Official Report 745KB pdf
The next item of business is a statement by Angela Constance on the sentencing and penal policy commission. The cabinet secretary will take questions at the end of her statement; therefore, there should be no interventions or interruptions.
14:52
In my statement to the Parliament on 3 February, I announced my intention to lay regulations to change the automatic release point for some short-term prisoners to 30 per cent of their sentence. I am taking that action because the prison population remains unsustainably high and to ensure that the prison estate is safe for those who work and live there. The decision was not taken lightly, and public safety and the protection of victims remain priorities.
Before making regulations to change the release point, Scottish ministers must, by law, consult a range of named organisations, as well as any other persons they consider appropriate. The Scottish Government wrote to the consultees after my statement to the Parliament last Tuesday, and 28 responses were received. A broad range of views were expressed, and it will not be possible to outline all of those to the Parliament today; however, in the interests of transparency, it is my intention to publish responses that were shared during the consultation, where permission is given. My officials have written to respondents to seek their permission to share the responses that were provided.
In general, there was a recognition of the impact and risks of having a high prison population. Some respondents felt that the proposals were necessary to mitigate those impacts; others wanted the focus to be on longer-term reform to address underlying drivers of the prison population, alongside an analysis of the measures undertaken. I will say more today on the need for that change to be delivered alongside longer-term reform.
A range of issues were raised by consultees, including the need for clearer information for victims and the wider public on release arrangements, to support public protection and to manage the impact on demand for public sector services and on the community, and, consequently, the impact that that could have on the outcomes for those being released.
I have listened to those views, and I and my officials will continue to work with stakeholders on all aspects of delivery. The Scottish Government and the Scottish Prison Service will work with victim support organisations to raise awareness of those changes and to encourage those who are eligible to sign up to the victim notification scheme to do so. When a release date changes as a result of the legislation, all registered victims will be notified of the new release date in advance.
It is critical that partners have time to plan and prepare support for people who are leaving custody. That is why the changes will not take effect until after the early emergency release scheme ends, in April. Those who are eligible for immediate release will be released in tranches, to help to manage the impact on community services. I am committed to reviewing the impact of those changes next year.
I have always been clear that there is no single or simple solution to an issue that has been faced elsewhere in the United Kingdom and beyond. However, there are solutions that do not compromise public safety. As a Parliament and as a society, we need to discuss how we can achieve a system in which justice is served and the right balance between effective community justice and imprisonment is struck.
I am therefore pleased that the independent sentencing and penal policy commission published its final recommendations last week. I am grateful to the commissioners and the chair, Martyn Evans, for the diligent work that they have carried out. Their detailed report offers us a clear opportunity to rethink our approach as a country. By following the evidence, we can continue to safeguard the public and prioritise victims while accepting that simply increasing the prison population does not make Scotland safer. A renewed focus on prevention and reducing reoffending will lead to better outcomes for individuals, communities and our justice system as a whole.
I will set out today the Government’s response in principle to the commission’s most central recommendations, but more in-depth consideration of the 73 recommendations will be required. Ultimately, it will be for a new Government and Parliament to make decisions on the changes that are needed.
The commission has recommended a prohibition on sentences of less than one year, subject to clarity on legislative competence, and an extension of the presumption against short sentences to sentences of two years or less. We will explore those recommendations carefully and engage with the UK Government, given that some short sentences are imposed in reserved areas of law. However, I note that the UK Government has introduced a similar presumption.
Although there is a longer-term trend away from shorter sentences, a high number of them continue to be imposed. In 2023-24, 73 per cent of short-term sentences were for less than 12 months, and a further 15 per cent were for 24 months or less. We know that community sentences can be more effective in reducing reoffending than short sentences are and that short sentences can disrupt lives and adversely affect employment opportunities, housing stability and access to healthcare. Indeed, the reconviction rate for those who were given community payback orders in 2021-22 was 28.4 per cent, compared with 52.6 per cent for those who completed custodial sentences of one year or less. However, as the commission points out,
“If greater numbers of people are to be sentenced in the community, victims’ interests, safety, and confidence must be”
central, and that
“shift must be accompanied by clear safeguards and credible measures that protect victims”.
I agree with the commission’s observation that investment is needed to
“underpin delivery of high quality community disposals”.
The Government will invest a further £10 million in community justice services in 2026-27, taking our total investment to a record £169 million. That increase builds on additional investment of £25 million over the past two years, underlining the Government’s commitment to strengthening community justice across Scotland.
In line with the recommendations, we will also focus on simplification, flexibility and enhancing support, recognising that tailored and targeted interventions that address the drivers of offending behaviour can often be more effective.
The commission also recommends explicitly excluding the possibility of remand in cases in which
“there is no real prospect of”
a short custodial sentence. Significant progress has been made in relation to that via the Bail and Release from Custody (Scotland) Act 2023, which introduced a new bail test that is aimed at ensuring that remand is used as a last resort. We are seeing an increase in the capacity of, and confidence in, alternatives to remand, with a total of 1,500 bail supervision cases in 2024-25. I note that a recent change has been made in England and Wales to apply fewer exceptions to bail where there is no real prospect of an immediate custodial sentence. We will be able to learn from their experience.
The commission recommends that different uses of electronic monitoring technology be considered. There has already been sustained progress in relation to that, with almost 2,500 people being electronically monitored on any given day. The Scottish Prison Service expects to make use of GPS for home detention curfews in the next few months, and we will consider where else that technology can be deployed.
The commission also makes a clear recommendation on the release point for long-term prisoners. As I have previously stated to the Parliament, I remain committed to reviewing that in order to achieve a better balance between time spent in custody and time spent in the community under strict licence conditions as part of a person’s overall sentence. Having looked at the evidence, the commission considered that extended supervision would be beneficial to the management of risk as well as for reducing reoffending. We will carefully consider the commission’s recommended option of reverting to the release point of two thirds of the way through a sentence, which was in place prior to 2016.
As the commission points out, Scotland is not uniquely criminal and should not inherently have a higher prison population than any other country. It has provided us with the opportunity to make bold, evidence-based changes across the justice system, and, once again, I thank it for its commendable work.
We must be open-minded and collaborative, as other countries have been. Where safe, appropriate and more effective alternatives to prison exist, we should use them. The evidence clearly shows that a high prison population does not equal a safer society. Instead, the recommendations can support a reduction in reoffending and, therefore, a continued reduction in crime. We all want to see that.
The cabinet secretary will now take questions on the issues that were raised in her statement. I intend to allow around 20 minutes for questions, after which we will move to the next item of business.
I am amazed that a Government that has insufficient time to consult on non-fatal strangulation or to consider a prostitution bill deems a three-day consultation with 28 unpublished responses to be authoritative. However, that speaks to this knee-jerk, unstrategic response to a prison crisis that is of the Scottish National Party’s making.
In response to Teresa Medhurst telling the Criminal Justice Committee yesterday of the risk of a “catastrophic failure” in our prisons, this afternoon the SNP will vote through what she described as a budget allocation that falls short of what the Scottish Prison Service needs to reach the full range of the delivery agenda, to bring much-needed improvements and to ease current pressures.
Given that Martyn Evans cautioned against the mass early release of prisoners under so-called emergency schemes, which return inmates to the community without adequate support and increase the likelihood of reoffending, does the cabinet secretary acknowledge that the early release of prisoners was the wrong thing at the wrong time?
Some 800,000 hours of unpaid community sentence work remained outstanding across Scotland last year. What evidence shows that a mass influx of new criminals will improve that figure or the outcomes of such sentences?
The cabinet secretary insists that short sentences do not work, but she is reducing the time served to only 30 per cent of a sentence, which will mean more short sentences. Is that not just another example of the confused, muddled thinking that permeates the Scottish Government’s response to the prisons crisis?
I recently received correspondence from Mr Kerr that is in the same vein as his questions to me. What I have heard are knee-jerk quotes and a knee-jerk response to a substantive piece of work. If we do not want to have to continue deciding on short-term emergency measures, we have to find the space for, and build a consensus around, longer-term solutions while bearing in mind that the evidence points to the fact that a high prison population does not equate to a safer Scotland.
I am hearing nothing from Mr Kerr other than some policy wonk language about the need to develop a cohesive, long-term, holistic strategy. As soon as there is an attempt to do that, he dismisses outright all solutions. It sounds to me as if the Tories really do not want to find a solution.
On the member’s specific questions—[Interruption.]
Members!
—the consultation was necessarily short, for reasons that I have explained and because I was mindful of the need for good parliamentary scrutiny. In the coming year, if the budget passes, £1 billion will be invested in prisons.
On the member’s questions about community payback orders, as I think we all know—certainly, anybody who understands how community payback orders work will know—people who have been instructed by the courts to do 200 or 300 hours of unpaid work do not do that work in all weeks, so there will be outstanding hours at any given time. The use of community payback orders is increasing.
Scottish Labour is concerned about how the public now view sentencing in Scotland’s justice system. There have been constant changes to how long short-term prisoners are kept and to the time that they spend in our jails. Communities are feeling uneasy and are finding it difficult to follow how sentencing works in Scotland. Only a year ago, short-term prisoners served 50 per cent of their sentence. Today, or soon, it will be 30 per cent, and we know that that is driven by high prison numbers.
Over a long time, I have listened to successive cabinet secretaries talk about alternatives to custody. It is fair to ask what groundwork has been done in those 19 years and what long-term thinking has been done over the period, so that the cabinet secretary can confidently say that the Government has robust alternatives to custody.
I thank the Scottish sentencing and penal policy commission for its work, in which it recommends a presumption against sentences of up to two years, potentially, whereas the Government is looking at short-term sentences of a year or less.
If any serious long-term thinking has been done, can the cabinet secretary say with confidence that she will be able to implement the proposal fully and soon, using electronic monitoring? And does that mean using GPS technology? That would be the first step, at least, in providing some confidence in the Government’s thinking here.
I agree with Ms McNeill about the public understanding of sentencing in Scotland and the structures of the sentences that prisoners serve. I accept that point and, indeed, the points that are raised in the sentencing and penal policy commission’s report about the need to improve public understanding of how sentencing works. That understanding is crucial for confidence.
On the point about increasing public confidence, however, we have to be prepared to step back from campaigning and build consensus around what actually works to keep our communities safe. We owe that to the communities that we seek to serve and, not least, to victims.
I speak as a cabinet secretary who has written parole reports and supervised community payback orders. I am also the cabinet secretary who has substantially increased investment in community justice services. If the budget passes, I will have increased it by £35 million in total. Over the past decade or so, there has been an increase in excess of 50 per cent in investment in justice social work.
On the points that have been made about technology, although all those matters need to be carefully considered and managed, it is important to build on the substantial progress that has been made in electronic monitoring and to take it to the next level. I believe that that will be important in reducing reoffending and increasing victims’ confidence.
In the vein of what we have just been talking about, the cabinet secretary and the commission have acknowledged that victim safety must be at the centre of sentencing policy. If changes to the justice system are being implemented, what assurances can you give that that will be done hand in hand with public safety?
Always speak through the chair.
Protecting victims and the public from harm is and always will be our absolute priority, and that is consistent with our aims for community justice. As a Government, we have seen crime reduce, and we all want that to continue so that we have fewer victims and safer communities.
The evidence shows that community justice can be more effective than short custodial sentences in reducing reoffending and assisting with rehabilitation. However, as I said in my statement, we are also clear that, if more people are to be managed in the community, victims’ interests, safety and confidence must be at the heart of the changes. If society is to have confidence in the system, clear safeguards and credible measures will need to be in place. That is an important point to reiterate following my exchange with Ms McNeill and others on the importance of electronic mechanisms.
New figures published today by the Scottish Grocers Federation show that 99.6 per cent of convenience stores now experience shoplifting daily, almost four in five report increased violence, and more than three quarters of staff suffer mental health issues as a direct result of retail crime. With the presumption against short sentences, has the cabinet secretary in effect decriminalised shoplifting in Scotland?
Absolutely not. It is important to remember that a sentence in this country can be a custodial sentence, but we also sentence people in the community either to attend supervision or to undertake unpaid work.
Ms Dowey might be interested to know that the commission made some interesting recommendations on how to respond to prolific offenders. Perhaps what needs to be done involves new and extended supervision arrangements.
Ms Dowey will be aware of the work that we are doing on retail crime, which is important given its links to serious organised crime and the cost of living crisis. We continue to invest in the retail crime task force. I hope that the Conservatives will welcome that, because it is £9 million in the next three years. That is an important point and, I hope, a reason to support the budget later.
As the independent commission examined how Scotland can achieve a sustainable prison population, does the cabinet secretary agree that the report’s recommendations can serve as a useful contribution to a wider societal discussion about how we can achieve that end?
In short, yes, I do. Although the steps taken by this Government have been necessary to provide immediate relief to ensure that prisons are safe and effective, I have always been clear that a long-term change in our approach to custody is needed to strengthen the justice system and align Scotland with other western nations that have tackled the issue successfully.
This is a complex subject to which there should be no knee-jerk reaction. We should have a sensible, considered and mature discussion that is based on the commission’s evidence and the report that we have seen, to ensure that we get a balance where justice is served for victims, public safety remains paramount and our prison population is sustainable.
In the “Justice That Works” report, emphasis was put on the importance of rehabilitation, but we have heard today that some prisoners will be released after serving only 30 per cent of their sentence. Teresa Medhurst has talked about the ageing estate resulting in “catastrophic failure” and commented on a bottleneck in the rehabilitation services that we are talking about. Is it not the case that the proposal is setting up prisoners to fail and, more important, putting communities at risk, with prisoners being released without rehabilitation, while we shift to community sentencing?
I appreciate Mr Whitfield’s interest and, in particular, his interest in rehabilitation. It is important to recognise a couple of factors. The majority of short-term prisoners are released under no compulsion and are automatically released with no supervision. There are important safeguards in this measure, in that some offenders are excluded from the release programme.
With previous release programmes, we found that the rate of return to custody varied between 5 and 13 per cent. That is because of the extensive work by partnership organisations, justice social work services and the third sector in supporting the Prison Service when it identifies people who will be released earlier. Those people are all returning to our communities, and the pre-release work that is done by Upside and justice social work speaks to what we should more routinely do with short-term prisoners in the future.
The commission has made several recommendations that emphasise the importance of prevention. Does the cabinet secretary agree that effective prevention policies require a cross-portfolio and integrated approach to take account of the impact of varying societal factors, such as health and housing?
We know that people who are in contact with the justice system experience multiple and severe disadvantage. Intervening at the earliest stage and ensuring effective education and access to healthcare, housing and other support services are all vital aspects of preventing crime in the first place, which ensures safer communities and fewer victims. That is why, for example, our vision for justice is aligned with keeping the Promise and recognises the importance of having partners working together to ensure that appropriate support and intervention are delivered. We also know that early intervention can allow individuals to address a range of needs that can contribute to offending or to the risk of offending behaviour. Dealing with all of that is in the wider interest of our communities.
I am grateful to Martyn Evans and the commission for their detailed and well evidenced recommendations. There is substantial evidence about how poverty, trauma and inequality drive offending and about the lifelong negative impact of incarceration on women and other marginalised groups. Given that, and following on from Fulton MacGregor’s question, will the cabinet secretary commit to clear, whole-Government engagement that links justice reform with anti-poverty and public health strategies? Will she also ensure that there are equality impact assessments of high imprisonment rates, early release measures and the potential reforms, particularly for women, young people, disabled people and racialised minorities?
There was a lot in Ms Chapman’s ask. I give her a commitment that I will take that away and respond to her formally in detail. Her point about inequality is well made. We need a whole-system approach, and the commission’s report is challenging on the issue of what more must be done to embed prevention.
Scottish Liberal Democrats have long been clear that investment in community sentencing is vital if we are to tackle Scotland’s staggeringly high prison population level, which is both unsafe and unsustainable. I therefore welcome the commission’s report. Whatever the make-up of the next Government, it will have to review and appropriately take forward the recommendations.
If the measures are to be effective, they must command the confidence and consent of victims, courts, the police and communities, so will the cabinet secretary set out what stakeholder engagement she believes will be necessary to ensure that the reforms work in the interests of victims and communities?
It is important that all the recommendations are given careful consideration and prioritisation and that we do that work alongside all our justice partners. I am happy to engage further because, as I said earlier, building consensus about what will work to make our communities safer is something that I have campaigned for during most of my adult life.
Given the value and importance of community payback orders in reducing reoffending, does the cabinet secretary agree that those who are released early from prison should undertake work in the community throughout the time that they would otherwise have served in jail? For example, there is rubbish scattered along the verges of our trunk and country roads, and I am sure that having several hundred extra pairs of hands tackling that would make a huge difference, while helping offenders to productively pay their debt to society.
That is a really good question and a really interesting point. Although community payback orders and unpaid work can be used as alternatives to custody, they are a sentence in their own right, and we do not currently have the legal powers to impose another sentence on a sentenced prisoner. Some very interesting work was undertaken in Denmark, where more than 3,500 people were released from prison via a community service programme. There is much to learn in that regard from our European friends and neighbours, and I think that that would also help to alleviate public concerns.
It would be good to have some honesty from the cabinet secretary on the matter. All the issues arise because of the SNP’s total mismanagement of the Scottish prison estate and the justice system as a whole. When the cabinet secretary says that a high prison population level does not equal a safer society, that is illogical. Removing dangerous and violent criminals from the streets make those streets safer. Of course it does—it is illogical to suggest otherwise.
I can tell members how the public view these things: they view the SNP’s justice policy as soft touch and lenient to the point of pandering to the offenders. Even the content of the commission’s report picks up on that. How can the cabinet secretary possibly repeat that victims and community safety are a priority for the SNP, when the SNP is busy releasing serious criminals back into the community?
The vast majority of prisoners will one day return to our community and it is beholden on us all to make sure that they return to our community in a far better position to lead a life and make a contribution. At a fundamental level, our justice system is about prevention, punishment and deterrence, but it is also about rehabilitation. I would happily discuss that further with Mr Kerr in detail, because I know that he has strong views on and experience of the justice system. With the greatest respect to him, we have to have the honesty to look at the evidence and engage with people—yes, to discuss and debate, but also to act and to decide what will work to keep people safe.
On the issues that have been raised already in relation to reoffending, although prison sentences will always be required, evidence shows that community-based sentences reduce reoffending and relieve the pressures on prison populations, including at HMP Dumfries, as well as addressing the cost of prisons to the public purse. Does the cabinet secretary have any comparative figures for retaining someone in the prison population as opposed to giving them a community-based sentence?
It is difficult to make those comparisons. As I have said before, the annual cost per prison place in 2024-25 was £52,260, so, in my view, investing in community sentences rather than short custodial sentences to deliver justice and reduce reoffending is a more effective use of taxpayers’ money. That is why, in the upcoming budget, I will invest a further £10 million in community justice services, which will take our total investment in them to £169 million.
Does the cabinet secretary support the report’s bizarre, madcap proposal to rebrand automatic early release as “supervised reintegration”? If she has any hope of making the streets of Scotland safer, should she not pursue this simple plan—to build more prisons?
The Conservatives, as per usual, are tough on rhetoric and soft on solutions. We are building more prisons in Scotland. The problem with the Conservatives is that they want to put all their eggs in one basket, and that is a prison-building programme.
Look at the evidence: there is not one cause and there is not one solution to the issue, so we need to get serious. Yesterday, Mr Kerr the Younger referred to me as “Pollyanna”; I live in hope that, even on the Conservative benches, there will be some people who will see sense—indeed, perhaps they will even see common sense—and be prepared and have the courage to follow the evidence about what will work and will, at the end of the day, make our communities safer.
The evidence shows that a high prison population level does not equate to a safer Scotland. If other countries can make reforms to their prison population without compromising public safety, why cannot Scotland?
That concludes the statement. Before we move to the next item of business, there will be a short pause to allow the front-bench teams to change position.