Scotland's prison population: Justice Secretary statement

Statement delivered to the Scottish Parliament by Cabinet Secretary for Justice and Home Affairs Angela Constance on Thursday 16 May 2024.

Thank you, Presiding Officer. I last updated Parliament on the prison population in late February. While population levels were still concerning at that point, we had seen a period of limited overall growth over the preceding four months.

Unfortunately, Presiding Officer, that has now changed.

Over the past two months, the population has risen sharply, from 7,948 on 18 March to 8,348 this morning. Given this sudden increase I felt it critical to keep Parliament updated, to outline what action is being taken in response, and to highlight some stark and challenging decisions on which Parliamentary approval will be sought over the coming weeks and months.

The immediate cause of the sudden increase is unclear and this rate of growth may not continue. However, with the population having increased by around 13% since the start of 2023, there is extremely limited capacity to absorb even temporary increases.

The 8,348 individuals in custody this morning represent one of the highest prison populations ever recorded in Scotland. There is now a critical risk to the continued safe and effective operation of the estate, with multiple prisons essentially full.

The Scottish Prison Service’s ability to deliver rehabilitative regimes has been severely curtailed; visits to prisoners are becoming difficult to maintain; and there are increasing challenges to the effective delivery of NHS services.

It's worth noting that we’re not alone in this – both England and Wales and Northern Ireland are facing similar challenges. The UK Government has announced a number of measures in response, including legislating for a presumption against short sentences; expanding provision facilitating the early removal of foreign nationals; and continuing to extend their early release scheme – with recent reports suggesting that some prisoners may be released up to 70 days early, up from the 18 days last year.

Significant work is already underway to address this issue. Since the population began rising again last year, SPS has been at the forefront of managing the situation and I’d like to thank all of those working in our prisons in increasingly challenging circumstances. 

SPS have kept its population management strategy under review to ensure the best use of the estate, including introducing a centralised and more strategic process for prisoner transfers.

SPS is also exploring the feasibility of adding temporary accommodation, as has been seen in England and Wales. This is not a quick fix but may become necessary if numbers continue to rise.

Excellent progress is being made to optimise the use of Home Detention Curfew, which is informed by risk assessment with individuals released subject to licence conditions. There are currently 97 people on HDC, an increase from around 50-60 previously.

And SPS’s ongoing work will benefit from a 10% increase in its resource budget in 2024-25.

Looking beyond SPS, we’re taking action in a number of areas.

We’ve increased funding for community justice by £14 million in 2024-25, to £148 million in total.

To address the high remand population, we’ve introduced electronically monitored bail and supported the expansion of bail supervision to all areas. The latest official statistics show that bail supervision is at record levels.    

We’re preparing for the implementation in early July of measures enabling courts to take into account time spent on electronically monitored bail when sentencing, as part of the Bail and Release from Custody (Scotland) Act 2023.

And later this year, commencement of provisions from the Children (Care and Justice) (Scotland) Bill, recently approved by Parliament, will end the imprisonment of under 18s, creating further capacity at HMP Polmont.

We’re also considering whether compassionate release could be used more broadly in appropriate cases, taking into account the ageing population and the prevalence of complex health and social care needs.

In all of this, we’re working across the justice system and beyond, including with health and social care colleagues in particular, to identify potential solutions.

Presiding Officer, despite all the steps underway, however, it’s increasingly clear that further action is required. The measures I’ve described will simply not have as large an impact as is necessary to avert a crisis.

And be in no doubt, that is what we are facing. If our prisons are to remain functional and able to house the most dangerous offenders, we have no choice but to take urgent action to reduce pressure on the estate.

For that reason, Presiding Officer, I will be seeking Parliament’s input on, and consent for, three measures which I consider are now necessary.

The first is emergency release.

On 26 May, we will bring into force section 11 of the Bail and Release from Custody (Scotland) Act 2023, which was scrutinised by Parliament last year and provides Ministers with a power to release prisoners in emergency situations.  

My hope was that this would never need to have been used. However, as things stand today, my view is that we have reached the threshold for taking emergency action.

The sudden and sharp rise over recent weeks, combined with an already high population, has significantly increased the risk to the health, safety and welfare of both prisoners and SPS staff, as well as to the security and the good order of the prison estate. Serious concerns have been formally raised to me by the Chief Executive of SPS, His Majesty’s Chief Inspector of Prisons, and the Prison Governors Association.

If the legal test for use of emergency release is satisfied when the provisions come into force on the 26 May, I intend to bring forward a proposal for Parliament’s consideration as soon as possible within the following two weeks.

Members will have the opportunity to scrutinise and debate the approach and, in this instance, we will not release a single prisoner without Parliament’s consent and I also want to work with Parliament to expedite that process.

My intention is that those released would be serving sentences of under four years. Public safety will always be my priority, and I can reassure Parliament that there are protections in place so that no one serving a sentence for sexual offences or domestic abuse will be released, with a governor veto also available.

We will, of course, be engaging with victims organisations, local authorities, and other key partners in preparing for any release, and initial meetings are underway.

This is not a decision I take lightly and I appreciate fully the concerns it will raise. But we must ensure the safety and wellbeing of SPS staff and those people in their care, and that our prisons continue to function effectively to accommodate those who pose the greatest risk of harm.

Emergency release, however, will not solve this problem in the longer term. Without more sustainable solutions, there is a risk of being faced with the same decision in a few months’ time.

The second measure, therefore, is to look again at how we manage the release of long-term prisoners, which was last examined in detail almost a decade ago when Parliament passed the Prisoners (Control of Release) (Scotland) Act 2015.

That Act effectively abolished automatic early release for long-term prisoners. The rationale for doing so, to move towards a more individualised assessment of readiness for release, is still valid today.

But we need also to take into account the growing population, increasing average sentence lengths, and the potential benefits of increasing the time offenders spend on supervised release before the end of their sentence.

My intention is to carry out a short consultative exercise over the summer, and to return after recess with a proposal for a Bill for Parliament’s consideration to change how long-term prisoners are released.

And finally, I intend to bring forward secondary legislation to amend the eligibility criteria for HDC, increasing the period of time individuals can spend on release under licence conditions. As these are affirmative regulations requiring Parliament’s active agreement, I look forward to discussing this in detail with the Criminal Justice Committee in due course. 

In taking this approach and combining emergency release with longer-term measures, my hope is that we can both mitigate the immediate crisis and start to address the trends which have brought us to this point.

I fully appreciate the challenges in what I have set out, and working towards cross-party agreement on any measures to be taken will be critical – as I have said, we will not proceed with any of these measures without parliamentary approval.

I have written to justice spokespeople inviting them to meet with me and with the SPS Chief Executive, as how we respond to this situation goes beyond the Scottish Government and is rightly a matter for the whole of Parliament. We will also be publishing a briefing paper to ensure that all MSPs have relevant background information.

Presiding Officer, I am genuinely open to discussing with opposition parties what options are available and how best to proceed, but I consider that we have no choice but to act if we are to avoid an unprecedented crisis developing.

I welcome the views from members this afternoon, and would emphasise once again the need for this Parliament to consider in detail the critical situation we’re facing, and to come to an agreed suitable response. Thank you. 

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