Sentencing and Penal Policy Commission: Describing the Challenge
This short paper outlines the work of the Sentencing and Penal Policy Commission. It highlights key issues facing Scotland’s justice system and presents high-level statistical trends on the country’s prison population and sentencing practices.
Annex A: Key legislative and policy changes
Criminal justice and penal policy legislation is a frequently recurring feature of parliamentary sessions, and the common law also plays a role. For the sake of brevity, this Annex is by no means a comprehensive list.
Pre-devolution examples of relevant legislation include the Prisoners and Criminal Proceedings (Scotland) Act 1993, and the Criminal Procedure (Scotland) Act 1995.
Early post-devolution examples include the Criminal Justice (Scotland) Act 2003, and the Victims and Witnesses (Scotland) Act 2014.
Community justice is a community first model for justice which takes a partnership approach to seek to ensure that those who offend are held to account, address the underlying causes of their behaviour and are supported to reconnect with their communities. The Community Justice (Scotland) Act 2016 established a legal definition of community justice, established Community Justice Scotland and sets out its statutory partners. Key in this approach are the use of community disposals the range of services aimed at preventing reoffending.
The presumption against short sentences was specified in the Criminal Justice and Licensing (Scotland) Act 2010 as three months, then extended to 12 months in the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019. The presumption is not a ban on such sentences but reflects the evidence that short custodial sentences are less effective than community sentencing at reducing re-offending.
The capability and availability of electronic monitoring across Scotland is set out in the Management of Offenders (Scotland) Act 2019. That Act made some improvements to the system of home detention curfew (HDC), which allows some individuals sentenced to imprisonment to serve part of the end of that prison sentence in the community while wearing an electronic tag linked to monitoring equipment at the identified home or other suitable address. HDC applies mainly to short-term prisoners. Electronic monitoring tagging has also been added to the Community Payback Orders (CPOs) as an optional requirement which courts can impose.
Automatic early release provisions are contained in the Prisoners and Criminal Proceedings (Scotland) Act 1993. The 1993 Act was amended by the Prisoners (Control of Release) (Scotland) Act 2015, which changed the arrangements for all long-term prisoners serving a sentence on or after 1 February 2016. For those prisoners, the automatic early release of certain long-term prisoners was abolished. Long-term prisoners are defined in the 1993 Act as those serving a sentence of more than four years.
More recently, the 1993 Act was further amended by the Prisoners (Early Release) (Scotland) Act 2025. The 2025 Act changed the automatic early release of certain short-term prisoners. Short-term prisoners are defined in the 1993 Act as those serving a sentence of less than four years.
The Bail and Release from Custody (Scotland) Act 2023 allows the Scottish Ministers to make regulations to allow early release from custody in response to emergency circumstances.
The Criminal Procedure (Scotland) Act 1995 sets out how applications for bail are to be considered. In Scotland anyone accused of any offence may be granted bail, meaning that the accused may be released from custody while awaiting a first court appearance or trial. Where the person is held in custody, this is known as remand. The Bail and Release from Custody (Scotland) Act 2023 makes various changes to the law relating to bail. For example, time spent on electronically monitored bail may be counted as time served against a custodial sentence. From 14 May 2025, a local authority must be given the opportunity to provide information in relation to a bail determination. From the same date, the 1995 Act will be amended to provide a presumption in favour of bail (‘unless the court determines that there is good reason for refusing bail’).
Sexual offences have been separately considered, for example in the Sexual Offences (Scotland) Act 2009, which implemented recommendations of the Scottish Law Commission and regulates concepts such as consent and reasonable belief. See also the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.
Domestic abuse is dealt with in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016; the Domestic Abuse (Scotland) Act 2018; and Domestic Abuse (Protection) (Scotland) Act 2021.
During the Covid-19 pandemic, changes were made to the time limit within which proceedings must be brought for certain offences. The Coronavirus (Recovery and Reform) (Scotland) Act 2022 set out temporary measures, some of which were then extended. While some temporary criminal justice measures have now expired, others, incuding time limits for certain solemn cases, have been extended until 30 November 2025.
The availability of alternatives to prosecution, known as direct measures, have been expanded. Direct measures were introduced pre-devolution and the Criminal Proceedings etc. (Reform)(Scotland) Act 2007 expands the scope of measures which can be offered by the procurator fiscal. A procurator fiscal can give a fixed penalty fine, compensation offer (or a combination of these) as well as a fiscal work offer, a diversion from prosecution and a procurator fiscal warning.
Police officers have also been afforded powers to issue direct measures such as a Recorded Police Warning, or a fixed penalty notice. The latter is an an on-the-spot fine for lower, less serious offending. The Lord Advocate has issued guidelines on the use of police direct measures for adult offenders.
Young people in conflict with the law: as a result of the Children (Care and Justice) (Scotland) Act 2024, children – those aged under 18 – are no longer remanded or sentenced to young offenders’ institution.
Improving the experience of victims and witnesses in the criminal justice system is a government aim which the Victims, Witnesses and Justice Reform (Scotland) Bill seeks to address. Currently in the Scottish Parliament, this Bill, as drafted, would create a new sexual offences court.