Regulating Justice: The Dynamics of Compliance and Breach in Criminal Justice Social Work in Scotland

Lead Research Organisation: University of Strathclyde
Department Name: Law


Not only does Scotland imprison more people than most European countries, but our prison numbers are also rising despite a fall in crime levels. The Scottish Government is attempting to reduce imprisonment through increased use of community based disposals (probation orders, community service orders, community payback orders, supervised attendance orders) and early prison release schemes (parole and non-parole licence). However, the number of offenders who fail to comply with such orders (known as 'breach') appears to be increasing. Forty-one per cent of community-based disposals were subject to breach applications in 2009/10, resulting in many offenders being subsequently imprisoned, thus exacerbating the prison population and undermining positive work being undertaken by supervising social workers in the community. Reasons for non-compliance amongst offenders can include a perceived lack of legitimacy or fairness of a sentence by an individual offender or an inability to remember, or to afford travel to, appointments with supervising social workers. But also breach can result from overly risk-averse supervising officers or Parole Board members, or overly high expectations placed on offenders given community-based sentences by the judiciary. Not only can offenders' chaotic lifestyles affect their capacity to comply, but also sentencers and practitioners may overly depend on breach procedures as a means of responding to concerns regarding public protection and agency accountability.

Several commentators have expressed concerns about the lack of research on compliance with community-based disposals, the impact of imprisonment on post-release compliance and why the system reacts to breaches in the ways that it does. This proposed research will thus be the first to more fully and systematically understand the dynamics of compliance and breach in Scotland. A total of 548 face to face interviews will be conducted with offenders (both those currently complying and those failing to comply), social workers and managers, the judiciary, defence lawyers, court staff and police in three case study areas in Scotland (Community Justice Authorities comprising 13 of the 32 local authority criminal justice social work departments) and with Parole Board members, prison staff and Scottish Government policy makers nationally. These in-depth interviews will be combined with quantitative data collection Scotland-wide on compliance and breach within community-based disposal and post-custodial licences over the last five years.

The analysis will be informed by existing (albeit limited) literature on compliance and breach, but also the themes emerging from the statistical data and face-to-face interviews will inform a theoretical framework and typology of breach and compliance which will be of use not only to future criminal justice policy makers, academics and practitioners, but also to other academic and professional disciplines outside of the criminal justice arena.

The findings from this research will be disseminated to academics, policy makers, practitioners and the general public through reports, conferences, articles, a consultation exercise and workshops, and media coverage, and the data collected from this research will be archived in the Economic and Social Data Service for future use by other researchers.

Planned Impact

This research is timely and highly relevant to current policy and practice challenges in Criminal Justice in Scotland. Compliance with community-based or post-prison release orders demonstrates one element of the effectiveness of such interventions. However, it is not just effectiveness in reducing reoffending that is the rationale for these interventions. Scotland has seen a constant rise in its prison population in recent decades, and discussions are ongoing within Government to build a 'super' prison in north-east Scotland. Allowing an expansion of prison numbers will not, however, reduce reoffending in the longer term, and indeed may even exacerbate it. Equally, there has been a trend towards the enforcement of community penalties at the possible expense of proactive support to individuals to reduce their offending behaviour. Whilst this may seek to allay public concerns in the short term, it is likely to be counterproductive in the longer term if offenders themselves lack confidence in the effectiveness of such interventions. Not only is offender reintegration in local communities important for sustaining desistance from crime through offering support, employment or stable accommodation for example, but also the development of viable and effective community-based alternatives to custody will more likely increase public and judicial confidence in criminal justice social work interventions. Thus, the challenge for the judiciary and criminal justice social work in particular is to ensure that community-based interventions are realistic, engaging and positive experiences for offenders which encourage their compliance. Currently, for example, over 40 per cent of offenders allegedly fail to comply with their community-based sentences, and yet their 'punishment' for this may be the same sentence again but for longer or with additional, more onerous requirements.

The above demonstrates the likely cost inefficiencies in the current system of enforcement - money is being channeled into dealing with non-compliance when it could better be spent on ensuring interventions encourage meaningful engagement by offenders. Equally, understanding more about the dynamics of compliance and breach from various perspectives will enable professionals to intervene in more meaningful ways with offenders in the future. Thus, it is anticipated that this research will have a long term impact on policy (in terms of questioning the need for further prison places or questioning enforcement practices at the expense of consensus-building approaches between supervising social workers and offenders), and on practice (in terms of identifying more constructive ways of gaining the cooperation of offenders in community-based interventions). Having a key policy maker from the Scottish Government and ADSW, social work managers and offenders on the Research Advisory Group will be a crucial means of influencing policy and practice.

As well as documenting the findings from this research on websites accessed by professionals and academics, articles on the research will be published in the Probation Journal and Euro Vista, both targeting practitioners in criminal justice social work across Europe. It is proposed that a consultation exercise, with offenders and criminal justice social workers who were respondents in the research, will take place in each case study area towards the end of the fieldwork period, not only to discuss the findings but also to draw up Research Action Plans for implementation by senior managers and policy makers at half-day workshops in each case study area. These will enable key stakeholders both locally and nationally to discuss the findings, agree recommendations and implement Research Action Plans. The Research Team will use Survey Monkey to elicit progress and feedback from these stakeholders after the workshops and at 6 months thereafter, to monitor progress on the Research Action Plans.


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Barry M (2019) 'Walking on ice': The future of parole in a risk-obsessed society in Theoretical Criminology

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Weaver B (2021) Exploring and Explaining Non-Compliance with Community Supervision in The British Journal of Criminology

Description 1. 1. Contrary to theoretical explanations, this empirical study suggests that offender compliance is not determined by perceptions of legitimacy: indeed the opposite may be the case: people comply because they are obliged to, or lose their liberty if not, and not because they believe in the legitimacy of the system. We were able to develop a 'continuum of compliance' which focuses more on obligation and fear compared with other theories of compliance which focus on legitimacy and cooperation.

2. Different professionals, however, referred to a spectrum of levels of engagement from superficial to substantive, reflecting different motivational postures. If compliance is measured by degrees of behaviour, e.g., attendance and engagement; willingness and ability to comply; and the effects of contextual enablements and constraints - as with all regulatory practices, those doing the regulating need to 'govern the gap' between what counts as acceptable and non-acceptable levels of conformity from the specified standard. Yet, the regulation of professional decision making is more concerned with adherence to processes of engagement than with quality of engagement practices.

3. There are notable differences in the regulation of compliance within and across different forms of community-supervision reflecting distinct tolerance thresholds for non-compliance. While this distinction in tolerance thresholds and regulatory practices is explicitly concerned with riskiness, it should be noted that tolerance thresholds and regulatory practices also vary across different forms of community supervision - not least because different orders imply different purposes, have different demands and may include different levels of risk and need. These dynamics inform assessments of reasonable cause for non-compliance which influences the exercise of discretion. High risk offenders are being breached at a higher rate than low risk offenders, and post-release licencees at a higher rate than those on community-based sentences, suggesting that social workers have a lower tolerance of non-compliant behaviours by high risk and post-release offenders.

4. Data collection by social work departments is neither research-friendly nor consistent across geographical areas, and information is often held in different databases. There are also wide variations in completion rates across the country. Over 50% of reasons for breach and outcome of breach were not recorded on the various criminal justice social work databases, and yet such data are crucial in understanding the rationale and processes of criminal justice social workers.
Exploitation Route By social workers and other professionals:
Sheriffs and social workers in particular would benefit from further evidence of the benefits of promoting compliance in sentencing/court reviews and supervision respectively. The regulation of discretionary decision-making should go beyond a concern with adherence to process to examine the quality of engagement practices. The Judicial Studies Committee will liaise with the research team to identify new ways of disseminating the findings in order to influence sheriff decision making. Parole Boards and Prison Services need to review recall arrangements and assessments of risk, and this study has opened up other avenues of research into prison and parole issues in general and the centrality of risk in penal decision-making in particular. Representatives from the Department of Work and Pensions will meet with the research team to discuss in more depth the findings relating to tensions between unpaid work and Job Centre requirements/appointments.

By researchers:
Further analysis of perceptions of compliance and legitimacy are needed in terms of different types of community supervision; theories and typologies of compliance may need to be reviewed in the light of our empirical findings, notably in respect of the lack of a causal relationship between perceptions of legitimacy and levels of compliance. An improvement in monitoring databases in criminal justice is a priority, and a meeting has been set up with the relevant departments within the Scottish Government to review their procedures in the light of our findings on methodological constraints.
Sectors Communities and Social Services/Policy,Government, Democracy and Justice

Description Workshops and Conference In mid-May 2015, a workshop was held in each of the three case study areas involved in the research. These three workshops were interactive, where those who had been interviewed, or those who had enabled the research team access to interviewees, were able to come together to learn about the research findings and to discuss their implications. The three case study areas across Scotland which had provided interview access to 250 offenders and 125 professionals and an aggregate database of over 9,000 cases, were keen to host the events and to encourage both policy makers and practitioners to attend. The workshops were facilitated by Claire Lightowler, the Director of the Centre for Youth and Criminal Justice at the University of Strathclyde. On 20th May 2015, a national conference was held at the University of Strathclyde, where over 60 criminal justice stakeholders from across the UK discussed the findings of the research into the dynamics of breach and compliance in respect of community supervision within the criminal justice system. Both Dr Barry and Dr Weaver presented findings from the research (on offenders' views and social work professionals' views respectively) and two further papers on breach and compliance were given by Sir Anthony Bottoms (Sheffield University) and Professor Fergus McNeill (Glasgow University), both of whom are leading experts in the field of compliance theory and practice. Identifying Impact via Survey Monkey Six months following the workshops and conference, the research team sent out a Survey Monkey questionnaire to all attendees (100 people in total), to ask for any potential impacts from the research findings disseminated at the workshops and conference. Nearly a third of those participants responded to the survey by January 2016, and the findings from this survey are detailed below. Ninety per cent of respondents rated the research as being either very important (63%) or important (27%) for their practice; Sixty eight per cent agreed that the research findings increased their awareness of issues around breach and compliance for all criminal justice professionals, and 76 per cent also felt that they better understood the issues from an offender perspective, suggesting that the research had 'enhanced' or 'confirmed' their awareness, but also identified gaps in inter-agency (and worker/client) communication and the need for offender 'buy-in' in respect of conditions attached to their court orders. In the intervening six months since the research had been disseminated, we were heartened by respondents' feedback on the audits, training and more flexible working practices put in place as a result of the findings. Although not part of this research, it would be interesting to know whether breach rates in those geographical areas decrease, say in the next five years compared to the last five years and whether differing policies and practices encouraged by the research were deemed influential. Indeed, nearly half of survey respondents suggested that their practices had already changed as a result of our research. Impact on Legislation to Abolish Automatic Early Release of High Risk Prisoners In January 2015, the PI was asked to give oral evidence to the Justice Committee of the Scottish Parliament, following a written submission by herself and Beth Weaver (one of the co-investigators) based on our findings from the research. This evidence strongly criticised a Bill introduced to abolish automatic early release of high risk prisoners, and we suggested that the Bill was 'flawed' based on our research findings. The PI was interrogated by the Justice Committee on 13th January 2015 and the Convenor sought further statistics from our research by the end of February, which we supplied. The Convenor stated in the minutes of that session that the PI's evidence would be 'extremely useful when drafting the report and when asking questions in future weeks of the Scottish Prison Service, Parole Board and Scottish Government- in particular the points you made about engagement with programmes were helpful - the Committee will likely follow those up'. The evidence was also picked up by the Scotsman newspaper the following day (14th January 2015), and the International Centre for Prison Studies tweeted this Scotsman article to over 2,800 of its followers. As a result of the opposition to the legislation and the considerable changes made to the subsequent Act, the PI was asked to write a 'commentary' for the Edinburgh Law Review, which was published in December 2015. Following its publication, a Sunday Times journalist sought further information from the PI for an article on the abolition of early release of high risk offenders. Presentations to Criminal Justice Social Work Teams Two further presentations have been made to social work teams in areas of Scotland beyond the three case study areas. These were extremely well attended and paved the way for these practitioners to refine their guidance on breach practices and to explore ways in which the views of offenders could be better taken into account within a supervisory capacity. Future Discussions with Key Stakeholders The Judicial Studies Committee (which organises and delivers training to judges and sheriffs across Scotland) has approached us with a view to undertaking specific training on issues around compliance with and breach of court orders later in 2016. We have also held meetings with the Department of Work and Pensions in Scotland to discuss the issue of 'sanctions' imposed on people who are subject to Community Payback Orders (unpaid work) but who are also subject to Job Centre commitments, if unemployed and on benefits. The research highlighted a 'clash' between Community Payback and Job Centre requirements and the research team is hoping to meet further with the relevant policy makers, both in the DWP and in the Scottish Government. The Scottish Government has also responded positively to a report we wrote in 2015 outlining the problems or challenges posed by current tools for data collection within Social Work Departments across Scotland, which are neither fool-proof nor research friendly, but are required by the Scottish Government for yearly audit purposes. We will be meeting with the relevant staff within the Justice Analytical Services department of the Scottish Government in the summer of 2016 to advise them on how such data collection could be improved.
First Year Of Impact 2015
Sector Communities and Social Services/Policy,Government, Democracy and Justice
Impact Types Cultural,Societal,Policy & public services

Title Analysis databases 
Description All the data gathered for this study (both quantitative and qualitative) were archived with UKDS, including NVivo-entered transcripts and demographics as well as SPSS-entered quantitative data. 
Type Of Material Database/Collection of data 
Year Produced 2016 
Provided To Others? Yes  
Impact Unknown to the research team, although the data may have been drawn upon by UKDS users. 
Description Compliance and Breach in Scotland - policy and practice dissemination 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? Yes
Type Of Presentation keynote/invited speaker
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact Four academic presentations (two about theory, two disseminating the findings of the research) were followed by group discussions where delegates identified key themes to take forward in their work and action plans for the coming year.

The research team are now in discussion with the Scottish Government, the Judicial Studies Committee, Audit Scotland and Department of Work and Pensions to take forward recommendations from the research.
Year(s) Of Engagement Activity 2015
Description Evidence to the Justice Committee of Scottish Parliament based on Compliance and Breach ESRC study 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Other audiences
Results and Impact Evidence to the Justice Committee of Scottish Parliament based on Compliance and Breach ESRC study
Year(s) Of Engagement Activity 2015