Chamber and committees

Other options were considered. Before I advise the committee of those, I will say that one of the factors that are different with this early release programme is that it is longer and that it will operate for the full duration that we are allowed to operate it for, within the confines of the legislation. The previous early release programme had a shorter duration and released around 477 prisoners.

On the other options that were considered, we looked at the contemplation and consideration that was being given south of the border to, yet again, changing the point of automatic early release for short-term prisoners. You will remember, from when we carried out the STP40 programme, that the advantage is that it reduces the population by around 5 per cent of what it would otherwise be. However, I discounted the option of another change to the point of automatic early release for some short-term prisoners because it was too soon. We had just done STP40 and we had just changed the regulations for home detention curfew to align with STP40. We have a commitment to evaluate STP40, so it was just too soon.

The other option that was considered was to change the definition of what is a “short-term” prisoner and what is a “long-term” prisoner, but I also discounted that option. Currently, short-term prisoners are those who serve less than four years. In theory, that definition could be changed to somebody who serves less than five years. I discounted that option, in part because the definition of “short-term” and “long-term” prisoners is not always a helpful one—it is quite blunt. There is a difference between people who are sentenced to less than a year—there are still several hundred sentences of less than a year, despite the presumption against short-term sentences—and people who serve, say, three or four years. There is another difference with people who serve four to six years. Those are two examples of options that I considered but dismissed.

I am certainly aware of the submissions from Victim Support Scotland and other organisations. I know that the committee will be aware—particularly in the context of learning lessons and developing release planning, for example—that the return-to-custody figure for the short-term prisoner 40 programme, STP40, was 5 per cent in comparison with 13 per cent for the first early emergency release that we did last summer. That is in the context of a reconviction rate of 43 per cent within a year of release from custody. Those figures are encouraging and they are going in the right direction.

I think that where the difficulty would lie—and I will ask for some legal input from officials here, if that is acceptable to you, convener—is that, in terms of decision making on the management or release of prisoners, although previous behaviour informs any risk management or release plan, it is the sentence that somebody is currently serving that is the framework that we are working within. However, there is also the governor’s veto, so there is not a straightforward answer to that. It would be difficult to penalise—that is perhaps the wrong word. You can take past behaviour into account in a risk assessment, but, under the law as it stands, it may well not change someone’s eligibility. Ruth Swanson may want to say a bit more about that.

An order of lifelong restriction is a high-tariff disposal, and we need to be clear about that. It is a decision made by our independent courts in each individual circumstance. The same is true of life-sentence prisoners. You are not guaranteed to be released just because you have reached the end of the punishment part of your sentence. That is subject to a risk assessment, and people have to demonstrate that they are ready for release.

However, there is a more general point to make that goes beyond OLR prisoners and which is an issue for all prisoners, particularly those who are subject to OLRs and the parole system. If our prisons are so congested, the work becomes very transactional: it becomes about locking and unlocking and getting people fed, to the toilet and to necessary appointments. When the system is overpopulated, the capacity for relationship work is reduced, which has an impact on rehabilitative opportunities. That is why I have made the point on a number of occasions that, if we are making different decisions about some short-term prisoners and preventing people from coming into prison, either through good primary prevention work or alternatives to custody, we free up capacity for the in-depth rehabilitation work that will be required in many circumstances where people pose the greatest risk, if they are ever to be able to return to the community.

To some degree, it is difficult for me to speculate, but a range of information is certainly available, including from the Scottish Sentencing Council, to show that all prison groups are, on average, serving longer sentences. It is an across-the-board sentencing issue; inflation is how I would describe it.

It is also due to the nature of offences. Prosecutors and the Crown are now more successful in pursuing historical sexual offences and more people have the confidence to come forward about such offences.

In addition, the profile of prisoners is changing in that there are more long-term prisoners and more sex offenders.

Thanks. I am listening very carefully to Mr Kerr, as always. It is important that we critique the past as well as debating the future. However, what does Mr Kerr propose that we do right now instead of early emergency release, bearing in mind the fact that time-limited relief is required right now? What does he suggest that we do? Is he seriously suggesting that we do nothing and ignore the advice from the Scottish Prison Service, HMIPS, the Prison Governors Association and the POA? We all want longer-term action, but action is required right now. Are you seriously proposing that we do nothing?

We are continuing to engage with partners on all of that. It is important to stress that the phasing of the tranches of release is important in managing that pressure on the community. No additional financial resource was provided when we undertook the emergency early release programme last summer. Nonetheless, there are weekly planning meetings, because it is absolutely imperative for our local partners, and for individuals who are being released, that such planning is done. At the start of this journey, I met representatives of the Convention of Scottish Local Authorities and others, and we will continue to have close engagement.

I refer members to my opening statement.

I move,

That the Criminal Justice Committee recommends that the Early Release of Prisoners (Scotland) Regulations 2025 [draft] be approved.

That is a fair comment. I would certainly like to see more people being proactively involved and included in the victim notification scheme, and we are working with partners to improve awareness. I acknowledge the relatively low take-up rate for the victim notification scheme, but people do not need to register for the scheme in order to get information about the perpetrator in their case, because they can contact the Scottish Prison Service directly or can receive information via a victim support organisation.

We have the Victims, Witnesses, and Justice Reform (Scotland) Bill and other work that is in train, particularly through the victims task force, so there is a body of work going on to improve the victim notification scheme. That work should be considered because it is germane to any developments regarding long-term prisoners—indeed, it is important even if there are no developments in the management of those prisoners. There is a body of work to show that we are committed to improving the victim notification scheme. However, there are other routes that allow people to get the information that they need when it comes to emergency early release.

Absolutely. It is deputy governors who chair their establishment’s risk management committees, and they would have access to absolutely the same information from the police, social work and other sources.

Ms Medhurst, do you wish to add anything?

I have nothing further to add.

I move,

That the Criminal Justice Committee recommends that the First-tier Tribunal for Scotland General Regulatory Chamber (Police Appeals) (Procedure) Regulations 2025 [draft] be approved.

That the Criminal Justice Committee recommends that the First-tier Tribunal for Scotland General Regulatory Chamber Police Appeals and Upper Tribunal for Scotland (Composition) Regulations 2025 [draft] be approved.

That the Criminal Justice Committee recommends that the First-tier Tribunal for Scotland (Transfer of Functions and Members of the Police Appeals Tribunal) Regulations 2025 [draft] be approved.

Motions agreed to.