Penal Reform: working towards a sustainable prison population – Consultation

Part 2: Prisoner release arrangements

Section 6 – Automatic early release for long term prisoners

Background: overview of current arrangements

156. Short-term prisoners (STPs) are defined as those serving a custodial sentence of less than four years, and long-term prisoners (LTPs) are those serving a sentence of four years or more.^[63] These are determinate sentences for which the court has set out the period of detention. All determinate sentence prisoners must be released from prison custody. This is set out in the Prisoners and Criminal Proceedings (Scotland) Act 1993.

157. Most individuals on determinate sentences are eligible to be released automatically at a point in their sentence, a process known as Automatic Early Release (AER). While release arrangements differ between LTPs and STPs, in all cases individuals will serve part of the sentence in custody and part in the community, making up the totality of the sentence. STPs are released automatically from custody when they have served either 30% or 50% of their sentence, dependent on offence type.

158. Those released at 30% or 50% are released unconditionally (i.e. they are not subject to licence conditions) unless they are subject to a Supervised Release Order (SRO) or extended sentence, or are serving a sentence of six months or more for a sexual offence. Individuals serving sentences of six months or more for a sexual offence are released at 50%, and are subject to licence conditions until their sentence end date.

159. LTPs may be released on parole licence by the Parole Board for Scotland (PBS) once they have served 50% of their sentence (their parole qualifying date). This does not mean that they are automatically released at that point; rather, their case will be referred to the PBS for consideration. If a prisoner is not recommended for parole, at that point or any subsequent parole review, LTPs sentenced on or after 1 February 2016 must be released once they have only six months of their sentence remaining. This is known as release on “non-parole licence.” This period on licence forms part of the overall sentence and ensures that most individuals spend at least this period under supervision in the community, supporting better reintegration following custody.

160. These AER arrangements do not apply to:

• those already released;
• those who have been recalled from parole licence;
• those serving an extended sentence;
• those serving a life sentence; and
• those serving sentences for certain terrorism offences.

161. Prior to 1 February 2016, all LTPs served at least one third of their sentence in the community (i.e. they were released at the two thirds point of sentence). This was changed to the current minimum period of six months by the Prisoners (Control of Release) (Scotland) Act 2015. The previous position still applies to prisoners sentenced before that change took effect. This means that prisoners sentenced before 1 February 2016 are still released on non-parole licence after having served two thirds of their sentence.

Non-parole licence conditions and community supervision

162. In the community, individuals released on non-parole licence are subject to supervision and, if relevant, recall to custody. Public and victim safety remain an absolute priority, with specific support and supervision in place to reflect the outcomes of the individualised risk assessment.

163. Supervision is delivered by local authority justice social work services, who work closely with SPS, Police Scotland, health services, and other partners as needed. Operational guidance^[64] intended to support justice social work practitioners across prison-based and community-based settings has recently been published by the Scottish Government.

164. Supervision and licence conditions are a mechanism for ensuring that any identified risks are managed during the period of reintegration into the community. These measures remain in force until sentence expiry. Supervision in the community aims to:

• Ensure that licence conditions designed to protect the public are adhered to.
• Support a gradual transition from custody back into the community.
• Provide structured oversight of risk, behaviour, and compliance.
• Enable access to appropriate interventions in the community such as offence focused work, mental health support, addiction services, employment or housing assistance, thereby reducing the risk of reoffending

Victim notification when prisoners are released

165. The Victim Notification Scheme (VNS) applies where someone is sentenced to 18 months’ imprisonment or more. A victim may also nominate a prescribed victim support organisation (VSO) to receive information under the VNS on their behalf, or as well as the victim. It is up to an individual victim to choose if they wish to join the scheme or nominate a VSO to receive information.

166. Under the VNS, a victim has two key rights: the right to information, and the right to make representations. Under the right to information, victims can receive certain information about a prisoner in relation to their case, including the date of release. Under the right to representation, victims can make written representations to the Parole Board regarding its consideration of whether to release the relevant prisoner, and about the licence conditions that might be specified. The right to make written representations includes cases involving release on a non-parole licence. Victims will be informed if the person relating to their case is released, and of any licence conditions that relate to contact with the victim or the victim’s family.

The Sentencing and Penal Policy Commission

167. In 2026, the Sentencing and Penal Policy Commission recommended that the Scottish Government “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.”

168. The Commission considered that it would be beneficial for individuals serving a long-term sentence to be released on licence and supervised in the community for longer than is currently the case. It noted that an extended period of community supervision would allow for greater testing and monitoring, and would therefore be “beneficial for the individual, for the management of risk, and for victims especially if future reoffending is reduced.”

169. It also highlighted that, if AER policy were amended so that LTPs serve the final one-third of their sentence in the community, careful consideration would need to be given to the implications for the capacity and workforce of justice social work, and local authorities, as well as the third sector.

170. In addition, the Commission noted that it did not have sufficient time to consider all the potential implications of amending definitions of short- and long-term prisoners, yet it recommended that the Scottish Government may wish to reflect on their continued appropriateness.

Proposed changes to automatic early release for long term prisoners

171. Prior to the Commission recommendations, the Scottish Government consulted in July 2024^[65] on a proposal to bring forward the point at which some long-term prisoners are released. An analysis of this consultation was published on 10 October 2024.^[66]

172. Following on from the Commission’s recommendations, the Scottish Government is seeking views on changes to release processes focussed on LTPs. Reviewing the automatic point of release for LTPs is a key component of addressing the sustainability of the prison population and supporting rehabilitation and reintegration. This proposal would bring forward the point at which some LTPs are released, from six months before their sentence end date to the two thirds point in their sentence. This would mean that LTPs would spend more time under supervision in the community before the end of their sentence than under the current system.

173. On balance, we propose to return to the position that most LTPs must serve at least one third of their sentence in the community. This follows the recommendation by the Commission and has the advantage, in terms of operational deliverability, that it is consistent with the approach that applies to prisoners sentenced before 1 February 2016.

174. This proposal intends to better support the reintegration of LTPs by providing those leaving prison with a more managed return to their communities, and with access to the support and rehabilitation they need over a longer period of time. As the Commission noted, extending supervision in the community can be beneficial for the management of risk.

175. This approach of two-thirds is proportionate to an individual’s sentence length, rather than a fixed period as at present. The same proportion would apply to all eligible prisoners. Those individuals who have spent longer periods of time in custody, may require more intensive support to reintegrate into the community, whereas those in custody for a short period may readjust more quickly.

176. Amending the automatic early release point to the two thirds point could increase demand on resource and capacity levels for delivery partners, specifically justice social work. Secure accommodation is also a key factor in supporting successful reintegration and reducing the risk of homelessness and reoffending. LTPs often have more complex needs, and individuals serving sentences for sexual offences or some violent offences will be managed under Multi-Agency Public Protection Arrangements (MAPPA). These factors can place additional pressure on both housing and wider support services in the community. Victims may also access housing and wider support services as a result of the proposed changes. It is important to carefully assess the implications of this proposal, including for community services such as justice social work, housing, and third sector victim support. We are seeking views on these impacts as part of the consultation.

177. The proposed changes could also have an impact for victims, including victims of violence against women and girls, and the consultation seeks views on these issues. It is important to ensure that risk is understood and mitigated and that victims and the public have confidence in the justice system.

178. Long-term prisoners are subject to individualised risk assessment to plan for their release, and licence conditions reflect the outcomes of that risk assessment and the recommendations of the PBS. As noted previously, the PBS considers any victims’ representations when making its licence condition recommendations. Victims registered with the VNS would be notified of the date of release for the person who committed the offence against them, and about any licence conditions which relate to contact with the victim or the victim’s family.

179. Partners would engage with planning for the prisoner’s release through a pre-release case management conference as is currently the case, where assessed risks and needs are discussed. Following release, they would be subject to licence conditions, supervision by justice social work, and recall. Individuals convicted of sexual offences (of any sentence length) would continue to be subject to statutory notification requirements and managed under MAPPA. Those released on licence would be subject to being recalled to prison if they breach the terms of their licence.

180. Under this proposal, in isolation, existing exclusions (set out at paragraph 160) would remain. Those released on non-parole licence would still be subject to being recalled to prison if they breach the terms of their licence.

181. It is proposed that this change would apply retroactively to all those sentenced on or after 1 February 2016, as well as to all those sentenced in future. As an illustration, had this change taken effect on 27 February 2026 around 328 people would have been released on non-parole licence immediately. This would represent a sustained reduction of around 11% of the LTP cohort.

Question 27: Please share any views you have on the proposal that the automatic release point for long-term prisoners (excluding those on extended sentences) should be amended to the two thirds point. Please include what the potential impacts could be on reoffending and rehabilitation into the community.

Extended Sentences

182. Extended sentences can be imposed by a court by combining a prison term (e.g. four years) and an extension period, which is a further period of mandatory supervision in the community following release. This can be applied when someone is convicted of a sexual offence and the court imposes a determinate sentence of any length; or imposes a term of four years or more for a violent or terrorism offence. LTPs subject to an extended sentence are currently not eligible for AER and serve the full custodial term in custody (unless recommended for release on parole).

183. While the LTP population has increased by 43% since April 2021, within this, the extended sentence population has more than doubled and is driving the increase in the LTP population. Around 42% of LTPs are serving extended sentences. Currently, LTPs serving extended sentences may be released only following recommendation by PBS, or at the end of their full custodial term, before commencing the extension period in the community. The changes made by the 2015 Act removed those serving an extended sentence from eligibility for AER.

184. The change of AER could extend to include those subject to an extended sentence, allowing these individuals to serve a further period of structured supervision in the community, subject to licence conditions, before commencing their extension period. These individuals are already subject to statutory supervision in the community upon their release as the “extension part” of the sentence, this would expand the length of time for this supervision. It would also align release processes across the LTP cohort. The extension period of the sentence would not be impacted by the measure. As an illustration, had this change taken effect on 27 February 2026, around 630 people would have been released on non-parole license immediately. This would have resulted in a sustained reduction in the LTP population of around 21%.

Question 28: Please share any views you have on the proposal that if amending the automatic release point for long-term prisoners to the two-thirds point, those subject to extended sentences should be included.

Section 7: Short-term prisoner definition

185. This proposal would change the definition of short-term prisoner from a person who is sentenced to less than four years to a person who is sentenced to less than five years. This would more closely align with sentencing powers^[67] whereby a sheriff may impose a custodial sentence of up to five years in solemn cases. While there is no international definition of a long-term sentence, according to the Council of Europe^[68] the threshold of a long-term sentence is five years or more so this proposed change would bring Scotland in line with that position.

186. As a result, individuals serving four to five years would be subject to the release arrangements that currently apply to STPs as set out at paragraphs 156-158. In general, there is no statutory supervision for those released from short-term sentences,^[69] unless they are serving a sentence for a sexual offence of six months or more or a court has directed this e.g. via a supervised release order or extended sentence. However, those released from short-term sentences are entitled to request voluntary throughcare support.

187. This change would reduce pressure in the prison system, freeing up capacity for SPS, justice social work and other partners to focus on the management of individuals who pose the highest risk.

188. It is proposed that the change would apply retrospectively, meaning it would apply to those currently serving sentences of up to five years and it would apply to those sentenced in the future. For those currently serving a four-to-five-year sentence, the intention is that transitional release arrangements would apply which could include release on licence conditions, including supervision by justice social workers until their sentence end date.

189. As an illustration, had this change taken effect on 27 February 2026, around 180 people would have been released on non-parole licence immediately. This would have resulted in a sustained reduction in the LTP population of around 6%.

Question 29: Please share any views you have on the proposal to amend the definition of short-term prisoners from “less than four years” to “less than five years”.

Question 30: Do you have any other comments in relation to the potential impact of these proposals regarding prisoner release arrangements on victims, equality or human rights?

Interactions between proposals

190. As set out earlier in this paper, the Sentencing and Penal Policy Commission emphasised the importance of taking a holistic approach to reform that considered key stages in the system including bail and remand, sentencing, and community disposals. It is not proposed that any of the measures be taken forward in isolation, and it is important to be mindful of potential interactions between the various measures consulted.

191. While considering systemic reform, it is vital that in addition to assessing the impacts of proposals on specific policy areas, we also view things through a wider, strategic lens to consider the policy package as a whole to ensure it results in a balanced and coherent criminal justice system.

192. The Scottish Government is clear that ultimately, these reforms must work together as a package to create an improved justice system, with a more sustainable prison population, that follows the evidence to support and supervise people in the community where possible, while providing reassurance to victims of crime and the people of Scotland more broadly.

Question 31: Do you have any comments on the overall package of reforms contained within this consultation, potential interactions, and whether taken together they would help work towards achieving a sustainable prison population?