Scottish Sentencing and Penal Policy Commission report: Justice That Works

Chapter Seven: Custody: accountability and making progress

Summary

Overcrowding, ageing infrastructure and limited access to programmes significantly undermine rehabilitation, safety and wellbeing in Scotland’s prisons. Prisons can become places of wasted time and missed opportunities, at significant human and financial cost. Purposeful activity, education, health support and progression opportunities remain inconsistent, and delays in accessing interventions impede preparation for release.

A clearer rehabilitation strategy, greater transparency on programme availability and broader indicators of progress would strengthen accountability and outcomes. Addressing poor conditions and overcrowding is a necessary step in moving away from this cycle and enabling progress. Faster access to interventions, better continuity between prison and community services and improved support for family contact would enhance reintegration, both during custody and in preparation for release.

Restoring release at the two-thirds point for long-term prisoners would create more structured time under supervision in communities. For long-term prisoners, this would support more purposeful use of time in custody and clearer progression toward release. More consistent use of compassionate release would support dignity in cases of severe illness or age-related frailty.

All but one of Scotland’s 17 prisons are run by the Scottish Prison Service (SPS), an executive agency. A range of players have the power and authority to drive change, including prison governors, SPS senior leadership, and Scottish Ministers, amid other important interventions from the courts (in judicial reviews), in fatal accident inquiries, and from staff trade unions.²²⁴

Overall conditions are currently, and have been for some years, strained due to chronic overcrowding. This is pervasive in its effects on all who live and work in prisons. To take one example, HMP Barlinnie now operates at 40% over design capacity, so there are 1,395 prisoners rather than 987²²⁵ being held in a Victorian prison repeatedly described over the years as unfit for purpose.

A high national prison population means restricted regimes for those serving custodial sentences, making release planning and rehabilitative efforts even harder when prisoners spend too many hours a day in cells. In October 2023, 2,230 prisoners in Scotland were living in shared cells with a living space below the minimum size set by the Council of Europe’s Committee for the Prevention of Torture (CPT).²²⁶

In some men’s prisons, high rates of prisoners report concerns about violence, bullying, or abuse involving other prisoners or involving prison staff. For example, at HMP Addiewell where 60% of prisoners said they had witnessed staff abusing, threatening, bullying, or assaulting another prisoner,²²⁷ and at HMP Barlinnie, where 55% of respondents to the prisoner survey reported having witnessed staff members abusing, bullying, threatening or assaulting another prisoner.²²⁸

There are other welfare and safety concerns which may be exacerbated by high populations and pressured conditions. People are dying in avoidable ways and preventable circumstances at a relatively high rate in Scottish prisons,²²⁹ with particular concern about deaths by suicide and drug overdose in custody. We also acknowledge there are also deaths in prison from natural causes, in the context of a population that is older or may face significant health issues. However, the mortality rate in prisons in Scotland has “more than doubled in the last decade and is now among the highest in Europe.”²³⁰

Despite these challenges, some good practice has been recognised in specific places. To give some examples, in 2025, HMP Dumfries men’s prison was assessed as “well run” and “performing well.” Dumfries prison staff were seen as “professional” and “caring”, with prisoners having more time out of cells than most other prisons and access to a good library service, wellbeing gardens, and fitness and sports facilities.²³¹ In the women’s prison estate, the Community Custody Units,²³² the Lilias Centre in Glasgow and the Bella Centre in Dundee have also received positive recognition for the environment and community ethos. New evaluation research has praised some of the features of the CCUs for women, while finding mixed results and room for improvement, including the lack of appealing purpose activities in the CCUs and the need more prison officer training in gender specific, trauma-informed approaches.²³³A critical consideration here is size and scale. These “good news stories” of good practices may be commendable, but they are only available to the few.

Excessive prisoner numbers lead to worse prison conditions, and worse prison conditions often mean exacerbated risks and worse outcomes on release. A recent letter by the Chief Inspector of Prisons to the Cabinet Secretary for Justice and Home Affairs²³⁴ makes clear how overcrowding makes it more difficult to comply with core human rights. The number of people in prison – and the conditions and regimes to which they are subject – can affect rehabilitative progress, preparation for release and, ultimately, reoffending rates. These things matter for the individual, and they matter because they also have the potential to affect others, like families, victims, and communities.

“Over one in four people released from prison reoffend within one year, illustrating the failure of prisons to rehabilitate. Human rights bodies have also repeatedly noted in their inspections or reviews of Scottish prisons that overcrowding and poor living conditions are detrimental to almost all outcomes of prison, including the right to fresh air, to two hours of meaningful contact, to access to relevant purposeful activity, to healthcare and rehabilitation.” – Parkhead Citizens Advice Bureau, Call for Evidence.

Stabilising and improving prison conditions is about both what does and doesn’t happen in prison, and the conditions to which individuals are released in communities. Leaving prison is not just about getting out but staying out. Fast-tracking liberation without preparation and post-release support risks undermining victim and public trust when some individuals are then set up to fail.

There have been a series of responses to the emergency in our prisons in the lead up to and during the work of our Commission. Frontline practitioners through to the Scottish Ministers have found themselves in a difficult position trying to fulfil multiple obligations in the running of overly full prisons. For the short-term prisoner population, there have been changes to release points and Home Detention Curfew (HDC) in 2024-2025. These shortenings to time served in custody and tranches of emergency release²³⁵ need to be understood in the wider context of public perceptions of legitimacy and fairness and public trust in justice institutions and political processes. Our hope is to end the penal emergency. It cannot continue to be simply managed by reactive and short-term action. The underlying structural issues of our criminal justice system need to change.. However, it will take the collective effort of decision-makers and policymakers to take action as well as culture change in key institutions to see the causes of the emergency end.

We have seen some challenge to the framing of prison as a place of recovery and rehabilitation.²³⁶,²³⁷ The Scottish Parliament Criminal Justice Committee has heard evidence about the extent of harm caused by substance misuse in Scottish prisons.²³⁸ Overcrowding continues to affect how time in custody is spent.

For all prisoners, regardless of sentence length, prison should offer the chance to change direction to avoid reoffending. To do this, there must be opportunity and support through education, training, employability initiatives, treatment for addiction, mental health support, sports,²³⁹ life skills, and personal development²⁴⁰ and with practical matters such as income, housing, and healthcare. These recognise that offending behaviour is often linked to unmet needs and that meaningful change is possible with the right support. These need not rely on the delivery of courses or programmes.

To give a positive example from one of the Commission’s lived experience workshops,²⁴¹ men who had been in prison told us how much they enjoyed the skills learned in the prison’s bike repair workshop, refurbishing bikes as a way of helping charity and community groups. Conversely, across most of the lived experience workshops, we heard people speak of difficulties and delay in accessing mental health and physical healthcare in prison, indicating it is hard to think about anything if unwell or in pain.

“Look properly at a person’s needs – not just risks – and give more opportunities for rehabilitation and courses.” – Lived Experience Participant.

“You should still be able to do something productive during a four-month sentence…prison is supposed to be about rehabilitation, not scaring you.” – Lived Experience Participant.

Imprisonment: rehabilitation

The Scottish Sentencing Council defines rehabilitation as one of the purposes of sentencing.²⁴² Rehabilitation is defined as reducing risk of reoffending and providing opportunity to change and move away from past offending behaviour. Rehabilitation is the chance to change direction through education, training, treatment for addiction, mental health support, and personal development. These interventions recognise that offending behaviour is often linked to unmet needs and that meaningful change is possible with the right support.²⁴³ This resonates with certain public perceptions on the purpose of prison. In the 2023/24 Scottish Crime and Justice Survey, the majority of adults agreed that prisons should help prisoners change their behaviour rather than punish them (92%) and provide support in order to prevent people committing more crime (93%).²⁴⁴

Evidence to the Commission noted the prevailing discourse used by some media and politicians, which fuels a view that punishment should be the priority focus of intervention. While the principles of sentencing do include punishment, offending and the prison population is unlikely to reduce without a significantly greater focus on rehabilitation.

“The language of the media and some politicians fuel the cry for punishment rather than rehabilitation or any of the other purposes of sentencing.” – Aid & Abet, Call for Evidence.

We note that the current SPS Corporate Plan repeats the Scottish Government’s Vision for Justice that “custody can provide an important opportunity for rehabilitation.”²⁴⁵ The SPS Corporate Plan “recognises the need to ensure health, wellbeing, and individuals’ development are managed in a person-centred and trauma-informed way” but the Plan contains no detail of how this is done, nor any broader strategy relating to rehabilitative efforts. It may be that the “purposeful activity” referenced below is aimed at rehabilitation. Reducing offending is mentioned in the context of “relationship-centred service delivery” which might mean inter-personal relationships with those working in prison settings.

We note that the SPS reports on a key performance indicator for the number of hours individuals spend on “purposeful activity.” This means the time formally recorded being spent on work-related activity, learning and education, training interventions, and other positive prison-based activities such as access to physical education, spiritual and pastoral care or attendance at rehabilitative programmes. Most purposeful activity is carried out by convicted prisoners, although remand prisoners may participate in some activities. In 2024-25, the average hours of purposeful activity per convicted prisoner per week was 19, up from the previous year by one hour.²⁴⁶

In addition to the definition of purposeful activity above, it is accepted that prisoners should have sufficient opportunity for meaningful contact with family, acknowledging the right to family life and that the impact and costs of prison extends beyond individuals to their children, partners, and wider families.²⁴⁷ We have heard about the positive opportunities that arise from offering family activities and support, including the Healthy Dads, Healthy Kids initiative, in men’s prisons.²⁴⁸

Supporting rehabilitation through a broad range of activity extends beyond a narrow focus on coursework. We consider that greater transparency of any rehabilitative work (or work towards reducing reoffending) is essential to demonstrate how SPS’s strategic objectives are met.

Recommendation 7.1: The Scottish Prison Service must articulate and publish its approach to rehabilitation for the purposes of reducing reoffending. SPS must be more transparent about the action it takes to provide activities aimed at reducing reoffending, making clear that this extends beyond a narrow reliance on programme attendance. Lead partner – The Scottish Prison Service (SPS).

Imprisonment: prisoner progression

If Scotland is to reduce the prison population in the long-term, we need to ensure that rehabilitative work is part of imprisonment. However, the Commission has heard that markers of rehabilitation and progression within prison are perceived to have become conflated or synonymous with programme and course attendance, despite the fact that access to accredited, evidence-based programmes is not uniform across the prison estate. An unduly narrow focus on programmes excludes consideration of the broader rehabilitative efforts and needs of individual prisoners and of those who support them. A broader understanding of rehabilitation must include a wider range of markers of individuals’ progress and rehabilitative efforts.

“We strongly argue for a greater focus on alternative factors affecting progression for two reasons: 1) there is an enormous backlog of access to programmes, and 2) preliminary results from ongoing research suggests that the evidence base to support claims about the value of these programmes (as measured by a reduction in reoffending) is very weak, if it exists at all.” – Scottish Centre for Crime and Justice Research (SCCJR), Call for Evidence.

Evidence to the Commission indicated that there are widely-acknowledged issues around delays in prisoner progression, referring to the incremental transition to more open conditions in preparation for release. SPS describes the process as one in which “a series of controlled stages can be used to prepare someone for release.”²⁴⁹

Concerns about this process are widely held. A 2024 HM Inspectorate of Prisons for Scotland (HMIPS) review into progression focused on adult male convicted prisoners. After speaking to 500 prison staff and over 600 prisoners, HMIPS found that, “the progression system simply is not working. The current system is not achieving its stated aims, with for example, unacceptable delays for many prisoners in accessing programmes that they have been assessed as needing to manage risk effectively and which are therefore currently essential to their prospects at a Parole Board for Scotland hearing.”²⁵⁰

The Commission notes the recent Prison Reform Trust report on experiences of long term male prisoners at HM Prison Glenochil who will spend 10 or more years in prison. The report highlights how hope is reduced or destroyed by lengthy waiting and delays, and calls for greater transparency about SPS plans to reform progression efforts.²⁵¹

“Current waiting lists for programmes present a barrier to liberation which is entirely outwith of the convicted person’s control such that it appears unjust to punish them for it.” – The Scottish Association of Social Work (SASW), Call for Evidence.

“Release from custody in Scotland is often delayed, not because of ongoing risk or new offending, but due to systemic failures: inaccessible programmes, rigid parole criteria, and institutional bottlenecks in progression.” – Scottish Prisoner Advocacy and Research Collective (SPARC), Call for Evidence.

If the progression system is not working then prisoners are not tested for returning to conditions outside of custody. It is also harder to evidence any reduction in risk, which makes it harder to get parole. We cover parole in more detail in Chapter Eight.

In a recent case [BS v. Scottish Ministers,²⁵²] the human rights of a prisoner were found to have been violated by a delay in accessing rehabilitative courses. The case highlights the underlying issue of waiting lists, and the potential consequences of unmet demand. In this case the particular prisoner’s “ability to demonstrate reduced risk to the Parole Board [for Scotland]” was severely compromised to the extent that he had not been provided with a real opportunity of rehabilitation. Ensuring human rights compliance is just one of a number of reasons why improved delivery of rehabilitation opportunities is important.

Many respondents in our Call for Evidence and our visits and roundtable events raised concerns that progression is generally linked to a requirement to attend offending behaviour programmes as the way to demonstrate a reduced risk. Availability and capacity of programmes in Scottish prisons have been raised as an issue for years.²⁵³ Evidence to the Commission highlighted that a lack of access to programmes has hindered prisoners’ ability to prove progress and readiness for release. We heard that issues include:

• long delays,
• inconsistent availability of programmes across prisons,
• the range of topics covered by programmes,
• a lack of programmes in particular prisons,
• concerns about victim perceptions and lack of trust if people are released having not had interventions relating to certain crimes (e.g., sexual offences, domestic abuse),
• the Parole Board for Scotland placing too much weight on programme completion in release decision-making, and considerations of the quality, evaluation evidence and effectiveness of programmes.

Recommendation 7.2: Consider recognising a wider range of rehabilitation markers than completion of rehabilitative courses when considering parole applications. Lead partner – Parole Board for Scotland.

Progression and offending behaviour programmes

Responsibility for offence-focused programmes involves various bodies. The Scottish Advisory Panel on Offender Rehabilitation (SAPOR) provides approval and advice in relation to programmes, interventions and processes aimed at rehabilitating people who have offended.²⁵⁴ In its 2024/25 annual report, SAPOR states that “accredited programmes have been instrumental in addressing the complex challenge of reducing reoffending rates and fostering desistance among individuals with a history of offending.”²⁵⁵

We heard from victim advocacy and support groups that they think prisons should offer considerable opportunities and supports for rehabilitation, to reduce risk of future reoffending so that it does not happen again.²⁵⁶ It is important to have a better understanding of the evidence basis for offence-focused programmes to evaluate the efficacy of those interventions.

We consider that SAPOR’s focus on programme accreditation leaves much to be done in a broader context of rehabilitation. There is no equivalent in Scotland of the co-produced Ministry of Justice/HM Prison and Probation Service (for England and Wales) information on offending behaviour programmes and interventions.²⁵⁷ The England and Wales document focuses on risk, needs and responsivity principles, which we do not see referred to by SAPOR.

Recommendation 7.3: Consider whether a limited remit for the Scottish Advisory Panel on Offender Rehabilitation (SAPOR) misses an opportunity for broader focus on rehabilitation beyond accreditation of programmes. Lead partner – Scottish Government.

Recommendation 7.4: Report on the evidence base for all programmes delivered by SPS. Lead partners - SAPOR and SPS.

Prison programmes are delivered by the SPS, whose current Corporate Plan does not refer to offence-focused programmes. SPS’s most recent annual report sets out time spent on purposeful activity, of which course attendance is one part.

From the 2024 HMIPS report we see a description of SPS prioritisation and waiting list management processes, including the need for prisoners to move institutions in order to access courses. That report also highlights that prisoner transfer, when it did occur, was not always accompanied by the efficient transfer of information about the individual.²⁵⁸ Moving prisons is disruptive both for the prisoner and for staff, with potential for significant disruption to family life if a prisoner moves to an establishment far from their support network. This is highly problematic given that this is considered to be a risk factor associated with suicide and self-harm in prisons.²⁵⁹ We consider a clearly person-centred approach is required and the providers should instead move.

We have also heard that when people leave prison they generally cannot continue the same programme in the community, and where something is available it may be a different course that requires starting again from the beginning. As the SAPOR team supports programme development in prisons and in the community, we wonder whether that panel might best function as a link.²⁶⁰

Recommendation 7.5: Prioritise accreditation of programme modules that can continue from prisons into the community, particularly in relation to life skills. Lead partner – SAPOR.

Recommendation 7.6: Adopt, wherever possible, a peripatetic approach to the delivery of programmes. Lead partner – SPS.

Division of prisoners into short-term and long-term categories

We considered the work of the Committee led by Lord Kincraig, which reviewed parole and related issues during 1988-1989. The resulting report paved the way for the division of prisoners into categories based on sentence length. The report recommended distinguishing between long-term prisoners who were eligible for parole, and short-term prisoners who were not.²⁶¹ The Committee recommended that only those serving sentences of over five years should be eligible for parole.²⁶² In the end, the then UK Government accepted the recommendation to make a distinction but used four years as the point of parole eligibility.

These categories remain today: a short-term prisoner serves a sentence of less than four years, while a long-term prisoner serves a sentence of four years or more, whether on the basis of one individual sentence or cumulatively. The Commission did not have sufficient time to consider all the potential implications of amending these categories however the government may wish to reflect on their continued appropriateness.

Recommendation 7.7: Consider the current distinction between short- and long-term determinate sentences and whether this remains appropriate in the contemporary context. Lead partner – Scottish Government.

Release: long-term prisoners

The recent Sentencing Review for England and Wales led by David Gauke considered that “custodial sentences should be used to incentivise good behaviour and focus on limiting the risks of reoffending.”²⁶³ The Gauke report outlines the Texas “good conduct time” prison remission scheme whereby eligible prisoners can reduce the time they serve in prison before being able to apply for parole.²⁶⁴ Gauke proposes that this “good conduct” should enable eligible prisoners to bring forward their automatic release date to the one third point of their sentence.

While we considered whether this approach might be worth adopting in Scotland, there are systemic differences in criminal justice systems in Scotland and the rest of the UK which we believe mitigate against doing so.

In evidence to the Gauke review, the Prison Reform Trust cautioned that, if automatic early release or home detention curfew were to be replaced by a good conduct model, “there is a real risk that it would lead to increased time in prison.” This was on the basis of the lack of resources in England and Wales, and the difficulties prisoners face in accessing education. For that reason, the Prison Reform Trust’s view was that a good conduct scheme should be an additional mechanism rather than a replacement for an “early automatic release scheme and home detention curfew.”²⁶⁵ We consider that this would be a risk in Scotland also, particularly in the current context of overcrowding, with the impact that has on behaviour and potentially inequitable impact on a diverse prison population. Prisoners with particular needs could be inhibited from being able to demonstrate good behaviour.

Instead, we consider a different approach to release that better meets the issues faced in Scotland. Prior to 1 February 2016, all long-term prisoners were eligible for release on license halfway through their sentence (to be decided by the Parole Board for Scotland). A person not released on parole had to be released on licence after serving two-thirds of their sentence, serving the final one third of their sentence in the community with licence conditions.

In 2014, the government introduced legislation to end the two-thirds release point for certain long-term prisoners. Parole eligibility was unaffected. The initial assessment was that “the impact on prisoner numbers of ending automatic early release for certain categories of prisoner would build up over time, with the initial impact relatively limited in the early years” and that by 2029/30 the Bill would ultimately increase the average daily prison population by about 140.²⁶⁶ Considering that parole eligibility was unaffected, an eventual increase of 370 in the average daily prison population was forecast. The highest estimated impact was a rise of 450 prisoners.²⁶⁷

As passed, however, the Prisoners (Control of Release) (Scotland) Act 2015 reduced automatic release point for all long-term prisoners. Instead of being eligible for automatic release at the two-thirds point of a sentence, most prisoners would only be eligible with six months left of their custodial sentence. Prisoners subject to a long-term extended sentence (which can be imposed for a sexual offence, or for a violent or terrorist offence where the custodial term is 4 years or more), however, are automatically released at the expiry of the custodial term.²⁶⁸

Within a decade, the average number of long-term prisoners had grown far beyond the highest forecast.²⁶⁹ We considered whether the higher numbers of long-term prisoners now as compared to a decade ago could partly be explained by the change in release point. Analysing the caveats about parole rates caused us to query whether fewer people received parole than the previous decade’s modelling had assumed based on success rates of that time. However, the absence of clear parole grant/rejection rate data dating back to 2015 makes it difficult to say. We discuss parole in more detail in Chapter Eight.

In 2024 the Scottish Government consulted on a proposal to change the standard release point, considering reduction to be “a feasible and proportionate way to reduce pressure on the prison estate.”²⁷⁰ One question asked about a specific proposal to release most long-term prisoners on non-parole licence following two-thirds of their sentence. The majority of respondents who directly addressed this question in their answer agreed that two-thirds was an appropriate release point.²⁷¹,²⁷² However, no change was or has been made. The Scottish Government estimated that if the policy had been brought into force on 31 May 2024, around 320 people would have been released on non-parole licence immediately.²⁷³

Some respondents to the Commission’s Call for Evidence and other engagements including the academic roundtable highlighted the long-term prisoner release point, and urged reconsideration. In evidence to the Commission we heard that preparation for release and reintegration should begin as early as possible in prison. Pre-release planning and support was difficult to do with only six months remaining, particularly at the end of a longer sentence.

“People who do not get parole are released from prison with six months left on licence. They will have been in prison for a long time. They are not prepared for life in the community and there is not enough time to support them in those six months on licence to address some of the complex needs that they have.” – The Scottish Association of Social Work (SASW), Call for Evidence.

“The point of release is one of the most vulnerable transitions in the justice system. However, consistent pre-release planning and coordinated support are not currently standard practice. Recent early release processes illustrated that with sufficient coordination and leadership, improvements are achievable and impactful.” – Sacro, Call for Evidence.

Supporting prisoners on the cusp of reintegration must be informed by the need to ensure safety of victims. We have heard that limiting the supervision of long-term prisoners to six months is not enough time to supervise them appropriately, which is not in the interests of victims. The Commission also notes that being able to plan in advance for the release of a long-term prisoner would allow specific victim safety needs to be factored in earlier. Victim Notification Scheme arrangements can more easily be made if the release point is clearly identified.

We consider it beneficial for individuals serving a long-term sentence to be released on licence and supervised by justice social workers in the community for longer than is currently the case. The licence supervision continues until the end of the “whole” sentence i.e. the custodial and non-custodial elements combined. As a longer period of community supervision allows for greater testing and monitoring, we consider the extended supervision beneficial for the individual, for the management of risk, and for victims especially if future reoffending is reduced. Although not the main benefit, a further factor in favour of longer supervision is the resulting free space in prison to facilitate rehabilitation for others who need it.

Recommendation 7.8: Introduce legislation to amend the point of eligibility for release under licence conditions for long-term prisoners to two thirds so that they receive more supervision and support in the community. Lead partner – Scottish Government

The Commission considers that the terminology used around points of release on licence is unhelpful. Public understanding and confidence are important. If release were to be at two-thirds of a sentence, the Commission considers this would enable a prisoner to transition into society via a phased, supervised reintegration. We consider that the language must make clearer that, while a release process would be automatic, it would still be managed. An initial suggestion is that this be described “supervised reintegration”; however, other terms should be considered and tested.

Supervised reintegration must be planned, supported and accountable. If long-term prisoners are to serve one-third of their sentence in this way, there would be resulting implications for the capacity and workforce of Justice Social Work and local authorities, as well as the third sector. Representations to this effect were made to the Criminal Justice Committee in late 2024.²⁷⁴

Recommendation 7.9: Assess the impact that changes to the timing of prisoner release on licence to supervised reintegration will have on justice social work and local authority budgets and other resource pressures and ensure there is adequate resourcing in place before implementing that change. Lead partner – Scottish Government.

Release: compassionate grounds

The Commission considered the Scottish Ministers’ power to release a prisoner on compassionate grounds.²⁷⁵ This power predates devolution and, although there is no legal definition of “compassionate grounds”, the Bill’s passage at Westminster included discussion of “a prisoner who becomes terminally ill or permanently disabled.”²⁷⁶ The Scottish Government website states that reasons can include terminal illness, severe incapacitation and where continued imprisonment would endanger a prisoner or shorten their life expectancy²⁷⁷ but most prisoners released on compassionate grounds in Scotland have been terminally ill and very close to dying.

Very few prisoners in Scotland have been released on compassionate grounds – there have been two releases in 2025 and 2024, with no one released on this basis in 2023.²⁷⁸ We have not been able to find information about any requests that were rejected, nor about the reasons for any rejection. A recent judicial review of a rejected application afforded some insight into the reasons, which in that case related to the assessed risk involved in the individual’s release.²⁷⁹

The UK Government’s policy framework in relation to its own, separate, powers to release a prisoner on compassionate grounds sets out that applications may be made based on a prisoner’s health or social care needs.²⁸⁰ Guidance also extends compassionate cases to non-medical situations including “tragic family circumstances” which have changed during the period of imprisonment.

In relation to the Scottish prison population, a number of older and disabled prisoners might reasonably be considered to have specific needs based on care requirements, disability or age-related issues. Such demands are likely to grow as the prison population continues to age. Although every application for release on compassionate grounds must be considered on its own facts, the Commission considers that there are likely some individuals currently in prison who would merit compassionate release.

A paper produced for the Howard League by the judiciary in England and Wales highlights this point, suggesting an accelerated route out of custody by reviewing the needs and risk levels of older prisoners upon reaching a certain age, followed by a managed move to a more appropriate secure location if required.²⁸¹ The recommendation is that “those who are very elderly, dying or suffering dementia should be removed from prison.”²⁸²

In view of the judicial review referenced above, which was rejected on the basis of risk, this Commission considers that there is merit in retaining flexibility. For that reason, we recommend that those who are elderly, dying or suffering dementia (as well as potential additional illnesses) should be considered for removal from prison on compassionate grounds. We note that the Independent Sentencing Review led by David Gauke also recommended increasing the use of early release on compassionate grounds for “suitable” older people.²⁸³ The Gauke report also recommends that the UK Government review the risk threshold and scope of their policy.

“Accommodating the needs, including care, of older people both in prison and in release planning requires a radical rethink. There is an increasing population of older prisoners, adding to the complex profile of the prisoner population referred to above. Our thematic review ‘Who Cares?’ on the care and support for older prisoners published in 2021 highlighted a 46% increase in the number of prisoners over the age of 60 between 2017 and 2020, on top of increases in previous years.” – His Majesty’s Inspectorate of Prisons Scotland (HMIPS), Call for Evidence.

Recommendation 7.10: Review guidance about the scope and use of the power to release a prisoner on compassionate grounds. This should set out circumstances beyond terminal illness and include ageing, health and need of social care. Lead partner – Scottish Government

Older people in Scottish prisons

The Commission learned that the prison population is notably older than it was a decade or so ago. The proportion of individuals in prison aged 50 years or older has more than doubled in the past 15 years, rising from 6.3% in 2009-10 to 15.9% in 2024-25.²⁸⁴ In 2024-25, 2,505 individuals aged 50 or older spent time in prison custody.²⁸⁵

There is no fixed age for an “older” person in prison, nor is any distinction drawn between someone who is older when sentenced to imprisonment, and someone who has aged while in prison. These older people in prison will have had different experiences of healthcare, depending on the amount of their life in custody and outside of it. A definition of “older” prisoners often depends on the context. Recent research by HMIPS sets out some details of the lived experience of older prisoners who volunteered to take part.²⁸⁶ For the purposes of the study, prisoners aged 60 or over were considered “elderly.”²⁸⁷

In 2020 a programme of research showed a high level of health and social care needs among Scotland’s prison population, with a high level of co-morbidity (having more than one need).²⁸⁸ As the synthesis report sets out, across both physical and mental health, evidence shows that older prisoners “have particular needs and to experience gaps in services and support.”²⁸⁹ The health of people in prison was said to be similar to that of non-offenders up to 10 years older.²⁹⁰ The Commission has also learned that the estimated prevalence of dementia in prisons is much higher than would be found in community populations of the same age.²⁹¹ Prison officers who work with older prisoners should be appropriately trained in the types of issues they may face and their support needs.

The Scottish Prison Service have duties to older and disabled prisoners under the Equality Act 2010 and human rights conventions. The Commission heard about the work being done across the prison estate to provide suitable accommodation for older prisoners, many of whom require medical treatment and/or care provision. Although there are reports of accessible cells and adaptations in development, older prison buildings and facilities are generally designed for younger, more able-bodied people.²⁹² We also heard about the high costs of bringing in contractors to deliver the care that is required. However, we heard that this seems to be ad-hoc and based on individual cases rather than at an overall, strategic level.

In England and Wales, the topic of routine assessment of older prisoners, with a view to moving some appropriate cases out of prison to other settings, has been raised by four former Lords Chief Justice, in a judicial critique of sentence inflation and sentencing severity.²⁹³ Similarly, in a research report “Growing old and dying inside”, it is recommended that the UK Ministry of Justice ensure better support for older prisoners; and that “the Ministry of Justice should collate an up-to-date, thorough evidence-base for consideration of grounds for compassionate release. This decision-making process should be authentically compassionate, with consideration of an individual’s current ‘risk’ relevant to their frailty, and the most humane response to their health and circumstances.”²⁹⁴ In keeping with the previous recommendation (7.10), we can see the wisdom in making progress in this area in Scotland, too.

Recommendation 7.11: Ensure routine assessment of the needs and risks of older prisoners on reaching the age of 60. Either as part of an expansion of compassionate release, or as a separate mechanism there should be the ability to transfer and manage in community-based contexts (including disability and aged care settings) in those cases who are assessed as appropriate. Lead partners – SPS and Health and Social Care Partnerships.

Foreign nationals in Scottish prisons

During the course of its work, the Commission discussed the number of foreign nationals in Scotland’s prisons, and whether removal of such prisoners should play a role in reducing prisoner numbers. While acknowledging the significance of this issue in public debate, the Commission has decided not to make recommendations. This section sets out why.

It is important to recognise that immigration is reserved to the UK Government, and that immigration matters are not central to our remit. We do, however, acknowledge the work of the Independent Sentencing review led by David Gauke, which considered foreign nationals in the custody of His Majesty’s Prison and Probation Service for England and Wales.²⁹⁵ Gauke recommends the facilitation of the earlier removal of foreign nationals from prisons in England and Wales. The Gauke report proposes earlier removal of foreign nationals but there is no automatic continuation of the custodial sentence – instead, foreign people who have committed offences would be liberated, potentially without serving any sentence at all.

In 2024-25, British nationals comprise more than 90% of those in prison in Scotland, and foreign nationals 9%.²⁹⁶ This is in keeping with the percentage of people living in Scotland who were born outside of the UK.²⁹⁷ SPS has also sporadically published figures in response to FOI requests. For example, as of 2 October 2024, there were 629 foreign nationals in prison: 325 individuals were convicted and 304 untried and on remand.²⁹⁸

We consider it inappropriate to make a recommendation relating to those held awaiting trial. Any recommendation could therefore only relate to sentenced individuals.

In November 2025, the Scottish Government laid before Parliament regulations relating to foreign national prisoners. This followed a statement by the Cabinet Secretary for Justice and Home Affairs acknowledging that while returns and deportation are reserved to the UK Government, through devolved powers the Scottish Government can put the existing scheme to greater use.²⁹⁹ The regulations were passed by the Scottish Parliament on 17 December 2025 and came into force on 16 January 2026.³⁰⁰