Prison population and penal reform: working towards sustainability

 The 2010 presumption provided that: “A court must not pass a sentence of imprisonment for a term of 3 months or less on a person unless the court considers that no other method of dealing with the person is appropriate” and “[w]here a court passes such a sentence, the court must - (a) state its reasons for the opinion that no other method of dealing with the person is appropriate, and (b) have those reasons entered in the record of the proceedings."

The presumption was intended to highlight to the court the need to only use short prison sentences as a last resort, and that community disposals should be favoured where possible. It is a presumption, not a ban, and it is for the court to decide on the most appropriate sentence based on the facts and circumstances in any given case.

An evaluation published in 2015 considered – amongst other issues - the impact of the presumption against short sentences of three months or less. It found that the presumption was not featuring “prominently or explicitly” in judicial decision making and for most of the sheriffs interviewed it was “largely seen as an irrelevance to day-to-day sentencing practice or, at most, as a background factor in their considerations.”

A Scottish Government consultation in 2015 showed that 85% of respondents were in favour of an extension to the minimum period of the presumption and, of those who expressed a view, 84% indicated that the new minimum period should be set at 12 months. The majority of respondents indicated that they thought extending the presumption would help achieve a reduction in the use of custodial sentences and would be in line with a generally more progressive approach to criminal justice policy.

The relevant period to which PASS applies can be amended by secondary legislation. Based on the above evidence and consultation, in 2019 the Scottish Parliament passed legislation to extend PASS from sentences of three months or less to sentences of 12 months or less.

The initial impact of the PASS extension was not clear, largely as a result of the COVID-19 pandemic. A 2021 Scottish Government analysis stated that “…the impact of COVID-19 on court business and the unavoidable backlogs caused by court closures mean it is not possible to confidently identify and attribute cause to any trends in court disposals over the last 12 months.”

The most recent criminal proceedings data showed that 7,400 people received a custodial sentence of 12 months or less in 2023-24. This represented 73% of all custodial sentences. Of the 798 women who received a custodial sentence that year, 88% received a custodial sentence of a year or less. Despite the evidence about the detrimental impact of short custodial sentences, sentences of three to six months were the most commonly used sentence over the past decade.

A 2025 Scottish Government analysis noted the complexity of the offending background of people receiving custodial sentences of 12 months or less from court. The analysis highlighted that a fairly low proportion of those receiving short custodial sentences are in the community at the time, with most already being in prison (either in the sentenced population or on remand).

The Commission considered that it is “necessary” to have a near complete prohibition on short custodial sentences, with only limited exceptions. It recognised that this would necessitate engagement with the UK Government on legislative competence, which the Scottish Government will pursue. In the interim, the Commission recommended various ways to extend and reinforce the presumption against short sentences to make it work more effectively. The Scottish Government has carefully considered and further developed these so that there are two sets of proposals below; those intended to strengthen and support the use of PASS; and those intended to extend the use of this improved presumption from 12 to 24 months.

Any reforms would be taken forward alongside wider work to strengthen community sentences in order to ensure robust alternatives to custody are available, as well as consideration of changes to bail and remand that flow from the PASS extension, and therefore, the subsequent sections consider proposals relevant to these policy areas.

The Commission also set out its view that in addition to extending the existing presumption, it should be reinforced to make clear that custody should only be used in exceptional circumstances. This could allow PASS to capture a wider range of situations where a short custodial sentence may currently be imposed. The Scottish Government has considered numerous ways of achieving this including by increasing the use of justice social work reports, strengthening the legislative test for PASS, and increasing the requirements for sentencers to set out their rationale for short custodial sentences.

• Sections 203, 204 and 207 of the Criminal Procedure (Scotland) Act 1995 set out circumstances whereby a court must obtain and consider a report from an officer of the local authority. Section 203 provides that when a court is considering a custodial sentence for a person convicted while subject to supervision in the community under certain orders or following release from custody on a licence, a justice social work report (JSWR) is required before the court disposes of the case.
• Section 204 of the 1995 Act provides that if the person is over 21 years of age but has not previously received a custodial sentence, the court shall take into account JSWRs. Section 207 provides that a court may impose detention on a person aged 18 or over but under 21 years of age only if it has obtained a JSWR. JSWRs may also be requested in other cases, including for example where there are potential complexities such as addiction or mental health issues.
• A JSWR can help the court decide whether to impose a custodial or community order and what particular requirements may be most suitable for a person’s community sentence. There were 29,600 JSWRs submitted (including supplementary reports) in 2024-25. This was six per cent higher than the level of 27,900 in 2023 24 and was the highest since 2016-17. A source for this information can be found here. 
• If the court does not have a recent JSWR when sentencing it is possible it does not have the fullest, most up-to-date picture of the circumstances behind a person’s offending, or particular support that could help facilitate a community sentence that would ultimately be more effective at rehabilitating and reducing the risks of reoffending.
• To ensure that the courts have access to all relevant information, one option would be to make JSWRs mandatory in all cases where a short custodial sentence is being considered. We are mindful that this would have an impact on justice social work and could also increase demands on court time, so it is important to strike the appropriate balance regarding when these reports should be required.

• Section 204 (3A) of the Criminal Procedure Scotland Act 1995, as amended, sets out that “A court must not pass a sentence of imprisonment for a term of 12 months or less on a person unless the court considers that no other method of dealing with the person is appropriate.”
• The language of the provision is quite general and does not set out specific circumstances in which it is appropriate for custodial sentences to be used. It may be that a more tightly worded provision could be more effective at reducing the use of short sentences.
• For example, the UK Sentencing Act 2026 provides that the court must make a suspended sentence order in relation to a sentence of under 12 months unless defined exceptions apply or the court is of the opinion that there are “exceptional circumstances”.
• Although the specific nature of these circumstances is not defined in the Act, the UK Sentencing Review 2025, suggests that “exceptional circumstances” would apply “in cases of wilful non-compliance with court orders, to provide a victim of domestic abuse with a period of respite, or for offenders who have been given a community order or suspended sentence order and go on to reoffend.” While this approach sits in a different legal framework, it offers a helpful example of how an “exceptional circumstances” test can work in practice.
• It is possible that amending the legislation to make clear that short sentences should only be used in “exceptional circumstances” would be more effective at achieving the policy intent to reduce the numbers of these. Another way to achieve this may be to specify the particular circumstances in which a short sentence should be imposed

•  The 1995 Act provides that, where a court passes a sentence of under 12 months, it must state reasons for the opinion that no other method of dealing with the person is appropriate and have those reasons entered in the record of proceedings. It has been noted, including by the Sentencing and Penal Policy Commission, that there is no requirement for the sentencer to set out the specific details regarding what other options have been considered, or why they concluded any of these would not have been suitable.
• Systematically gathering this data would provide victims and the accused with a greater understanding of why particular sentences were chosen, or not. It would also make sentencing more transparent to the general public.  
• There is currently very limited data available regarding the reasons the courts opt for short sentences. More rigorous recording requirements would provide valuable data that could make clear, for example, that the services in a particular area need to be improved, or that awareness raising is required to ensure the judiciary is aware of them.
• We are mindful that any additional recording requirement would take up valuable court time. The courts will have already considered why a short custodial sentence is necessary, and why alternatives are not appropriate given the facts and circumstances of the particular case. However, requiring these to be written down may require some additional time for consideration. Given the large volumes of cases that proceed at summary courts even a small delay could accumulate over the course of each day.