Peer Reviewed, pre-proof, pre-publication draft version. Subsequently published in The European
Journal of Probation 2012 4(1): 84-98.
1
The Failure of Recall to Prison: Early Release, Front-Door and Back-Door Sentencing and
the Revolving Prison Door in Scotland
By Beth Weaver
1
, Cyrus Tata
2
, Mary Munro
3
, Monica Barry
4
Abstract
This article seeks to explain the reasons for the sharp rise in prison recall rates in Scotland. It
argues that recall practices need to be understood not as a technical corner of the justice system,
but as part of a wider analysis of the politics of sentencing and release policy. While there are
sound reasons for a policy of ‘early release’ (incentivizing good behavior and enabling the
resettlement of prisoners), in practice early release has increasingly been used as a tool to try to
limit the growth in the custodial population. Unable to control prison numbers through the ‘front
door’ (judicial sentencing and bail/remand), successive governments have increasingly relied on
early release as a surreptitious way of, in effect, re-sentencing prisoners. We argue that this
political strategy is ultimately self-defeating, not least in feeding public cynicism about the penal
system and community supervision in particular. This article reviews the changing legislative,
policy and practice landscape of the regulation of non-compliance and recall practice, and draws
on the desistance literature to illustrate how offender-supervisor relationships can be undermined
by recall policies which threaten the legitimacy of both the supervisory relationship and the
conditions of supervision orders.
Keywords: compliance – custody – desistance - early release – parole – recall – remission -
sentencing
1
Glasgow School of Social Work & Centre for Law, Crime & Justice, School of Applied Social Sciences,
Strathclyde University, Scotland. E: Elizabeth.fawcett@strath.ac.uk
2
Centre for Law, Crime & Justice, Law School, Strathclyde University, Scotland. E: Cyrus.Tata@strath.ac.uk
3
Centre for Law, Crime & Justice, Law School, Strathclyde University, Scotland. E: munro@cjscotland.org.uk
4
Centre for Law, Crime & Justice, Law School, Strathclyde University, Scotland. E: Monica.Barry@strath.ac.uk
2
Introduction
While much academic focus has in recent years been on entry into prison following an initial
custodial sentence, relatively scant attention has been paid to the practice of recall, which is
sometimes seen as a discrete matter of law and technicality – an isolated corner of the penal system.
This is somewhat curious since as Padfield and Maruna put it “‘back door’ release decisions can
have as much influence as ‘front door’ sentencing practices in terms of sentence length and
maintaining overall prison populations” (Padfield and Maruna 2006: 330). Rather than seeing recall
as a technical matter separate from sentencing policy and practice, we argue that it is vital to
understand ‘early release’, recall policy and legislation, and changes in breach practice as an
integral part of the wider context of the politics of sentencing. While cogent arguments can be
made for the ‘early’ release of prisoners (eg in terms of good order within prisons and the
resettlement of ex-prisoners), we argue that release on licence and subsequent recall are also forms
of re-sentencing. They are decisions about the lessening or tightening of punishment under certain
conditions and the fact that they may not take place in front of a judge nor in a courtroom is, in that
sense, incidental (Arnott 2007). Although release and recall are formally labeled as ‘administrative’
procedures, judicial (‘front-door’) sentencing and (‘back-door’) release decision-making are both
moments in which the extent and character of punishment is decided and in that sense both may be
seen as forms of sentencing (Tata 2010: 196).
This article firstly outlines the legislative context underpinning the phenomena of recall and its
rationale, in reference to the kaleidoscope of pertinent criminal and civil orders. By looking at the
national criminal justice system of Scotland, the rise, and rising concern, in the rate of
imprisonment as a consequence of recall in Scotland is conceptualised as a process of re-sentencing
though the prison ‘back-door’. The argument advanced here is that this ‘back-door’ approach fails
Peer Reviewed, pre-proof, pre-publication draft version. Subsequently published in The European
Journal of Probation 2012 4(1): 84-98.
3
to reduce crime, fails to alleviate and may in fact only increase prison overcrowding, exacerbates
re-offending, is incompatible with the ‘rehabilitation ideal’ and fails to address the root causes of
non-compliance amongst those on licence. Explanations for the increase in recall are offered in
reference to shifts in the regulation of offender compliance and shifts in the regulation and
governance of practice in the implementation of this policy by front-line practitioners. Finally, this
article draws on the desistance literature to explore the wider impact of recall policy and practice in
Scotland. First, however, it is essential to sketch out briefly and simply the Scottish system of
release and recall.
A review of licence and recall law in Scotland
5
The origins of remission of sentence before the conclusion of a custodial sentence lie in the era of
transportation when a ‘ticket of leave’ from the colonies could be granted to offenders for good
behavior (Thomson 2007). However, remission of prison sentences could also be traced to military
manpower shortages in the First World War. The practice of granting remission persisted during
peacetime and by 1952 was incorporated into Scottish Prison Rules as being an entitlement to
unconditional release (McManus 1999).
As in England and Wales, a system of parole was introduced in Scotland following the Criminal
Justice Act 1967, offering discretionary conditional early release following one third of a sentence
of over 18 months. McManus (1999) argues that the politicisation of parole may be traced to the
then Home Secretary’s 1984 Conservative Party Conference announcement that parole would be
restricted to prisoners serving five years and over. Against a background of continuing criticism of
5
Although a constituent part of the United Kingdom of Great Britain and Northern Ireland, Scotland has always been
a separate legal system, especially in matters of criminal law and justice. In short it makes little sense to talk of
British penal policy or UK sentencing. In terms of recall there are several important differences between the two
national jurisdictions of England and Wales and Scotland, including sentencing policy, the supervision of offenders,
and of course the law itself (see further Tata 2010).
4
this reform, not least from the Parole Board of Scotland, review committees were set up in 1987 in
both jurisdictions to look again at the question of early release. The Kincraig Committee (1989),
reporting on Parole and related issues in Scotland based its recommendations on questions of
public safety and the risk of re-offending rather than sentencing policy which had been excluded
from its remit (McManus 1999). This failure to tackle front-door judicial sentencing and back-door
release decision-making together as part of an integrated strategy was an early mistake which
governments have since repeated, preferring to portray release policy as a discrete, technical matter.
The result has been a system which is increasingly incoherent, anomalous, labyrinthine in its
complexity, and ultimately self-defeating.
The Kincraig recommendations were carried forward, in principle if not in detail, by the Prisoners
and Criminal Proceedings (Scotland) Act 1993 which, inter alia, drew a basic distinction between
‘short-term’ and ‘long-term’ prisoners. Short-term prisoners, i.e., those sentenced to a determinate
sentence of less than four years, are in effect released automatically and unconditionally after half
their sentence. However, an exception to the automatic and unconditional early release of short-
term prisoners is those convicted of a sexual offence for whom different provisions apply. Long-
term prisoners, i.e., those sentenced to a determinate sentence of more than four years can be
eligible for release on licence at the half-way point should the Parole Board so direct, and should
be released on non-parole licence after two thirds of their sentence has elapsed. In both cases, the
former prisoner, if breached, could be subject to recall. In Scotland, supervision of prisoners
released in the community is conducted by Criminal Justice Social Workers (CJSWs). Importantly,
they are employed by local authorities and work within wider social work departments rather than
(as in England and Wales for instance) as part of a centralized ‘offender management’ authority.
Since 2006, the prison authorities have exercised powers of early release in the form of Home
Detention Curfew orders (HDCs) (sect. 15 (5) Management of Offenders (Scotland) Act 2005).
Peer Reviewed, pre-proof, pre-publication draft version. Subsequently published in The European
Journal of Probation 2012 4(1): 84-98.
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Short-term sentence prisoners considered to be low risk and serving sentences of between 3 and 12
months are eligible for HDC, which are enforced by electronic monitoring (‘tagging’) and are
supervised under contract by a private monitoring company. The power to release on HDC at the
one-quarter stage of a prison sentence is widely resented by judicial sentencers, prison staff and
many practitioners. Revealingly, the recent Scottish Prisons Commission’s (2008) recommendation
to abolish the HDC in 2008 has not been implemented by the Scottish Government. Since 2008,
electronic monitoring may also be imposed as a condition of parole.
Both long and short term prisoners may be punitively recalled by the judge as part of a subsequent
sentence if they are convicted of an imprisonable offence during the unexpired period of the
original sentence (Prisoners and Criminal Proceedings (Scotland) Act 1993, s.16), although it is not
known how often this power is exercised.
In addition, the sentencing court at the point of sentence can seek to impose control and supervision
of offenders on release from custody, in the following ways:
A. Extended sentences can be imposed:
(i) on an offender who is convicted of a relevant sexual offence, (or one which discloses a
significant sexual aspect to the offender’s behavior), where the offender would, but for the
extended sentence, receive a determinate sentence of imprisonment of any length, or,
(ii) on an offender who is convicted of any violent offence in circumstances where the
offender would, but for the extended sentence, receive a sentence of 4 years or more. The
duration of the extension to the sentence is determined by the court's opinion of the need to
protect the public from serious harm, and can be up to 5 years for a violent offence and up to
10 years for a sexual offence, but not for a period in excess of the statutory maximum for