Prisoners (Early Release) (Scotland) Bill: equality impact assessment

Background

Context of Prison Population

As of 7th November, the prison population is 8,297. The prison population has experienced a sustained growth since 2023. The latest projections through to January 2025 indicate that the prison population will continue to rise. Without intervention this is an unsustainable position for the Scottish Prison Service. There is no single reason for the growth in the prison population. Over the last decade the average length of prison sentences has increased by 32% and there has been a consistently high remand population. In addition, the prison population is increasingly complex, with many groups requiring to be accommodated separately from others.

Scotland is not alone in experiencing prison population pressures. Rising prison populations are being seen across the UK and more widely across Europe. The UK government has taken action to reduce the prison population in England and Wales through the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024^[2] which changed the point of release for some standard determinate sentenced prisoners to after they have served 40% of their sentence.

In order to ensure the safety and wellbeing of Scottish Prison Service staff and prisoners we must continue to pursue a wide range of actions which will reduce the prison population. We need to make sure that prisons can function effectively, focus on those who pose the greatest risk of harm and provide support to help reduce reoffending and help integration back into the community. Protecting victims and public safety remains an absolute priority.

Actions to reduce prison population pressures

The Scottish Government has taken action including increasing investment in community justice by £14 million in 2024-2025 to a total of £148 million. This will help to further strengthen alternatives to custody where appropriate, including community sentences as well as other interventions such as diversion from prosecution.

Electronically monitored bail is also now available in every local authority area which will help to reduce the remand population.

Home detention curfew (HDC) is an important tool in supporting the reintegration of certain prisoners, subject to risk assessment. HDC release is granted under licence conditions, and the curfew is electronically monitored. In the past 12 months, work to optimise the appropriate use of HDC has seen the numbers placed on HDC at any one time from around 50 to around 120. This work aims to ensure that appropriate individuals are given the opportunity to be granted the full HDC period available to them – without reducing the risk assessment process.

To further support effective use of HDC, we plan to introduce Regulations to Parliament that would enable GPS technology to be used to monitor a broader range of geographical locations where that is a condition of an HDC licence. In addition, we intend to bring forward secondary legislation to amend the use of HDC, with the intention of increasing the period of time individuals can spend on release under licence conditions. Increasing the use of HDC where appropriate is one measure that can support reintegration and a reduction in prison population pressures.

The Scottish Prison Service is working to optimise use of the prison estate. All children have been moved from HMP & YOI Polmont to secure accommodation following implementation of the Children (Care and Justice) (Scotland) Act 2024 which has also created additional capacity for adults.

We have also announced our intention to establish a Sentencing and Penal Policy Review to make recommendations for longer term action in this area before the end of this Parliamentary session.

These measures are critical to reducing prison population pressures in the medium and longer term however they will not immediately respond to the current prison population pressures.

In May 2024, faced with some of the highest prison population numbers ever, Scottish Ministers commenced section 11 of the Bail and Release from Custody (Scotland) Act 2023 and subsequently exercised their power to release 477 short-term prisoners early to reduce prison population pressures. The effects of this emergency release, whilst serving their immediate and intended purpose, were short-term and the prison population as of 7th November 2024 is at a similar level to the population prior to this emergency release.

Current release arrangements for people serving sentences of under four years

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 half (50%) of their sentence in prison.

In terms of children under the age of 18, under section 7 of the 1993 Act all children serving sentences of less than four years, following a conviction in solemn proceedings are released as soon as they have served half (50%) of their sentence, if not released earlier. All those released following detention as a child (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 as children 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 where sentences are 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^[3], 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^[4]. 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 no later than half (50%) way through 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.

Current release arrangements for people serving sentences of over four years

A long-term prisoner is defined as a prisoner serving a sentence of imprisonment of exactly four years or more.

Under the Prisoners and Criminal Proceedings (Scotland) Act 1993, most long-term prisoners become eligible for release on licence ("parole licence") at the halfway (50%) point of their sentence. This does not mean that they are automatically released at that point, but rather that their case will be referred to the Parole Board for Scotland for consideration. The Parole Board will consider any matter which is relevant to the case as set out in Rule 11 of the Parole Board (Scotland) Rules 2022^[5].This can include justice social work reports and risk assessments, as well as information provided by SPS. If recommended by the Parole Board the prisoner must then be released.

If a prisoner has not been recommended for parole, at that point or any subsequent parole review, long-term prisoners sentenced on or after 1 February 2016 must be released as soon as they have only 6 months of their sentence left to serve. This is to ensure that most individuals spend at least that period of time on licence and under supervision in the community before the sentence end date, allowing for better reintegration following custody. This is known as release on "non-parole licence". These release arrangements do not apply to:

• those already released;
• those who have been recalled from parole licence;
• those serving an extended sentence;
• those serving a life sentence; and
• those serving sentences for certain terrorism offences.

Prior to 1 February 2016, all long-term prisoners served at least one third of their sentence in the community (i.e. they were released at the two thirds point of sentence). This was changed to the minimum period of 6 months by the Prisoners (Control of Release) (Scotland) Act 2015^[6]. The previous position still applies to prisoners sentenced before that change took effect. This means that prisoners sentenced before 1 February 2016 are still released on non-parole licence after having served two thirds of their sentence.

Prisoners (Early Release) (Scotland) Bill

Bringing forward the point of release for most people serving short-term sentences through the Prisoners (Early Release) (Scotland) Bill is expected to have an immediate and sustained impact on the prison population.

The change to release point will apply to those serving a short-term sentence when the legislation comes into force and those sentenced to short-term sentences in the future. This means the change to release point will apply to people currently serving between 40-50% of their sentence when the Bill comes into effect.

There are some exclusions to the change to release point. Those serving all, or part, of their sentence for domestic abuse or sexual offences will continue to be released following half (50%) of their sentence. Specifically, the prisoners that are excluded are:

• 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.

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 two-fifths (40%) point on an ongoing basis.

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.

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.

Impact of the Bill on the prison population

Based on prison population projections^[7], it is estimated that around 5% of the sentenced prison population will 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 260-390 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.

Owing to the very small number of children held in secure accommodation, the expected impact on the capacity of secure accommodation is limited, however, in the interests of ensuring children under 18 are not unfairly impacted on the basis of age, children under 18 detained for short-sentences in secure accommodation have also been included in this change, with the same exclusions applied. The impact of the change to release point on children under the age of 18 has been assessed through a Child Right and Wellbeing Impact Assessment.

Bringing forward the release point for most people serving short-term custodial sentences will not fully resolve the prison population pressures. The prison population is impacted by many factors including independent decisions made by the Courts. The Bill will, however, help to reduce the prison population to more sustainable levels, alongside other measures being taken described above.