Prison population and penal reform: working towards sustainability
Section 2: Extend the presumption against short sentences from 12 to 24 months
The Sentencing and Penal Policy Commission highlighted that the Scottish Government brought in a presumption against short sentences of under 12 months due to the evidence that short periods in custody are not effective at reducing reoffending.
The presumption does not currently apply to people sentenced to between 12 and 24 months, who due to the policy of releasing short-term prisoners (serving less than four years) at 40% of their sentence, will spend no more than four to eight months in prison. In 2023/24, more than 1400 people were sentenced to between one and two years imprisonment. In 2023/24, more than 1400 people were sentenced to between one and two years imprisonment.
Sentencing and Penal Policy Commission Recommendations
The Commission recommended that to fully implement the policy intent of reducing the amount of people serving fewer than 12 months, would require PASS to be extended to all sentences of up to two years. Since the Commission reported, this release point has been further reduced to 30% for most people who are serving short custodial sentences.
Questions in this section
This section seeks your views on:
Extending the presumption against short term periods of imprisonment
- The increase in the prison population in recent years is driven mainly by the rise in long-term prisoners. While those serving short sentences (particularly 12 months or less) spend limited time in custody, they contribute significantly to admissions. Reducing their use would ease operational pressures and support greater use of community based interventions.
- Short prison sentences often disrupt the very factors that can help prevent offending. They can damage family relationships, cause housing instability and homelessness, reduce employability and lead to job loss and weaken wider social ties and support networks.
- Shifting away from short custodial sentences would enable more effective support to be provided in the community, while also creating capacity within the Scottish Prison Service to focus on the rehabilitation of more serious offenders. Combined with wider measures, this approach could contribute to a sustainable reduction in the overall prison population.
Adjust the sentencing powers of Sheriff Courts
- In summary cases - heard by a sheriff without a jury - the sheriff court can sentence a convicted person to up to 12 months in prison or a maximum fine of £10,000 (though some offences can carry higher maximum summary fines as provided for in statute).
- Unless it is set out in legislation, it is for prosecutors to decide what level of court a case will be heard in. This decision is informed by a range of factors including the nature of the alleged offence, the impact on any victims and the wider community, the relevant potential sentence, the circumstances of the accused and the court’s sentencing powers.
- If PASS was extended without adjusting sentencing powers in sheriff courts, cases where a custodial sentence of between one and two years is anticipated would frequently be dealt with at sheriff and jury courts which have the power to sentence for up to five years.
- Cases that are unlikely to result in prison sentences of more than two years could benefit from being handled using the same procedure in the same court, i.e. sheriff courts under summary procedure rather than sheriff and jury courts. This could support greater consistency in sentencing,
- Therefore, a further reform that could accompany the extension of the presumption against short sentences to 24 months relates to altering sentencing powers in summary procedure. This would increase the maximum custodial sentence that can be imposed at sheriff summary level to two years – from its current one year maximum - to match the timeframe covered under PASS (if extended to 24 months or less). This would enable prosecutors to decide that these cases be heard at summary level, if they consider this appropriate given the particular facts and circumstances of the case.
- This reform sits alongside and would be taken forward to accompany a PASS extension. It would also have the benefit of improving the efficiency of the justice system. Summary procedure is faster, thereby leading to fewer delays for victims of crime and witnesses, and is less resource-intensive than sheriff and jury, and therefore less costly to the public. Median journey times in 2024-25 were around one year seven months in sheriff solemn courts compared to around seven months in sheriff summary.
- Having more cases dealt with at summary procedure could lead to people spending less time on remand and pleading guilty earlier in the process. There would also be savings to the public from a reduced number of jury trials, as well as less requirement for members of the public to carry out their civic duty as jurors. There may also be legal aid implications to consider.
- In 2023-24, more than 1400 people received a custodial sentence of between one and two years - 629 (42%) for non-sexual crimes of violence and 396 (27%) for crimes against society. Even in a reformed system with higher sentencing limits at summary courts, these would not all be expected to be heard at summary level as it would not be certain in advance what the final sentence would be in these cases, and as set out previously, prosecutors consider a range of factors when determining which court a case should proceed at.
- While some may have concerns about an increased number of trials being held before a single judge, rather than a jury, it should be noted that in Scotland the vast majority of criminal cases are currently dealt with at the summary court and therefore are currently heard before a single judge. In 2023-24, 89% of people convicted in court were prosecuted in summary courts.
- It is also possible that, while some victims of crime may prefer the shorter timescales at summary level, others may perceive their case being heard at this level as a downgrading of its seriousness. It is therefore important that victims are communicated with clearly, including being provided with a clear rationale for decision-making and assurances about how their case may proceed.
- The sentencing powers of different levels of court have previously been expanded and it was considered that professional judges were capable of dealing with more serious types of offending, and that reform would bring benefits to the general effectiveness of how cases could be dealt with through the criminal courts. The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 increased the sentencing powers of the summary courts from three months to 12 months, and prior to this the sentencing powers of the sheriff courts in solemn cases were increased from three to five years via the Crime and Punishment (Scotland) Act 1997. However, the nature of cases going through the criminal courts has changed significantly since these reforms, as set out in the introduction to this consultation.
You may find it useful to read or refer to section two of the consultation paper while responding.