Penal Reform: working towards a sustainable prison population – Consultation

Introduction

1. Scotland’s prison population is growing rapidly and reached record levels in May this year, with over 8,600 prisoners being held in an estate designed for 7,805. Scotland is not alone in this. England and Wales are facing similar challenges, as are other jurisdictions, driven in particular by increases in the number of long-term prisoners and longer average sentence lengths.

2. Tackling this issue is of critical importance. Increasing overcrowding in prisons undermines their ability to operate safely and to effectively rehabilitate prisoners. When individuals are released from custody – as the vast majority will be – it is vital that they are able to reintegrate into the community in a way which minimises risk and further offending behaviour.

3. There is no single intervention which will achieve a stable and sustainable prison population. A combination of actions will be required but there are crucial choices to be made in how to do this.

4. Building more prison capacity is possible but has significant implications for public funding. An average prison place in Scotland costs over £50,000 per year, and additional capital investment would be required to increase the capacity of the prison estate. Imprisoning people is also often less effective at reducing reoffending than community alternatives, particularly for very short sentences.

5. Dealing with more offences in the community can be better for rehabilitation and preventing further offending but requires investment in community-based services to ensure that individuals can be supported and robustly supervised as required.

6. The Scottish Government’s view is that a balanced approach is required, recognising the merits of both custody and community-based disposals in different circumstances, the need to protect victims and the public, and the need to ensure that effective rehabilitation is supported to reduce re-offending and further victimisation.

7. Prison will always be necessary, particularly for those who pose a significant risk to public safety, and we are rapidly developing plans to expand the prison estate to ensure that they can operate safely and effectively into the future.

8. However, we also agree with the conclusions of the independent Sentencing and Penal Policy Commission, which was established in 2025 to consider how imprisonment and community-based interventions are used in Scotland, and which emphasised the need for a greater focus on the use of community-based interventions while robustly protecting victims and the wider public.

9. Our long-term approach to the rising prison population seeks to combine an expansion of the prison estate with a more proportionate use of custody and more robust community alternatives.

10. While work is ongoing to build more prison capacity, this consultation seeks views on a set of proposed reforms to the criminal justice system in Scotland, building on the recommendations of the Sentencing and Penal Policy Commission and seeking to reduce the demand for prison places where appropriate.

11. In particular, views are sought on proposals to extend and further strengthen the presumption against short sentences (PASS); to enhance the effectiveness and credibility of community sentences; to expand the use of electronic monitoring; to reduce the use of remand; and to change the point at which certain prisoners are released to increase the time spent in the community under supervision as part of their rehabilitation.

12. The measures set out in this consultation are intended to complement each other, recognising the interactions between different parts of the justice system, and to collectively assist in achieving a stable and sustainable prison population.

Prison population in Scotland

13. In spring 2026, the prison population in Scotland reached a historic high of 8,603 (26 May) against a design capacity of 7,805.

14. Prisons are overcrowded and overstretched, placing pressure on staff, limiting opportunities for rehabilitation, and restricting access to purposeful activity. This limits prisoners’ ability to address their offending behaviour, ultimately weakening protection of victims and the wider public. Most prisoners will return to the community, and it is imperative that they are supported to reduce their risk and leave custody prepared for reintegration.

15. The continued increase in the population presents an unprecedented risk to the Scottish Prison Service’s (SPS) ability to maintain a safe environment for staff and prisoners, and to continue operating effectively and lawfully. This has associated risks for the continued functioning of the criminal justice system. SPS reports that the prison population is considerably more complex to manage due to a variety of factors including managing serious and organised crime groups, substance abuse (including from new psychoactive substances) and increasingly complex health (including mental health) and social care needs, alongside an ageing population.

16. While there has been rapid growth in the prison population since 2023, the rise can be traced prior to the COVID-19 pandemic, and it has been driven by multiple, complex long-term trends and changes.^[1]

17. One of the significant drivers is the growth in the number of long-term prisoners (LTPs) – those sentenced to four years or more in custody – who currently make up 36% of the prison population. This is alongside an increase in the average sentence length for LTPs, meaning people are in custody for longer. This growth is projected to continue over the next ten years.

18. The increase in the prison population should be considered in the broader context of a decrease in the overall volume of recorded crime, criminal proceedings, convictions and custodial sentences. There are substantially fewer individuals arriving at prison each year than in 2009-10. In addition, there has been a decrease in the number of convictions in court for less serious offences like crimes of dishonesty, which has led to a decrease in the number of custodial sentences for such offences. Alongside other changes (e.g. the presumption against short sentences^[2]), this shift has contributed to a reduction in the number of short sentences handed down by the courts although short sentences still constitute the majority of custodial sentences imposed each year.

19. The use of, and time spent on, remand (in custody awaiting trial or sentencing) are also important trends in the rising prison population. The remand population was increasing prior to 2020, a trend that was exacerbated by the impact of the COVID-19 pandemic. Although the number of individuals arriving to remand has fallen substantially since 2009-10, the time spent on remand has increased sharply. Although it has decreased following post-pandemic court recovery, it remains substantially longer than the pre-pandemic period.

20. International evidence indicates that Scotland’s prison population challenge is not unique, but it stands out in scale and intensity. Scotland has one of the highest incarceration rates in Western Europe (148 prisoners per 100,000 population), significantly above countries such as Norway (54), the Netherlands (55), Finland (58) and Germany (69).^[3]

21. While caution should be exercised when drawing on specific policies and interventions across different jurisdictions - given variations in legal systems, justice frameworks, and wider social contexts - the main consistent lesson is that long-term population pressures are most effectively addressed through planned, well-designed, and coordinated system-wide approaches.

Addressing the rising prison population

22. A range of actions have already been taken to mitigate the rising prison population, including operational estate management, emergency release processes and further changes to primary and secondary legislation. In particular, the following steps have been taken:

• Change in automatic early release point for most short-term prisoners to 30% of sentence served
• Emergency early release processes for certain short-term prisoners
• Expansion of home detention curfew (HDC)
• Increased investment in community justice
• Strengthening alternatives to remand
• Expanding electronic monitoring
• Optimising the prison estate (to ensure available space is used as effectively as possible)
• Prison building (primarily replacement of the existing estate to date).

23. While these actions have slowed the rate of population growth, they have been insufficient to overcome the underlying structural drivers to deliver a sustainable prison population. Without targeted action on the long-term prisoner cohort, alongside other measures being taken forward on short-term prisoners and plans to expand the prison estate, it is likely that the prison population will continue to rise, increasing the risk to the safe and effective management of prisons.^[4]

The Sentencing and Penal Policy Commission

24. In recognition of these issues, the Sentencing and Penal Policy Commission was established in February 2025 to consider how imprisonment and community-based interventions are used in Scotland. Its remit was to make detailed and actionable recommendations to improve how offending behaviour is addressed in an effective and proportionate way, with the overarching aim of ensuring less crime, fewer victims, and safer communities.

25. The final report was published in February 2026^[5] with a range of recommendations, including measures intended to reduce the use of short sentences and to make community sentences more effective. The report highlighted the evidence that short sentences are less effective than other community sentences at rehabilitating people who have offended. It highlighted the negative impact such sentences have on the factors that can help deter people from engaging in criminality, such as family relationships, positive peer associations, housing, employment and education. It noted that the prevalence of people serving short sentences within the prison estate makes it harder for SPS and partners to invest the time required for rehabilitation of people who have committed more serious offences serving longer sentences.

26. The Commission also set out recommendations to reduce the use of remand, highlighting concerns about the high remand population and the negative impacts on people who may not have been convicted of a crime and their families, as well as negative impacts on the prison population, which is already under great pressure.

27. The Commission was clear that more people should be dealt with in the community instead of serving short sentences or being remanded, and that people should spend more time supervised in the community at the end of their sentences, rather than in prison, to help them reintegrate. The Commission contended that this would be more effective at reducing reoffending, as well as assisting in helping Scotland to lower its prison population.

28. The Commission emphasised that action must be taken so that victims of crime can have assurances that they are safe, and appropriately informed and supported, throughout their involvement with the criminal justice system. Electronic monitoring was highlighted as playing an important role in preventing people who have offended from approaching victims or going to particular places.

29. The Commission noted that achieving a more sustainable prison population would require change at every stage of the system, and urged the Government to take a holistic approach, with key recommendations in areas including sentencing, community interventions, bail and remand, and release from custody. It emphasised that taking forward these recommendations would not just help with the important goal of reducing the prison population but is also “an invitation to choose a different path for Scotland – one that uses imprisonment more wisely; reduces reoffending and leads to fewer victims, strengthens community responses, and makes prevention a genuine driver of public service delivery.”

Scottish Government consultation

30. The previous Cabinet Secretary for Justice and Home Affairs, Angela Constance MSP welcomed the report of the Sentencing and Penal Policy Commission in Parliament, noting that it “offers us a clear opportunity to rethink our approach as a country..”^[6]

31. This consultation reflects some of the primary recommendations of the Commission. It should be noted that, while this consultation is not consulting on all the recommendations, these remain under active consideration and may be taken forward as part of future policy development.

32. The consultation is structured into two parts. Sections 1 to 5 are seeking views on proposals set out under Part 1 (Delivering a more effective approach to custody: short sentences, remand and community sentences), and Sections 6 and 7 are seeking views on proposals under Part 2 (Prisoner release arrangements).

Part 1: Delivering a more effective approach to custody: short sentences, remand and community sentences

Section 1 – Further strengthen and support the use of the presumption against short sentences

Section 2 – Extend the presumption against short sentences from 12 to 24 months

Section 3 – Enhance and strengthen community sentences

Section 4 – Electronic monitoring

Section 5 – Bail and remand

Part 2: Prisoner Release Arrangements

Section 6 - Automatic early release for long term prisoners

Section 7 - Short term prisoner definition

33. In each section, the background to the relevant issues is outlined alongside the Commission’s recommendations, and proposals for how the Scottish Government intends to develop these further.

34. We welcome your views and are particularly interested in whether you support the proposed measures, any suggestions on their implementation, any concerns about who may be affected, and any other comments in relation to victims, equality or human rights in connection with these proposals.