Twenty Years of Imprisonment

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As part of the programme to mark 20 years since the creation of the Scottish Parliament, SPICe will publish twenty ‘20 year’ blog posts on SPICe Spotlight over the course of 2019. Our earlier post sets out more information on the programme and the series of blogs. This blog looks at the use of imprisonment in Scotland since devolution.

In 1999-00, the average daily prison population in Scotland was just under 6,000. In 2018-19 it was 30% higher (at almost 7,800). Weekly figures for 2019-20 show a prison population frequently exceeding 8,200.

Possible reasons for a rise, or fall, in the prison population include changes in:

  • how society deals with vulnerability and problem behaviour
  • the level and nature of criminal activity
  • the likelihood of offences being reported to the police
  • the approach of the police and prosecution to law enforcement
  • the approach of the courts to bail/remand and sentencing
  • the proportion of custodial sentences served in custody

Recent reports from HM Chief Inspector of Prisons for Scotland (August 2019) and the Auditor General for Scotland (September 2019) have highlighted some of the factors driving the prison population. For example, the Chief Inspector’s report said that recent increases could be attributed to:

a variety of reasons including longer sentences for the most serious of crimes, a rise in the number of people being convicted of sexual offences, and more serious and organised crime being successfully prosecuted. Other factors include the reduction of prisoners being released on HDC [home detention curfew], very few prisoners subject to an order for lifelong restriction achieving parole, and a legislative change that halted automatic early release for people serving long-term sentences.

A fuller analysis of imprisonment might involve a wide-ranging discussion of all the issues outlined above. However, this blog focuses on describing how the use of imprisonment has varied and the influence of the Scottish Parliament and Scottish Government.

Prison population

The current Scottish Government has repeatedly expressed a desire to reduce the prison population, with its Programme for Scotland 2019-20 (September 2019) stating that:

We are progressing action to tackle Scotland’s internationally high rate of imprisonment – the highest in Western Europe.

Concerns over the use of imprisonment are far from new and certainly not limited to Scotland. They have, however, been part of parliamentary debate since the early days of the Scottish Parliament. For example, in response to a question on reducing the number of women in custody (September 1999), the Deputy Minister for Justice in the Labour/Liberal Democrat coalition government said:

Sentencing decisions rest with the courts but we do support the aim of reducing prison numbers. That is why we have accepted in principle the recommendations contained in A Safer Way, the joint prisons and social work report which reviewed community disposals and the use of custody for women offenders in Scotland, and why an inter-agency forum, chaired by Professor Sheila McLean, was set up to consider the issues raised by the review.

As discussed later in this blog, the use of imprisonment for women has been one of the areas where concerns have been greatest.

In 2007, the first SNP government set up a Scottish Prisons Commission chaired by the former First Minister, Henry McLeish. In its report (July 2008), the Commission recommended that the Scottish Government:

pursue a target of reducing the prison population to an average daily population of 5,000, guiding and supporting the efforts of relevant statutory bodies in achieving it.

The following chart shows how the average prison population changed during the 20 years from 1999-00 to 2018-19. Figures include those held in both adult prisons and facilities for young offenders under 21 such as Polmont.

SPICe_Blog_20th anniversary_Prison population_Average Daily Prison Population

As well as plotting the total population, it breaks this down into sentenced and remand prisoners. A person may be held in custody on remand in various situations, including where the court has refused release on bail prior to trial.

The annual total figure rose from 5,975 in 1999-00 to a peak of 8,179 in 2011-12. It reduced somewhat over the next six years but rose again in 2018-19. Weekly figures for 2019-20 show an average prison population again exceeding 8,000 (generally more than 8,200 in the last couple of months). For more information on the latest population figures see the SPICe infographic, Scotland’s Prison Population to Sep 2019.

The use of imprisonment for specific groups is considered further below.

Sentenced prisoners

The average number of sentenced prisoners rose from 4,997 in 1999-00 to a peak of 6,588 in 2012-13. Despite a reduction since this peak, there was still a significant increase in numbers during the 20-year period up to 2018-19, when the average was 6,264 (up 25%).

Much of the debate on the use of prison sentences has focused on whether short sentences are being used in situations where a community sentence might be a better option (e.g. in terms of reducing the likelihood of further offending). In the Scottish Parliament’s first session, the Justice 1 Committee’s report (March 2003) on an inquiry into alternatives to custody said:

The Committee believes that short term prison sentences offer limited opportunities for rehabilitation. The Committee recommends that community disposals should be actively promoted and resourced as an alternative to short term prison sentences (where a longer-term sentence is clearly not appropriate).

The next chart sets out information on the number of people receiving custodial sentences of a year or less (figures for 2018-19 are not yet published).

SPICe_Blog_20th anniversary_Prison population_Custodial Sentences - up to one year

There has been a significant fall in the use of very short sentences (up to three months) since a peak of 8,825 in 2006-07.

Measures aimed at reducing the use of short prison sentences have included attempts to strengthen community alternatives (e.g. through community payback orders) and the creation of a statutory presumption against short sentences. Community payback orders have been available since 2011 following reforms made by the Criminal Justice and Licensing (Scotland) Act 2010. The 2010 Act also created a presumption against the courts imposing prison sentences of three months or less, providing that such a sentence should not be used “unless the court considers that no other method of dealing with the person is appropriate”.

The statutory presumption against short sentences came into force in February 2011. As the above chart shows, the use of sentences of up to three months had already fallen significantly by this point. In July of this year the presumption against short sentences was extended to those of 12 months or less. The Scottish Government has suggested that this could over time remove 200 to 300 from the average daily prison population.

The chart below shows the number of people receiving custodial sentences of more than one year.

SPICe_Blog_20th anniversary_Prison population_Custodial Sentences - over one year

The numbers of people receiving such sentences are significantly lower than those receiving sentences of up to one year. However, by spending longer in custody, each prisoner has a greater impact on the prison population. This is reflected in the proportion of the prison population made up of long-term prisoners – those serving a fixed term of four years of more. In evidence to the Justice Committee on 8 October 2019, the Scottish Prison Service said:

We have 3,200 long-term prisoners, but, going back four or five years, we had only 2,800 in custody.

So, despite the relatively small number of people receiving sentences of four years or more, they make up close to 40% of the total prison population and almost half of those serving a sentence (i.e. excluding remand prisoners). The Scottish Prison Service went on to predict that its future prison population “will be focused on long-term prisoners and sex offenders”.

It may be noted that the numbers of people receiving sentences of four years or more has fallen since 1999-00. However, in addition to the number of sentences imposed, the proportion of the sentence served in custody must be factored in. This is discussed later.

Remand prisoners

An accused person may, where release on bail is refused, be remanded in custody prior to trial. A convicted person may be held on remand prior to sentencing or pending an appeal.

The next chart shows how the average remand population changed during the 20 years to 2018-19. It rose from 976 in 1999-00 to a peak of 1,679 in 2008-09. In 2018-19, the average remand population was 1,525, up 56% from 1999-00.

SPICe_Blog_20th anniversary_Prison population_Average Daily Remand Population

Thus far, weekly figures for 2019-20 show a remand population generally ranging between 1,600 and 1,800.

On the use of remand, the alternatives to custody report of the Justice 1 Committee (March 2003) noted that:

The Committee believes that people should not be remanded in custody unless they represent a danger to the public or there are concerns that they will breach conditions of bail. It is not acceptable that people are remanded in custody simply because their chaotic lifestyles cast doubt on whether they will appear in court when required. Other facilities, such as residential bail support schemes, should be available for such people.

Similar issues were highlighted in the report of the Scottish Prisons Commission (July 2008):

Sometimes people are remanded in custody because that is the only safe thing to do, but often remands are the result of lack of information or lack of services in the community to support people on bail.

In June 2018, the current Justice Committee published its report on an inquiry into the use of remand. Again, there was a recognition that remand can be necessary, but also concern over the level of remand and the availability of services which can help people in complying with bail conditions.

In relation to the use of bail and remand, the Scottish Government’s Programme for Scotland 2019-20 (September 2019) stated that:

We recognise that remand can be as disruptive to employment, housing and family relationships as short-term prison sentences. We have issued updated guidance on bail supervision and made additional funding available.

In its evidence to the Justice Committee on 8 October 2019, the Scottish Government noted that it was commissioning research on bail and remand which would cover factors impacting on decision making.

Female prisoners

The following chart shows how the average number of female prisoners changed. The total figure rose from 210 in 1999-00 to a peak of 469 in 2011-12. In 2018-19 the total was 384, still 83% more than in 1999-00.

SPICe_Blog_20th anniversary_Prison population_Average Daily Prison Population, female

Although forming a relatively small proportion of the total prison population (5% in 2018-19), particular concerns have been highlighted in relation to the use of imprisonment for women. Reasons for this include:

  • analysis of the circumstances which are likely to form part of the history of women in prison and of the impact of imprisonment on female prisoners and family (e.g. children)
  • the scale of changes in the female prison population

Concerns over the use of imprisonment for women led, in 2011, to the Scottish Government setting up a Commission on Women Offenders:

To consider the evidence on how to improve outcomes for women in the criminal justice system; to make recommendations for practical measures in this parliament to reduce their re-offending and reverse the recent increase in the female prisoner population.

The Commission’s report (April 2012) set out recommendations on various issues, including alternatives to remand, sentencing and prisons. In June 2012, the Scottish Government published a response accepting most of the recommendations, including ones relating to:

  • the replacement of the female prison at Cornton Vale with a smaller specialist facility for long-term prisoners and those presenting a significant risk to the public
  • the holding of most female remand and short-term sentence prisoners in local prisons

The Scottish Prison Service’s plans for modernising the female prison estate involve a national prison for those of highest risk and/or need, together with five local community custody units for other prisoners. During the Justice Committee’s evidence session on 8 October 2019, the Scottish Prison Service indicated that it was aiming to have the new facilities, accommodating around 250 women, finished by the end of 2021. Although the Scottish Government’s aim is to have fewer women in custody, the Scottish Prison Service has said that it would still have space in other prisons if the female prison population is not reduced to 250 by this point.

Young offenders

The final chart shows how the average number of young offenders (under 21) in custody changed up to 2018-19. Unlike the other categories of prisoner considered above, a sustained reduction in numbers during the second half of the period meant that significantly fewer young offenders were held in custody in 2018-19. A 64% fall in the total figure compared to 1999-00.

SPICe_Blog_20th anniversary_Prison population_Average Daily Prison Population, under 21

The Scottish Government has referred to the impact of its whole-system approach to youth offending in achieving this reduction. This approach may include the use of:

  • interventions other than prosecution, with the aim of supporting young people in improving their behaviour (e.g. in relation to alcohol and drug misuse) and preventing offending
  • community alternatives to custody

Also during the Justice Committee’s evidence session on 8 October 2019, the Scottish Government noted that:

We have had great success with the youth offending population, with a reversal in its trajectory – that is the one reversal that we have had. We have fewer young people coming into custody – the numbers have fallen quite dramatically – so we have to consider how we take lessons from that preventative strand and apply those to the male and female adult population, although I suggest that we would apply them specifically to the adult male population.

Release from custody

In general, people given a custodial sentence spend part of it in the community (e.g. those serving sentences of less than four years are released automatically after serving one-half of the sentence). Changes to law or practice in this area can affect the proportion of a prison sentence actually spent in prison. And thus, prisoner numbers.

Recent changes tending to increase the time some spend in prison include:

  • the restriction of automatic early release for long-term prisoners (those serving a fixed term of four years of more)
  • a reduction in the number of prisoners being released on home detention curfew by the Scottish Prison Service

Long-term prisoners may be released, after serving at least half of the sentence, if the Parole Board for Scotland is satisfied that the risk presented by the prisoner can be managed in the community. If not released by the Parole Board, those serving sentences imposed before February 2016 were (and still are) automatically released after serving two-thirds.

The Prisoners (Control of Release) (Scotland) Act 2015 changed automatic early release for long-term prisoners. For sentences imposed from February 2016 onwards, automatic release at the two-thirds point was ended. Although there is still the possibility of automatic early release when a prisoner has six months of the sentence left to serve, the reforms clearly restricted early release. The full impact of this on prisoner numbers will take time to work through the system – as those serving relevant sentences reach the two-thirds point. The report from the Auditor General for Scotland (September 2019) noted that it had:

Only had a small impact to date, but analysis suggests that it could contribute to a rise of around 370 in the prison population over the next decade.

Under home detention curfew (HDC), an offender may serve part of a custodial sentence in the community, subject to licence conditions and electronic monitoring. This can be for up to a quarter of the sentence – subject to a maximum of six months. It is in addition to other early release provisions (e.g. it covers a period prior to the automatic early release of a short-term prisoner at the half-way point of the sentence).

Concerns about the use and enforcement of HDC arose in light of the conviction of James Wright, in May 2018, for murder. Prior to the offence, he had been released from prison on HDC. He breached this and was unlawfully at large at the time of the murder. In response to these concerns, the Scottish Prison Service altered its approach to HDC – leading to a substantial fall in its use. In May 2018, around 300 prisoners were on HDC at any one time. By May 2019, this had fallen to around 50. The latest available figures (for 24 October 2019) show 37 people on HDC.

The Scottish Government and Scottish Prison Service have highlighted the development of new procedures and laws to strengthen HDC. They have also made clear a desire to see at least some return to greater use of HDC, although not necessarily as high as previous levels.

Some concluding thoughts

Despite concerns about the rate of imprisonment and measures seeking to reduce its use (where other options may be appropriate) the number of people held in prison has risen over the twenty-year period. The use of custody for young offenders is a notable exception.

Most of the increase occurred during the first ten or so years. Following this, it appeared that numbers had plateaued and that we might start to see a downward trend. However, it is only in relation to young offenders that we have seen a substantial and sustained reduction. Recent figures show total prisoner numbers once again on the rise. Time will tell whether this represents a return to a sustained upward trend, or whether it is the product of some specific events (e.g. the fall in the use of HDC). If so, this might become less significant and be off-set by other changes (e.g. the extended presumption against short sentences).

Much of the debate on the possibility of reducing prisoner numbers has centred on the use of shorter periods of custody (both remand and sentenced) for those who may present significant problems but are not dangerous. Focusing on those people who continue to commit relatively minor offences despite previous convictions or fail to comply with court orders. Including people who may themselves be vulnerable. It seems likely that this will continue to be a key area in the years to come. However, there have been changes in the make-up of the prison population in Scotland. If, as predicted by the Scottish Prison Service, the future prison population is “focussed on long-term prisoners and sex offenders”, the focus of the debate might also change.

Sources of statistics

Prison population statistics are taken from the Scottish Prison Service website (see SPS Prison Population), with additional figures provided by Scottish Prison Service officials.

Sentencing statistics are taken from Scottish Government publications on criminal proceedings, with additional figures provided by Scottish Government officials.

Frazer McCallum, SPICe Criminal Justice Researcher