Prison population and penal reform: working towards sustainability

Overview

Scotland’s prison population is growing rapidly and reached record levels in May this year, with over 8,600 prisoners being held in an estate designed for 7,805. Scotland is not alone in this. England and Wales are facing similar challenges, as are other jurisdictions, driven in particular by increases in the number of long-term prisoners and longer average sentence lengths.

Tackling this issue is of critical importance. Increasing overcrowding in prisons undermines their ability to operate safely and to effectively rehabilitate prisoners. When individuals are released from custody – as the vast majority will be – it is vital that they are able to reintegrate into the community in a way which minimises risk and further offending behaviour.

There is no single intervention which will achieve a stable and sustainable prison population. A combination of actions will be required but there are crucial choices to be made in how to do this.

Building more prison capacity is possible but has significant implications for public funding. An average prison place in Scotland costs over £50,000 per year, and additional capital investment would be required to increase the capacity of the prison estate. Imprisoning people is also often less effective at reducing reoffending than community alternatives, particularly for very short sentences.

Dealing with more offences in the community can be better for rehabilitation and preventing further offending but requires investment in community-based services to ensure that individuals can be supported and robustly supervised as required.

The Scottish Goverment's approach

The Scottish Government’s view is that a balanced approach is required, recognising the merits of both custody and community-based disposals in different circumstances, the need to protect victims and the public, and the need to ensure that effective rehabilitation is supported to reduce re-offending and further victimisation.

Prison will always be necessary, particularly for those who pose a significant risk to public safety, and we are rapidly developing plans to expand the prison estate to ensure that they can operate safely and effectively into the future.

However, we also agree with the conclusions of the independent Sentencing and Penal Policy Commission, which was established in 2025 to consider how imprisonment and community-based interventions are used in Scotland, and which emphasised the need for a greater focus on the use of community-based interventions while robustly protecting victims and the wider public.

Our long-term approach to the rising prison population seeks to combine an expansion of the prison estate with a more proportionate use of custody and more robust community alternatives.

This consultation

While work is ongoing to build more prison capacity, this consultation seeks views on a set of proposed reforms to the criminal justice system in Scotland, building on the recommendations of the Sentencing and Penal Policy Commission and seeking to reduce the demand for prison places where appropriate.

In particular, views are sought on proposals to extend and further strengthen the presumption against short sentences (PASS); to enhance the effectiveness and credibility of community sentences; to expand the use of electronic monitoring; to reduce the use of remand; and to change the point at which certain prisoners are released to increase the time spent in the community under supervision as part of their rehabilitation.

The measures set out in this consultation are intended to complement each other, recognising the interactions between different parts of the justice system, and to collectively assist in achieving a stable and sustainable prison population.

Read the consultation paper. The consultation paper contains full background information for this consultation. You may find it useful to read or refer to while responding.

Consultation questions preview Consultation questions preview

The consultation questions are included here for your reference. Please click 'Begin consultation' at the bottom of this page to proceed.

Question 1 – Please share any views you have on the proposal that justice social work reports should be mandatory in all cases where a short custodial sentence is being considered.

Question 2 – Please share any views you have regarding the most effective ways to improve judicial and public confidence in community sentencing options - including their content, local availability and outcomes.

Question 3 – Please share any views you have on the proposal that the legislative test in the presumption against short sentences should be strengthened.

Question 4 – What do you consider would be the most effective way to strengthen the legislative test?

Question 5 – Please share any views you have on the proposal that when sentencing a person to a short sentence, sentencers should have an obligation to set out in writing the specific details regarding what other options have been considered, and why they concluded these would not have been suitable.

Question 6 - Do you have any other comments in relation to the potential impact on victims, equality or human rights of these measures to further strengthen and support the use of the presumption against short sentences?

Question 7: Please share any views you have on the proposal that the presumption against short periods of imprisonment of 12 months or less be extended to 24 months or less.

Question 8 – Please share any views you have on the proposal that if the presumption against short sentences is extended to 24 months or less, summary sentencing powers should also be increased so that the maximum custodial sentence is also 24 months.

Question 9 – Do you have any other comments in relation to the potential impact on victims, equality or human rights of the proposals related to extending the Presumption Against Short Sentences (PASS) from 12 to 24 months?

Question 10 – Please share any views you have on how effective CPOs are in their current form and whether the legislation underpinning them is appropriate.

Question 11 - To what extent do you think the current framework allows sufficient flexibility to tailor CPOs to individual circumstances, including the roles of both sentencers and justice social workers?

Question 12 – Please share any views you have on how the current CPO legislative framework could be improved to ensure CPOs are a credible alternative to custodial sentences.

You may wish to consider:

removing any unnecessary or ineffective requirements.
adding new or revised requirements.
addressing practical or legislative barriers to the use of existing requirements.
any other changes.

Question 13 – Please share any views you have on the extent to which CPOs provide sufficient support to address the underlying causes of offending behaviour and whether there are any barriers to ensuring support needs are met.

Question 14 – Please share any views you have on the introduction of an Enhanced Combination Order model in Scotland.

In your response, please consider which elements (for example, psychological assessment or restorative approaches) would be most valuable, and any potential benefits or challenges.

Question 15 – Please share any views you have on the proposal to amend how CPOs are set out in law, so they are clearly framed as a sentence that can be used where justice social work intervention could address the underlying causes of offending behaviour.

Question 16 – Please share any views you have on what changes, if any, would be required to make CPOs suitable and effective for more serious offending behaviour.

Question 17 – Please share any views you have on the proposal that there should be more opportunities to incentivise good behaviour on CPOs through reductions in, or early discharge from, unpaid work or supervision requirements

Please give reasons for your answer including any views for how this could be achieved in practice, as well as any alternative suggestions to enable incentivisation of good behaviour on CPOs.

Question 18 – What changes, if any, do you believe are needed to improve breach processes for CPOs to ensure timely, proportionate, and consistent responses to non‑compliance?

Question 19 – Please share any views you have on retaining Drug Treatment and Testing Orders as a distinct community disposal for addressing substance-related offending.

Please give reasons for your answer, including:

views on whether they should be reformed or replaced;
views on the current effectiveness of DTTOs;
how they compare to alternative disposals, including Community Payback Orders (with or without treatment requirements);
what a future community sentence for individuals whose offending is related to substance use should look like.

Question 20 – Do you have any other comments in relation to the potential impact on victims, equality or human rights of these proposals to enhance and strengthen community sentences?

Question 21 – Please share any views you have on the proposal that there should be a formal mechanism to enable bail cases with an electronic monitoring requirement to be brought back before the court or dealt with administratively in chambers. This would be used when administrative issues arise that may prevent the order being monitored, and currently require judicial consideration, but where there may be no evidence of criminality.

Question 22 – Please share any views you have on the proposal that there should be a power of arrest for breaching the order or licence relating to an exclusion zone?

Question 23 – Please share any views you have on the proposal that there should be other improvements to the system of electronic monitoring either to help facilitate any of the other reforms in this paper, or more broadly.

Question 24 – Do you have any other comments in relation to the potential impact of these electronic monitoring proposals on victims, equality or human rights?

Question 25 – Please share any views you have on the proposal that people should not be remanded to custody unless they have a reasonable prospect of a custodial sentence of 24 months or more?

Please give reasons for your answer, including whether there are any circumstances in which remand should remain available even where such a sentence is unlikely.

Question 26 – Do you have any other comments in relation to the potential impact of this bail and remand proposal on victims, equality or human rights?

Question 27 – Please share any views you have on the proposal that the automatic release point for long-term prisoners (excluding those on extended sentences) should be amended to the two thirds point. Please include what the potential impacts could be on reoffending and rehabilitation into the community.

Question 28 – Please share any views you have on the proposal that if amending the automatic release point for long-term prisoners to the two-thirds point, those subject to extended sentences should be included.

Question 29 – Please share any views you have on the proposal to amend the definition of short-term prisoners from “less than four years” to “less than five years”.

Question 30 – Do you have any other comments in relation to the potential impact of these proposals regarding prisoner release arrangements on victims, equality or human rights?

Question 31 – Do you have any comments on the overall package of reforms contained within this consultation, potential interactions, and whether taken together they would help work towards achieving a sustainable prison population?

Useful information about responding to this consultation Useful information about responding to this consultation

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Why your views matter

Consultation is an essential part of the policy making process. It gives us an opportunity to consider your opinion and expertise. Your responses along with other available evidence help shape our policy.

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Interests

Equality, Welfare and Rights
Health and Social Care
Law and Order