To jail or not to jail?

"Thugs and burglars could go free under prison chief's plan". Even the Scotsman could not resist a populist headline following this week's Justice Committee evidence hearing, when the chief executive of the Scottish Prison Service and the chief inspector of prisons both spoke in favour of finding an alternative to custodial sentences of under 12 months.

No matter that the chief executive, John Ewing, said that community sentences "could deal more effectively with a number of the offenders whom we currently lock up"; and emphasised he was not arguing that we should do nothing with individuals whose chaotic lifestyles caused them to offend in the community  - "far from it. What we are suggesting is that there are better alternatives for dealing with some of these individuals".

No matter either that Brigadier Hugh Munro, the chief inspector, disclosing that 70% of Barlinnie inmates are "not getting access to purposeful activity", stated that better ways of dealing with offenders had to be found "before the issue gets out of hand". It makes better newspaper copy to state baldly that not getting the jail equals "going free". So naturally the public think the criminals are getting off with it, and the "soft touch justice" bogeyman grows like a fisherman's tale.

That is not to say that all is well in the world of community disposals. Questions were justifiably being asked over whether sufficient resources were being found to make effective the new presumption against prison sentences of three months and under. That said, apart from the initial case involving an individual who was of doubtful suitability for any form of community disposal in any event, there has been (so far as I have seen) an absence of reports of those spared custody under the new regime who would not have been before, and who have promptly gone on to reoffend. I await with interest the first analysis of how the new rules are impacting on reconviction rates.

It is obvious that the more offenders we try and divert away from custody, the more organised, and the more imaginative, we have to be in ensuring that each is given an effective disposal that will bring home to them the reality of the effects of their criminal behaviour, and that will do something to dissuade them from repeating it. But compared with the alternative of - inevitably - having to build whole new prisons just to accommodate the projected increase in prisoner numbers if policy continues unchanged (to a daily average of 9,500 later this decade), together with the annual costs of detaining each prisoner, now put at over £36,000, and it should be clear that we cannot afford not to try out different approaches.

Yet Tory spokesman John Lamont was reported as saying that Mr Ewing's proposal was "absurd and should not be considered any further... this ludicrous idea must be stopped in its tracks".

It is interesting that the issue has come up only a couple of weeks after Terry Waite came to Scotland to deliver the annual Sacro lecture, which I was privileged to attend, as well as being able to interview Mr Waite just before he spoke. It will not come as a surprise to hear that he too put forward a very similar point of view to Messrs Ewing and Munro - that sentences of less than 12 months achieve little if anything by way of rehabilitation, and serve only to help lock many offenders into the cycle of criminal behaviour followed by prison followed by more criminal behaviour.

Terry Waite does not just speak from the heart, but from years of work with offenders and those trying to look after them, both in custody and in the community. So does Sacro, whose chief executive also gave evidence to the Justice Committee. What ground has anyone for turning down out of hand this body of opinion from those who have experience of the system at work, day in day out, from the inside? It seems at least that the current Scottish Ministers are not inclined to so so, and we should be grateful for that. Pity Kenneth Clarke, who has a much harder job selling his preferred (and similar) approach to his own Cabinet colleagues and backbenchers, and who seems to have been forced into full retreat on the issue.