Publication - Consultation paper

Bail and release from custody arrangements: consultation

Published: 15 Nov 2021
From:
Cabinet Secretary for Justice and Veterans
Directorate:
Justice Directorate
Part of:
Law and order
ISBN:
9781802015270

Consultation on the use of remand and arrangements around release from custody - two areas which we consider have the potential to contribute to a shift in how prison and imprisonment is used in a modern Scotland.

Bail and release from custody arrangements: consultation
5. Section 2: Release from Custody

5. Section 2: Release from Custody

5.1 Introduction

This consultation seeks views on proposed reforms to the mechanisms governing release from custody, including how support for those leaving custody could and should be provided. As with the reforms relating to bail law, the underlying aim of these proposals is to reduce reoffending, leading to fewer victims in future.

We also recognise that for victims of crime, particularly where there is a risk of re-victimisation, the point at which the person who committed a crime against them is released can be a stressful and frightening time. Ensuring that victims and support organisations have the information they need to undertake proactive safety planning where necessary is important in empowering them to make decisions. We are therefore seeking views on how to support that information flow.

The vast majority of people currently detained in prison will return to our communities at some point, and so it is essential that effective release processes which focus on supporting successful reintegration are in place.

This benefits the individual by giving them the best possible opportunity to form positive connections with their community, access housing and employment and continue to receive support for addiction and mental health problems.

It also benefits society. By providing more effective support to people leaving custody, they are given their best chance to move on from offending behaviour which keeps our communities safer.

Conversely, if an individual's release isn't planned for, if they can't access services which meet their needs, keep them and others safe and support them to make positive choices, then we are not setting them up to successfully reintegrate into the community and they are likely to reoffend and cycle back through the justice system. Nobody benefits from that.

Therefore this consultation seeks views on a range of options to improve support for people leaving prison, with a focus on reducing reoffending. It also seeks views on the point at which release should take place and whether, in some circumstances, more people serving custodial sentences could be supported to serve part of their sentence in the community with the aim of enabling their reintegration.

We are also seeking views on whether Scottish Ministers should have an executive release function which would enable them to release groups of eligible prisoners in response to exceptional circumstances – with the aim of ensuring the ongoing security and good order of prisons and the health and wellbeing of prisoners and prison staff.

5.2 Proposals

The reforms discussed in this paper are:-

  • Providing Victim Support Organisations with information about the release of prisoners to enable proactive safety planning to be undertaken;
  • Giving certain categories of prisoner the ability to demonstrate their suitability for earlier release or to serve the remainder of their sentence in the community following successful completion of programmes etc;
  • Bringing forward the point at which short-term prisoners are automatically released (either unconditionally or subject to conditions);
  • Bringing forward the point at which long-term prisoners can first have their case heard by the Parole Board;
  • Amending or replacing the current model of Home Detention Curfew;
  • Providing Courts with the ability to determine the proportion of a custodial sentence that an individual should serve in the community whilst subject to conditions (monitored via electronic monitoring) at the point of sentencing, with an emphasis on supporting reintegration;
  • Altering current flexible release arrangements so that release no longer happens on a Friday or in advance of a public holiday in order that people leaving prison can access support at the point of release;
  • Placing specific duties on public bodies to engage with pre-release planning for prisoners;
  • Introducing a support service for prisoners released direct from court to enable their reintegration;
  • Revising throughcare standards for people leaving remand, short-term and long-term sentences and seeking views about which services these standards should apply to in addition to justice agencies; and
  • Introducing wider power of executive release to enable Scottish Ministers to release groups of prisoners in exceptional circumstances.

5.3 Background

The current system in Scotland broadly separates out different lengths of custodial sentence into three categories so that they are enforced in different ways and are subject to different release processes:

  • Determinate short-term – fixed sentences of less than 4 years;
  • Determinate long-term – fixed sentences of 4 years or more; and
  • Indeterminate – life sentences, Orders for Lifelong Restriction.

The proposals in this consultation relate to determinate sentenced prisoners only.

Determinate short-term sentences

Almost all persons serving determinate short-term sentences are automatically released at the half-way point of their sentence[49]. Most are released unconditionally. Depending on their offence and the sentence imposed, some of those persons released at the half-way point will be required to comply with conditions and supervision.

Persons serving determinate short-term sentences may access voluntary throughcare services if they wish to and these are provided by a range of sources. They can request throughcare support from their local authority if they wish (which local authorities have a statutory duty to provide[50], although the scope and form of support service may vary), or they can accept support offered by a range of third sector organisations (including the national third sector throughcare mentoring services funded directly by the Scottish Government).

Determinate long-term sentences

Almost all persons serving determinate long-term sentences can be considered by the Parole Board for Scotland for release from the half-way point of their sentence.[51] The Parole Board may recommend release if they feel that the individual does not pose an unacceptable risk to the public. If the Board does not recommend release, the individual's case generally returns to the Board for consideration every 12 months until their liberation date.

If an individual is still in custody with 6 months left on their sentence, they are automatically released under licence conditions until their sentence end date (to ensure that they will be subject to supervision in the community for at least that period of time).

There is an exception to this however where a prisoner is serving an extended sentence. An extended sentence is imposed by the court and consists of a custodial sentence and a period of supervision in the community after the custodial sentence has expired. Such a sentence is imposed where the court considers that a specific enhanced risk arises with the person which requires extended supervision. For these individuals, there is no automatic early release at all and instead they will serve their entire custodial sentence in custody if release is not recommended by the Parole Board.

Local Authorities have a statutory responsibility to provide supervision by Justice Social Work officials for those released from sentences of 4 years or more (either determinate long-term or indeterminate), and/or who are sentenced to post-release orders by the court (e.g Supervised Release Orders)[52]. This supervision will confirm whether the individual is fulfilling the conditions of their parole or post-release order – and may also provide advice and support to the individual on other issues relating to throughcare.

Indeterminate sentences

Prisoners serving indeterminate sentences must serve the punishment part imposed by the court at the point of sentencing before being eligible to be considered by the Parole Board for release.[53] There is no automatic early release for indeterminate sentences with release only ever occurring on a discretionary basis at the direction of the Parole Board. Individuals released as part of serving indeterminate sentences will be subject to licence conditions supervised by local authority justice social work. This consultation does not seek views on the release mechanisms relating to individuals serving indeterminate sentences.

Home Detention Curfew

In certain circumstances and ahead of the forms of release described above, some prisoners may be released to serve part of their sentence in the community. Home Detention Curfew (HDC) is the main mechanism for this and provides a route for appropriately assessed individuals to serve a proportion of their custodial sentence in the community on licence conditions, including a curfew condition, which is electronically monitored.

The principal purpose behind HDC is to provide those leaving prison with a managed return to their communities ahead of release under one of the forms described above. HDC provides structure, through curfew and monitoring and by doing so can support compliance with release conditions and encourage successful reintegration.

Home Detention Curfew is available to short and long term prisoners provided they:

  • (in the case of short-term prisoners) Are serving sentences of three months or more;
  • Have served one quarter (25%) of their sentence;
  • Are not subject to the following statutory exclusions:
    • Individuals who are required to register as sex offenders;
    • Individuals who are subject to an Extended Sentence;
    • Individuals who are subject to a Supervised Release Order;
    • Individuals who are subject to a Hospital Direction (including Transfer for Treatment);
    • Individuals who are convicted of terrorist offences under section 1AB of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act");
    • Individuals who have been confirmed as "to be deported" by the UKBA.
    • Individuals who are serving a non-offence term (if the individual pays the balance of the financial penalty imposed or serves the non-offence term he/she will cease to be excluded)
  • For long-term prisoners (and in addition to the criteria noted above), have been pre-approved for release on parole at the half-way point of their sentence by the Parole Board for Scotland.

Provided the above conditions are met, individuals can be considered for release on HDC following an assessment of risk undertaken by the Scottish Prison Service, in co-operation with social work officials for the area the prisoner wishes to be released to. HDC is granted in the period leading up to the halfway stage of a prisoner's sentence. The minimum period for which a prisoner can be released on HDC is 14 days and the maximum period is 180 days.

HDC therefore provides a critical release mechanism and is an approach used in other jurisdictions. The approach to HDC in Scotland was reviewed in 2019 and substantial additional risk assessment mechanisms were introduced at that stage.

The numbers of prisoners currently released on HDC in Scotland is consistently low – around 50 at any given time.[54] Prisoners are not required to apply for HDC if they do not wish to, and at present there is no scope to arrange for HDC unless the prisoner can indicate the address they will live at following release. Given the important role supported release can have in enabling successful reintegration, we believe the time is right to consider how we use HDC and whether a different approach is needed in future.

Flexible release

The date of a prisoners' earliest date of liberation may fall on any day of the week, but prisoners are not released from custody on weekend days or public holidays. Those whose scheduled liberation date falls on those days will have their release date automatically moved to the first available earlier day. Most commonly, this sees prisoners whose release date falls on a Saturday or Sunday being released on the Friday before.

Previous concerns had been raised amongst some justice organisations and community based services that some individuals released from prison on Friday (or other dates prior to public holidays or weekend days) may be comparatively disadvantaged, as mainstream public services may be less available, or unavailable, to them.

In response, the Scottish Government introduced provisions within the Prisoners (Control of Release) (Scotland) Act 2015 (which came into force on February 2016). That Act amended the 1993 Act to provide a discretion to bring forward a prisoner's release date by up to two days where it would benefit their reintegration into the community. For example, from a Friday to a Wednesday. This is applied on a case by case basis, with SPS accepting applications from external organisations seeking a change to the release date of an individual. These applications require the organisation to state the reasons why the change will make a practical improvement in the circumstances of the individual's release.

The number of prisoners whose release date is moved under this legislation is low and there have been calls to review this process to ensure that more prisoners can access it – for example by removing the application process and imposing a blanket ban on release on a Friday or the day before a public holiday.

This consultation seeks views on how this approach could be reviewed to ensure the safety and successful reintegration of those leaving prison.

5.4 Future approaches to release

Mechanisms relating to release from custody are complex and must strike the balance between the need to protect the public, to reflect the underlying purpose of the sentence imposed and to provide the best opportunity for rehabilitation and successful reintegration. The intention of any amendments to the existing system would be to ensure that rehabilitation and successful reintegration remain a priority, to reduce the risk of reoffending and future victimisation. Consideration must be given to how the individual's management in custody and the point of eventual release can produce the best outcomes for individuals and communities.

This consultation asks for your views on what could be done differently and what the opportunities are for change.

5.4.1 Point at which prisoners can be released/considered for release

Some of those being held in custody either may have never posed any risk of serious harm to the public or may no longer present a risk of serious harm to the public but, due to the current release arrangements, will continue to be held and may not become eligible for release, or consideration for release by the Parole Board for Scotland, for many years. This reflects arrangements whereby the time spent in custody for different lengths of determinate sentences generally require a minimum of one half of the sentence to be spent in custody as a punishment (through loss of liberty) for offending behaviour.

Having different processes around release from custody which were more flexible and risk based could create circumstances where certain prisoners who do not or no longer pose a risk of serious harm could be permitted to serve the remainder of their sentence in the community. This would produce a structured basis for prisoners to complete their sentence, and still allow a punishment to be imposed (through loss of liberty) but would support better reintegration in order to reduce the risk of future reoffending.

Question 13

To what extent do you agree or disagree that, in general, enabling a prisoner to serve part of their sentence in the community can help their reintegration?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Question 14

What mechanisms do you think should be in place to support a prisoner's successful reintegration in their community?

5.4.2 Opportunities to demonstrate suitability to be considered for earlier release

In some other jurisdictions, prisoners can demonstrate their readiness for earlier release through good behaviour, or to "earn" the right to be considered for earlier release through successfully completing relevant programmes and other activities available to them – such as participating effectively with counselling or groupwork to address factors contributing to their previous offending, education (such as support for literacy and numeracy) and life skills classes or vocational training.

This consultation asks for your views on a proposed approach, where engagement in, and progress on, these programmes, training and other relevant activities could be used to demonstrate potential readiness for release. This evidence could then help inform decisions regarding:

  • whether long term prisoner cases would be heard earlier by the Parole Board;
  • whether short-term prisoners would be released in advance of the half-way point of their sentence;
  • whether prisoners would be presumed suitable for release on EM.

Such an approach would balance the continuing need to punish an individual through loss of liberty, with flexibility for a positive response to dynamic efforts by the individual in custody to the reasons why they committed their offence. The flexibility could be used where such engagement by the individual means the extent of the punishment originally imposed (i.e. the length of the loss of liberty) no longer requires to be as lengthy to reflect the progress made by the individual.

Designing such an approach would require complex considerations and, for short-term prisoners, would need to take clear account of any risks posed by the individual. Long-term prisoners would still have their case considered by the Parole Board, who already take engagement and progress on programmes etc into consideration. Eligibility for such processes could be restricted, either by excluding certain types of prisoner, or through individual assessment. It would also require sufficient resource for the Prison service and partners to ensure that timely access to the required programmes and services was available to all prisoners.

However, such a model could provide increased support for rehabilitation and improve prisoners' motivation to engage with services to address the underlying causes of their offending behaviour. It could also provide a mechanism so that those who do not, or no longer pose a risk of serious harm could be considered for earlier release, or to serve the remainder of their sentence in the community.

Question 15

Do you agree that through good behaviour, or completing education, training and rehabilitation programmes, prisoners should be able to demonstrate their suitability for…

a)…early release?

Yes / no / unsure

b)…the ability to complete their sentence in the community?

Yes / no / unsure

Please give reasons for your answers.

Question 16

Do you have any comments on how you envisage such a process operating in the Scottish justice system?

Who should be eligible to earn opportunities in this way?

What risks do you see with this approach, or what safeguards do you feel would need to be in place?

5.4.3 Release for determinate sentences

As noted above, there are different release mechanisms depending on the length of sentence a prisoner is serving.

Almost all prisoners serving less than four years are released automatically at the halfway point of their sentence. Those prisoners serving four years or more are eligible to have their case considered by the Parole Board at the halfway point of their sentence. At that point, the Parole Board may recommend release if they feel that the individual does not pose an unacceptable risk to the public.

The operation of release reflects punishment (through loss of liberty) in each custodial sentence imposed. The trigger point of the halfway point of sentence for, at the very least, consideration of release can be interpreted as the punishment element of the sentence (i.e. the period when loss of liberty has to occur).

Since these periods have been established, further policy has developed as to the principles and purposes of sentencing. In particular, the Scottish Sentencing Council has developed a sentencing guideline[55]. This guideline clearly lays the different purposes of sentencing which, while including punishment, extends well beyond those narrow confines.

Alongside punishment, purposes of sentencing are protection of the public, rehabilitation of offenders, giving the offender the opportunity to make amends and expressing disapproval for the offending behaviour. These purposes may carry different weights in cases with different facts and circumstances. Looking afresh at the release point for different determinate sentences allows reflection of this important work by the Scottish Sentencing Council which can inform the consideration to release points from sentences.

There is no fundamental reason why this need for an expression of punishment through release policy must be set at half of the custodial sentence to be served prior to consideration for release or release itself. It could be a different proportion and certainly the work of the Scottish Sentencing Council makes clear punishment is only one of 5 core purposes of sentencing.

This consultation seeks views as to whether release law could be adjusted so the points at which a prisoner is automatically released (for short-term prisoners) or considered for release (for long-term prisoners) could be altered in some or all cases.

A more flexible system which allows for greater discretionary decision-making, informed by any risks posed by an individual, with a greater emphasis on supporting their readiness for release may be more effective in supporting reintegration.

For example, what this could mean in practice is that short-term prisoners could be automatically released earlier than the half-way point of their sentence, e.g. at the 1/3 point.

Under this approach, individuals who meet certain criteria could be released from custody earlier than half-way but be subject to post-release conditions (and have those conditions monitored using electronic monitoring) until the half-way point of their sentence when they would be unconditionally released - although they would be subject to recall to custody if they commit another offence before their sentence end date.

This option could allow better opportunities for monitored reintegration by ensuring more prisoners were released in a gradual, structured fashion. This could be further supported by providing the individual with specific throughcare support to address their needs, and to make links to services in their community.

Alternatively, such release could happen unconditionally (i.e. without any conditions) and would operate in the same way as currently, just at an earlier point in the sentence.

Question 17

Which of the following options in relation to automatic early release for short term prisoners would you say you most prefer?

- Automatic early release changes to earlier in the sentence, but the individual is initially subject to conditions and monitoring, until the half-way point

- Automatic early release changes to earlier in the sentence, nothing else changes

- No change: automatic early release remains half way through the sentence

Please give reasons for your answer.

Similarly, a prisoner serving a sentence of four years or more could have their case brought before the Parole Board for consideration before the half-way point of their sentence. This could either be done on the basis of risk assessments carried out in custody which indicate that the individual no longer poses a risk of serious harm. Or could be done more automatically, by amending legislation so that cases are considered by the Parole Board at the 1/3 point of the sentence (or a different fraction) rather than at halfway. The Parole Board would still have responsibility for deciding whether or not to direct release, but the first consideration would take place at an earlier point in the sentence.

Question 18

Currently long-term prisoners can be considered for release by the Parole Board for Scotland once they have completed half of their sentence. Which of the following options would you say you most prefer?

- Change to allow some long-term prisoners to be considered by the Parole Board earlier if they are assessed as low risk

- Change to automatic consideration by Parole Board once one third of the sentence is served for all long-term prisoners

- No change: automatic consideration by Parole Board once half of sentence is served for all long-term prisoners

Please give reasons for your answer.

5.4.4 Flexible Release arrangements

The flexible release provisions inserted into the 1993 Act by the Prisoners (Control of Release) (Scotland) Act 2015 are intended to support the successful reintegration of people leaving prison by enabling organisations who provide support to the individual to submit an application to SPS to have the release date moved by up to 2 days.

In practice, this is used infrequently and there have been calls, from the Drugs Deaths Taskforce amongst others, to expand the use of this approach by imposing a blanket ban on release on a Friday or the day before a public holiday in order that people leaving prison can access the services they need at the point of release[56]. This recognises the vulnerability of people leaving custody which can manifest in a number of ways, from difficulty accessing accommodation or benefits to drug-related or other harms.

This consultation seeks therefore views on whether such a blanket ban should be imposed. And what changes would need to be made to ensure that the relevant services were available at the point of liberation from custody recognising that, even if an individual was released earlier in the week, they may still experience the same difficulties or harms if the services they need are not available.

Question 19

Do you agree that the Scottish Government should ban all prison releases on a Friday (or the day before a public holiday), so people leaving prison have greater opportunity to access support?

Yes / No / Unsure

Please give reasons for your answer. If you agree, what wider changes would be needed to ensure people leaving prison have access to the support they need?

5.4.5 Home Detention Curfew and electronically monitored release

In some other jurisdictions, sentences can be automatically split between custody and community sections (with community sections being administered as home detention, and/or community sentencing).

As we are considering reforms to release arrangements, it would be valuable to consider whether greater use could be made of electronic monitoring as a way of ensuring compliance with conditions of release so that certain prisoners could serve a proportion of their sentence in the community.

As detailed above, at present Home Detention Curfew (HDC) provides the main mechanism for eligible determinate sentenced prisoners to serve a proportion of their sentence in the community, subject to licence conditions which include curfew – monitored using electronic monitoring devices. By creating a structured release process, HDC is intended to support a prisoner's rehabilitation and reintegration at the end of their sentence.

Decisions about whether to release an individual on HDC are for SPS, on the basis of risk assessment and in consultation with partners. Under the current process, participation in HDC is optional, and depends on prisoners actively making an application, regardless of their suitability. HDC is also currently limited to six months or the last quarter of the prisoners sentence – whichever is less. The assessment process for HDC has been amended in the last two years, with the intention of providing a detailed case-by-case assessment of each application.. At the moment, around 50 prisoners are released on HDC at any one time, when previously the numbers were around 200, so the current impact of this mechanism is limited. Therefore, the time is right to consider whether the current system should be amended or replaced.

Scottish Ministers currently have powers to amend the statutory framework for HDC via subordinate legislation[57]. This could include shortening the minimum length of sentence to which HDC can be applied (currently 3 months), or increasing the maximum period a prisoner can spend on HDC (currently 180 days). These powers would also allow adjustments to be made to the list of statutory exclusions from HDC (as listed at section 3.3 above).

Beyond that, changes could also be made to the decision-making process in relation to HDC and the level of risk assessment required. This would not require legislation.

This consultation seeks views on whether HDC should be amended or replaced. And, more broadly, seeks views on when and how decisions about the length of time an individual spends in the community at the end of their sentence should be taken and by who.

One option could be to replace the current model of HDC and move towards a model where certain categories of prisoner are presumed suitable unless there was a specific reason why this should not take place (e.g. known risk to an individual(s). This could continue to be a mechanism which is administered by the Prison Service or which could be administered by another body (e.g. Parole Board for Scotland).

An alternative could be that decisions on the proportion of a custodial sentence which could be served in the community (subject to conditions and monitored by EM) are no longer taken by SPS but are taken by the courts at the point of sentencing.

This approach would involve the courts determining the proportion of a custodial sentence which an individual would serve in prison, and what proportion they would in the community whilst subject to conditions, including a curfew (compliance with which could be electronically monitored) or conditions on their behaviour, activity or location. For example, the court could decide that an individual could serve 1/3 of their sentence in custody and 2/3 in the community subject to conditions. This determination could be made by the court at the point of sentencing with the option to return the individual to court to have the conditions varied up or down if circumstances change (for example, on the basis of risk assessment conducted in custody). This approach to review is currently used for Supervised Release Orders.

Question 20

Below is a list of some of the features of the current HDC system, and potential changes that could help to increase usage of HDC (or similar). Please indicate your view on each of these potential changes.

a) - Prisoners must actively apply for HDC. Should HDC be considered automatically for some categories of prisoners instead?

-Yes / no / unsure

Please give reasons for your answer, or share any comments you would like to make on which categories of prisoner you think might be automatically considered.

b) - The maximum length of time allowed on HDC is 6 months (or 1 quarter of the sentence). Do you think that this should:

-Be made longer

-Not change

Please give reasons for your answer, or share any comments you would like to make on how long you think is appropriate.

(Question 20 continued)

c) - The minimum sentence for which HDC can be considered is 3 months. Should this limitation be removed?

-Yes / no / unsure

Please give reasons for your answer, or share any comments you would like to make on what sentence length you think is appropriate:

d) - There is currently a list of exclusions that make someone ineligible for HDC. Should this list be reviewed with the intention of expanding eligibility for HDC?

-Yes / no / unsure

Please give reasons for your answer, or share any comments you would like to make on what criteria are relevant to whether someone should be eligible for HDC:

e) - Currently, SPS make decisions to release prisoners on HDC following a risk assessment and engagement with community partners. Do you think this responsibility should remain with SPS?

-Yes / no / unsure

Please give reasons for your answer, or share any comments you would like to make on the role of SPS in determining release on HDC:

f) - Do you think decisions on whether to release prisoners on HDC (or similar) should be taken by the Parole Board for Scotland in future – even for those prisoners serving less than 4 years?

-Yes / no / unsure

Please give reasons for your answer.

g) - Do you think decisions about the length of time an individual would serve in the community at the end of their custodial sentence should instead be set by the court at the time of sentencing?

-Yes / no / unsure

Please give reasons for your answer, or share any comments you would like to make on what role the courts could have in determining the proportion of sentence an individual could serve in the community.

5.5 Support and information for victims

There are processes in place whereby information relating to the release of an individual from custody can be shared by SPS with local authorities and ultimately Justice Social Work departments. This is to enable local authorities to carry out statutory duties such as providing housing support to individuals in the community and enable Justice Social Work departments to deliver mandatory supervision and voluntary throughcare to those leaving custody.

Information about the release of individuals from custody is not routinely shared with other organisations, and any proposals to do so would need to comply with UK data protection laws.

Some victim support organisations have proposed that they could benefit from receiving notification of individuals being released to enable effective safety planning with victims, either on a routine basis or in relation to specific cases in which they are providing support. This would enable these organisations to ensure that they could provide effective support at the right time and in an informed fashion. It would also provide reassurance to the victim. However as it would involve sharing personal data with a third party, the legal basis and operational practice required to enable this information sharing would have to be carefully considered.

An additional consideration relates to the Victim Notification Scheme (VNS). The VNS enables eligible victims who are registered with the Scheme to receive certain information about an individual in custody, such as the date of release or when they become eligible for temporary release. In addition to this information, VNS letters, which are issued by SPS, provide information on support services which victims can access if they choose to.

Some victim support organisations have suggested that the VNS could take a more trauma-informed approach to victim care and support. For example, by victim support organisations potentially being provided with advance notice of an individual's release (or when they are eligible for temporary release) enabling them to proactively contact the victim and offer emotional and practical support.

The Scottish Government has committed to undertake a review of the VNS to investigate where improvements could be made. The review may enable potential changes to the sharing of information on the release of individual's from custody to be explored in detail. In advance of the review, however, this consultation seeks views on the potential for further information to be shared with victims and victim support organisations, and the wider considerations that would need to be taken into account.

Question 21

To what extent do you agree or disagree that the Scottish Government should consider whether information on individuals being released from custody can be shared with third sector victim support organisations, for example, to enable them to provide proactive support to victims and carry out safety planning?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Question 22

In addition to information on individuals being released, to what extent do you agree or disagree that victims and victims support organisations should be able to access further information?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer. If you agree, please state what information should be provided and for what purpose.

5.6 Support for people leaving prison

Whenever it is necessary to place an individual in custody, we believe it is important that they should be guided and supported to assist their reintegration upon their release, , to enable their continued rehabilitation and help them desist from future offending. This will be a key part of their time in prison, and efforts to reintegrate them back into the community should begin whilst in custody, and continued after their release. While justice social work services have a key part to play in these processes and do a huge amount of work to support those leaving custody, wider public and third sector services also have essential roles to play. This includes ensuring that each individual's needs for support with housing, welfare and benefits, employability and employment, health, addictions or mental health support are recognised and addressed, both whilst in custody and after release. The availability, scope and delivery of such services are not within the direct control of justice social work services or other justice bodies.

The Community Justice (Scotland) Act 2016 recognises that there are many different bodies (public, private and third sector) that must be involved in the planning, design and delivery of services for people who have committed offences. This includes national organisations such as the Scottish Prison Service (SPS) and local bodies such as Community Justice Partnerships, Alcohol and Drug Partnerships and local authority justice social work departments – working alongside universal public services – with shared responsibility for the planning and delivery of community justice priorities. The third sector also plays an important role by providing specialist services aimed at reducing re-offending. This shared responsibility is underpinned by the duty of public services to provide essential services to members of the public that require them, such as providing access to benefits, accommodation to individuals who are unintentionally homeless, or the provision of healthcare. This includes individuals being released from custody, who may be in particular need and be particularly vulnerable.

Structured reintegration back into the community gives the opportunity for those who have offended to realise their potential and turn their lives around, creating a safer and fairer society for all.

5.6.1 Pre-release planning

In preparation for an individual's release, SPS will offer to engage with each prisoner in pre-release planning. Where the individual wishes to do so, SPS will offer to work with them to identify their support needs, and which public services they will need to engage with on release– and then to assist them in making contact with public and third sector services. The longer that the individual is in prison, the more scope there is to plan for release.

Periods of remands and short custodial sentences offer much less scope for pre-release planning. In contrast, those serving longer sentences can be involved in more detailed preparations (including temporary releases, and time in the open estate) alongside the work of the Parole Board, and the role of justice social work in supervising the individuals' compliance with release conditions and any other post-release orders.

There are existing duties on public bodies to provide essential services to members of the public who require them. These duties are not specific to those leaving prison however. There are good practice examples of services engaging in pre-release planning but this is not a consistent picture. This consultation seeks views on whether a further duty which specifically highlights the need for public bodies to engage with pre-release planning for those leaving custody would be beneficial in supporting successful reintegration.

Question 23

Which of the following best reflects your view on public service's engagement with pre-release planning for prisoners?

- Existing duties on public services to give all people access to essential services are sufficient to meet prison leavers' needs

- Existing duties are not sufficient; public services should have a specific duty to engage with pre-release planning

Please give reasons for your answer.

Question 24

If public services had an additional duty to engage in pre-release planning for prisoners, which services should that duty cover? Please list each service and what each should be required to do.

5.6.2 Release direct from court

In some instances, for example where an individual has been serving a period of remand and does not receive a custodial sentence (they are either found not guilty, sentenced to time already served, or to a community sentence), they may be released direct from court, or will be released immediately afterwards from prison. In these instances, the limited opportunity for pre-release planning and the lack of notice before an individual is released means that sometimes they cannot link to or access the services they need in their communities.

In these examples, the individual is not necessarily subject to any supervision by justice social work or other statutory requirements and so it is difficult for SPS to take action to provide the individual's details to relevant local services. This can mean that individuals released in this way may not, for example, have support to access local housing or health services on release.

SPS have tried to address this by agreeing with GeoAMEY that they will provide liberation packs to those individuals released at court. These information packs relate to the local area within which the individual is being liberated. However, without structured support available at that time, some of these individuals may not link to the services they need, potentially putting themselves and others at risk.

This consultation seeks views on whether a specific support service should be available to those who are released direct from court (or immediately from custody). This service could liaise both with SPS in terms of any assessed needs (e.g. health, housing, benefits) and risks, along with any previous contact with community services which could be re-established. The service could help refer individuals onto the correct services in their local communities.

Alternatively, rather than a separate support service, there could be scope to draw upon the general duties of public services (or a new specific duty to address the needs of individuals leaving custody – as discussed above) – to ensure that public and third sector services are aware of and able to meet the needs of individuals released from custody at short notice by the court.

Question 25

To what extent do you agree or disagree that support should be available to enable prisoners released direct from court to access local support services in their community?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer. If you agree, please explain how you envisage that support would look and which bodies you feel should be involved.

5.6.3 Throughcare support

Throughcare is the coordinated provision of support to a person beginning when they first enter prison, throughout their period of imprisonment and during their transition back into the community. Part of this work is delivered alongside the statutory supervision of certain prisoners undertaken by Justice Social Work. There are also a broader range of throughcare activities delivered by local authority (including, but not limited to, Justice Social Work), NHS and third sector organisations which engage with other prisoners on a voluntary basis, before and after their release.

This consultation is not seeking views on the statutory duties of Justice Social Work to supervise individuals after release to determine if they are complying with conditions of release or other orders – but is focused on other activities to advise, guide or otherwise support the individual's reintegration.

Voluntary throughcare support may be provided by dedicated services, which can provide direct support as well as helping link an individuals to the community-based services they need, or by community-based universal services proactively reaching into prisons to engage with prisoners prior to their release and continuing to engage with them thereafter. It may also be delivered through a combination of these two approaches.

Effective throughcare can support an individual's successful reintegration by offering guidance and advice to assist their continued rehabilitation and desistance – as well as assistance with practical problems, such as access to accommodation, healthcare, social supports, education or employability support etc on release. The support provided should be based on the specific needs of the individual.

Local authorities (via justice social work) currently have a duty to provide voluntary support to prisoners leaving custody following a period of remand or a short-term sentence should the individual request it (with the exception of short-term sex offenders who are released on licence at the half-way point of their sentence and so are subject to statutory supervision on release).

This support is provided under the terms of section 27(1)(c) of the Social Work (Scotland) Act 1968[58] (the 1968 Act) which states that local authorities are responsible for 'the provision of advice, guidance or assistance for persons in their area who, within 12 months of their release from prison, or any other form of detention request such advice, guidance or assistance'.

Local Authorities must also provide statutory supervision for prisoners leaving long-term sentences as set out in section 27(1)(b) of the 1968 Act. This is based on ensuring that the individual is complying with the conditions of their release, and any other post-release orders – but beyond that can involve advising and guiding individuals how to engage with other agencies which will help them resolve any problems, and help them to resettle in the community.

As well as requesting throughcare support from their local authority, short term prisoners may also receive throughcare assistance from a range of third sector services – including from the national prisoner throughcare mentoring services delivered by the third sector and funded by the Scottish Government.

Both local authority-led and third sector services for short term prisoners are voluntary, and there is no requirement for individuals serving short sentences to access or comply with pre-release planning, or to engage with any throughcare service after their release if they do not wish to do so. However, ensuring that consistent support is available to those who ask for it, no matter where they live, is important in ensuring equity.

There are existing national standards for the provision of throughcare[59] – both to prisoners who are required to engage with these services as part of a licence or because they request such a service. These standards were published in 2004 and were intended to ensure that a consistently good quality of service is provided across Scotland. Under these standards, the term 'throughcare' is used to describe the provision of a range of social work and associated services to prisoners and their families from the point of sentence or remand, during imprisonment and following release into the community.

These existing standards are very focused on the role of justice social work in delivering throughcare. Given the evidence which shows that individualised holistic interventions which address multiple criminogenic needs are more effective at reducing reoffending, this consultation seeks views as to whether revised minimum standards for throughcare should encompass a broader range of services.

This builds on the examples of other structures that have been developed to support greater consistency and equity of access to services, and the promotion of good practice. For example, the Sustainable Housing for Everyone on Release (SHORE) standards[60] which were published in 2016 and aim to ensure that the housing needs of individuals in prison are handled in a consistent way across Scotland, and the Medication Assisted Treatment standards[61] which support the consistent delivery of safe, accessible, high-quality drug treatment across Scotland.

The Justice Committee's inquiry into the use of remand in Scotland in 2018[62] highlighted an absence of support when people are released from remand. As noted previously, between 2014-17, more than half of those sentenced after being on remand did not receive a custodial sentence. Short periods of imprisonment, including on remand, are extremely disruptive and break links with housing, employment, family and wider community support.

Therefore, ensuring that consistent support is available for prisoners leaving remand, including in cases where release occurs straight from court, would be beneficial in supporting successful reintegration and reducing the risk of re-offending.

This consultation also seeks views on whether revised minimum standards for thoroughfare should differentiate remand, short-term and long-term prisoners to ensure that the most appropriate and relevant support is provided.

Question 26

To what extent to do you agree or disagree that revised minimum standards for throughcare should incorporate a wider range of services?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer. If you agree, please list the services you think these standards should cover and what you think their role should be.

Question 27

To what extent do you agree or disagree that revised minimum standards for throughcare should differentiate between remand, short-term and long-term prisoners?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer. If you agree, please state how you think these standards should differ for each cohort.

Question 28

To what extent do you agree or disagree that revised minimum standards for throughcare should be statutory?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly agree

Please give reasons for your answer.

Question 29

Do you think other changes should be made to the way throughcare support is provided to people leaving remand/short-term/long-term prison sentences?

Yes / no / unsure

Please give reasons for your answer. If you think other changes should be made, can you provide details of what these changes could be?

Question 30

Should other support mechanisms be introduced/formalised to better enable reintegration of those leaving custody?

Yes / no / unsure

Please give reasons for your answer. If you think other mechanisms should be introduced, can you provide detail of what these could be?

5.7 Executive Release power

Scottish Ministers do not currently have a general executive power that would allow them to permanently release groups of prisoners, even in an emergency situation which puts the security and good order of prisons and the safety and wellbeing of prison staff and prisoners at risk. Such a power exists in England and Wales under Section 32 of the Criminal Justice Act 1982[63] which empowers the Secretary of State to order that specified persons who are serving a sentence of imprisonment are to be released from prison earlier than they would otherwise be released. The power can only be exercised if the Secretary of State is satisfied that it is necessary to do so in order to make the best use of the places available for detention.

An "Executive release" provision would provide Ministers with the power to direct the release of a specified, limited group of prisoners if certain conditions are met. It is intended to provide a mechanism to enable release of a number of prisoners in response to exceptional circumstances when they can no longer be managed safely in the prison estate.

The risk of the absence of such a power was highlighted early in the Covid-19 pandemic, when emergency legislation had to be swiftly sought to enable Ministers to order a limited early release of prisoners to support security and good order in prisons, and protect the health and welfare of prisoners and prison staff in response to the effects coronavirus was having.

There are limitations in how this emergency power could be used, with certain categories of prisoners who are not eligible for release, and the requirement for Ministers to put the full regulations for any process before the Parliament for approval. Any use of the power must be necessary and proportionate to the effects coronavirus is having or is likely to have on prisons.

This power has been used once (at the time of writing) in May 2020 and provided for the release of 350 short term prisoners who were nearing the end of their sentence (all with 90 days or less to serve).

However, the provision in the Coronavirus (Scotland) Act 2020 only allows for the release of prisoners during and as a result of the coronavirus pandemic. Should it ever be necessary to release a group of prisoners in response to exceptional circumstances which put the security and good order of a prison or prisons at risk (such as another public health emergency, or catastrophic damage to a prison due to fire or flooding, resulting in it being unsafe for habitation or overcrowding), the powers under this Act would not be available.

Scottish Ministers do have powers in terms of section 39(6) of the Prisons (Scotland) Act 1989 to create a regime of temporary release for sentenced prisoners, which could theoretically be activated in such an emergency. However, the prisoners would be required to return to prison at a later date to complete the remainder of their sentences, and it would not be permissible to run this temporary release up to the scheduled end of a prisoners' sentence. In light of this, these temporary release arrangements would be likely to create substantial practical problems for the prison, and badly disrupt the lives of the released prisoners – at a time when the priority would be to reduce operational demands on the prison service and enable them to respond to the underlying crisis.

It is essential that our prisons are safe and well run – to ensure the well-being of prisoners and staff. In circumstances where prisons become unsafe and put those living and working there at risk, it is the duty of Government to act to restore good order and enable the prison authorities to manage the situation effectively.

We are therefore seeking views on whether a wider executive release power should be available, should Scottish Ministers be required to react immediately in exceptional circumstances. This could include, for example, a prison (or part of a prison) becoming uninhabitable due to fire or flood, or a prison becoming unsafe due to overcrowding.

The intention is that this power would only be used in exceptional circumstances such as those outlined above, where it would be a contingency measure to ensure the safe operation of the prison estate.

Question 31

To what extent do you agree or disagree with the introduction of an executive power of release, for use in exceptional circumstances?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Question 32

If an executive power of prisoner release was introduced for use in exceptional circumstances, what circumstances do you consider that would cover?

Please provide details.


Contact

Email: futureofcustody@gov.scot