Coronavirus (Covid-19): prisoner numbers

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This blog looks at the impact on prisoner numbers of measures taken in response to the coronavirus.

Before the coronavirus

In 1999-00, the average prison population was just under 6,000. In 2018-19 it was 30% higher (at almost 7,800).

Scottish Prison Service population figures show prisoner numbers exceeding 8,000 for nearly all of 2019-20, and often more than 8,200.

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 about high levels of imprisonment have been part of parliamentary debate since the early days of the Scottish Parliament. However, despite measures seeking to reduce the use of imprisonment, achieving a significant reduction in prisoner numbers proved elusive. A large fall in the number of young offenders held in custody being a notable exception.

The SPICe blog Twenty Years of Imprisonment (November 2019) considers the use of imprisonment in Scotland, since devolution, in more detail.

Concerns about coronavirus in prisons

The 2018-19 annual report of HM Chief Inspector of Prisons for Scotland (published in August 2019) noted that:

The overcrowding across the prison estate, combined with staff absences, continues to have a detrimental impact.

The comment refers to normal times. The coronavirus has brought additional challenges – both in terms of dealing with staff absences and trying to prevent the spread of the coronavirus within prisons.

Part of the response has involved suspending family visits and restricting activities within prisons. Detailed information is available on the Scottish Prison Service website – COVID-19 Announcement. Such measures create their own difficulties in terms of managing the expectations of prisoners, maintaining their physical and mental health, and protecting family ties.

It has also involved consideration of additional powers to release prisoners before the end of their sentences – thereby reducing the prison population. Those powers, now set out in the Release of Prisoners (Coronavirus) (Scotland) Regulations 2020, are considered below under the heading of ‘Early release of prisoners’.

Recent reduction in prisoner numbers

As noted above, Scottish Prison Service figures indicate that the prison population exceeded 8,000 for nearly all of 2019-20.

Although numbers had fallen-back somewhat by March 2020, it was not until the end of that month that figures show the population dropping below the 8,000 mark (7,754 on 27 March). Prisoner number continued to fall during April and by 1 May had dropped to 7,128.

However, it’s important to note that the reduction between late March and the start of May 2020 occurred before the use of additional powers to release prisoners early. Other measures in response to the coronavirus, not directed at prisons, led to this reduction in prisoner numbers. These include the suspension of much criminal court business.

Since mid-March, a series of steps have been taken to support the operation of the courts whilst reducing the risk of spreading the coronavirus. They have, for example, included significant restrictions on trials taking place. More information on trials is provided in the SPICe blog Coronavirus (Covid-19): trial by jury (May 2020).

With less criminal court business able to proceed, fewer people are sent to prison. In a letter to the Scottish Parliament’s Justice Committee (17 April), the Scottish Prison Service (SPS) noted that:

The decision to close courts and to instead operate a smaller number of courts as hubs has meant that the number of people received into SPS care is at an unprecedentedly low level.

Of course, the level of criminal court business will start to move towards more normal levels once the easing of restrictions allow. Indeed, it will be necessary at some point to deal with more cases than normal to reduce the backlog currently building-up. When this happens, prisons will need to be able to deal with increasing numbers.

There is also evidence that the current lockdown restrictions are suppressing some types of offending (e.g. Recorded crime down during Scotland’s coronavirus response, Police Scotland 26 April). However, in relation to crimes such as domestic abuse, there are concerns about people being more vulnerable (e.g. Domestic abuse: disclosure requests increase by nearly a fifth, Police Scotland 29 April).

Early release of prisoners

The rules on early release from a custodial sentence differ depending upon whether the person is a:

  • short-term prisoner (sentence of less than four years)
  • long-term prisoner (sentence of four or more years but not life)
  • life sentence prisoner

For example, short-term prisoners are released automatically after serving one-half of the sentence. More information is set out in a SPICe briefing on the prison service (February 2017).

In addition, prisoners may be released earlier on what it known as Home Detention Curfew. During this period the prisoner wears an electronic tag and is subject to conditions, including a curfew.

The Coronavirus (Scotland) Act 2020 includes provisions allowing the Scottish Government to bring forward regulations with additional powers to release prisoners before the end of a sentence. Relevant regulations were made, and came into force, on 4 May – the Release of Prisoners (Coronavirus) (Scotland) Regulations 2020.

Under the powers in the Regulations, the Scottish Prison Service can release some short-term prisoners before they would have qualified for automatic release at the half-way point of the sentence. Release is not subject to the restrictions which apply where released on Home Detention Curfew.

The scheme set out in the Regulations is limited to prisoners sentenced to 18 months or less and who, on 4 May, had 90 days or less left to serve in custody. Further restrictions on who can be released under the scheme include the exclusion of prisoners serving sentences relating to domestic abuse. In addition, prison governors can veto the release of any prisoner where concerned for the safety of an identified individual in the community.

Commenting on the regulations, a Scottish Government news release (4 May) noted that:

With the regulations in place, prison governors can take further steps, including liaison with local authorities and third sector community justice partners, to prepare for appropriate individuals to be released gradually over the next 28 days.

Up to 450 prisoners will be considered for early release. Reductions in Scotland’s relatively high prison population will increase the availability of single-cell occupancy, in turn helping to contain the virus and making prisons safer for inmates, prison officers and NHS staff.

Although the planned release of prisoners should have a significant short-term impact on prisoner numbers, that impact will quickly start to diminish given that the scheme only applies to those who would have been released anyway by early August.

Frazer McCallum, Criminal Justice Researcher