Penal Reform: working towards a sustainable prison population – Consultation

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

Background

35. The Scottish Government is clear that while there will always be a need for prison, particularly for those who pose a significant risk to public safety, there is compelling evidence that short sentences do little to rehabilitate or to reduce the likelihood of reoffending.^[7] People released from a custodial sentence of 12 months or less are reconvicted nearly twice as often as those sentenced to serve a Community Payback Order (CPO), and prison can disrupt housing, employment and family stability, which are key factors that help people desist from criminality and reduce reoffending.

36. In recognition of the detrimental impact of short sentences, the Scottish Parliament passed the Criminal Justice and Licensing (Scotland) Act 2010, introducing a presumption against short periods of imprisonment (PASS).

37. The presumption provided that: “A court must not pass a sentence of imprisonment for a term of 3 months or less on a person unless the court considers that no other method of dealing with the person is appropriate” and “[w]here a court passes such a sentence, the court must - (a) state its reasons for the opinion that no other method of dealing with the person is appropriate, and (b) have those reasons entered in the record of the proceedings.”^[8]

38. The presumption was intended to highlight to the court the need to only use short prison sentences as a last resort, and that community disposals should be favoured where possible. It is a presumption, not a ban, and it is for the court to decide on the most appropriate sentence based on the facts and circumstances in any given case.

39. An evaluation published in 2015 considered – amongst other issues - the impact of the presumption against short sentences of three months or less.^[9] It found that the presumption was not featuring “prominently or explicitly” in judicial decision making and for most of the sheriffs interviewed it was “largely seen as an irrelevance to day-to-day sentencing practice or, at most, as a background factor in their considerations.”

40. A Scottish Government consultation in 2015 showed that 85% of respondents were in favour of an extension to the minimum period of the presumption and, of those who expressed a view, 84% indicated that the new minimum period should be set at 12 months.^[10] The majority of respondents indicated that they thought extending the presumption would help achieve a reduction in the use of custodial sentences and would be in line with a generally more progressive approach to criminal justice policy.

Extension of the presumption against short sentences to twelve months or less

41. The relevant period to which PASS applies can be amended by secondary legislation. Based on the above evidence and consultation, in 2019 the Scottish Parliament passed legislation to extend PASS from sentences of three months or less to sentences of 12 months or less.

42. The initial impact of the PASS extension was not clear, largely as a result of the COVID-19 pandemic. A 2021 Scottish Government analysis stated that “…the impact of COVID-19 on court business and the unavoidable backlogs caused by court closures mean it is not possible to confidently identify and attribute cause to any trends in court disposals over the last 12 months.”^[11]

43. The most recent criminal proceedings data^[12] showed that 7,400 people received a custodial sentence of 12 months or less in 2023-24. This represented 73% of all custodial sentences. Of the 798 women who received a custodial sentence that year, 88% received a custodial sentence of a year or less. Despite the evidence about the detrimental impact of short custodial sentences, sentences of three to six months were the most commonly used sentence over the past decade.

44. A 2025 Scottish Government analysis noted the complexity of the offending background of people receiving custodial sentences of 12 months or less from court.^[13] The analysis highlighted that a fairly low proportion of those receiving short custodial sentences are in the community at the time, with most already being in prison (either in the sentenced population or on remand).

The Sentencing and Penal Policy Commission

45. The Sentencing and Penal Policy Commission stated that the consistently high numbers of short sentences “are so substantial that the presumption cannot be said to be working as the Scottish Government and indeed Parliament intended.”^[14]

46. It recommended action to further limit the use of short-term sentences, “otherwise Scotland is likely to retain its position as one of the countries most likely to imprison people in Western Europe, and all the negative consequences that follow from that.”

47. The Commission considered that it is “necessary” to have a near complete prohibition on short custodial sentences, with only limited exceptions. It recognised that this would necessitate engagement with the UK Government on legislative competence, which the Scottish Government will pursue. In the interim, the Commission recommended various ways to extend and reinforce the presumption against short sentences to make it work more effectively. The Scottish Government has carefully considered and further developed these so that there are two sets of proposals below: those intended to strengthen and support the use of PASS; and those intended to extend the use of this improved presumption from 12 to 24 months.

48. Any reforms would be taken forward alongside wider work to strengthen community sentences in order to ensure robust alternatives to custody are available, as well as consideration of changes to bail and remand that flow from the PASS extension, and therefore, the subsequent sections consider proposals relevant to these policy areas.

49. The Commission also set out its view that in addition to extending the existing presumption, it should be reinforced to make clear that custody should only be used in exceptional circumstances. This could allow PASS to capture a wider range of situations where a short custodial sentence may currently be imposed. The Scottish Government has considered numerous ways of achieving this including by increasing the use of justice social work reports, strengthening the legislative test for PASS, and increasing the requirements for sentencers^[15] to set out their rationale for short custodial sentences.

Increasing the use of justice social work reports

50. Sections 203, 204 and 207 of the Criminal Procedure (Scotland) Act 1995 set out circumstances whereby a court must obtain and consider a report from an officer of the local authority.^[16] Section 203 provides that when a court is considering a custodial sentence for a person convicted while subject to supervision in the community under certain orders or following release from custody on a licence, a justice social work report (JSWR) is required before the court disposes of the case. Section 204 of the 1995 Act provides that if the person is over 21 years of age but has not previously received a custodial sentence, the court shall take into account JSWRs. Section 207 provides that a court may impose detention on a person aged 18 or over but under 21 years of age only if it has obtained a JSWR. JSWRs may also be requested in other cases, including for example where there are potential complexities such as addiction or mental health issues.

51. A JSWR can help the court decide whether to impose a custodial or community order and what particular requirements may be most suitable for a person’s community sentence. There were 29,600 JSWRs submitted (including supplementary reports) in 2024-25. This was six per cent higher than the level of 27,900 in 2023-24 and was the highest since 2016-17.^[17]

52. If the court does not have a recent JSWR when sentencing it is possible it does not have the fullest, most up-to-date picture of the circumstances behind a person’s offending, or particular support that could help facilitate a community sentence that would ultimately be more effective at rehabilitating and reducing the risks of reoffending.

53. To ensure that the courts have access to all relevant information, one option would be to make JSWRs mandatory in all cases where a short custodial sentence is being considered. We are mindful that this would have an impact on justice social work and could also increase demands on court time, so it is important to strike the appropriate balance regarding when these reports should be required.

Question 1 – Please share any views you have on the proposal that justice social work reports should be mandatory in all cases where a short custodial sentence is being considered.

Question 2 – Please share any views you have regarding the most effective ways to improve judicial and public confidence in community sentencing options - including their content, local availability and outcomes.

Strengthening the legislative test for the presumption against short sentences

54. Section 204 (3A) of the Criminal Procedure Scotland Act 1995, as amended, sets out that “A court must not pass a sentence of imprisonment for a term of 12 months or less on a person unless the court considers that no other method of dealing with the person is appropriate.”

55. The language of the provision is quite general and does not set out specific circumstances in which it is appropriate for custodial sentences to be used. It may be that a more tightly worded provision could be more effective at reducing the use of short sentences.

56. For example, the UK Sentencing Act 2026 provides that the court must make a suspended sentence order in relation to a sentence of under 12 months unless defined exceptions apply or the court is of the opinion that there are “exceptional circumstances”.^[18]

57. Although the specific nature of these circumstances is not defined in the Act, the UK Sentencing Review 2025,^[19] suggests that “exceptional circumstances” would apply “in cases of wilful non-compliance with court orders, to provide a victim of domestic abuse with a period of respite, or for offenders who have been given a community order or suspended sentence order and go on to reoffend.” While this approach sits in a different legal framework, it offers a helpful example of how an “exceptional circumstances” test can work in practice.

58. It is possible that amending the legislation to make clear that short sentences should only be used in “exceptional circumstances” would be more effective at achieving the policy intent to reduce the numbers of these. Another way to achieve this may be to specify the particular circumstances in which a short sentence should be imposed.

Question 3 – Please share any views you have on the proposal that the legislative test in the presumption against short sentences should be strengthened.

Question 4 – What do you consider would be the most effective way to strengthen the legislative test?

Increasing the requirements for sentencers to set out their rationale for short sentences

59. The 1995 Act provides that, where a court passes a sentence of under 12 months, it must state reasons for the opinion that no other method of dealing with the person is appropriate and have those reasons entered in the record of proceedings. It has been noted, including by the Sentencing and Penal Policy Commission, that there is no requirement for the sentencer to set out the specific details regarding what other options have been considered, or why they concluded any of these would not have been suitable.

60. Systematically gathering this data would provide victims and the accused with a greater understanding of why particular sentences were chosen, or not. It would also make sentencing more transparent to the general public.

61. There is currently very limited data available regarding the reasons the courts opt for short sentences. More rigorous recording requirements would provide valuable data that could make clear, for example, that the services in a particular area need to be improved, or that awareness raising is required to ensure the judiciary is aware of them.

62. We are mindful that any additional recording requirement would take up valuable court time. The courts will have already considered why a short custodial sentence is necessary, and why alternatives are not appropriate given the facts and circumstances of the particular case. However, requiring these to be written down may require some additional time for consideration. Given the large volumes of cases that proceed at summary courts even a small delay could accumulate over the course of each day.

Question 5 – Please share any views you have on the proposal that when sentencing a person to a short sentence, sentencers should have an obligation to set out in writing the specific details regarding what other options have been considered, and why they concluded these would not have been suitable.

Question 6 - Do you have any other comments in relation to the potential impact on victims, equality or human rights of these measures to 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

63. The Sentencing and Penal Policy Commission highlighted that the Scottish Government brought in a presumption against short sentences of under 12 months due to the evidence that short periods in custody are not effective at reducing reoffending. The presumption does not currently apply to people sentenced to between 12 and 24 months, who due to the policy of releasing short-term prisoners (serving less than four years) at 40% of their sentence,^[20] will spend no more than four to eight months in prison. In 2023-24, more than 1,400 people were sentenced to between one and two years imprisonment.^[21]

64. Therefore, the Commission recommended that to fully implement the policy intent of reducing the amount of people serving fewer than 12 months, would require PASS to be extended to all sentences of up to two years. Since the Commission reported, this release point has been further reduced to 30%^[22] for most people who are serving short custodial sentences.

65. The increase in the prison population in recent years is driven mainly by the rise in long-term prisoners. While those serving short sentences (particularly 12 months or less) spend limited time in custody, they contribute significantly to admissions. Reducing their use would ease operational pressures and support greater use of community based interventions.

66. Short prison sentences often disrupt the very factors that can help prevent offending. They can damage family relationships, cause housing instability and homelessness, reduce employability and lead to job loss and weaken wider social ties and support networks.

67. Shifting away from short custodial sentences would enable more effective support to be provided in the community, while also creating capacity within the Scottish Prison Service to focus on the rehabilitation of more serious offenders. Combined with wider measures, this approach could contribute to a sustainable reduction in the overall prison population.

Question 7 - Please share any views you have on the proposal that the presumption against short periods of imprisonment of 12 months or less be extended to 24 months or less.

Adjust the sentencing powers of sheriff courts

68. In summary cases - heard by a sheriff without a jury - the sheriff court can sentence a convicted person to up to 12 months in prison or a maximum fine of £10,000 (though some offences can carry higher maximum summary fines as provided for in statute).

69. Unless it is set out in legislation, it is for prosecutors to decide what level of court a case will be heard in. This decision is informed by a range of factors including the nature of the alleged offence, the impact on any victims and the wider community, the relevant potential sentence, the circumstances of the accused and the court’s sentencing powers.^[23]

70. If PASS was extended without adjusting sentencing powers in sheriff courts, cases where a custodial sentence of between one and two years is anticipated would frequently be dealt with at sheriff and jury courts which have the power to sentence for up to five years.

71. Cases that are unlikely to result in prison sentences of more than two years could benefit from being handled using the same procedure in the same court, i.e. sheriff courts under summary procedure rather than sheriff and jury courts. This could support greater consistency in sentencing,

72. Therefore, a further reform that could accompany the extension of the presumption against short sentences to 24 months relates to altering sentencing powers in summary procedure. This would increase the maximum custodial sentence that can be imposed at sheriff summary level to two years – from its current one year maximum - to match the timeframe covered under PASS (if extended to 24 months or less). This would enable prosecutors to decide that these cases be heard at summary level, if they consider this appropriate given the particular facts and circumstances of the case.

73. This reform sits alongside and would be taken forward to accompany a PASS extension. It would also have the benefit of improving the efficiency of the justice system. Summary procedure is faster, thereby leading to fewer delays for victims of crime and witnesses, and is less resource-intensive than sheriff and jury, and therefore less costly to the public. Median journey times in 2024-25 were around one year seven months in sheriff solemn courts compared to around seven months in sheriff summary.^[24]

74. Having more cases dealt with at summary procedure could lead to people spending less time on remand and pleading guilty earlier in the process. There would also be savings to the public from a reduced number of jury trials, as well as less requirement for members of the public to carry out their civic duty as jurors. There may also be legal aid implications to consider.

75. In 2023-24, more than 1,400 people received a custodial sentence of between one and two years - 629 (42%) for non-sexual crimes of violence and 396 (27%) for crimes against society.^[25] Even in a reformed system with higher sentencing limits at summary courts, these would not all be expected to be heard at summary level as it would not be certain in advance what the final sentence would be in these cases, and as set out previously, prosecutors consider a range of factors when determining which court a case should proceed at.

76. While some may have concerns about an increased number of trials being held before a single judge, rather than a jury, it should be noted that in Scotland the vast majority of criminal cases are currently dealt with at the summary court and therefore are currently heard before a single judge. In 2023-24, 89% of people convicted in court were prosecuted in summary courts.^[26]

77. It is also possible that, while some victims of crime may prefer the shorter timescales at summary level, others may perceive their case being heard at this level as a downgrading of its seriousness. It is therefore important that victims are communicated with clearly, including being provided with a clear rationale for decision-making and assurances about how their case may proceed.

78. The sentencing powers of different levels of court have previously been expanded and it was considered that professional judges were capable of dealing with more serious types of offending, and that reform would bring benefits to the general effectiveness of how cases could be dealt with through the criminal courts.^[27] The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 increased the sentencing powers of the summary courts from three months to 12 months, and prior to this the sentencing powers of the sheriff courts in solemn cases were increased from three to five years via the Crime and Punishment (Scotland) Act 1997. However, the nature of cases going through the criminal courts has changed significantly since these reforms, as set out in the introduction to this consultation.

Question 8 – Please share any views you have on the proposal that if the presumption against short sentences is extended to 24 months or less, summary sentencing powers should also be increased so that the maximum custodial sentence is also 24 months.

Question 9 – Do you have any other comments in relation to the potential impact on victims, equality or human rights of the proposals related to extending the Presumption Against Short Sentences (PASS) from 12 to 24 months?

Section 3 - Enhance and strengthen community sentences

Background

79. As part of community justice, some people who have broken the law can receive community-based sentences as a form of punishment imposed as an alternative to imprisonment. Community sentence is a collective term for sentences given by courts that are served in the community, often as an alternative to a custodial sentence. There is strong evidence that community sentences are more effective in reducing reoffending than short prison terms.^[28]

80. Despite this, as set out above, short custodial sentences are still used very frequently, and sentences of three to six months were the most commonly imposed short sentence over the past decade. In 2023-24, of the 7,400 sentences of 12 months or less that were imposed, 40% were between three and six months, and a further 36% were for three months or less. It is important that we take action to enhance and strengthen community sentences, as well as removing barriers to their use, to ensure the judiciary can have confidence in using them, and that they can be used in as wide a variety of circumstances as possible, where considered appropriate by the court. This position is reflected in the Scottish Government’s Community Justice Strategy^[29] and Vision for Justice.^[30]

81. The most commonly imposed type of community sentence is the Community Payback Order (CPO), introduced in 2011. The legal framework for CPOs is set out in the Criminal Procedure (Scotland) Act 1995.^[31] They are intended to ensure that individuals who have committed an offence “pay back” to their communities and deal with the underlying causes of their offending behaviour. CPOs are typically made for a period of between six months up to a maximum of three years.

82. It is a requirement for the court to get a report from a justice social worker before sentencing someone to a CPO. However, there are exceptions when a CPO can be given without a justice social work report. These are when the CPO is not above level one (between 20 and 100 hours) of the unpaid work or other activity requirement; or when the CPO is being given for an unpaid fine.

83. A report from a justice social worker will give the court background information, such as any offences previously committed, the person’s risk of reoffending, their health, and their living situation along with a suggested preferred disposal to consider, and if the recommendation is a CPO, an initial case management plan.^[32]

84. There are ten different requirements that can be given as part of a CPO. The court will decide which ones should be selected for each sentence. This will depend on the nature of the offence and what can be done to help prevent the person from committing more crimes. Once a CPO has been imposed, the management of that order is a matter for the court and local authority justice social work services.

Types of CPO requirement^[33]

Unpaid work or other activity: someone subject to a CPO can be ordered to carry out between 20 and 300 hours of unpaid work, identified by local services and communities. The “other activity” component of the requirement focuses on developing their interpersonal, educational and vocational skills to support long-term desistance from offending.

Supervision: someone can be required to attend regular appointments with a justice social worker, who supports them to address the factors underlying their offending behaviour and supervises their compliance with the requirements of the CPO. This includes arranging referrals to other public and third sector services.

Compensation: this is a requirement to pay money to victims for injuries or distress caused, or damage to property. The money is paid to the court who ensure it is then transferred to the named person.

Programmes: attendance at a programme arranged by a social worker to deal with offending behaviour. The two main national, accredited programmes are Caledonian (domestic abuse) and MF2C (sexual offences). Local authority areas may also use local programmes which are not nationally accredited (e.g. these could focus on drug and alcohol misuse).

Residence: requirement to stay at a certain address.

Conduct: order to do certain things or not do certain things. Courts can only use this requirement if they consider that it will help secure or promote good behaviour by the person or stop them from committing more crimes.

Restricted movement: the person can be required to remain at a specific address for up to 12 hours a day, and/or to stay away from a specific place or class of places for up to 24 hours a day. This requirement can be imposed by the courts for either a period of up to 12 months for a person aged 18 or over, or for a period of up to three months for a person aged under 18, and compliance with the requirement can be electronically monitored.

Mental health treatment: If the person has been diagnosed with a mental health condition that plays a role in their offending, they can receive support and treatment. This can include staying in hospital or attending medical clinics. It can also include getting counselling or any other treatment put forward by a doctor.

Drug treatment: treatment might include being ordered to attend a clinic or hospital.

Alcohol: this could include an order to receive counselling or attend a clinic to receive treatment.

85. In 2024-25, 16,500 CPOs were imposed. Of these, a substantial proportion were issued with an unpaid work requirement (69%), and with a supervision requirement (67%). The average number of requirements imposed was 1.66. Though the highest figure of the last 10 years, it suggests that most people only receive one or two requirements. Alcohol Treatment (1.1%), Drug Treatment (1.4%) Mental Health Treatment (0.2%) and Residence Requirements (0.1%) are infrequently used. Behind these national figures, there is a level of variation between local authorities reflecting the local model of delivery in line with local need.^[34]

86. These figures make clear that the focus of CPOs has tended to be on unpaid work and supervision to tackle underlying offending behaviour rather than more specific requirements designed to tackle particular aspects underlying offending behaviour.

The Sentencing and Penal Policy Commission

87. In 2026, the Sentencing and Penal Policy Commission noted that although we know that CPOs are often imposed on people struggling with issues such as addiction and mental ill health, the relevant CPO requirements for mental health treatment, alcohol treatment and drug treatment are little used owing to their rigidity and complexity.

More effective use of CPO requirements

88. In view of the above, it is important to better understand how CPOs can be tailored to a person’s circumstances to ensure they are a credible alternative to a custodial sentence.

89. There are a range of ways in which this could be achieved, for example:-

• Any unnecessary or ineffective requirements could be removed.
• Any behaviours and needs not yet addressed could be met by adding additional requirements.
• Current requirements could be amended to ensure they can be used more flexibly and effectively, for example by removing legislative barriers and allowing a wider range of activity to take place.

90. The Commission set out the view that CPOs should be more person-centred rather than based on specific requirements. It noted that “supporting the use of discretion rather than highly prescriptive requirements may help ensure orders remain flexible and proportionate, reducing unnecessary breach risks when circumstances change.” It considered that since justice social workers are best placed to have both direct personal knowledge of the relevant individuals and appropriate services, the precise means of addressing needs in a CPO should be a matter for the social worker. This would constitute a more person-centred approach that enables the appropriate treatment requirements to be used without legislative barriers.

91. In considering such an approach it would be important to be mindful of potential risks and unintended consequences, for example, it could lead to increased workloads for justice social workers, and if sentencers had less control over the composition of a specific CPO it is possible that they may be less inclined to use them.

92. The Commission emphasised that “Ultimately, reducing the use of ineffective short custodial sentences must go hand in hand with strengthening protections, information, and support for victims.” Victims require community disposals to be robust, well monitored, and evidence-based so they can be reassured that they are safe and the offending is being taken seriously. The Commission’s engagement made clear victims’ desire for improved information at key stages throughout the justice process, for example, related to what conditions apply to a community order, and when a person may be released from custody. It was also noted that electronic monitoring could play a valuable role in preventing people who have offended from approaching victims or going to particular places.

93. The Commission also heard concerns about what victims considered to be “inconsistent and sometimes infrequent use of Non-Harassment Orders (NHOs), especially in cases involving domestic abuse, stalking, or persistent offending.” The Scottish Government agrees that where victims need protection, NHOs should be considered and applied consistently, although this is a matter for independent decision-makers in the judiciary.

Question 10 – Please share any views you have on how effective CPOs are in their current form and whether the legislation underpinning them is appropriate.

Question 11 - To what extent do you think the current framework allows sufficient flexibility to tailor CPOs to individual circumstances, including the roles of both sentencers and justice social workers?

Question 12 – Please share any views you have on how the current CPO legislative framework could be improved to ensure CPOs are a credible alternative to custodial sentences.

You may wish to consider:

• removing any unnecessary or ineffective requirements.
• adding new or revised requirements.
• addressing practical or legislative barriers to the use of existing requirements.
• any other changes.

Increasing support for people on CPOs

94. Community sentencing provides an opportunity to help provide support to address the issues that can underpin offending behaviour such as addiction, homelessness, trauma, or mental ill health.

95. Support provision as part of a community sentence depends on the capacity of local services, particularly justice social work and the third sector. Individuals on CPOs often have multiple, overlapping needs, which can increase instability and make addressing offending more difficult, requiring a co-ordinated, multi-agency response. Justice social work therefore plays a key role in arranging referrals to wider public services, with charities and third sector organisations providing essential additional support.

96. The main forms of support for people on community sentences are:

• Justice social work supervision: structured support, case management, regular one-to-one contact to address offending behaviour, linking individuals to community services.
• Programme-based interventions where as part of the order, individuals may access offence-focused programmes (e.g. addressing violence, domestic abuse).
• Practical and social support (often through referral rather than direct delivery) e.g. housing, employability and skills, welfare benefits advice and financial inclusion, substance use services (alcohol and drug partnerships), mental health services.
• Third sector provision delivered by charities and community organisations e.g. mentoring services, recovery services, women-specific services.

97. The Sentencing and Penal Policy Commission set out views that people serving community sentences would benefit from increased support. It suggested that Scotland could learn from Northern Ireland’s Enhanced Combination Order (ECO) which provides courts with more intensive community sentencing options and noted that in Northern Ireland the number of short custodial sentences imposed by courts in which ECOs are available decreased by over one fifth.^[35]

98. ECOs are intended to be flexible with a focus on multi-agency working, targeted interventions, accredited programmes, restorative practice, and where appropriate, parenting/family support work. People who have offended are assessed by psychologists, with the potential to receive a bespoke mental health intervention, depending on needs.

99. If the Scottish Government was to emulate this approach there may be benefits of taking it forward through legislation, or alternatively sharing best practice between areas and encouraging regional collaboration may lead to effective results more quickly.

Question 13 – Please share any views you have on the extent to which CPOs provide sufficient support to address the underlying causes of offending behaviour and whether there are any barriers to ensuring support needs are met.

Question 14 – Please share any views you have on the introduction of an Enhanced Combination Order model in Scotland.

In your response, please consider which elements (for example, psychological assessment or restorative approaches) would be most valuable, and any potential benefits or challenges.

Making CPOs suitable for a broader range of offending behaviour

100. Evidence shows that community sentences are more effective than short prison sentences at reducing reoffending. They enable individuals to access justice social work support to address the underlying causes of their behaviour, while allowing them to remain in employment, sustain housing, and maintain family and community ties — factors known to support desistance.

101. At present, CPOs are used as an alternative to someone being imprisoned. This can mean they are most often used where an individual is already close to receiving a prison sentence. However, the evidence suggests that earlier intervention through justice social work support can be effective in addressing offending behaviour before it escalates to that point.

102. Expanding the use of CPOs to a broader range of cases would allow more individuals to benefit from structured support in the community, including those who may not be on the cusp of imprisonment but would still benefit from targeted intervention. This would help address the drivers of offending at an earlier stage, while avoiding the disruption associated with short periods in custody and the risk of individuals being exposed to further criminal influences. As part of this approach, it would be important to ensure that breaches are managed in a way that does not inadvertently increase the use of custody.

103. CPOs could also be strengthened to make them more suitable for more serious offending, including cases where custodial sentences (particularly in the 12–24 month range) might currently be imposed. Options could include increasing the maximum number of unpaid work hours, extending the maximum duration of orders, expanding the use of electronic monitoring (such as GPS or alcohol monitoring) and enhancing both programme requirements and support provision to address more serious or persistent offending.

Question 15 – Please share any views you have on the proposal to amend how CPOs are set out in law, so they are clearly framed as a sentence that can be used where justice social work intervention could address the underlying causes of offending behaviour.

Question 16 – Please share any views you have on what changes, if any, would be required to make CPOs suitable and effective for more serious offending behaviour.

Incentivising good behaviour

104. Where an individual subject to a CPO has demonstrated significant efforts, made positive progress, and the assessed risk/needs have been reduced to the extent that there is little benefit in continuing to intervene in the individual’s life, an application can be made for early discharge of a CPO. The possibility for early discharge incentivises good behaviour, and more usefully allocates community justice resources to those in need. However, it is rare, with only around 4% of successfully completed CPOs resulting in early discharge and with considerable variation between local authorities.^[36]

105. The UK Parliament recently legislated^[37] to introduce a provision whereby if the person on a community order has carried out the qualifying amount of work while complying with certain criteria, such as not failing to attend for work (without reasonable excuse), the number of unpaid work hours required can be reduced.

106. It also introduced a provision to terminate a community order on completion of all requirements and objectives in the sentencing plan, to encourage early engagement, and to negate the need for individual applications to the court to vary or revoke the order based on progress made.

Question 17 – Please share any views you have on the proposal that there should be more opportunities to incentivise good behaviour on CPOs through reductions in, or early discharge from, unpaid work or supervision requirements.

Please give reasons for your answer including any views for how this could be achieved in practice, as well as any alternative suggestions to enable incentivisation of good behaviour on CPOs.

Breach of CPOs

107. Individuals subject to a CPO are required to comply with its terms, and failure to do so constitutes a breach of the order. Effective enforcement is essential to maintaining the credibility of community sentences. Consequences for breaching an order include the imposition of a fine, variation of the order or revocation of the order and imposition of a new community order or imprisonment. In the Commission’s Call for Evidence, respondents highlighted challenges in managing breach, including delays in progressing cases through formal processes.

108. Where non-compliance occurs, responses should be timely, proportionate and consistent, recognising both the need to maintain the authority of the court and the importance of supporting individuals to re-engage. Those supervising orders must act in a way that is fair, reasonable and transparent, while ensuring that non-compliance is addressed in a manner that commands public and judicial confidence. National guidance sets out expectations for managing breach, although a 2021 Scottish Sentencing Council (SSC)^[38] report noted that aspects of the process rely on professional judgement and local practice.

109. The SSC report highlighted judicial concern about delays in reporting breaches and the need for more timely escalation where compliance is not achieved. It also recognised that improvements to the efficiency of breach processes are necessary to support more responsive enforcement and ensure that consequences follow non-compliance without undue delay.

110. The Commission recommended strengthening policy and guidance to support more consistent practice, including clearer expectations around when non-compliance should result in formal breach action. This includes supporting a graduated approach to enforcement, where appropriate, but within a framework that ensures persistent or serious non-compliance results in clear and timely consequences.

111. We welcome views on how breach processes for CPOs can be strengthened to better balance flexibility with accountability. This includes how national guidance and local practice can support earlier intervention, clearer and more consistent thresholds for formal breach, and a more efficient court response. We are particularly interested in views on the use of graduated responses, the circumstances in which custody is appropriate following breach, and how to ensure that community disposals remain both credible and effective in the event of non-compliance.

Question 18 – What changes, if any, do you believe are needed to improve breach processes for CPOs to ensure timely, proportionate, and consistent responses to non‑compliance?

Drug Treatment and Testing Orders (DTTOs)

Background

112. Substance use and related harms are a significant challenge in Scotland, both as a public health issue and in their relationship with offending behaviour. People with substance use issues are more likely to be involved with the criminal justice system, often alongside other complex and interrelated needs such as mental health issues, poverty, trauma and social exclusion.^[39][40]

113. Evidence consistently shows a strong link between substance use and offending and many in custody report drug use prior to imprisonment or at the time of their offence.^[41] This reinforces the importance of ensuring that the justice system is equipped to respond effectively to substance-related offending, supporting reduction of harms and reoffending.

114. Community justice options are often appropriate for individuals whose offending is linked to substance use.^[42] The main disposals are a Drug Treatment and Testing Order (DTTO) or a Community Payback Order (CPO) with a drug treatment requirement.^[43]

115. DTTOs are intensive community disposals designed to address problem drug use among individuals whose offending is linked to substance dependency. They were introduced by the Crime and Disorder Act 1998.^[44]

116. DTTOs are a direct alternative to imprisonment which focus on drug treatment as the primary means of reducing offending behaviour. They are given for up to three years and require individuals to engage in structured treatment alongside regular drug testing and frequent court reviews, with the aim of reducing both drug use and associated offending.^[45]

Trends in Use

117. The use of DTTOs in Scotland has declined significantly over the past decade. In 2024–25, 230 DTTOs were imposed, the lowest in a decade. This represents a 62% drop since a peak of 600 in 2018-19. Around half are successfully completed.^[46] This decline is linked to a range of factors including capacity constraints within treatment services, workforce challenges, local variation in delivery shortages and increased use of alternative disposals, particularly CPOs. Another key factor is that the testing and treatment model set out in the DTTO guidance is no longer well aligned with current patterns of substance use. In particular, changes in drug use away from opiates mean the model is often not suitable for addressing present needs, and as a result practitioners are increasingly less likely to recommend DTTOs to the courts.

118. DTTOs also have relatively high reconviction rates compared to other community disposals.^[47]

Community Payback Orders with drug treatment requirements

119. CPOs can include a drug treatment requirement alongside other requirements to address wider needs. DTTOs and CPOs with a drug treatment requirement are intended to differ in purpose, intensity and delivery.

120. DTTOs are for people with entrenched, high-risk drug dependency, involving intensive supervision, frequent testing and regular court oversight. In contrast, CPOs take a broader, more flexible approach, using drug treatment as one of several tailored requirements, typically for a wider range of people with less severe dependency. CPOs with Drug Treatment Requirements are not routinely used, with 225 imposed in 2024-2025.

121. Research suggests that in practice DTTO and CPO requirements can overlap significantly; the threshold for DTTOs is high and many individuals may be considered more suitable for flexible, multi-need approaches.^[48] An evidence review by the Scottish Government on community sentencing options for people with substance use problems questioned the benefits and necessity of offering both DTTOs and CPOs with a treatment requirement, noting “the conditions of a DTTO can be almost exactly replicated within the CPO framework.”^[49]

122. Evidence^[50] highlights a number of challenges affecting both DTTOs and wider community disposals:

• Variation in delivery across local areas.
• Limited access to treatment services, including workforce and capacity issues.
• Practical barriers for courts, including difficulty identifying treatment providers at sentencing.
• Judicial confidence, particularly where services are not consistently available.
• At the same time, there is increasing use of alternative requirements (such as conduct requirements) to support engagement with substance use services.

A public health approach to substance use and justice

123. There has been a clear shift in Scotland towards treating substance use as a public health issue. The Scottish Government’s Alcohol and Drugs Strategic Plan (2026–2035)^[51] emphasises:

• person-centred and trauma-informed approaches;
• early intervention, prevention and harm reduction;
• coordinated, multi-agency support;
• improving consistency and timeliness of access to treatment and recovery;
• reducing stigma and barriers to engagement.

124. This reflects growing recognition that effective responses to substance-related offending require integrated health and social care approaches rather than justice interventions alone. The Strategic Plan includes a commitment to promoting a public health approach to justice through:

• “exploring ways to expand the use of community-based early interventions, problem solving courts and community sentences for people whose offending is linked to alcohol and drug use.”
• “reviewing the current use of community interventions including CPOs, Drug Testing and Treatment Orders and structured deferred sentences to assess whether they can be used to better address the underlying causes of offending behaviour, including alcohol and drug use.”

125. Moreover, to address co-occurring drug and alcohol needs, the Sentencing and Penal Policy Commission recommended that the Scottish Government “evolve the DTTO model into a Substance Misuse Treatment Order, enabling courts to address both drug and alcohol-related offending.” The Commission noted that addiction in Scotland often involves both drugs and alcohol, so limiting courts and treatment orders to drug misuse alone misses much of the issue.

126. Currently, a CPO may be imposed with an alcohol treatment requirement where an individual is considered to be alcohol dependent, however, like CPOs with drug treatment requirements, these are also rarely imposed. Only 175 CPOs with Alcohol Treatment Requirements were imposed across Scotland in 2024-25 (1.1% of CPOs).^[52]

127. Given these developments, it is appropriate to consider whether the current DTTO model aligns with current evidence, including a public health approach to substance use, and is an effective disposal for addressing substance‑related offending.

Question 19 – Please share any views you have on retaining Drug Treatment and Testing Orders as a distinct community disposal for addressing substance-related offending.

Please give reasons for your answer, including:

• views on whether they should be reformed or replaced;
• views on the current effectiveness of DTTOs;
• how they compare to alternative disposals, including Community Payback Orders (with or without treatment requirements);
• what a future community sentence for individuals whose offending is related to substance use should look like.

Question 20 – Do you have any other comments in relation to the potential impact on victims, equality or human rights of these proposals to enhance and strengthen community sentences?

Section 4 - Electronic monitoring

128. Electronic monitoring (EM) plays an important role within the criminal justice system, to help support rehabilitation and reduce reoffending. The Scottish Government is committed to developing the electronic monitoring service, including exploring the use of new technologies such as GPS. Within the current legislative framework, electronic monitoring can be used in a wide range of circumstances including as part of a community order such as a CPO, as a condition of bail, or as part of a licence, for example, for home detention curfew (HDC), a scheme which allows certain prisoners to be released from custody early under strict conditions.

129. The use of GPS technology offers a number of potential benefits over radio frequency (RF) monitoring – in particular, the ability to monitor a range of geographical conditions and gather rich compliance data. Building on recent developments such as the introduction of GPS with HDC, and the move to use EM with bail, we have identified a number of areas for potential legislative change that could be made via primary legislation and help set the enabling conditions for further EM development.

130. EM in Scotland currently primarily uses radio frequency technology to monitor an individual's compliance with conditions attached to certain court orders and forms of licence. Principally, those conditions relate to a curfew confining a monitored person to a specified place for up to 12 hours a day, or their remaining away from a specified place for 24 hours a day. Radio frequency monitoring performs an effective role in managing curfews. In recent years technological advances such as GPS (global positioning systems) have provided different capabilities, such as the ability to set much wider “exclusion zones” - areas that an individual is required not to enter as a condition of their licence. The use of GPS devices to monitor compliance with exclusion zone conditions has been adopted for use in some home detention curfew licences.

131. EM, when used in conjunction with support from community justice services, can help to address a person’s needs and offending behaviours, and support them to comply with any court requirements, while maintaining their connections to family, employment or education - factors that are known to support a reduction in the likelihood of reoffending.

132. Although radio frequency technology is a robust and effective form of monitoring for the uses where it is currently deployed, it is clear that there are a range of new technologies which could be used to expand the functionality of EM in Scotland, and which may widen the opportunities to manage people in the community. GPS provides a distinct capability to RF monitoring -including broader monitoring of exclusion zones and, in some circumstances, avoiding the need to place equipment at a victim-linked address.

133. In order to support these developments, some important adjustments may be needed to develop the legislative context around use of EM. In any potential reform in these areas, it is important to consider the views of, and impact on, key stakeholders including victims’ groups, Crown Office and Procurator Fiscal Service (COPFS), Police Scotland, judiciary, justice social work, third sector partners, and private sector EM providers.

Electronic Monitoring of Bail – mechanism for court consideration

134. Electronic monitoring relies on the maintenance of accurate information on the monitored person, including prompt updates where circumstances have changed. Currently, in most cases in order to amend details of a bail order once granted, a hearing must be convened, and this must be either initiated by COPFS, or initiated by the individual monitored (often through their defence representative).

135. One potential way to improve the efficiency and effectiveness of EM bail would be to introduce a formal mechanism to enable bail cases with an EM requirement to be brought back before the court where issues arise that may require judicial consideration, but where there is no suspicion of criminality. This could include, for example, situations where a monitored address is subsequently found to be unsuitable or where practical barriers (such as loss of tenancy) could undermine the efficacy of the EM requirement.

136. This mechanism could create a clearer framework for responding proportionately to operational difficulties, thereby supporting adherence to bail conditions while maintaining judicial oversight and appropriate safeguards. Reporting of certain cases could be direct to court, in order to facilitate a hearing to consider change of order (and/or address), without Police Scotland necessarily dealing with the case as compliance failure. Related to that, consideration could also be given to whether certain of these changes always need a court hearing or could be dealt with more administratively in court chambers. This would support longer-term system improvement around bail more generally and consistency of practice across areas, while potentially providing better use of court time, as well as providing greater reassurance to the public and victims of crime that EM bail is operating optimally.

Exclusion zone conditions monitored by GPS devices

137. Under the current legislative framework, when a person breaches a GPS exclusion zone, the police in certain circumstances may have limited powers to intervene unless they suspect an arrestable offence has been committed; there is an immediate threat to life or property; or currently, in the case of HDC, if the individual has already been recalled to custody.

138. Legislating to strengthen the police role in this area, including considering creating a power of arrest for breaching the order or licence relating specifically to the exclusion zone in certain cases (potentially if there are identifiable victims at risk) could bring clarity and accountability, and facilitate a swift operational response. It may also increase confidence in the use of GPS technology to effectively monitor compliance with these conditions and potentially prevent crime and protect victims, where its application might otherwise be limited by concerns about the absence of effective enforcement powers. Such a reform would also have the benefit of incentivising compliance and providing reassurance to victims of crime, decision-makers, and the public.

Question 21 – Please share any views you have on the proposal that there should be a formal mechanism to enable bail cases with an electronic monitoring requirement to be brought back before the court or dealt with administratively in chambers. This would be used when administrative issues arise that may prevent the order being monitored, and currently require judicial consideration, but where there may be no evidence of criminality.

Question 22 – Please share any views you have on the proposal that there should be a power of arrest for breaching the order or licence relating to an exclusion zone.

Question 23 – Please share any views you have on the proposal that there should be other improvements to the system of electronic monitoring either to help facilitate any of the other reforms in this paper, or more broadly.

Question 24 – Do you have any other comments in relation to the potential impact of these electronic monitoring proposals on victims, equality or human rights?

Section 5 - Bail and remand

Background

139. As set out in the introduction, the Scottish Government is clear that we must take a holistic approach to achieve a sustainable prison population and justice system that focuses on reducing reoffending. This includes bail and remand, the extension of PASS and reforms to community payback orders.

140. Some of the potential reforms considered have specific implications for bail and remand policy. It therefore makes sense that these are considered alongside each other to ensure a holistic, coherent approach is taken. In most cases, it would not make sense to remand a person if they are unlikely to receive a custodial sentence.

141. The Criminal Procedure (Scotland) Act 1995 sets out a presumption in favour of bail for criminal cases so that typically an individual accused of a criminal offence can be allowed to remain in the community before their trial. The presumption sets out that an accused person is to be granted bail unless the court determines that there is good reason to refuse bail. The court may determine that there is good reason for refusing bail only if it considers certain grounds apply and having regard to the public interest, it is necessary to refuse bail in the interests of public safety or to prevent significant risk to the interests of justice. The court must consider bail in all cases regardless of whether an application is made.^[53]

142. The Act sets out a number of grounds which, taken individually or collectively, may give reason to the court to justify a decision to refuse bail in any given case. Grounds for refusal include a substantial risk of: absconding or failure to appear; a substantial risk of committing further offences, interfering with witness or otherwise obstructing the course of justice. The public interest point relates to public safety and the prevention of a significant risk of prejudice to the interests of justice.^[54] The legal framework requires a court to have regard to material considerations including the nature of the offences and the “probable disposal of the case if the person were convicted of the offence.”^[55]

143. The decision to grant bail, or not, is an exercise of judicial discretion. If an individual accused of a criminal offence is not granted bail, they will be remanded to custody to await trial.^[56]

Numbers on remand

144. In recent years there has been an acknowledgement that the numbers of people being remanded to custody pending trial is high. In June 2018, the Scottish Parliament’s Justice Committee published a report ‘An Inquiry into the Use of Remand in Scotland’ that raised a number of concerns about the high use of remand in the justice system.^[57]

145. Today, the remand population is even higher. The share of the prison population on remand on an average day increased from 19% in 2019-20 to 22% in 2024-25. There was a spike in the number of people remanded to custody awaiting trial due to the onset of the Covid-19 pandemic in 2020.^[58] Over half a decade later, the remand population remains considerably higher than before the pandemic.

146. In late 2019, the Scottish Government commissioned independent research into bail and remand decision making in Scotland with the aims of assisting the Scottish Government and other justice stakeholders to:

• better understand the process of bail decision making.
• better understand the current system’s strengths and weaknesses, and hear what criminal justice stakeholders need to best be supported in their decision making.
• use this evidence to build on what is working well and inform improvements, if needed.

147. The main findings of the final report published in December 2023 were that the bail and remand decision making process is complex and time- pressured.^[59] The nature of the offence charged, and an individual’s previous convictions, were the two factors “which perhaps carried the most weight in decisions to oppose bail (by COPFS) and to refuse bail (by sheriffs).” There was acknowledgement that the exercise of judicial discretion inevitably leads to a variation in attitude, perception and thus also outcome. Among all stakeholder groups the main reported process or system factor was time, specifically the lack of time for partners including judiciary, defence, and justice social work to collect and process all the necessary and appropriate evidence and information to inform case decisions. High volume of business compounded the issue, as did missing information, such as the absence of a detailed Standard Prosecution Report (SPR) which might require COPFS to spend considerable time trying to determine necessary information.

148. The 2021-22 Programme for Government included a commitment to introduce legislation to change the way that imprisonment is used. A consultation on initial proposals relating to bail and release from custody ran during 2022.

149. Following the consultation, the Bail and Release from Custody (Scotland) Act 2023 (“2023 Act”) reframed the test which the court must apply when considering whether or not to grant bail to someone accused of or charged with an offence. The general presumption in favour of bail applies subject to particular exceptions. Section 1(2) of the 2023 Act also amended the 1995 Act to require the court to always give an opportunity to justice social workers to provide information to the court to inform the bail decision and the court is also required, when refusing or granting bail, to state and record particular reasons for that decision. The core bail provisions of the 2023 Act came into force in May 2025 and their impact on remand rates is not yet clear. The 2023 Act requires the Scottish Government to publish a report assessing the effectiveness of the new bail test three years after its implementation.

The Sentencing and Penal Policy Commission

150. In 2026, the Sentencing and Penal Policy Commission acknowledged that “sometimes people are remanded in custody because that is the only safe thing to do” while in its view also setting out the substantial harm that this can cause to individuals. For example, people held on remand may lose employment and housing, and be unable to manage everyday responsibilities such as paying bills, which can strain family relations, and lead to financial hardship or homelessness. These impacts can be particularly acute for those with existing vulnerabilities such as mental health issues, addictions, or caring responsibilities, and suicide rates are notably higher than among sentenced prisoners. They also have wider societal harms through family breakdown, loss of employment, and homelessness ^[60][61]

151. The Commission also raised a concern that a large proportion of individuals remanded in prison before trial do not end up serving prison sentences or serve ineffective short-term sentences.^[62]

152. In the Commission’s view, a stronger test would be whether the offence an individual is accused of has any real prospect of a custodial sentence of more than 24 months. This would mean that a court would be obliged to consider whether the offence that someone is charged with has any real prospect of resulting in a custodial sentence of more than 24 months, and that that individual might receive such a sentence.

153. The Commission stated that specific exceptions would apply when the court is making remand considerations. As set out in paragraph 142, existing reasons for refusal of bail include absconding or failure to appear; a substantial risk of committing further offences, interfering with witness or otherwise obstructing the course of justice.

Strengthening the bail test

154. The Scottish Government agrees that there is further work to be done to reduce the use of remand. In considering the above proposal to strengthen the bail test, we are mindful that reducing the use of remand would require careful consideration to be given to ensuring victim safety and avoiding interference with witnesses. There is also a risk that failure to effectively deal with people who abscond or fail to appear could bring increased ‘churn’ into the system - when trials cannot go ahead because the accused is not present. This could result in increased delays and distress for victims of crime

155. Improvements to the system of electronic monitoring could help mitigate these risks and provide communities and victims of crime with increased reassurance. Use of GPS capability may increase confidence in managing individuals in the community where risks relate to specific locations, while introducing alcohol monitoring could support bail supervision for individuals where alcohol is a driver of risk.

Question 25 - Please share any views you have on the proposal that people should not be remanded to custody unless they have a reasonable prospect of a custodial sentence of 24 months or more.

Please give reasons for your answer, including whether there are any circumstances in which remand should remain available even where such a sentence is unlikely.

Question 26 – Do you have any other comments in relation to the potential impact of this bail and remand proposal on victims, equality or human rights?