Sentencing and Penal Policy Commission: Describing the Challenge

Who is imprisoned in Scotland? 2023-24

Men: 96%

Women: 4%

23% of the prisonpopulation were held on remand

44% of the sentenced population were serving short index sentences of 4 years or less

31% of all prisoners arrived from 10% of the most deprived areas in Scotland

Age Bands/Average Daily Population

16-17: 5

18-20: 164

21-22: 205

23-24: 318

25-29: 1099

30-34: 1455

35-39: 1407

40-44: 1101

45-49: 688

50-54: 526

55-59: 387

60-64: 250

65-69: 109

70-74: 75

75 or over: 73

Percentage o f Average D aily Prison Population (Sentenced) by Index Offence Group (2023-24)

Non-sexual crimes of violence: 45%

Sexual crimes: 23%

Crimes of dishonesty: 6%

Damage and reckless behaviour: 1%

Crimes against society: 14%

Antisocial offences: 3%

Miscellaneous offences: 2%

Road traffic offences: 1%

Other Jurisdiction Charge: 1%

93% identify as “white”

91% are British nationals

0<=3 months: 172

3<=6 months: 403

6<=12 months: 507

12<=18 months: 390

18<=24 months: 424

2<=4 yrs: 751

4 < 10 yrs: 1622

10+ yrs: 328

Life: 912

Indeterminate: 188

Recall: 320

Index Sentence - sentenced population

9.5% of people arriving in prison had no fixed abode

76-86% Scottish prisoners have had significant head injury

31-32% said they were under the influence of drugs or alcohol at the time of the offence

42% had a social worker involved in their lives while they were growing up

• Scottish Government, Scottish Prison Population Statistics 2023-24 Bulletin. 2024.
• Scottish Prison Service, Prisoner Survey 2024. 2025.
• McMillan, T., Aslam, H., McGinley, A., Walker, V., and Barry, SJE. , Associations between significant head injury and cognitive function, disability, and crime in adult men in prison in Scotland UK: a cross-sectional study’. Frontiers in Psychiatry, 2025. 19(16).

Courts and sentencing

Scottish courts are where decisions about bail, remand, and sentencing are made. Courts operate in a wider context, made up of factors like prosecution decisions to oppose bail, access (or lack of access) to legal aid, delays with court and prisoner transport, and the local availability and capacity of Justice Social Workers and community-based options.20-24

Source: Scottish Government (2024) Criminal Proceedings in Scotland: 2022-23.

Year/Days

2013-14: 295

2014-15: 286

2015-16: 293

2016-17: 316

2017-18: 319

2018-19: 326

2019-20: 355

2020-21: 328

2021-22: 375

2022-23: 386

In Scotland, sentence lengths appear to have increased over time. The average length of custodial sentences, excluding life sentences and Orders for Lifelong Restrictions, increased by 31% between 2013-14 and 2022-23, from 295 days to 386 days (Figure 2).13 This is likely driven by a range of interacting factors, including more sentencing of serious offences and a reduction in the use of shorter prison sentences.13

Alongside increased sentence length, short prison sentences are still common; 73% of custodial sentences received by people in 2022-23 were for one year or less. 13 Custodial sentence lengths of between 3 months and 6 months have been the most common in the past decade and accounted for 29% of all custodial sentences in 2022-23.13 However many short sentences may be given to people who were already on remand and that time has been considered as ‘time served’ by the Sheriff, or serving previous custodial sentences and these sentences are served concurrently with the longer period. Trends in sentence length vary by crime type; an important caveat is that increasing sentence length is not necessarily happening evenly across all crime types.

The evidence is clear that community-based interventions and sentences, which accounted for 24% of all sentences in 2022-2313 are more effective than disruptive short prison sentences.25,26 Short prison sentences often have a negative impact on the factors that can help people leave crime behind, including family relationships, positive peer associations, housing, employment or education, and access to healthcare and welfare support. They temporarily incapacitate, rather than build capacity to leave crime behind and live well in the community.27

Community sentences are more effective than short sentences because they reduce the likelihood of future offending by addressing offending behaviour and supporting desistence, particularly when delivered effectively by skilled professionals who are suitably equipped to use their specialist expertise in communities alongside other relevant services. Community Payback orders can provide both rehabilitative value to the person carrying them out, and tangible benefits to society. Over the past decade, 11.6 million hours of unpaid work have been carried out to the benefit of communities in Scotland.28

At the other end of the spectrum regarding the most severe sentence which courts can impose, again, Scotland is an outlier. More people are serving life sentences in Scotland as a proportion of national population than in nearly any other country in Europe.29 In the most recent Council of Europe statistics, Scotland had the highest percentage of prisoners serving life sentences in Europe, at 18.7%, compared to other nations having only 3% to 5%.10 Here, the ‘punishment part’ of a life sentence set by the Scottish courts which a person has to serve in prison before being eligible for release is, on average, getting longer over time.

What is the impact on Scotland?

Just as the challenges are multiple, the impacts are multi-faceted, too.

These include access to justice, human rights, the quality of communication and relationships, perceptions of procedural fairness, public trust, and so on. For individuals and families directly affected by justice processes, uncertainty and delay have emotional and practical impacts. Justice system pressures affect staff and workforces, from workload, to rates of sick leave, to staff turnover and recruitment. Priorities then become crisis management and emergency responses.24, 30-32

A busy and burdened justice system is costly, in human and economic terms. In an already constrained funding environment, these challenges further impact budgets and where resources go. Justice Social Work plays a crucial role in supporting individuals involved in the criminal justice system. Their work helps to reduce reoffending, protect the public, and promote social inclusion by working with people who have offended, victims, and their families.

When Local Authorities and Justice Social Workers are under pressure just to cover essential functions, there may be less resource for local charities to help support rehabilitation. In contrast, the new men’s prisons, HMP Glasgow, will cost an estimated £1 billion to build, and that does not include operating costs. Nationwide, the annual average cost of a prisoner place was an estimated £47,140 in 2023-2024.7 Whereas the cost of someone being on a community sentence for 12 months is approximately £5,000, and does not have the same negative impacts that can push people further into criminality, such as losing one’s job and/or housing and increased exposure to negative associations.33 Scots are paying nearly ten times as much for a disposal that the evidence shows us is not as effective.

Another important area of impact relates to reoffending and community safety. Rather than address risk of reoffending, imprisonment can exacerbate it. In the latest offender cohort of 2020-21, individuals released from a custodial sentence had the highest reconviction rates and highest average number of reconvictions of any criminal justice disposal, with the exception of Drug Treatment and Testing Orders (DTTOs). The overall reconviction rate for those released from prison custody in 2020-21 was 39%. For those who had been in prison for one year or less, the reconviction rate was 50%.34 This contrasts with the reconviction rate for Community Payback Orders (CPOs) which are served while at liberty in the community, of 28%.34

Some victim advocates express a view that, in certain cases, imprisonment offers the community a period of reprieve, and such a view is understandable. However, these reconviction trends show how, in the mid- to long-term, imprisonment can lead to risks of there being more, not fewer, victims in future. These complexities and tensions are matters that the Commission will consider with care.

What do the Scottish public think?

Research on public opinion shows that the Scottish public think that prisons should rehabilitate individuals and help them reintegrate into society, reduce re-offending as well as protect the public. In the most recent Scottish Crime and Justice Survey 2023/2024, 92% agreed prisons should help prisoners change their behaviour rather than just punish them and 55% agreed that only those who commit the most serious crimes should be put in prison. Most people supported community sentences, and believed them to be a better response for a minor offence rather than a short prison sentence.35

With that being said, public opinion on sentencing and penal policy is complex. Existing research also suggests that awareness and knowledge of the criminal justice system is mixed and the majority of the public think sentences are too lenient and are sceptical about the effectiveness of community sentences for reducing reoffending.36

Victims of crime are a diverse group with varying experiences and views of sentencing and criminal justice processes. When victims are asked what they think, some key themes are prominent in research and consultation.37-39 These are:

• The importance of emotional and practical support for victims;
• The need for clear and timely information throughout justice processes;
• The importance of decision-makers acknowledging the impact on their lives and, especially in cases of crimes against the person, taking into account any concerns about safety and preventing it from happening again.

Crime, sentencing and criminal justice are topics that the Scottish public care about, and, in any healthy democracy, there will be a range of views about what should be done in response to pressures and challenges in our Justice system.

What is the Commission doing to consider these challenges?

The Commission is carefully weighing up the available evidence and views of where Scotland is now, sixteen years on from the McLeish Commission and with a catalogue of relevant recommendations from other inquiries and groups. One thing is patently obvious: the status quo is not viable. Expanding punishment does not make Scotland safer or fairer.

In July 2008, the McLeish Commission recommended setting a clear target to reduce the prison population to 5,000. The Commission will need to seriously consider what an appropriate aspiration for the Scottish prison population may be. The prison population must not only decrease – it must find a stable and sustainable level. The lower the target, the bolder the changes that Scottish Justice and wider society will need to make.

Likewise, we are aware of longstanding debates about what the capacity of the prison estate should be – some call for building new prisons, some hope for closing prisons. Parallel to this are considerations of the capacity of community justice and local communities to respond to crime and harm. A mature view of skilful risk management, not risk aversion, to uphold community safety are a part of this conversation.

A high and rising prison population is not inevitable. Scotland being a high punishment society is not inevitable. Change is possible. We know that it is possible to substantially reduce the prison population, because other countries have done it before us. Spain and the Netherlands have considerably lowered their prison populations in the last 15 to 20 years. Close European neighbours with a similar national population, such as the Republic of Ireland, have consistently had substantially lower prison populations.

While there are different political contexts, justice systems, cultures, economies and populations in those countries, it is also clear that there is the need for ambitious and far-reaching recommendations to take a transformative approach to sentencing and penal policy in Scotland.

It is clear that the Commission must look at sentencing in terms of the use of custodial and non-custodial options. We must also consider the purposes of bail and remand within the criminal justice system, particularly bearing in mind recent changes to the bail test (Annex A).We also need to focus on what is done to ensure reintegration of prisoners into society upon release from custody and community reintegration. In all of this, it is critical for our work to respect and protect the interests of victims while maintaining the rights of those accused and convicted of crime. Part of that will involve looking into how risk is assessed, and how the system responds to vulnerable individuals who offend repeatedly. We are also mindful of the wider context, where health and care can impact criminal justice.

For the remainder of 2025 the Commission will continue to work towards making detailed and actionable recommendations for improvements in how offending behaviour can be dealt with more effectively and proportionately.