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

Key Findings

Impact on those serving short term sentences

In terms of protected characteristics, the change to the release point is targeted at the general short-term prisoner population, rather than any person or group of people who share a specific protected characteristic. However, given the demographics of the prison population, earlier release will apply to some groups of people who share specific characteristics more than others. For example, because the majority of the prison population is male, more men than women will be directly impacted by an earlier release point. However, the impact of this change on individuals who are released at an earlier stage should not be significantly lesser or greater based on any specific protected characteristic.

This Bill will have a direct impact on those serving short-term sentences in prison or secure accommodation. For those who are eligible for earlier release, this could have a positive impact in terms of reducing time spent in custody, during which access to purposeful activity, positive social networks, family relations and supportive leisure activities can be limited.

Age

In terms of those serving short-term sentences specifically, Scottish Government Justice Analytical Services used data from thirty randomly sampled days in the period between August 2023-June 2024 to provide a provisional estimate for what the likely age breakdown is for the short-term prisoner population. This data shows that 0.06% are aged 16-17; 2.77% are aged 18-20; 23.37% are aged 21-29; 39.52% are aged 30-39; 22.26% are aged 40-49; and 12.03% are over the age of 50.

Following implementation of provisions within the Children (Care and Justice) Act 2024, children are no longer held in Young Offender Institutions and are instead detained in secure accommodation. The number of children under 18 detained is very low, and the impact of this Bill has been fully assessed through a Child Right and Wellbeing Impact Assessment. The impact on the protected characteristic of age is assessed as neutral, as there is no evidence that this change will impact any age group more so than any other age group.

Disability

According to SPS data from Q3 2023-24, 10% of prisoners self-reported having a disability^[9]. However, gauging the true extent of disabilities among prisoners is difficult, with a wide range of data on disabilities from different sources. For example, a 2017 survey by SPS revealed that 49% of prisoners over the age of 50 reported a long-term illness or disability, compared to 31% of the general population^[10].

There is also evidence that the prevalence of learning difficulties and disabilities (LDDs) may be particularly high among the prison population. A 2021 research report into the social care needs of the prison population found that on screening, around 40% of people in prison custody had some form of LDD. It is recognised that people with LDDs will have a 'distinctive set of needs' as they can find it hard to settle in and adapt to the prison environment^[11]. There is also a higher prevalence of hidden disabilities such as Foetal Alcohol Spectrum Disorder (FASD) and head injuries within the prison population with estimates that FASD is up to 19 times higher among the prison population compared to the general population^[12]. Among women, research from 2021 shows that 78% of female prisoners in Scotland have a history of significant head injury which can often be associated with disability^[13].

There are a wide range of individual needs that may arise as a result of known or unknown disabilities and the range of support available to prisoners with specific needs as a result of their disability whilst in custody will vary. Delivering social care within prisons is challenging, especially within older prisons which are difficult to adapt to accommodate social care needs. With appropriate throughcare in place for release and especially where there are familial ties that support needs linked to disability, it is possible that some people with disabilities may be positively impacted by earlier release.

Given the higher prevalence of certain disabilities within the prison population compared to the general population, some individuals with disabilities may benefit from being able to access support in the community that is more suited to their needs earlier than they would have been. It is therefore assessed that overall, the impact of this change may have a slightly positive impact on people with disabilities who are being released from custody.

Sex

In terms of sex, men are more likely to receive custodial sentences than women, with women consistently constituting a minority of the prison population at around 4-6% since 2001. According to Q3 2023-24 data, women currently account for 4% of the prison population overall^[14]. In terms of those serving short-term sentences specifically, Scottish Government Justice Analytical Services used data from thirty randomly sampled days in the period between August 2023-June 2024 to provide a provisional estimate for what the likely gender breakdown is for the short-term prisoner population. This data shows that 94.56% of those serving short-term sentences are male, and 5.44% are female. This means the vast majority of those directly impacted by prison release are men, and in the case of this change to release point, the majority of those released will be overwhelmingly male. However, there is evidence that imprisonment generally impacts women differently to men in terms of the impact on childcare and family life. More women in prison have dependent children than male prisoners. Only 17% of children whose mothers are in prison live with their fathers in the community^[15]. Children whose mother is in prison are more usually cared for by other women or care. Overall, this change is assessed as having a neutral impact in terms of sex, though there may be a slightly positive impact on parents, and women especially in terms of slightly reducing periods of separation from children whilst in custody.

Pregnancy and maternity

In terms of pregnancy and maternity the Scottish Prison Service does include Mother and Baby Units to allow pregnant women and women with babies to be accommodated together, based on individual assessment. Generally mothers with babies under the age of 12 months can be offered a place on a Mother and Baby Unit. The Scottish Prison Service does not currently publish data relating to pregnancy and maternity, however has been able to confirm that there are not currently any known cases of pregnant women, or women with children who are serving short-term sentences who would be impacted by this change. In cases of pregnancy in individuals serving short-term prison sentences, the early release of a pregnant prisoner could allow for the development of a better connection with the community and early access to local healthcare support. The release of an expectant parent could also provide support to their partner and allow engagement with the parenting process at an earlier opportunity. Where women who are serving short-term sentences have young children in the community, the earlier release of a mother could help benefit any dependent children. Parental imprisonment is considered an Adverse Childhood Experience (ACE), and limiting the period of separation of imprisonment may be beneficial to dependent children. Overall, the impact of this protected characteristic on pregnancy and maternity has been assessed as having the potential to have a slightly positive impact.

Gender reassignment

According to SPS data from 2023-24, less than 1% of the prison population self-reported as being trans^[16]. However, there is also evidence that some trans people may keep their gender identity hidden whilst in prison, with a 2021 study reporting that one fifth of LGBT+ prisoners interviewed kept their gender or sexual identity hidden, or were only open about one aspect of their sexual orientation and gender identity while keeping others private^[17]. The same study also highlighted the particular challenges faced by transgender people in prison, with some evidence that transgender people in prisons have an increased likelihood of suffering with mental health issues including depression and suicidality. Overall it has been assessed that whilst the number of trans prisoners impacted by earlier release will be low, in line with the low proportion of the prison population who identify as trans, there may be a small positive impact on people with this protected characteristic, in cases where there is better access to a wider range of mental health support in the community.

Sexual orientation

According to Scottish Prison Service data for Q3 2023-24, 90% of people declared themselves as heterosexuals. Bisexual people, gay men and gay women comprised 2% of the population. Another 3% preferred not to disclose their sexual orientation, and sexual orientation was not obtained for a further 4% of the prison population^[18]. A 2021 study at Dundee University highlighted the particular challenges faced by LGBT+ people in prison including experiences of discrimination, stigma and isolation within prisons that leads to feelings of inequality, helplessness and social isolation. One fifth of those interviewed kept their gender identity or sexual identity hidden, or were only open about one aspect of their sexual orientation and gender identity while keeping others private^[19]. There may be a small positive impact on people who are bisexual or gay, in cases where there is better access to a wider range of mental health support in the community.

Race

According to SPS data for Q1 2023-24, 94% of the prison population declared themselves as white; African people comprised 1%; Asian, Asian Scottish and Asian British people comprised 2%; those who declared themselves Caribbean or Black were 1%; and those who declared themselves as Other Ethic Group and African represented 1% each.^[20] There is no evidence that there will be any specific impact of bringing forward the point of release on the basis of race, therefore it has been assessed that the impact on this protected characteristic in terms of prisoners being released from custody is neutral.

Religion

Data on religion is not published as part of the Scottish Prison Service's quarterly data reporting. There is no evidence that there will be any specific impact of bringing forward the point of release on the basis of religion, therefore it has been assessed that the impact on this protected characteristic is neutral.

Impact on the wider prison population

There may be a slightly positive impact on the wider prison population in terms of a lower prison population generally reducing pressures, allowing SPS staff to better identify individual needs and ensure access to relevant support for those in their care. This may have a positive impact in terms of prisoners with some protected characteristics, including those with disabilities, in terms of the capacity of staff to manage individual needs.

Impact on Victims of Crime

It is recognised that the release of prisoners may be distressing for victims of crimes generally. 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. Changing the point of release for most people serving short-term sentences may have an impact on victims of crime where the person involved in their case is released at an earlier stage than they otherwise would have been, especially in cases where victims have been preparing for release based on the existing legislative framework.

Careful consideration has been given to any required exclusions to an earlier release point for those serving short-term sentences, based on evidence around the impact of certain crimes on victims and risks to reporting. In sexual assault and domestic offences, the majority of victims are women. In the ten-year period from 2012-2013 to 2021-2022, 99% of short-term custodial sentences where the main charge was a sexual offence were given to men, and 1% were given to women. In the ten-year period span from 2012-2013 to 2021-2022, 97% of short-term custodial sentences where the main charge was a domestic-aggravated crime were given to men, and 3% were given to women.

There also evidence that sexual offences and domestic abuse are under-reported. The Whole Lives Survivor Survey from Safe Lives found that, on average, survivors experienced four years of domestic abuse before telling someone^[21]. There is also evidence for 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^[22].

Reducing barriers to the reporting of sexual and domestic abuse offences is vital to the success of the Scottish Government's commitment to reduce violence against women and girls, as supported by the Equally Safe strategy. The Scottish Government also has 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. 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.

No change to release point will be made for those serving all, or part, of their sentence for sexual offences or domestic abuse. People serving sentences for these offences will continue to be released following half (50%) of their sentence.

Overall it has been assessed that there may be a negative impact on victims of crime generally if the prisoner involved in their case is release at an earlier stage. The impact of this is partially mitigated for the victims of sexual offences and domestic abuse through exclusions to an earlier automatic release point for those serving all, or part, of their sentences for these types of offences.

Information and support for victims of crime

There are 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. Not all victims who are eligible for the VNS are currently registered with the scheme, or have asked in advance to receive information under the more limited scheme of information. We recognise the benefits of victims being able to choose to receive information or not.

The Scottish Government is working closely with Victim Support Organisations to ensure clear public understanding about the change to release points and its implications for victims, and how victims can access information and support.

Impact on families

The earlier release of a person from prison custody or secure accommodation could have a positive impact on the families of those released in terms of increased opportunities for contact. In cases where the person being released is returning to a familial home, this could have a positive impact in terms of capacity for assistance with childcare and caring responsibilities within the household, work and earning potential, security, and emotional support.

However, there is also the potential that the release of a prisoner does not have a positive impact on family members, for example where family members do not wish to have contact with the incarcerated family member. The potential for a negative impact will be partially mitigated by exclusions to earlier release for those who are serving all, or part, of their sentence for domestic abuse or sexual offences. The impact on families of earlier release is therefore assessed as neutral.

Impact on Scottish Prison Staff and those working within prisons

There is also expected to be a positive impact on SPS staff and those working within prisons in terms of wellbeing and safety as a direct result of a more sustainable prison population.