Prisoners (Early Release) (Scotland) Bill: child rights and wellbeing impact assessment

Child Rights and Wellbeing Impact Assessment Template

1. Brief Summary

Type of proposal: Bill

Name the proposal: The Prisoners (Early Release) (Scotland) Bill.

Start date of proposal’s development: August 2024

Start date of CRWIA process: August 2024

Overall aims and intended purpose:

The Prisoners (Early Release) (Scotland) Bill (the Bill) will change the point of automatic early release from prison for most prisoners serving short-term sentences. Short-term sentences are sentences of less than four years. The Bill is intended to reduce the length of time most people spend in prison or secure accommodation in order to reduce the prison population which is at historically high levels (8,252 as of 21 October 2024), and forms part of a range of measures designed to respond to this issue.

As a result of the rising and the increasingly complex prison population, substantial pressure is being placed on the prison estate. This has resulted in increased risks to the safety and wellbeing of prisoners and Scottish Prison Service (SPS) staff, and a reduction in the ability of SPS to provide and facilitate the purposeful activities that support rehabilitation.

Achieving a sustained reduction in the prison population is necessary to mitigate these risks, to maintain safety and good order within prisons, and to uphold the human rights of those living and working within them. A reduction in the prison population would increase the available operational capacity within the prison system, ease pressure on prisoners and staff, and allow SPS to focus on rehabilitation and those who pose the greatest risk of harm.

Current release arrangements

Under the Prisoners and Criminal Proceedings (Scotland) Act 1993 (“the 1993 Act”) adult prisoners serving a short-term sentence are usually released unconditionally (without supervision or restrictions) after they have served 50% of their sentence in prison.

Section 208 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) provides that when children under the age of 18 are convicted on indictment (solemn cases), and the court considers that no other method of dealing with them is appropriate, they may be sentenced to a period of detention. Children under 18 are detained in secure accommodation, defined as a ‘residential establishment’ or a ‘secure accommodation service’^[1]. When the child turns 18, they must move to a young offenders institution (YOI) within the adult prison estate to complete any remaining sentence.

Under Section 7 of the 1993 Act all children detained under section 208 serving sentences of less than four years are released as soon as they have served half (50%) of their sentence, if not released earlier. All those released following detention under section 208 (regardless of their age on release) are released on licence. Licence conditions are set on the recommendation of the Parole Board. It is possible for those detained under section 208 to have their case referred to the Parole Board at any point during their sentence. Therefore there is a possibility that they are released earlier than the halfway point, however in practice this is rarely the case for children serving sentences of less than four years.

In summary proceedings, where a child is found guilty of an offence under section 44(1) of the Criminal Procedure (Scotland) Act 1995^[2], they may be detained in residential accommodation provided by a local authority for a period not exceeding one year. This can include secure accommodation if the Chief Social Work Officer and person in charge of the service are satisfied that the child meets the criteria for such a setting^[3]. The placement will be regularly reviewed and the child can be released at any time if they no longer meet the criteria. They must be released after serving no more than 50% of that sentence. The local authority will release the child under supervision for the remainder of the sentence. If the child commits an offence during this period, they may be returned to a residential establishment.

Bill proposal

This Bill would permanently change the point of release from custody for most short-term prisoners from the current 50% to following 40% of their sentence. This change would apply equally to children who are sentenced to “short” periods of detention of less than four years. Those serving all, or part of their sentence for sexual offences or domestic abuse offences will not have their release point changed. Specifically, the point of release will remain the same for:

• short-term prisoners falling within the scope of section 1AA of the 1993 Act (certain individuals convicted of sexual offences and who are sentenced to 6 months or more in custody)
• short-term prisoners who do not fall within the scope of section 1AA but who are serving a term of imprisonment for an offence listed in paragraphs 36 to 60 of schedule 3 of the Sexual Offences Act 2003
• short-term prisoners who are serving a sentence of imprisonment for a domestic abuse offence. A “domestic abuse offence” in this context includes a sentence of imprisonment or detention for an offence—
  • that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016,
  • under section 1(1) of the Domestic Abuse (Scotland) Act 2018.

In addition, the Bill provides for subordinate legislation making powers to amend the point at which Scottish Ministers must release prisoners to either another proportion of the sentence or a particular period of time. The power provides that the new release point created can be applied to those currently serving sentences, or those serving sentences only after the provision comes into force.

In relation to the release of short-term prisoners Scottish Ministers will be able to make different provision for different purposes. In practice this would enable the different release points for different categories of prisoner to be amended. This will enable the impact of a different release point to be monitored and allow changes to be made to the categories of prisoners to which release points apply.

In relation to long-term prisoners the power is limited in that it only permits Scottish Ministers to amend the point at which long-term prisoners must be released on non-parole licence from the current 6 months before sentence end date to another specified time period or proportion of sentence.

The power will be subject to the affirmative procedure in recognition of the potential impact of any such change.

Should the powers be used at a later stage to further change the point of release for short-term prisoners, or to make a change to the release point for long-term prisoners, then a new CRWIA based on the relevant change would be required to determine the impacts on the rights and wellbeing of children.

Application and impact of measures within the Bill

It is anticipated that bringing forward the point of release for most short-term prisoners to 40% would have a sustained impact in reducing the prison population.

It is intended for the provisions within the Bill to be applied retrospectively. This means the earlier release point would apply to eligible prisoners who are currently serving short-term sentences as well as those who are sentenced in future. This would mean that when the provisions within the Bill come into effect, there would be people eligible for immediate release who are currently serving between 40-50% of their sentence.

Based on prison population projections^[4], it is estimated that around 5% of the sentenced prison population would be immediately eligible for release if the measures were to come into effect in January 2025. This accounts for approximately 260-390 people.

Over time it is anticipated that this initial reduction would be sustained, meaning that the prison population would be approximately this much lower than it otherwise would have been, assuming that the make-up of the prison population remains broadly similar in terms of sentence type and duration.

The Bill provides for transitional provisions so that those eligible for immediate release can be released in tranches. This is in order to ensure sufficient time for individuals to be prepared for their release, for victims to be informed (if they have opted for this) and to reduce the impact on community services.

Once the initial cohort of eligible prisoners have been released, eligible prisoners will be released at the 40% point on an ongoing basis.

Examples to illustrate impact of the Bill:

Person A was sentenced to 1 year in prison. Currently person A would be released after they had served 6 months in prison. Under the proposals in the Bill, Person A would be released after that have served around 4 months and 24 days.

Person B was sentenced to 2 years in prison. Currently person B would be released after they had served 1 year in prison. Under the proposals in the Bill, person B would be released after they have served around 9 months and 18 days.

Person C was sentenced to 2 years in prison under section 1(1) of the Domestic Abuse (Scotland) Act 2018. Currently person C would be released after they have served 1 year in prison. As this type of offence is excluded from the changes made by this Bill, person C would still be released after 1 year in prison once the proposals are in effect.

2. With reference given to the requirements of the UNCRC (Incorporation) (Scotland) Act 2024, which aspects of the proposal are relevant to/impact upon children’s rights?

The scope of this impact assessment is limited to assessing the impact of bringing forward the point of release for short-term prisoners and children detained in secure accommodation from 50% to 40%, in line with the scope of the policy proposal. This equates to a maximum of approximately 21 weeks difference between the current and proposed release point. This is not an assessment of the impact of imprisonment or release more generally. Many of the impacts on children and young people relating to release from custody or the release of a prisoner would likely occur at the point the prisoner is currently released (50%), and are not specifically related to moving that release point to 40%.

The Bill may impact different groups of children and young people in different ways. For ease of this analysis, rights will be considered in relation to children and young people who:

1. Are serving a period of detention of under four years in secure accommodation, and young people who were sentenced to a sentence of under four years when they were under 18.

2. Are a victim of a crime, or a child of a victim of crime, the perpetrator of which is serving a short-term sentence

3. Are a child of a person who is serving a short-term sentence, particularly if the family member is being released back into the familial home

It is important to note that these categories are not exclusive and that many children and young people in contact with the justice system may fit into more than one category.

1. Children and young people serving short sentences of under four years in secure accommodation and young adults sentenced as children

In terms of children and young people serving short sentences of under four years, this Bill potentially impacts on various children’s rights within UNCRC:

• Article 2 (1) Non-discrimination: States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
• Article 2 (2) Non-discrimination: States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
• Article 3 (1) Best interests of the child: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
• Article 3 (2) Best interests of the child: States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures
• Article 3 (3) Best interests of the child: States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
• Article 9 (1) Separation from parents: States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
• Article 9 (3) Separation from parents: States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
• Article 37(b) Inhumane treatment and detention: No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
• Article 40 (1) Juvenile justice: States Parties recognise the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

2. Children and young people as victims of crime

In terms of children and young people as victims of crime, this Bill could potentially impact on the below children’s rights within UNCRC:

• Article 3 (1) Best interests of the child: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

3. Child or young person whose parent/carer is serving a short-term sentence

In terms of children and young people whose parent/carer is serving a short-term sentence, this Bill could potentially impact on the below children’s rights within UNCRC:

• Article 3 (1) Best interests of the child: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
• Article 9 (1) Separation from parents: States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
• Article 9 (3) Separation from parents: States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
• Article 19 Protection from violence, abuse and neglect: States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

3. Please provide a summary of the evidence gathered which will be used to inform your decision-making and the content of the proposal.

Existing research and reports

A wide range of published material on children and justice was sourced to understand the risk factors for being involved with the criminal justice system, the demographic of children in the criminal justice system and the impacts of being involved with the justice system as an accused, person who is sentenced to detention or as a child or close relative of someone in prison custody. We referred to Scottish Government research, responses to public consultations and publications from the third sector and academia.

Consultation/feedback from stakeholders

A consultation was launched on 8 July 2024 and closed on 19 August 2024 seeking views on proposals to bring forward the release point for some long-term prisoners, which was considered by the Scottish Government to be a feasible and proportionate way to reduce pressure on the prison estate^[5]. A total of 161 responses were received from a range of organisations and individual respondents. In addition to the public consultation, two virtual workshops were held for stakeholders.

The evidence on the direct impact on children in custody was limited, which may be due to the focus of the consultation being on long-term prisoners. Where responses to this consultation referenced children, it was generally in relation to the impact of the earlier release of an adult prisoner on children in the community.

Given the urgent requirement to take action to reduce the prison population, a consultation has not been held specifically on bringing forward the point of release for short-term prisoners. However, throughout the consultation on long-term prisoner release, a range of views and experiences were expressed relating to prisoner release and the justice system in general, much of which is relevant context to this Bill.

Some respondents felt children would be at risk from the earlier release of a long-term prisoner involved in their case, whereas other respondents highlighted the benefits of a released prisoner having more opportunity to be actively engaged in the life of a child and that a reduced prison population may allow for greater facilitation of family visitation for those whose family member remains in custody.

A number of organisations representing children and young people responded to the consultation, as detailed below.

Children 1^st

Children 1^st highlighted the risk of changing the point of release for prisoners in damaging trust for victims. They also highlighted the negative impact of emergency release (a separate release mechanism to that proposed either in the consultation or in this Bill) on children and families, and the need to avoid further instances of emergency release in future. Children 1^st raised concerns around the lack of exemptions to earlier release in the proposal for long-term prisoners and the risk to children and families^[6].

Families Outside

Families Outside broadly agreed with the proposal to release most long-term prisoners under supervision at an earlier stage in their sentence. Families Outside raised the risk of increasing pressures on community services if prisoners spent more time under supervision in the community and the need for this to be adequately resourced to prevent reoffending.

Families Outside highlighted the risk of families feeling pressured to provide an address for prisoners to return home to, even when abusive and coercive relationships are a factor. They highlighted that ‘for some families, the return of a parent or other family member from prison is not always a positive experience’, noting that ‘a lack of notice about upcoming releases can make the experience more stressful for families, and in some cases, may place them at risk of harm’^[7].

Impact on reporting

Some responses highlighted concerns that should those convicted of these offences have their automatic release point moved earlier that this would risk undermining confidence leading to fewer reports of these crimes. The response from Victim Support Scotland (VSS) summarised this position, “VSS is concerned that proposals could lead to fewer crimes being reported as people lose confidence in a justice system that they perceive prioritises perpetrators over their safety^[8].”

Stakeholder engagement

Discussions have also taken place with the Convention of Scottish Local Authorities (COSLA), the Scottish Prison Service (SPS), Social Work Scotland (SWS), the Crown Office and Procurator Fiscal Service (COPFS), Victim Support Organisations (VSOs) and the Scottish Courts and Tribunals Service (SCTS) to inform development of the Bill and raise awareness of the changes.

Generally, system partners are supportive of the requirement to reduce the prison population to a sustainable level in order to protect the safety and security of prisons, the rights of staff and and in order to allow for the provision of rehabilitative practices that support a reduction in reoffending. Ultimately, safe, secure and functioning prisons are required to ensure the integrity and efficacy of the justice system as a whole. Partners have been involved in the development of this Bill, and in the operational planning for its delivery.

Officials have engaged with the third sector, including victim support organisations (VSOs). VSOs have raised concerns around the impact of the earlier release of prisoners generally on victims, however have welcomed exclusions for domestic abuse and sexual offences in this Bill. Officials will continue to engage with a wide range of stakeholders including those representing the needs and rights of children and young people.

Sexual and Domestic Abuse offences

In relation to the short-term prisoner cohort, the average sentence length in 2021-22 for crimes under the Domestic Abuse (Scotland) Act was around a year and four months (482 days). There were 686 adults convicted of crimes under the Domestic Abuse (Scotland) Act, 111 of whom received a custodial sentence where that crime is recorded as the main charge. In 2021-2022, three children under the age of 18 were convicted of crimes under the Domestic Abuse (Scotland) Act, none of whom received a custodial sentence where that crime is recorded as the main charge.

For those serving short sentences, the average custodial sentence for sexual crimes in 2021-22 was around 3 years and 10 months (1,383 days). There were 1,269 adults convicted of sexual offences, 441 of whom received a custodial sentence where that crime is recorded as the main charge^[9]. Ten children under 18 were convicted of sexual offences, of whom two received a custodial sentence.

Sexual offences accounted for 5% of all crimes recorded in 2023-2024^[10], and according to the Children and Young People’s Centre for Justice, around 3% of all crimes committed by children and young people are sexual crimes^[11].

There is also evidence that children commit sexual offences against other children. According to Equally Safe, children and young people under the age of 18 are responsible for at least a third of recorded sexual offences against children and young people in the UK^[12]. Children under 18 are also disproportionately both the victims and perpetrators of cyber-enabled sexual crimes. In 2016-2017 three quarters of victims of cyber-enabled crimes were under 16 in 2016-2017, with an average age of 14 and in a quarter of cases both the victim and perpetrator were under 16^[13].

There is evidence of significant under-reporting of both sexual offences and domestic offences. The Whole Lives Survivor Survey from Safe Lives found that, on average, survivors experienced four years of domestic abuse before telling someone^[14]. There is also evidence of lower conversion rates for these types of offences when they are reported. Statistics from Rape Crisis Scotland show that in 2020-21 51% of rape and attempted rape trials resulted in a conviction, compared to a 91% overall conviction rate^[15].

In terms of offences against children committed by other children under the age of 18, one study referenced in a report by the Children and Young People’s Centre for Justice found that four out of five children aged 11-17 who experienced contact sexual abuse from a peer did not tell anyone else about it^[16].

A 2019 study by GirlGuides UK also revealed that 67% of girls aged 13-18 surveyed had experienced sexual harassment from other students at school, including 59% of 13-16 year olds and 83% of 17 and 18 year olds. Despite the scale of harassment, only 7% of girls aged 13-14, 11% of girls aged 15-16 and 22% of those aged 17-18 had reported it to their school or the police^[17]. This report identifies barriers to reporting including girls not knowing who to talk to if they experience sexual harassment and not feeling confident to report their experiences. Quotes from girls include: ‘it happens all the time’ and ‘there are no consequences for their actions’.

There is evidence that children under-report sexual and domestic offences when the perpetrator is either an adult, or another child. However, it is not clear if there are also any specific barriers to reporting when adults are victims of sexual offences or domestic abuse carried out by children.

4. Further to the evidence described at ‘3’ have you identified any 'gaps' in evidence which may prevent determination of impact? If yes, please provide an explanation of how they will be addressed.

Due to the need to urgently address the prison population, direct engagement with children and young people on this Bill has not taken place, nor has there been in-depth engagement with organisations supporting and representing their interests. This represents a gap in the evidence available. We recognise that any engagement carried out with children and young people, and especially those who may be particularly vulnerable due to their interaction with the criminal justice system, must be conducted in a sensitive and trauma-informed way that does not risk their wellbeing and respects their rights.

There will be greater opportunity to engage with organisations that support families and children (including to consider the feasibility and appropriateness of any direct engagement with those affected) as part of planning for implementation of the Bill proposals.

In terms of engagement with children and young people serving short sentences of under four years in secure accommodation who may be impacted by the Bill, we intend to ask for feedback from stakeholders who work in children’s justice to understand the operational and any wider impacts that need to be taken into account in relation to a change to release point. Due to the very low numbers of children in secure accommodation, it is feasible to gather this feedback on an individual basis.

5. Analysis of Evidence

Background information on the prison population

As of 21^st October 2024 the prison population was 8,252. The prison population grew in early 2024, and exceeded 8,300 on 10 days across May and June 2024. At this stage the Scottish Parliament approved the use of emergency release of certain short-term prisoners to reduce pressure on the estate. This led to 477 individuals leaving prison between 26 June and 25 July 2024 and the population reduced to 7,876 on 20 July (the lowest level)^[18]. Since then the numbers have increased again.

The recent rise in the prison population has been driven by a complex set of factors, including the court backlog caused by reduced court capacity over the pandemic. The increase in the prison population through 2023 to date has been largely driven by the increase in the sentenced population, while the remand population remained at a high level. In addition to the prison population being high, it is also increasingly complex, with many groups requiring to be accommodated separately from others.

1. Children and young people serving short sentences of under four years in secure accommodation and young adults sentenced as children.

The number of children who are detained for ‘short’ periods of time in Scotland is at a record low. Between 2008-09 and 2021-22, there was a 92% reduction in the number of children and young people prosecuted in Scotland's courts and a 97% reduction in 16- and 17- year-olds being sentenced to custody. Analysis from the Scottish Children’s Reporter Administration shows the number of children referred to the Reporter for offences is down by 22% since 2012-13.

The Whole System Approach (WSA) is the Scottish Government's programme for addressing the needs of young people involved in offending and seeks to reduce offending by providing timely and effective interventions (Early and Effective Intervention) and diverting young people who offend from prosecution^[19]. Based on the principles of GIRFEC (Getting it Right for Every Child), it aims to prevent the use of custody and secure accommodation wherever possible through the availability and use of services, and to seek opportunities to engage young people, by putting in place a more streamlined and consistent response that works across all systems and agencies to achieve better outcomes for young people and their communities. This ensures that young people get the right support at the right time, providing better outcomes for young people, victims and safer communities.

Research also shows that young people’s contact with the criminal justice system can increase the likelihood of their reoffending and that diversion from statutory measures, prosecution and custody, together with early intervention and robust community alternatives, are more likely to result in positive outcomes.

Under current legislation the court is only permitted to impose a period of detention for a child if it considers that no other method of dealing with that individual is appropriate.

The Scottish Sentencing Council's Sentencing Guideline on Young People^[20] focuses on rehabilitation as a primary purpose when sentencing children and young people, recognising the greater capacity of children and young people to change, but other factors can be taken into account, including protection of the public, punishment and expressing disapproval of the offending behaviour.

As part of wider work to embed the UNCRC in law and Keep the Promise, the Children (Care and Justice) (Scotland) Act (“the Care and Justice Act”) enshrined age-appropriate care and justice for vulnerable young people. The Care and Justice Act contains a series of measures to improve children’s experiences of the care and justice systems, whether as victims, witnesses or children who have caused harm.

The Care and Justice Act has ended the use of Youth Offender Institutes for under 18s, with secure accommodation being the normal place of detention instead. This is in line with the principles of UNCRC Articles 37 (b) and 40 (1).

In terms of capacity within secure accommodation, the overall landscape is complex, shifting and changeable due to the overall low number of beds available. There are a total of 78 secure accommodation beds in Scotland and places are commissioned by local authorities and the Scottish Government for children placed there by the Children’s Hearing System and the Court. In addition to children placed in secure accommodation by the Children’s Hearing System and the Court, secure accommodation is used to support children with a wide range of complex needs, and demand can be difficult to predict. The Scottish Government has committed significant funding to centres in order to preserve capacity for children remanded or sentenced by the courts.

While addressing the growth of the prison population is the primary purpose of the Bill and there is not an immediate need to reduce pressures on secure accommodation, it is the Scottish Government’s position that in order to respect the rights of children serving equivalent periods of detention (of under four years), the legislation should be changed to align the systems of automatic early release for children with that of adults. This is in accordance with children’s rights set out in UNCRC article 37, which outlines that children should be detained for the ‘shortest appropriate period of time’.

Bringing forward the point of release for children serving short sentences of under four years would also bring about a number of benefits in terms of their opportunities to reintegrate at an earlier stage into the community, and to have closer contact with family and/or other key figures in their lives. All children released from secure accommodation are released under supervision, which provides support to reintegrate and to access a range of support for both the child and their family. This is in line with UNCRC articles 3, best interests of the child and UNCRC article 40, in treating children in a way that recognises the desirability of promoting the child’s reintegration. An earlier release point for children would also support UNCRC article 9 in limiting separation from parents.

The application of exclusions to the change to release point for those serving sentences for domestic abuse or sexual offences could have a negative impact on children’s rights as outlined in UNCRC article 2, non-discrimination, as any child who is detained for a sexual offence or domestic abuse will not be eligible for a release at an earlier stage.

However, as detailed in question 3, without such exclusions there is a risk to the reporting of these offences, which in turn risks successful conviction of sexual and domestic abuse offences where they have been committed. This is relevant in the context of the Scottish Government’s positive obligations under Articles 3 and 8 European Convention on Human Rights and under the Istanbul Convention, to maintain an effective system for the investigation and prosecution of gender-based crime.

Reducing barriers to the reporting of sexual and domestic abuse offences is also vital to the success of the Scottish Government’s commitment to reduce violence against women and girls, as supported by the Equally Safe strategy. It remains imperative that victims of these offences retain confidence in the justice system when reporting.

Taking into account the evidence that both adults and children under-report both sexual and domestic offences, the Scottish Government consider that differential treatment for those convicted of such offences is justifiable.

Consideration was given to not including any exclusions, as this is the current position in relation to release of detained children. However, excluding those serving a sentence in relation to a sexual or domestic abuse offences is considered to be a proportionate and effective way to continue to address the particular barriers to reporting of these offences as well as maintain confidence in the system for the victims and future victims of those offences.

Finally, whilst these exclusions are applied equally to children and adults, it should be noted that under current legislation, children who are detained under section 208 can be referred at any point in their sentence to the Parole Board. This means that if it deemed appropriate to do so, children who have committed domestic offences or sexual offences could be considered for release under supervision at any point in their sentence. Children who are sentenced to a period of detention in secure accommodation during summary proceedings under section 44(1) are regularly reviewed and the child can be released at any time if they no longer meet the criteria for detention in secure accommodation. The local authority will then release the child under supervision for the remainder of the sentence.

There are therefore already legal avenues for children to be released at any point in their sentence regardless of the type of offence for which they have received a sentence, and this Bill will not change these provisions.

2. Children and young people as victims of crime

It is recognised that the release of prisoners may be distressing for victims of crimes generally, including for child victims of crime, whether they are direct or indirect victims. Victims may decide to take additional measures to protect their emotional, physical and mental health when a prisoner linked to their case is released from prison.

As a result of the changes proposed by the Bill, there will be a cohort of prisoners who are serving between 40-50% of their sentence who are immediately eligible for release. Victims and their families may have been planning for release based on the existing legislative framework, including with the support of VSOs, and may feel unprepared for an earlier release date of the prisoner involved in their case. This may impact victims’ sense of security and the timescale they have to plan for the release of a prisoner involved in their case. This may have a negative impact on children’s rights as set out in UNCRC article 3, best wishes of the child.

In order to manage the potential upsurge in demand on support services when the Bill comes into effect, transitional provisions provide for the use of release in tranches. This will help to mitigate the impacts of the initial releases, including on VSOs, by spreading these over a longer period.

There are also existing systems in place for victims who wish to receive information about the release of a prisoner involved in their case, both for those released in the initial tranches, and in the longer-term. Through the Victim Notification Scheme (VNS) and Victim Information Scheme (VIS) victims over 12 years old can nominate a prescribed VSO to receive information at the same time as them, or on their behalf, regarding the release of the linked individual in their case. These prescribed VSOs are (at the time of publication) Victim Support Scotland, Rape Crisis Scotland, ASSIST and Children 1^st.

A child under 12 years old may not receive information under either of the two statutory schemes for the provision of information for victims in their own right; rather, a parent or carer may exercise the rights to information under that scheme on behalf of a child, either through Children 1^st, or any of the other prescribed organisations.

The Independent Review of the Victim Notification Scheme^[21], which reported in May 2023, made specific recommendations in relation to how children and young people are provided with information. The Scottish Government is working closely with VSOs and delivery bodies to explore efficiencies to the delivery of information entitlements, and to ensure clear public understanding about the early release of prisoners and its implications for victims, and how victims can access information and support more widely.

Furthermore, specific exclusions have been incorporated within the Bill to exclude those serving short-term sentences for sexual offences and domestic abuse offences. These exclusions mean that there will be no change to the release point for people who are serving sentences for these offences, including those who have committed offences against children. This may go some way in limiting the impact of the change for direct or indirect child victims of domestic abuse or sexual offences, as the release point will not change.

Whilst these mitigations will go some way in reducing the impact of the earlier release of prisoners on victims of crime, including child victims of crime, it should be recognised that there are a wide range of impacts on victims relating to prisoner release in general, rather than relating to a specific release point. This impact assessment is limited to considering the impact of the proposed change to the point of release for people serving short-term sentences, rather than the impact of the release of a prisoner from custody more generally.

3. Child or young person whose parent/carer is serving a short-term sentence

The impact of having a parent in custody can be significant for children and young people, affecting their education, income, stability and mental health^{[22],[23],[24]}. Research has estimated as many as 27,000 children a year in Scotland may be affected by parental imprisonment^[25]. Additionally, it is estimated that approximately 65% of women in prison in Scotland are parents and only 5% of children stay in their own homes once their mother has been imprisoned.^[26].

Having a parent in prison is recognised as an Adverse Childhood Experience (ACE)^[27]. The Independent Care Review report found evidence that the imprisonment of a parent can lead to an exacerbation of poverty, increased likelihood of care and serious mental health implications^[28],[29]. The imprisonment of a parent specifically is associated with a five-fold increase in exposure to other ACEs^[30]. In addition, the impacts of parental imprisonment can include home and school moves, leading to poor academic performance, and an increased likelihood of involvement with the criminal justice system for the child^[31]. Families can also experience disruption of child care arrangements which can impact on ability to work, difficulties with benefit entitlement, and feelings of being judged and looked down on.^[32].

Bringing forward the point of release for some short-term prisoners will result in some parents who are serving short-term sentences being released at an earlier stage than they otherwise would have been. This may provide a benefit to some households, in terms of capacity for assistance with childcare and caring responsibilities within the household, work and earning potential, security, and emotional support. This may have a positive impact on UNCRC article 3, best interests of the child, and UNCRC article 9 in terms of minimising separation from parents.

Prisoners released from short-term sentences are not generally supervised on release, however they are entitled to request and receive voluntary throughcare. Voluntary throughcare aims to support the reintegration of those leaving prison back into the community and provide whole family support where needed.

However there is the potential that the release of a parent is not a positive experience for a child or family, and it has a negative impact on their wellbeing. Where children and young people do not wish to have contact with their incarcerated parent or caregiver, the release of a parent may be distressing and disruptive. In cases where there is a history of domestic abuse or where there are volatile family relationships, there may be a risk to the child’s physical and mental health and wellbeing. In cases where these types of problems occur, local support networks may be available, for example, from Children and Families Social Work, or from the third sector.

These potential impacts of release of a parent or carer on children are recognised. However, it is unlikely that the change proposed by the Bill, bringing the release point forward from 50% to 40%, will have a substantial influence on these impacts.

6. What changes (if any) have been made to the proposal as a result of this assessment?

The development of the final Bill content has taken place alongside the development of this impact assessment. Before commencing this impact assessment, a final policy position had not been established on whether a change to the release point for short-term prisoners should be limited to adults serving short-term sentences (except for sentences that include a sexual offence or domestic abuse as outlined above).

This was due to the fact that the challenges around prison population are currently limited to the adult prison estate. The same immediate pressures do not currently exist on places in secure accommodation, though demand and supply for places in secure accommodation is complex and changeable.

However, following early commencement of provisions in the Children (Care and Justice) Act 2024 on 28 August, which saw an end to the placement of under 18s in YOIs, officials were cognisant of the need to consider alignment of the release point with adults from the point of view of equality so children are not unfairly disadvantaged by this change on the basis of age and taking into account potential impacts against all UNCRC articles.

There are already specific provisions in place in relation to the detention of young offenders under the Criminal Procedure (Scotland) Act 1995 and the Children (Care and Justice) Scotland Act 2024 which in the Scottish Government’s view is compliant with UNCRC Articles 37(b) and 40(1). Under current legislation, the court is only permitted to impose a period of detention for a child if it considers that no other method of dealing with that individual is appropriate. Furthermore, children cannot be held in prison custody and instead will normally be detained in secure accommodation.

It was assessed that bringing forward the point of release for children under 18 who are serving short periods of detention in line with adults serving short sentences is the most equitable approach. This will ensure that children are not required to spend longer in secure accommodation than adults with offences of a similar nature. An example of this might be where a child receives the same sentence as their co-accused who is over the age of 18. Aligning the release point with adults will also avoid unnecessary complexities around calculating release dates for children who move from secure accommodation to a YOI once they reach 18 years of age.

The development of this CRWIA also allowed for consideration of the application of exclusions to earlier release, and whether exclusions should apply to children serving short sentences of under four years in the same way they are applied to adults. It is the view of the Scottish Government that applying the same exclusions to children and adults is proportionate, due to the evidence detailed in questions 3 and 5 around barriers to reporting sexual offences and domestic abuse. No changes are being made to provisions in legislation that could allow the release of a child at any stage in their sentences, regardless of offence type, under supervision.