The Scottish Parliament - Finance Committee Report

Report on the Financial Memorandum of the Criminal Justice and Licensing (Scotland) Bill

2. The Committee may also consider and, where it sees fit, report to the Parliament on the timetable for the Stages of Budget Bills and on the handling of financial business.

3. In these Rules, "public expenditure" means expenditure of the Scottish Administration, other expenditure payable out of the Scottish Consolidated Fund and any other expenditure met out of taxes, charges and other public revenue.

Jackie Baillie (Deputy Convener)
Derek Brownlee
Linda Fabiani
Joe Fitzpatrick
James Kelly
Jeremy Purvis
Andrew Welsh (Convener)
David Whitton

Report on the Financial Memorandum of the Criminal Justice and Licensing (Scotland) Bill

1. The Criminal Justice and Licensing (Scotland) Bill (“the Bill”) was introduced in the Scottish Parliament on 5 March 2009. The Justice Committee has been designated as the lead committee on the Bill at Stage 1.

2. Under Standing Orders Rule 9.6, the lead committee at Stage 1 is required, among other things, to consider and report on the Bill’s Financial Memorandum. In doing so, it is required to consider any views submitted to it by the Finance Committee (“the Committee”).

3. At its meeting on 10 March 2009, the Committee agreed to adopt level three scrutiny in relation to the Bill.¹ At its meeting on 21 April, the Committee took evidence from the following organisations—

All of the organisations represented on the first two panels also provided written evidence.

5. All written evidence received is published as the Annexe to this report. The Official Report of the oral evidence session on 21 April can be found on the Parliament’s website.²

6. The Bill provides for various changes under the general headings of criminal justice and licensing. The Bill contains around 85 distinct topics and is split into the following 10 main parts—

7. The Financial Memorandum estimates the total annual financial cost of implementing the Bill at £58.405 million, with a total non-recurring start-up cost of £2.633 million. In arriving at these figures, the Financial Memorandum identifies five topics in the Bill that carry a “significant financial impact” – defined as those estimated as costing over £0.4 million per year. These topics are dealt with in Chapter 1 of the Financial Memorandum and are as follows—

8. The Financial Memorandum estimates that other provisions in the Bill will also have cost implications, although each carrying a lesser financial impact than £0.4 million per year. These topics are described in Chapters 2 to 10 of the Financial Memorandum.

9. The Financial Memorandum contains substantial cost information, and explanation of policy background and assumptions underpinning the cost estimates. A brief summary of the cost implications is included in this report.

Scottish Sentencing Council
10. Based on the running costs incurred by bodies of a likely similar size, and the assumption that administrative functions will be provided by the Scottish Court Service (SCS), the Financial Memorandum estimates that an annual budget of £1.1 million will be required. These costs include fees and expenses for Council members; cover for judicial absence (Council membership will include a practising judge, two sheriffs and one justice of the peace); support office costs including staff salaries; and research, publications and website costs. One-off set up costs of £450,000 are also anticipated.

11. These costs will be met entirely by the Scottish Government as an element of its funding of the SCS. The Financial Memorandum states that no costs will fall on local authorities or other bodies, individuals or businesses.

Community Payback Orders etc.
12. The new Community Payback Orders will replace the existing court disposals of probation orders, community service orders, supervised attendance orders and community reparation orders. The Financial Memorandum estimates the likely cost of these Orders as £10.67 million per year, based on assumptions about the rate of change in sentencer behaviour away from imposing short prison sentences. This figure is given as the mid-point between an additional cost per year of £8.237 million (where there is a 10% increase in usage of Orders compared with existing sentences) and £13.103 million (where there is a 20% increase in usage of Orders). It is also anticipated that there will be one-off costs of £50,000 relating to IT development.

13. These additional costs will be incurred by local authorities (although the cost will be reimbursed by the Scottish Government through its ring-fenced funding arrangements for criminal justice social work); the Scottish Court Service; and the electronic monitoring contractor (although the additional cost will be covered by a revised commercial contract to be met by the Scottish Government).

Serious organised crime offences
14. The Financial Memorandum estimates that the new serious organised crime offences will incur total eventual additional costs of £3.654 million per year. These costs will fall upon the Scottish Court Service, the Crown Office and Procurators Fiscal Service (COPFS) and the Scottish Prison Service. These costs will, therefore, ultimately be met by the Scottish Government. The Financial Memorandum states that the Government does not anticipate any costs falling on local authorities or other bodies, individuals or businesses.

Disclosure
15. According to the Financial Memorandum, additional costs are expected to fall on the Scottish Government as follows—

16. The Financial Memorandum states that the Government does not anticipate any costs to fall on local authorities or other bodies, individuals or businesses.

Sale of alcohol to persons under the age of 21
17. The Government has indicated to the Committee that it will seek to remove this proposal from the Bill at Stage 2.⁴

18. The maximum estimated costs contained in the Financial Memorandum assume that every Licensing Board introduces a ban on the off-sale of alcohol to 18-20 year olds across their entire Board area. It is anticipated that no costs will fall on the Scottish Government, but it is likely that there will be financial implications for local authorities and for other bodies, individuals and businesses.

19. The Financial Memorandum states that additional costs are expected to fall on local authorities in respect of the cost to Licensing Boards of considering the detrimental effect of alcohol sales to under-21s; and the cost of Licensing Standards Officers (LSOs) to ensure compliance with any conditions laid down by Boards. The Financial Memorandum states that these costs are likely to be marginal and suggests that the cost of running the licensing system, including costs of LSOs, is generally recovered by Licensing Boards from fee income. No further details on possible costs or specific estimations are provided.

20. The Financial Memorandum suggests that individuals aged between 18 and 21 who are restricted in buying off-sales may be affected to the extent of reducing their total alcohol intake, or alternatively spending up to three times more on alcohol purchases. The average cost of a unit of alcohol in on-sales purchases is £1.28, compared with 40p in off-sales.

21. The financial impact on business will depend on the extent to which Boards choose to establish such conditions and the extent to which purchasers switch to on-sales. The Financial Memorandum estimates that these provisions will result in a financial impact of £38 million per year, which represents a loss of 63% of alcohol purchases made by 18-20 year olds. This figure includes £15 million in lost annual sales revenue to business and £23 million in lost VAT and alcohol duty per year to the UK Government.

22. The Financial Memorandum refers to the following provisions in the Bill as not having a significant financial impact—

23. The Financial Memorandum states that the Government anticipates overall cost savings in relation to the provisions on early removal of certain short-term prisoners from the UK; bail review applications; and jury service. These savings are estimated at £40,000; £6,000; £250,000 per year, respectively.

24. Evidence highlighted the potential impact that the twin proposals to introduce Community Payback Orders (CPOs) and a presumption against short term prison sentences will have on criminal justice social work. There was also some discussion about the potential impact of the proposals on the prison population, and in relation to whether the assumptions about social enquiry reports (SERs) are correctly identified in the Financial Memorandum. This evidence is summarised below.

25. While, on the whole, witnesses accepted that the assumptions in the Financial Memorandum were appropriate, some concerns were raised. Some evidence illustrated the difficulty in predicting sentencing behaviour and the extent to which the courts would use CPOs instead of short term prison sentences. Other evidence criticised the amount of core funding available for criminal justice social work and suggested that additional funding would be required in order to meet the management needs of offenders who would currently receive short custodial sentences.

Uptake of Community Payback Orders (CPOs)
26. Government officials confirmed that, in relation to the implementation of the Bill, the costings in the Financial Memorandum have been made on the assumption that all proposals will come into force in April 2010. Officials stated, however, that “at this stage, we have not set an implementation timetable for the whole Bill.”⁵ Officials referred to the spending constraints in the context of the current economic climate which affected prioritisation across Government and were unable to comment in any further detail about the resources that might be available to the Justice Department in order to implement the measures in the Bill.⁶

27. Specifically, in relation to the proposals introducing CPOs and a presumption against short-term prison sentences, Government officials explained that the Financial Memorandum makes two assumptions—

28. The figures contained in the Financial Memorandum (and as confirmed in supplementary evidence) reflect an increase in the number of orders imposed by the courts of between 1939 (10% increase) and 3878 (20% increase), based on 2007-08 court figures.⁸ Officials stated that, in the context of the number of prison receptions, these assumptions reflect a reasonable range of increases.

29. East Ayrshire Council stated that, in estimating a 10 to 20 per cent increase in the use of CPOs over the course of the years 2010-11 and 2011-2012, the Financial Memorandum accurately reflects the margins of uncertainty about costs and timescales.⁹

30. Perth and Kinross Council stated that, based on the additional demand that might be expected, the costings in the Financial Memorandum “are not inaccurate.”¹⁰ However, it recognised that the additional impact of 170 offenders currently serving sentences of six months or less receiving CPOs would be a significant additional cost.¹¹ In supplementary evidence, the Council added that—

31. In written evidence, the Community Justice Authorities (CJAs)¹⁴ referred to the estimated increase of up to 20 per cent in the use of CPOs and stated that “there is no evidence to suggest whether this will meet margins of uncertainty.”¹⁵ However, in oral evidence to the Committee the CJAs stated that—

32. With regard to the projected increase by courts in their use of CPOs, the CJAs accepted that although “it is a bit of a leap in the dark and it is difficult to come up with a figure... 20 per cent would not be an unreasonable figure for the sheriff courts.”¹⁷ It was suggested, however, in relation to justice of the peace courts that the 20 per cent figure might represent an underestimation of how JPs will use the power.

33. Although Government officials accepted that it is difficult to predict with any certainty changes in sentencer behaviour, they stated that “past experience suggests that sentencers are cautious in making changes to their sentencing behaviour” and considered that sentencing shift would be gradual.¹⁸ Officials confirmed that if there is a larger than expected shift in sentencing behaviour then the costings in the Financial Memorandum would be exceeded¹⁹; and took the point made by the CJAs²⁰ about the need to monitor the usage of CPOs.²¹

34. When questioned on whether the cost estimates should be based on diverting 100% of short-term sentences to CPOs, officials referred to the Scottish Prison Commission’s recommendation that there would have to be exceptions to any presumption against imposing a prison sentence. Such exceptional cases might involve sex offenders, violent offenders and multiple repeat offenders. Officials stated that they have examined this and concluded that around 50% of offenders likely to receive short sentences would not be subject to the presumption against imposing imprisonment.²²

Impact on criminal justice social work and related costs
35. The Committee also heard evidence from the CJAs and Perth and Kinross Council about current core funding for criminal justice social work and, specifically, whether current levels could effectively meet a potential increase in demand for services.

36. The CJAs expressed concern about the assumption in the Financial Memorandum that current funding for probation, social enquiry reports (SERs), community service orders and supervised attendance orders is adequate. They indicated that six of the eight authorities have this year asked for approval to move money from non-core funding to core funding, citing this as evidence that existing core funding is not sufficient for purpose and told the Committee, “we are concerned that, if we have a large increase in the number of CPOs, we may have to vire further moneys from non-core to core funding.”²³

37. Perth and Kinross Council also expressed concern that Government funding for local authority core criminal justice functions has not kept pace with inflation and criticised the funding formula as “sometimes based on activity levels that are four, five or six years out of date and do not reflect current or immediately projected activity levels.”²⁴ It also stated that costs of delivering services in rural areas can be considerably higher.

38. The Council also reflected on the specific needs and associated costs of providing an increased number of community disposals, most of which, as Government officials confirmed, “will be attributable to down-tariffing from short sentences.”²⁵ It highlighted “the complex needs of those in the churn of short-term adult imprisonment” most of whom “require well-constructed care and supervision arrangements”.²⁶ In supplementary evidence, the Council referred to the unit cost of probation orders and stated that—

39. In view of the complex needs of such offenders, the Council further suggested that, in some cases, the number of requirements attached to individual CPOs might need to be increased.²⁸ The Financial Memorandum states that, in Scotland, the average number of additional conditions imposed per probation order is estimated at 1.2 and that, because no significant increase by courts in the use of the available requirements is anticipated, proposes no increase in the core funding currently provided for this purpose.²⁹

40. Government officials confirmed the assumption in the Financial Memorandum that no additional requirements will be imposed per CPO.³⁰ On the wider point about current levels of funding for criminal justice social work, the Government stated in supplementary evidence that “whether the existing baseline is sufficient is, we believe, a separate issue and outwith the scope of the [Financial] Memorandum.”³¹ East Ayrshire and Perth and Kinross Councils suggested that any potential shortfall in funding for criminal justice social work could be met, to some extent, by transferring savings from the prisons service.³²

Impact on prison population and related costs
41. In relation to the specific proposals for CPOs and a presumption against short custodial sentences, the Scottish Prison Service considered that there could be some long-term benefits. It suggested that these could materialise in two ways—

42. The CJAs suggested that the Financial Memorandum provides an incomplete picture because it does not capture any potential savings from the intended reduction in short term prison sentences.³⁴ The SPS stated, however, that a 50 per cent reduction in the number of short term prison sentences “would probably result, in the longer term, in some 300 prisoner places no longer being required.”³⁵ However, a reduction of 500 prison places would be required before the prison service would be operating at design capacity, and SPS stated that a significant reduction on top of that would be required before it would be possible to close an establishment or a substantial part of one.³⁶ On this basis, the SPS suggested that, until an establishment opens or closes, the changes in costs will be marginal. The unit cost of imprisonment per prisoner per year is, therefore, simply indicative and not an illustration of savings that can be realised immediately.

43. East Ayrshire Council stated that there is uncertainty about the impact that the Bill will have on short term prison sentences to reduce the prison population. In written evidence, it stated that its “experience over the past few years is that there has been a considerable increase in the use of community sentences/ requests for reports, without making any significant impact on the levels of custodial sentencing.”³⁷

44. Government officials agreed with the evidence from SPS and confirmed that, while a reduction in short sentences would reduce churn and free up prison officer time, this would not save a huge number of prison places.³⁸ Officials suggested that, on average prisoners serving short sentences spend about three weeks in a prison cell and on this basis a 10 per cent reduction in the number of sentences of six months or less would only free up around 50 prison places.³⁹

Social Enquiry Reports (SERs)
45. In evidence, the CJAs suggested that the Financial Memorandum may underestimate the number of additional social enquiry reports (SERs) that might be requested by the courts as a result of the Bill. They suggested that—

46. Government officials confirmed that costings for additional social enquiry reports have not been built into the Financial Memorandum, and acknowledged that the Government will need to keep that under careful review.⁴¹

47. The SCS considered that the cost estimate for the establishment of the Scottish Sentencing Council shown in the Financial Memorandum is “in the right ball park”.⁴² It stated, however, that due, for example, to the costs involved with integrating the district courts into its operations, it could not be expected to meet the costs associated with running the Council without additional funding from the Government.

48. The SCS also agreed with the statement in the Financial Memorandum that it had not been confirmed whether or not it would actually provide the administrative functions for the Council. It suggested that it will be for the new statutory body which will replace the SCS, under the Judiciary and Courts (Scotland) Act 2008, to discuss this with the Scottish Government in due course.

49. The Financial Memorandum states that the Government “will provide funding to the SCS in recognition of its support function.”⁴³ Government officials confirmed that the costs in the Financial Memorandum are illustrative, “based on the assumption that the Scottish Sentencing Council will be grafted on to the new, reformed Scottish Court Service”, but “do not say that the SCS will definitely provide the functions concerned.”⁴⁴

50. Officials also referred to the costs associated with the post of the Council’s Chief Executive (the Financial Memorandum shows this as £97,055 per year). Officials confirmed that the cost as set out in the Financial Memorandum indicates the total cost to the Government rather than the total salary to the post-holder, but that, ultimately, it will be for the Council to decide at which level it pitches its chief executive post.⁴⁵ With regard to location, officials suggested that the bulk of the Council’s staff could be based in most places in Scotland and need not necessarily result in expensive accommodation and running costs. However, they suggested that Council meetings would most likely need to take place in Edinburgh or Glasgow.⁴⁶

51. In written evidence, East Ayrshire Council referred to the proposals regarding the remand and committal of children and young people (section 47 of the Bill). The Council stated that it “remains unclear about the financial implications surrounding the additional burden that might fall on local authorities through increased demands for alternative remand accommodation most likely in the form of secure accommodation.”⁴⁷ Perth and Kinross Council also stated that, although it makes minimal use of secure accommodation, where there is no available facility for a young offender to go to a secure unit the burden of finding an alternative way of supervising the person will fall on local authorities.⁴⁸

52. Government officials stated that, under section 47, there will be a transfer of responsibility from the Scottish Prison Service to local authorities and that, as identified in the Financial Memorandum, there will be a cost to local authorities. Officials confirmed that, as a result, the provisions “will increase the demand for local authority secure accommodation” and at the same time, would produce a saving to the Scottish Prison Service (although see paragraph 42 on the realisation of savings in the prison service).⁴⁹

53. Officials confirmed that it is the Government’s intention to seek to remove two alcohol licensing measures from the Bill at Stage 2: section 129 (sale of alcohol to persons under the age of 21 etc.); and section 140 (licensed premises: social responsibility levy).⁵⁰ As a result of the Government’s proposal to remove these provisions, the Committee has not considered the related financial assumptions in any detail.

54. From the evidence received, local authorities appeared to be largely content with the other licensing provisions in the Bill. In written evidence, North Lanarkshire Council suggested that the impact of the proposals in Part 8 of the Bill “is likely to be minimal in cost terms and would, in any event, be recovered through license application fees.”⁵¹

55. Additional costs were anticipated, however, in relation to the administration process for licensing of taxi and private hire cars⁵², and in relation to the associated consultation costs of making new licensing resolutions for premises selling food or drink, large-scale public entertainments and non-commercial market operators.⁵³ Also, Orkney Islands Council referred to the difficultly experienced by small, rural locations in absorbing the costs of the provisions, due to the existence of fewer traders resulting in smaller fee incomes.⁵⁴

56. Government officials stated that with the removal of sections 129 and 140, “the licensing provisions that remain in the Bill are of a much smaller order in terms of finances”.⁵⁵ Officials confirmed that the Government’s intention is for the remaining provisions to be self-financing out of fees and suggested that “quite a few will lead to a more efficient licensing system and potential savings for the licensing boards and police in operating it”.⁵⁶

57. The Committee acknowledges the detailed level of information contained in the Financial Memorandum to the Bill. On the basis of evidence received, however, the Committee wishes to draw the lead committee’s attention to a number of specific matters relating to the financial assumptions.

58. With regard to the Bill as a whole, the Committee notes that funding for full implementation has not been confirmed and suggests that the lead committee seeks further detail from the Cabinet Secretary on the proposed timetable for implementation and the source of funding for the measures.

Community Payback Orders and presumption against short prison sentences
59. The Committee recognises the difficulty in estimating the rate of change in sentencing behaviour from imposing short term custodial sentences to imposing Community Payback Orders (CPOs). The Committee has not, however, received any evidence to allow it to understand whether the estimated update of CPOs, of between 10 and 20 per cent, is accurate or whether this figure is likely to increase year-on-year, along with the cost implications. As far as the Committee understands, the legislation provides for a statutory presumption against short- term custodial sentences. The Committee draws the apparent disconnect between this and the assumptions in the Financial Memorandum to the attention of the lead committee.

60. Nonetheless, the Committee notes the potential financial impact on local authorities’ criminal justice social work services of dealing with the complex needs of offenders who would otherwise receive custodial sentences, particularly in the event that the volume of CPOs is above the estimates in the Financial Memorandum. The Committee, therefore, recognises the vital importance of monitoring the uptake of CPOs and the number of social enquiry reports requested by the courts and the associated financial impact on criminal justice social work services.

61. In relation to the potential impact of the proposals on the prison population, the Committee notes that the Financial Memorandum does not include any assumptions about potential savings resulting from these proposals. The Committee acknowledges that any savings will depend on the rate of change in sentencing behaviour, and accepts that a significant decrease in the prison population would have to take place before any sizeable cost savings would be likely to occur. If any savings were to occur, however, the Committee notes the concern of the Community Justice Authorities that Scottish Government should consider transferring additional funding to reflect the shifting demand.

62. The Committee recommends that the lead committee should consider these issues and, in particular, the methodology underpinning the assumptions about the expected take-up of CPOs, in greater depth in evidence with the Cabinet Secretary.

Scottish Sentencing Council
63. The lead committee may wish to seek further clarification from the Cabinet Secretary on the costs associated with the Scottish Sentencing Council, and the scope to minimise these as far as possible through, for example, the co-location of offices.

Remand and committal of children and young people
64. The Committee recognises that, as a result of the proposals regarding the remand and committal of children and young people, there will be an additional cost impact for local authorities, while there will be a saving for the Scottish Prison Service. The lead committee may wish to pursue with the Cabinet Secretary whether the SPS saving will be passed on to local authorities to ensure that sufficient resources are available for the provisions to be enacted successfully.

Licensing provisions
65. Subject to the Government’s commitment to remove sections 129 and 140 from the Bill, the Committee does not wish to raise any significant concerns with regard to the financial implications of the licensing provisions. The lead committee may, however, wish to pursue with a wider representation of local authorities the issues raised in evidence to the Finance Committee.

I would restrict views to Parts 8 and 9. Part 8 deals with amendments to Civic Government Licensing. The view is taken that there would be minimal costs to local authorities even in relation to the withdrawal of the exemption of community markets in respect of market operators licensing, the reference to money or money’s worth within the definition of places of public entertainment and the introduction of the definition of food to late hours catering.

Local authorities have well established Civic Government Licensing systems and in respect of optional activities such as market operators, places of public entertainment and late hours catering have made resolutions. The Financial Memorandum seems to assume that with the proposed changes implemented, local authorities would then go for fresh resolutions to cover the widening of the definitions and, if appropriate, to specify what particular types of event would be exempted, such as small galas and perhaps community or charitable markets.

I had anticipated that the Council’s previous resolutions would stand and thereafter the resolution could be varied under Section 9(9) of the 1982 Act.

If paragraph 978 is instead correct the local authority would require initial consultation, decision of intention to make a resolution and following newspaper notice and consideration of responses a decision to license together with newspaper notices. This would, if it were the case involve local authorities in substantial expense and use of resources. Consideration would have to be given as to the position of existing resolutions and the timeframe for new resolutions. The process would take at least 12-14 months. Even if this proves not to be the case the suggestion that fees for charitable and community markets or free music events and framework displays may be reduced or waived is not helpful as fee structures have been set, the consultation will be the same for these events and any weighing of fees will mean a substantial increase for commercial operators of markets and public entertainment.

The Social Responsibility Levy (Polluter Pays) will raise serious difficulties for local authorities including identifying relevant premises and substantiating this identification, recovery of the levy and action to be taken when the operator is unwilling or unable to pay.

Consultation
1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

East Ayrshire Council did not take part in the consultation exercise for the Bill.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

Costs
4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

As the Committee will no doubt be aware criminal justice services in this local authority are funded in terms of section27a funding via a funding distribution from the South West Community Justice Authority. We are aware that the Chief officers of the 8 CJA’s in Scotland are meeting to discuss their response to any financial implications that may arise from a Criminal Justice perspective as a consequence of this Bill. This Authority is therefore not currently in a position to make specific comments in this respect. Following the removal of section 129 of the Bill, the only provision likely to have a financial impact on this Authority in relation to the licensing is in respect of the proposed notification process in the fare review process. The memorandum correctly identifies that any such additional costs incurred will be taken into account in licence fees applied by individual local authorities but does not recognise that, as such, they will indirectly be met by the general public.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

From a criminal justice perspective the implications of the Bill (particularly in relation to the presumption against custodial sentences of less than 6 months) will potentially place significantly increased demands upon criminal justice services. Inevitably we would expect costs to rise considerably year upon year as the Act comes into force. Our experience over the past few years is that there has been a considerable increase in the use of community sentences/requests for reports without making any significant impact upon the levels of custodial sentencing. The financial memorandum by using 10% to 20% assumptions does accurately reflect the margins of uncertainty about costs and timescales but there must be a greater uncertainty as to what impact the Bill will have upon short sentences to reduce the daily prison population and how this may require, in effect resource transfer, to facilitate a commensurate rise in community sentences/alternatives to custody. This Authority remains unclear about the financial implications surrounding the additional burden that might fall on local authorities through increased demands for alterative remand accommodation most likely in the form of secure accommodation. During the period April 2008 to March 2009 forty six juveniles appeared from custody at Kilmarnock Sheriff Court – six of whom were remanded in custody and eight placed in secure accommodation. At present there does not appear to be any mechanism to allow a juvenile to be transferred from a remand placement to secure accommodation.

Wider Issues
7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

A more accurate response to this question might be forthcoming from the CJA’s. At present it is not possible for this Authority to estimate or quantify additional costs arising from either subordinate legislation or more developed guidance.

North Lanarkshire Council has not taken part in a prior consultation exercise for the Bill: questions 1 to 3 of the questionnaire are, accordingly, not applicable.

In respect of question 4 -6 in respect of cost there are only elements of, in particular, the licensing issues which will impact on local authorities such as North Lanarkshire Council. There are three main areas worthy of comment as follows:

(1) Section 124 relates to licensing of taxi and private hire cars and inter alia contains a proposal to extend the way in which local authorities carry out review of taxi fares. Local authorities are empowered by the Civic Government (Scotland) Act 1982 to set reasonable fees to meet the whole costs of administration of taxi licensing. Having conducted a substantial review of fees a number of years ago, recent practice has been to adopt an inflationary increase in fees for taxis ( and other activities licensable under the 1982 Act) on 1 April in each year, in line with the council’s overall approach to discretionary fees and charges generally. If the proposal to notify all taxi operators of taxi fares proposals passes into legislation, there will, following the methodology set out in paragraph 980 of the Explanatory Notes, be a cost impact on this authority of circa £1100 over a three year period. If the cost cannot be absorbed from existing income streams a very modest increase in fees would be required and this would be undertaken via the appropriate committee.

(2) Section 129 relates to a proposal to allow licensing boards a discretionary power to restrict the sale of alcohol to persons aged under 21 years from certain premises. Full consideration of this proposal by the Licensing Board can only take place after any legislation is passed. The Board will require at a minimum to consult with the licensed trade, the Chief Constable, the local Licensing Forum and other appropriate local groups and organisations who are not represented on the Forum as to any new policy which might be introduced and in what manner. Depending on any policy ultimately adopted there may be an impact on the administration of the application process or, more likely, variation of existing premises licence documentation. Any associated work will require to be absorbed within the existing licensing administration operation. There will also be an impact on the delivery of our Licensing Standards Officer service in relation to the provision of guidance to licence holders and regular inspection of premises, although again the extent will not be able to be assessed until decisions are made on policy by the Board. Paragraph 769 of the Explanatory Notes states “ there is likely to be a marginal additional cost on Licensing Boards …”. It is impossible to assess at this stage whether that statement is true or not. The Licensing ( Scotland) Act 2005 sets a mix of capped discretionary fees and mandatory fees for varying types of application. The North Lanarkshire Board has in the main adopted maximum fees where the capped maxima apply. Under present legislative powers there is very limited scope to address a trading deficit if the costs of administration of existing regulations (and any new amendments) outweigh fee income. There is of course scope to reduce maximum fees if income outweighs costs. (When decisions on fees were made by the Board in January 2008 it was noted and accepted that meaningful review of fees by the Board could not in any event take place until the close of financial year 2009/10 at the earliest, the 2005 Act only coming into full operation on 1 September 2009).

(3) The impact of other proposals in relation to Civic Government Act activities – metal dealers, market operators, late night catering and public entertainment - is likely to be minimal in cost terms and would in any event be recovered through licence application fees.

In respect of the wider issues covered by questions 7 and 8 our position would have to be reserved until the 2005 Act is fully operational.

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

No account appears to have been taken of the additional costs associated with operating in island, rural or remote environments. The same base costs would be incurred and in such localities the turnover is not there to cover the base costs that must be incurred to provide the service. This should be recognised and the appropriate funding provision addressed.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

The financial costs on the licensing side which is already affected cannot be met without further funding being made available.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

Yes – as with all new legislation future costs regularly arise and this should be recognised. One example on the criminal justice side is that there appears to be no indication of additional funding mentioned to address the training requirements of those involved in CJSW and related bodies

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

I did not take part in the consultation exercise for the Bill and was not part of the discussion process which arrived at the financial assumptions set out in the Memorandum.
2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

Accordingly, it would not have been realistic for my views to have been taken into account prior to this point.
3. Did you have sufficient time to contribute to the consultation exercise?

As I was not part of the consultation process, the question concerning adequacy of time to contribute to it did not arise.

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

The Bill has major financial consequences for my organisation, Perth and Kinross Council. Section 14 ‘Community Payback Orders’ and Section 17 ‘Protection against Short Periods of Imprisonment or Detention’ are the factors with greatest implications for us. In practice, the resource implications arise from two factors:

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

The national weekly average number of Community Service hours carried out per offender is of the order of 3.5 - 4 hours. Locally, we have managed to get this figure above 4 hours, but only after considerable effort, a variety of initiatives and the temporary provision of additional resources. In order to meet the Government’s requirement of a 100 hour Unpaid Work Order being completed within three months (let alone their expectation that some Orders in excess of 200 hours should be completed within six months), however, we would need to double our achievements of recent months.

Perth and Kinross covers 2,000 square miles and has a higher than average male employment rate. Consequently, not only do we suffer through the current funding formula for core Criminal Justice Social Work Services, but we also need to provide work at weekends – and pay people to supervise offenders at such times. We provide a wide variety of tasks, including both team and individual placements, but a doubling of the average hours per offender will be a major undertaking.

The Bill’s expectation that we also absorb a very significant proportion of those persons currently sentenced to short terms of imprisonment imposes, if anything, even greater expectations on the Service. On the basis of figures provided from colleagues in the Scottish Prison Service, 170 persons from the Perth and Kinross area were imprisoned during the last year for which we have hard data. Even if only 150 of these were to end up on Community Payback Orders, this would equal the total number of persons currently sentenced to Probation here or exceed the numbers currently on Community Service Orders. In short, it amounts to a very significant increase in the numbers of persons subject to Community Supervision. Bearing in mind, that all of these persons would otherwise have received sentences of imprisonment, it seems reasonable to assume that their crimes would merit the equivalent of Probation or Community Service – both of which will now be subsumed within the new Community Payback Orders.

On the basis of the funding provided to increase Community Service hours last year, it would appear that the pro-rata allocation for Perth and Kinross from the proposed figure of £10million nationally might be of the order of £190,000. In order to oversee the additional offenders on Community Payback Orders, I would anticipate that between 2 and 3 Community Service Supervisors, 1.5 Community Service Officers and between 1 and 1.5 Social Workers will be required. These staff will need to be managed, clerically supported, accommodated and have their transport, training and supplies and services needs met. On this basis, I would anticipate that the cost to this Council of providing a robust, reliable service which meets the requirements of the Act would be closer to £250-280,000.

On the basis of the proposed additional allocation of resources, I am not content that this organisation could meet the costs associated with the Bill. Already, with a standstill Criminal Justice Social Work budget over the last four years, I am unable to keep up with existing infrastructure costs. As to how these additional costs should be met, perhaps a resource transfer from the Prisons division should be effected – reflecting the reducing number of persons entering the Prison system.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

I would not consider that the Financial Memorandum accurately reflects the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to rise – in relation to the expectations of local authorities. As and when the twin effects of introducing Community Payback Orders and restricting the use of short term custody come into effect, the impact upon Criminal Justice Social Work Services will be very significant and almost immediate.

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

Unless I am mistaken, the Bill does not make specific reference to the costs involved in providing part Custody/part Community Orders in further fulfilment of the recommendations of Scotland’s Choice. This may require substantial resource transfer from the Prisons Division and may need to await the closure of an entire facility to free up such resources.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

I am not in a position to comment upon the possible future costs arising from subordinate legislation or more developed guidance. I am clear, however, that the costs associated with introducing community alternatives to custody for such a large number of current prisoners are not adequately reflected within the Financial Memorandum thus far – particularly for rural areas with a dispersed population and limited offender availability for work.

John Gilruth
Lead Officer, Criminal Justice and Substance Misuse Services
Perth and Kinross Council

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

Community Justice Authorities were consulted regarding the Bill as outlined in the Policy Memorandum, however, we were not consulted on the financial assumptions as these were only made available to us on 13 March 2009.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

There has been insufficient time to consider the financial implications of this Bill and to consult CJA Boards and other partners.

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

CJAs have responsibility for the distribution of financial resources to Local Authority Criminal Justice Social Work Services across competing demands.

We welcome the commitment that costs will be fully reimbursed for the new arrangements (paragraphs 698 and 784).

However, we have some concerns around the financial assumptions in that they may not reflect a potential increase in SERs requested from Justice of the Peace Courts or from Sheriffs imposing short term sentences who will have to explain how a community disposal could not be made.

There is an assumption that the unit costs for probation, community service and supervised attendance orders which were used as the basis of costing for the new order were sufficient in the first place. The basis of the costings may also not reflect the qualitative change required in how community sentences are delivered alongside the anticipated increase in volume.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

CJAs do not directly commission or deliver services. CJAs are required to make sure allocations are aligned against Government and local priorities and strive to ensure funds are available.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

CJAs recognise that estimates have been provided between 0% - 20% growth. There is no evidence to suggest whether this will meet margins of uncertainty

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

No, the Bill is part of wider policy initiatives; Protecting Scotland’s Communities: Fair, Fast and Flexible Justice, Safer and Stronger Scotland, Reducing Reoffending, and Summary Justice Reforms and does not capture any savings from the intended reduction in short term prison sentences. It, therefore, provides an incomplete picture of the financial implications.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

There are many potential costs associated with the wider policy agendas, such as diversion schemes, addressing offending behaviour in the community and early years initiatives.

These increased demands will be met by Local Authorities, whilst any reduction in the use of imprisonment will not, at present, yield additional resources for redeployment.

The proposed requirement for sentencers to state why short term prison sentences are being imposed may lead to an increase in the demand for SERs.

Anne Pinkman
Chief Officer FFV CJA
On behalf of the Community Justice Authorities

Referring to the questions contained in the invitation letter I can confirm that the Crown Office and Procurator Fiscal Service was involved in the consultation exercise on the Bill and had sufficient time to contribute thereto. We did make comment on the financial assumptions made. These comments are accurately reflected in the Financial Memorandum.

The Bill does have financial implications for COPFS and these have been accurately reflected in the Financial Memorandum, together with the margins of uncertainty associated with the estimates. I am confident that the Service can meet these costs.

It would not be appropriate for the COPFS to address questions arising from the policy considerations behind the Bill. These are more appropriately addressed by the Scottish Government. Similarly it is a matter for the Scottish Government to address issues of additional costs in the future, associated with subordinate legislation or more developed guidance.

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

The Scottish Court Service (SCS) is an Executive Agency of the Scottish Government. As such we were involved in the development of many of the proposals now contained in the Bill, and it was unnecessary for us to participate in the formal consultation exercise.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

The Financial Memorandum is, in general, a fair reflection of possible costs to the SCS, although the estimates are subject to variation depending on how many cases are affected by the Bill’s provisions, and are inevitably based on assumptions about court time required, which is hard to estimate with complete accuracy at this stage.

There are some further areas where we could expect modest set-up costs. In particular the special measures for child and vulnerable witnesses at clause 64 of the Bill will require installation of vulnerable witness facilities in 3 further High Court court rooms, at an estimated cost of £0.06m, and the witness anonymity proposals at clause 66 of the Bill would incur a set-up cost for the SCS, for the installation of voice modulation equipment, which we provisionally estimate at

£0.007k, together with annual running costs of £0.042m, based on the assumption that there will be 200 such cases p.a.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

To the extent that the Bill reflects new costs on the SCS, we would expect these additional costs to be funded by Scottish Government.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

Marilyn Riddell
Policy and Legislation Branch
Policy and Strategy Directorate
Scottish Court Service

Question 1. Did you take part in the consultation exercise for the Bill, if applicable and if so did you comment on the financial assumptions made?

Answer:
The Scottish Legal Aid Board (the Board) did not take part in the consultation on the Bill but we were asked to provide input to the Financial Memorandum in respect of two of the three areas relevant to the Board in relation to which assumptions have been made. This was in respect of Mandatory Defence Statements, on page 118 of the Financial Memorandum and Crown Appeals at page 140

There is one further relevant area detailed in the Financial Memorandum upon which we were not asked to comment, namely: amendments to the Custodial Sentences and Weapons Act 2007, at page 124.

Question 2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

Answer:
In relation to Mandatory Defence Statements, our comments have been accurately reflected.

Question 3. Did you have sufficient time to contribute to the consultation exercise?

Answer:
Whilst the Board did not take part in the consultation on the Bill, we did have sufficient time to contribute to those aspects of the Financial Memorandum on which we were asked to comment.

Question 4. If the Bill has any financial implications for your organization, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

Answer:
The financial implications in relation to Mandatory Defence Statements and Crown Appeals are accurately reflected in the Memorandum.

With regard to the financial implications for the remaining area relevant to the Board in the Financial Memorandum, we would observe as follows.

Although we did not provide comment on the amendments to the Custodial Sentences and Weapons Act 2007 in the current Financial Memorandum (at page 124), we did provide input to the Financial Memorandum to the Custodial Sentences and Weapons Act 2007 when it was at Bill stage. In relation to the amendments to the Custodial Sentences and Weapons Act 2007, we cannot offer comment, as the rationale for the financial assumptions contained in the Financial Memorandum have not been set out.

Having considered Crown Appeals, we would agree with the financial implications on page 140.

Question 5. Are you content that your organization can meet the financial costs associated with the Bill. If not, how do you think these costs should be met?

Answer
The Scottish Legal Aid Fund is not cash limited but initiatives, such as those contained in the Bill, may impact on Fund expenditure depending on the number and average case costs. Whilst we do not know the numbers involved, we would like to take this opportunity to highlight the following issues in relation to the Bill’s new provisions as far as they may potentially affect the cost of legal aid and thus Fund expenditure.

In terms of the Advice and Assistance (ABWOR) (Scotland) Regulations 2003 (2003 Regulations) we cannot provide legal assistance for these orders because there is no provision in them to enable us to do so. These regulations will require to be amended accordingly and the Board have notified the Scottish Government of the need for this change.

Assuming the 2003 Regulations are amended, this new order will sit alongside existing orders detailed in regulation 4 of the 2003 Regulations, such as Breach of Probation and Breach of Community Service. As far as costs are concerned it would therefore be reasonable to assume that likely costs to the Legal Aid Fund can be calculated by reference to the current average cost of the existing cases contained in regulation 4 as referred to above.

This average cost, in the period 2007-2008, was £323 per case in the Sheriff Court. What is unknown is the likely number of breaches. This is because we do not know how many orders are likely to be made, nor the numbers of breaches. The financial implications therefore cannot be commented upon because the cost will be £323 times the number of breaches of the order. In addition, the Bill provides for review of such orders. In terms of the existing legislation there is currently provision for ABWOR in relation to review of probation orders and we therefore assume it is the intention to provide similar legal assistance for review of Community Payback Orders in addition to breach. It is noted that the policy intention is to replace the existing range of orders such as Probation and Community Service with the Community Payback Order and therefore the cost is expected to be neutral if this is the case.

The Bill, however, also provides that Community Payback Orders can be made in the JP as well as the Sheriff Courts. This means that breaches of such orders made in the JP Court will be an additional cost to the Fund because this is a new type of disposal that the JP Court can make.

Ordinary advice and assistance would however still be available (as it is for any matter of Scots law), but this would not allow a solicitor to take steps in proceedings including representation of the client in court. Where advice and assistance is made available for cases in the JP court there will be a corresponding additional cost to the Fund

Unlike the new Community Payback Orders, there is currently provision at 4(2)(g) in the 2003 Regulations relation to this type of proceedings insofar as they relate to the revocation and variation of these orders. The proposed amendment makes it less onerous for prosecutors to apply for such an order. Given the threshold has been lowered, it follows that more orders can be made and potentially, more revoked or varied.
There would therefore be an associated cost to the Fund based on (as noted for Community Payback Orders) the average cost of a case governed by regulation 4 of the 2003 Regulations (£323), times the number of revocations and variations. However, according to our figures for the past five months ABWOR has been granted twice in respect of these orders, which would seem to indicate that revocations and variations are relatively few.

It is worth indicating in relation to cases falling under these two clauses that, while they are not expected to be numerous, they may be potentially more costly in terms of added complexity of the case.

This section does not create a new offence as such. Rather it amends section 22 of the Criminal Procedure (Scotland) Act 1995 to bring the consequences for offending while on an undertaking in line with the situation for breach of bail. It is seen as “cost neutral” to the Fund.

This new section allows prosecutors to amend the principal complaint to allow additional charges of breach of bail which come up during the currency of proceedings.

In cases where summary criminal legal aid has been made available for the substantive offence the Board does not make any additional payments for any subsequent breach of bail in terms of section 27(1)(a) of the 1995 Act as this work is deemed to be subsumed into the original grant of criminal legal aid. However, for breaches of bail in terms of section 27(1)(b) of the 1995 Act, the Board will pay a half fee to solicitors.

Accordingly, this new section will potentially result in a saving against the Fund for those cases were a half fee was previously paid. The total saving will depend upon the number of ‘half fees’ we currently pay which no longer are raised as a separate complaint; for a breach of bail in terms of section 27(1)(b) of the 1995 Act we pay, as summary criminal legal aid, £257.50 in the Sheriff Court and £157.50 in the JP Court. The ABWOR fee is £257.50 and £75 respectively.

In the absence of anticipated numbers of such applications being made by the prosecutor, it is difficult for the Board to provide a reasonable estimate as to cost. For solemn procedure it would appear that there will be no associated cost to the Fund as the envisaged procedure excludes defence participation.

There is limited involvement for the defence (and accordingly associated costs against the Fund) under summary procedure, but again we do not have any indication as to the number of occasions that this is likely to happen. Summary cases are paid on a fixed fee basis and therefore the only additional cost to the Fund would arise should these hearings result in the Board being asked to treat the case as an ‘exceptional case’. If the Board considers the case merits ‘exceptional case’ status, the case is then paid for on a “time and line basis”. The current average for a case granted exceptional case status is approximately £1400; this compares to the average payment in a summary fixed fee case of £588.

With regard clause 107 (Special Counsel), we do not know how often this procedure would be used. Given the wording of this clause and the import of the Policy document accompanying the Bill, this appears to be a cost for the Scottish Court Service given that the appointment of Special Counsel is by the Court. The position would require clarification.

In the event that the Board had to meet the cost of Special Counsel, as a reasonable comparator the applicable rate could be that currently paid to counsel in Commission and Diligence proceedings. Counsel in these types of proceedings are paid with regard to the fees paid to counsel for days of trial. These rates, which vary depending on the status of counsel and category of offence, can be found at Schedule 2 of the Criminal Legal Aid (Fee Regulations)(Scotland) Regulations 2007). These fees are summarized below:

Question 6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

Answer
In the absence of more detailed information as regards the potential volume of applications and the assumptions on which the amendments to the 2007 Act were based, we are unable to comment further.

WIDER ISSUES
Question 7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

Answer:
In the absence of information about any wider policy initiative, we are unable to comment.

Question 8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so is it possible to quantify these costs?

Answer:
For the reasons detailed above we are not currently in a position to provide an answer to this question.

Overall, with the possible exception of the amendments to the CSAW Act 2007, we consider there to be no significant financial impact of the Bill’s provisions on the SPS, either in terms of additional costs or resources released.

A number of the specific measures in the Bill identify illustrative costs or savings to the SPS. These have been derived by applying the average long term full economic cost of a prisoner place to the Scottish Government’s assumptions about the number and length of convictions resulting from the various measures.

Whilst these are valid as illustrative costings, the actual financial impact on the SPS is much harder to gauge. The SPS is funded for its design capacity, which will rise to just under 7,600 in the course of 2009/10. Despite the provision of the new 700 place prison at HMP Addiewell, a new houseblock at Edinburgh, and a further houseblock scheduled to open at Polmont in the autumn of 2009, the SPS is already operating at substantially above its design capacity (prisoner numbers were 8,066 as of the 8th of April), without consequent additional funding.

Indeed, despite the investment in the new prison, the SPS continues to operate at levels beyond the assessed operational limits at some establishments with consequent erosion of service delivery as existing resources become overstretched. HMCIP has pointed out the ‘evils’ of overcrowding and he is right.
The Financial Memorandum records that the CSAW Act 2007, as amended, will have additional financial consequences for the SPS, albeit these are less than the 2007 Act as enacted. The Memorandum also acknowledges that implementation will not be possible until the prison population has been reduced to a point where there are resources available to support the changes. In this context, the SPS welcomes the potential longer term benefits of the package of community based measures, including the presumption against short sentences, and the proposals for tough alternatives to custody. These have the potential to reduce churn and allow resources to be focussed on achieving a workable sentence management regime for those offenders who are sent to prison.

SPS is committed to working with the Scottish Government to deliver and realise the benefits of the Offender Management Strategy. We are already actively contributing to the new programme of work in addition to strengthening our approach to offender management, continuing to work at improving joint working with CJAs, local authorities, statutory and other partners.

The SPS believes that excessive use of prison and overcrowded prisons reduce public protection rather than contributing to public safety. Prison can do good for some offenders, in particular those that present a serious risk of public harm. But prison itself can do harm; and the biggest harm is to people serving short sentences.

Imprisonment impacts on the life not only of an offender but of their family, the very act of imprisonment can reduce the positive factors which would contribute to reduce re-offending in the future. An offender is removed from employment, suffers disruption to the relationships and controls offered by family and community, and can lose access to their home. It is difficult to promote inclusion from an excluding process and use of short term imprisonment is likely to take the most deprived and make them even harder to reach in the future. Indeed the pressure of numbers created by short term churn makes effective rehabilitative work with longer term prisoners more difficult because time is spent managing the population, diluting the focus of resources on rehabilitation.

It is only right to take every opportunity to find effective disposals which stop or reduce offending and re-offending at the earliest stage, diverting minor of first offenders from the “conveyor belt” of the criminal justice system and tackling offending behaviour without the added negative impact that prison produces. Research suggests that early intervention and a care based model is more effective with young people than a justice based approach, that desistance is best supported in the community and that effective community based disposals have positive impact on public protection.

We are all committed to making Scotland a safer place this can be better achieved by breaking the cycle of re-offending at the earliest possible stage. Diverting some of these offenders into meaningful community alternatives and leaving Prisons to those whom we know can benefit from the range of interventions we have to offer, would be a very positive step in making Scotland safer and stronger.

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

In terms of the estimated costs, the figures supplied remain in line with SPSA’s assessment of the impact of Disclosure on the organisation.

In terms of timescales, it is envisaged that some level of training will be required during this financial year to ensure SPSA is ready to respond to the requirements set out in the Bill during 2010, and to fall in line with Police / COPFS timescales for implementation. This timescale is not reflected in the Memorandum.

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

It is not clear what implications a wider policy initiative would have for SPSA Forensic Services, as such SPSA Forensic Services cannot comment at this time.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

There may be additional future costs, in particular if such legislation affects the speed of response or the volumes of responses required, but it is not possible to quantify these additional costs at this time.

I have considered the minutes of the Finance Committee and note Colleagues covered the financial aspects of the Bill from a Criminal Justice perspective.

There are common costs that are borne by all Councils in making provision to meet their statutory obligations be that under licensing and or from the criminal justice side. The costs are alluded to by my colleague in his response at Q8 below. On the licensing side the establishment costs are to be met and both the Civic Government and Liquor Licensing are meant to be self funding however, the base line costs, which are more capable of being absorbed in the larger areas have an effect on the ability of smaller, rural locations to achieve that. There are minimum baseline costs that are required to support the statutory functions. For the licensing side this is reflected in fee income and the absence of the number of traders to support that. The removal of the sections referred to by the Scottish Government is noted. The reference was to alert the Committee to the fact that regardless of where you are based there are minimum costs to be met to deliver a service this applies generally to the Bill as a whole. The Bills provisions are far reaching and colleagues who appeared before Committee addressed these costs on the Criminal Justice side. The proposals regarding the Civic Government reform and liquor licensing are noted and may lead to streamlining.

You are correct in saying that I restated our position somewhat in relation to the adequacy of proposed funding for Community Payback Orders / Reduction in numbers entering Prison for periods of less than 6 months. I amplified my written observations by observing that , although the prospective sum seemed realistic in relation to the number of additional staff who may be required on the ground to deliver these enhanced services, I did not think that sufficient allowance had been made for management, accommodation, clerical support and transport costs . These costs are equally important, have not always been accounted for in the past and impact directly on our ability to deliver fast and effective services.

I was also invited by Mr Welsh to confirm the Unit costs allowed per Probation Order as I did not have these to hand when asked during yesterday’s meeting. These I have calculated by comparing the sum provided to Tayside CJA for the provision of Social Work services with the actual number of probation Orders/Community Service orders etc for the last available year, as follows:

It is the allowance per Probation Order which gives me greatest cause for concern. These are used to supervise some of our most concerning offenders and can be up to 3 years in length. The Unit cost allowed for delivery of such services is unrealistic now and will become more so as we endeavour to supervise people in the churn of short term prison sentences who require ever higher levels of support and supervision if they are to escape the cycle of reoffending.

During our evidence to the Finance Committee on the Financial Memorandum for the Criminal Justice and Licensing (Scotland) Bill, we agreed to provide further information in respect of the Community Payback Order and presumption against short periods of imprisonment (sections 14 and 17 of the Bill).

Clarification has been sought on the breakdown of prisoners currently serving short term prison sentences. Direct sentenced receptions to Scottish penal establishments in 2007-08 for offenders sentenced to under 6 months⁵⁸ amounted to 8,191, comprising 6,964 adult prisoners and 1,227 young offenders. These figures, which exclude 3,610 receptions for fine default and 412 receptions for recall, are from the Prisons Statistics Scotland 2007-08 bulletin published in August 2008.

The numbers of receptions differ from the figures for custodial sentences which appear in the Criminal Proceedings in Scottish Courts statistical bulletin, the most recent edition of which was published on 28 April. The latter records sentences of courts whilst those in the prisons statistical bulletin count receptions to penal establishments. Direct sentenced receptions to penal establishments (i.e. excluding fine defaulters) are counted differently from custodial disposals in the court proceedings statistics for two main reasons. Firstly, a number of offenders will have been held on remand prior to sentencing and, as a result, served the required number of days before being sentenced. These individuals would be included within the court statistics, but excluded from the sentenced prison receptions. Secondly, if a person is given custodial sentences for separate sets of charges from the same court on the same day, this is reported as multiple custodial sentences in the court statistics, but only one direct sentenced reception.

Of the 8,191 receptions for sentences of less than 6 months a certain number of individuals were received into custody on more than one occasion. In total, 6,076 individuals accounted for the 8,191 receptions in 2007-08. In essence the presumption set out in section 17 of the Bill against custodial terms of 6 months and under has the potential to impact on the 6,076 individuals received into custody in the latest year for which data is available plus the 3,610 receptions for fine default (this represents 3,246 individuals). The Committee will wish to be aware that the 3,610 receptions for fine default represented a 39% reduction from the previous year’s figure of 5,963 and a further reduction is anticipated in the current year. This follows implementation in September 2007 of provisions whereby courts, which would otherwise have imposed a short custodial sentence for those defaulting on fines not exceeding £500 are required instead to impose a Supervised Attendance Order. The latter provision operated only for part year in 2007-08 and the full 12 months effect has still to be realised.

A snapshot of the crime breakdown of those received into custody for sentences of under 6 months is attached at Annex A. On 26 March 2008, this stood at 536, which represents 7% of the total prison population at that point.

One aspect of our proposals is that for the first time courts will have access to imposing an unpaid work and other activity requirement for relatively short periods starting at 20 hours. Existing Community Service Orders have a minimum period of 80 hours and whilst Supervised Attendance Orders are for periods of between 10 and 100 hours with the exceptions of two relatively small scale pilot exercises they are restricted to use with offenders who have defaulted on their fines i.e. they are not used as a sentence of first instance.

We believe that the shorter time periods could prove an attractive sentencing options for courts particularly justice of the peace courts where a level 1 unpaid work and other activity requirement could be used with an offender who lacks the financial means to pay a fine. Whilst there might be significant numbers of such orders these are likely to be offset by the number of offenders who might otherwise have been fined, subsequently defaulted on the fine and had a level 1 order imposed as a result. The net increase may not therefore be too dramatic.

As we underlined in oral evidence, it is difficult to predict with any certainty changes in sentencer behaviour, which is why we have used a range of assumptions about possible outcomes. Sentencers will rightly retain discretion to sentence as they think appropriate having regard to the specific circumstances of the case. As indicated by the Minister for Community Safety during the Parliamentary debate on offender management on 8 January this year, there is no intention to remove sentencers powers in relation to those sentenced who might otherwise have received custodial terms of 6 months or less:

“The member said that he is against removing all discretion from sheriffs, but that is not what is proposed. We are not removing discretion but creating a presumption.”

Our 10% and 20% assumptions of increased numbers of Community Payback Orders in absolute numbers set out in paragraphs 695 and 697 of the Financial Memorandum represent additional capacity of 1,939 and 3,878 orders beyond the total number of existing orders imposed by courts in 2007-08 and as set out at paragraph 679 of the memorandum. This additional capacity requires to be considered in the context of the 6,076 and 3,610 receptions indicated above. Past experience suggests that sentencers are cautious in making changes to their sentencing behaviour and we therefore believe that the assumptions represent a reasonable range of increases in the context of the numbers of prison receptions for individuals for this length of sentence.

The approach we have adopted in terms of the Financial Memorandum is to attempt to identify the additional costs which are likely to be incurred as a result of the provisions in the Bill. Whether the existing baseline is sufficient to is, we believe, a separate issue and outwith the scope of the memorandum although the Committee will wish to be aware that an additional £2 million has been made available for 2009-10 to Community Justice Authorities to achieve improvements in immediacy and speed of completion of community service orders and increased workloads.

The Committee also asked whether Community Justice Authorities (CJAs) were consulted on the contents of the Financial Memorandum and had sufficient time to respond. Whilst the CJAs were not consulted on the detailed figures in the memorandum they were alerted in advance to the timing of the Bill’s introduction and to the likelihood that they would be invited to give evidence to both the Finance and Justice Committees on the provisions within the Bill. Scottish Government officials offered to provide the Chief Officers of the CJAs with a detailed briefing of the figures and assumptions used in the Financial Memorandum but this offer was declined on the basis that it was not felt to be necessary.

Prison population serving less than 6 months by main crime/offence:
snapshot at 26 March 2008

Source: Scottish Government Justice Analytical Services
Notes:
If a prisoner is convicted of more than one crime/offence, the main crime/offence is defined as the one attracting the longest sentence, and assumed to be the most serious.

During the evidence session, Alastair Merrill undertook to provide additional information to the Committee on a number of issues. He also referred to information that the SPS had submitted to the Justice Committee in Autumn 2008. I have therefore attached a copy of Mike Ewart’s response to the Justice Committee scrutiny of the SPS draft budget for 2009-10⁵⁹, together with an extract of his evidence to the Justice Committee in September 2008⁶⁰. This information provides full details of the Assessed Operation Limit of the SPS and how the reduction of short-term prison sentences is only likely to have an effect on the churn of the prison population, as opposed to having a significant reduction in cost or prisoner places in the short-term. It should be noted that the current AOL is 8920. I can also confirm that the annual average cost per prisoner place, including capital charges, for 2007-08 was £41,470 (and £32, 358 excluding capital charges).

In relation to the further analytical information on the effect on the Prison Service of the reduction in short-term custodial sentences and confirmation of the number of prisoners in custody who are serving a sentence of 6 months or less, Scottish Government colleagues have agreed to provide this information.

GREIG KNOX
Legal Policy Team Manager
Scottish Prison Service

As you are aware, there has been discussion recently about the level of Parliamentary scrutiny proposed for the Government's alcohol reforms. This discussion has focussed, in particular, on the Government's proposals for minimum pricing of alcohol.

Scotland's alcohol misuse problem is estimated to cost our country at least £2.25 billion per year in extra services and lost productivity and professionals are agreed that the threat posed to our national health from current levels of consumption is very great. Alcohol-related hospital admissions and deaths have increased markedly in recent years and this Government has already set out our framework for addressing the root causes behind these statistics.

Having taken account of the representations made the Government now proposes to introduce a new health bill that deals with a range of alcohol measures, including minimum price per unit of alcohol, alcohol promotions, limiting the use of marketing material, wine glass sizes. The new bill will also include the proposals on the sale of alcohol to persons under 21 and the social responsibility levy which are currently in the Criminal Justice and Licensing Bill.
A new bill to take forward these provisions collectively will give this issue the prominence required and the Government welcomes the fact that the proposals in the Bill will be subject to full Parliamentary scrutiny.

¹ Information on the Committee’s three-level system of scrutiny for Financial Memoranda is available at: http://www.scottish.parliament.uk/s3/committees/finance/financialMemo.htm

² Scottish Parliament Finance Committee, Official Report, 21 April 2009 available at:
http://www.scottish.parliament.uk/s3/committees/finance/or-09/fi09-0902.htm#Col1049

³ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1074. See also correspondence received from the Cabinet Secretary for Justice, dated 26 March 2009 (Annexe X).

⁴ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1074. See also correspondence received from the Cabinet Secretary for Justice, dated 26 March 2009 (Annexe X).

⁵ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1091.

⁶ Scottish Parliament Finance Committee, Official Report, 21 April 2009, cols. 1091-2.

⁷ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1077.

⁸ Criminal Justice and Licensing (Scotland) Bill, Financial Memorandum, paragraph 679; and supplementary written evidence from the Scottish Government.

⁹ Written evidence from East Ayrshire Council.

¹⁰ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1052.

¹¹ Written evidence from Perth and Kinross Council. See also Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1053.

¹² See also Scottish Parliament Finance Committee, Official Report, 21 April 2009, cols. 1050 and 1059.

¹³ Supplementary written evidence from Perth and Kinross Council.

¹⁴ There are eight CJAs: Fife & Forth Valley CJA; North Strathclyde CJA; Northern CJA; South West Scotland CJA; Glasgow CJA; Lothian & Borders CJA; Tayside CJA; and Lanarkshire CJA.

¹⁵ Written evidence from Community Justice Authorities.

¹⁶ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1060.

¹⁷ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1058.

¹⁸ Supplementary written evidence from the Scottish Government. See also, regarding JP Courts, Scottish Parliament Finance Committee, Official Report, 21 April 2009, cols. 1082 and 1093.

¹⁹ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1078.

²⁰ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1060.

²¹ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1076.

²² Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1085.

²³ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1051.

²⁴ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1050.

²⁵ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1075.

²⁶ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1050.

²⁷ Supplementary written evidence from Perth and Kinross Council.

²⁸ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1059.

²⁹ Financial Memorandum, paragraph 689.

³⁰ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1081.

³¹ Supplementary written evidence from the Scottish Government.

³² Written evidence from East Ayrshire and Perth and Kinross Councils.

³³ Scottish Parliament Finance Committee, Official Report, 21 April 2009, cols. 1065-6.

³⁴ Written evidence from Community Justice Authorities.

³⁵ Scottish Parliament Finance Committee, Official Report, 21 April 2009, cols. 1066-7.

³⁶ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1071.

³⁷ Written evidence from East Ayrshire Council.

³⁸ Scottish Parliament Finance Committee, Official Report, 21 April 2009, cols. 1076-7.

³⁹ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1077.

⁴⁰ Scottish Parliament Finance Committee, Official Report, 21 April 2009, cols. 1051-2.

⁴¹ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1076.

⁴² Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1067.

⁴³ Financial Memorandum, paragraph 664.

⁴⁴ Scottish Parliament Finance Committee, Official Report, 21 April 2009, cols. 1078-9.

⁴⁵ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1086.

⁴⁶ Scottish Parliament Finance Committee, Official Report, 21 April 2009, cols. 1086-7.

⁴⁷ Written evidence from East Ayrshire Council.

⁴⁸ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1061.

⁴⁹ Scottish Parliament Finance Committee, Official Report, 21 April 2009, cols. 1089-90.

⁵⁰ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1074.

⁵¹ Written evidence from North Lanarkshire Council.

⁵² Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1056.

⁵³ Written evidence from Dumfries and Galloway Council.

⁵⁴ Supplementary written evidence from Orkney Islands Council.

⁵⁵ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1083.

⁵⁶ Scottish Parliament Finance Committee, Official Report, 21 April 2009, col. 1084.