Ministers warned criminals cannot 'dodge jail' after commission calls for rethink of two year prison sentences
Justice secretary says recommendations could help achieve ‘sustainable’ prison population
Ministers have been warned that they cannot allow criminals to “dodge jail” as part of efforts to “manage the chaos” in the nation’s prison system, after a key criminal justice commission called on the Scottish government to extend its presumption against short sentences to two years.
The Scottish Sentencing and Penal Policy Commission called for a “rethink” of the current approach to sentencing and imprisonment, and said that without significant reform, the current justice system was neither effective nor sustainable.
The independent commission’s other recommendations include prohibiting “ineffective” short custodial sentences of under a year, the release of long term prisoners at two thirds of their sentence, and the use of remand only where a prison sentence of more than two years is deemed likely.
Martyn Evans, the commission’s chairman, said such changes would deliver “system-wide reform” and ensure prison is a place for “serious and dangerous offenders” and not those who need help, support, or a second chance.
Justice secretary Angela Constance stressed the Scottish government was committed to taking “bold, collaborative action” to reduce the reliance on custody, and said the commission’s “considered” recommendations can help Scotland achieve a sustainable prison population.
However, leading opposition parties at Holyrood have criticised the proposals. Scottish Labour said sentencing should be focused on how to keep communities safe, and not how to “clean up the SNP’s mess,” while the Scottish Conservatives said the changes, if implemented, would give a free pass” to criminals.
The number of people in prisons reached record highs last year, with the Scottish government forced to bring in a third early release programme in an attempt to ease pressures. The most recent Scottish Prison Service data shows that the entire prison population stood at 8,254 as of 30 January. Some 1,867 of those inmates were on remand.
In its final report, published on Friday, the commission pushed for the government to extend its presumption against short sentences to 24 months.
According to the latest Scottish government statistics on criminal proceedings in Scottish courts, a raft of what many would regard as serious crimes had an average custodial sentence length of less than two years in 2023/24. They include drug supply, robbery, fire-raising, house-breaking, weapons possession, and some sexual crimes.
Under the current policy, judges are discouraged from issuing custodial sentences of less than a year. Judges should also be made to provide their reasons why a prison spell is the only way to deal with the specific offence, under the recommendations.
“Extend the presumption against short sentences to 24 months,” the report states. “When passing a sentence of fewer than 24 months, members of the judiciary should provide a written note of all the available alternatives considered and why, bearing in mind the particular facts and circumstances of the case, no other method of dealing with the person was appropriate.
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“Data on the reasons provided should be gathered in a format that is amenable to systematic collation and analysis.”
The commission said a national “decarceration” plan should also be published within the next year to set out “clear milestones” to bring down the rate of incarceration in Scotland, along with considering the establishment of an inspectorate which will look at the “administrative performance of the criminal courts.”
The government should also develop a policy on “transitional accommodation,” designed to help those leaving prison stay off the streets.
The report comes as Ms Constance announced this week she would consult on bringing down the release point for some sentences from 40 per cent to 30 per cent.
Mr Evans, a former chairman of the board of the Scottish Police Authority, said Scotland was at a “critical moment” for the justice system.
“It is time for that to change,” he said. “Our commission report sets out ambitious recommendations to deliver system-wide reform.
“Prison should be for serious and dangerous offenders, not for people who need help, support or simply a second chance. We need to choose a different path - one that uses imprisonment more wisely, reduces reoffending and strengthens community responses.”
Ms Constance said: “I welcome the commission's work and thank them for their comprehensive review and swift action on a complex area. The breadth of recommendations requires detailed consideration and prioritisation. Taking this forward will be a matter for an incoming government, with many requiring legislative change.
“Bold, collaborative action is needed to reduce reliance on custody and achieve a sustainable prison population. We are committed to taking action. There is no silver bullet but these considered recommendations can help us achieve a sustainable prison population.”
Ms Constance, who said she would set out her response to the report in a statement to Holyrood next week, added: “We remain an outlier in prison numbers. While prison will always be necessary, we need to shift the balance to community justice, which is shown to reduce reoffending and be more cost-effective for the public purse.
But Scottish Labour's justice spokeswoman, Pauline McNeill, said: “The SNP cannot keep letting criminals dodge jail in order to manage the chaos they have created in our prison system.
“Sentencing should be about how we keep communities safe - not how we clean up the SNP's mess. Angela Constance and the SNP have pushed our entire justice system to breaking point - from frontline policing to our courts to our prisons.
“The SNP's sticking plaster solutions and soft touch approach to justice is letting Scotland down. Scottish Labour is ready to turn the page on SNP failure, support our overstretched prison service and deliver a safer Scotland.”
Her Scottish Conservative counterpart, Liam Kerr, said increasing the presumption against short sentences would give a “free pass” to criminals.
“It is another gross insult to victims who are a complete afterthought when it comes to the SNP's justice priorities,” he said. “This comes in the same week when the SNP's justice secretary already confirmed she wants to let more criminals out early.
“Now if she agrees with these recommendations, many dangerous criminals will spend no time behind bars at all. The SNP's reckless approach is only continuing to endanger public safety across Scotland.”
Mr Kerr later wrote to Ms Constance, claiming the report was more a “strategy to empty the prisons, regardless of the consequences,” as opposed to a “plan to improve justice.”
Debbie Adams, interim chief executive of Victim Support Scotland, said the commission’s report had the potential to “provide a springboard for much-needed change.
She said: “There’s a long way to go, from vision to reality, and implementation must be carefully planned to ensure checks and balances. We are keen to see how provisions for all of the alternatives to entering the criminal justice system will be implemented before any wholesale change to sentencing. These must go hand in hand, otherwise the aspirations of this review will be empty words.
“Public confidence in the criminal justice system is not high and changes of this magnitude need to be clearly communicated, including resulting evidence of reductions in re-offending.