential disruption a very short sentence can cause, not just to the offender but to their family.

Ultimately, a presumption against short sentences is well meaning but, in the final analysis, if we don’t want short sentences then we have to prohibit them.