Prisoners posing 'an immediate risk' may be freed

Some 648 short term prisoners met the criterion in terms of time served and type of sentence.

But prison governors stepped in to block the release of 171 prisoners of the total under a safeguard that was introduced which allowed them to stop anyone being freed who they regarded as presenting "an immediate risk".

This safeguard is not included in the new bill.

Scottish ministers launched the temporary emergency early release scheme over the summer to ease overcrowding and to support the safe operations of prisons, and protect the health, safety and welfare of prisoners and prison staff.

Justice secretary Angela Constance is now in the process of getting legislation fast tracked through Holyrood to release more prisoners on an ongoing basis as the prison population rises again.

Under the Prisoners (Early Release) (Scotland) Bill the point at which prisoners are eligible for early release will be cut from serving half of their sentence (50%) to two-fifths (40%).

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The government say the move would allow up to 390 prisoners to be freed in the new year and reduce the prison population by 5% over the longer term. 

As with the early release scheme in the summer, the bill states that prisoners must not have been convicted of domestic violence or sexual offences and are only eligible if serving a sentence of up to four years.

However, unlike the emergency scheme in June and July, the bill does not include the "governor's veto" allowing prison governors to step in and stop the release of an inmate if they considered that “the person would, if released, pose an immediate risk of harm to an identified person, or to an identified group of people", according to Scottish Government guidance for governors on the use of the veto published in June.

That guidance suggested an "identified group" could be people the prisoner knows such as family, friends and colleagues or people they didn't eg, people supporting a sports team; those belonging to specific racial, ethnic or religious groups; people with other protected characteristics (gender, sexual orientation, age, disability) or members of specific gender.

Justice Secretary Angela Constance (Image: PA) It also stated that "the application of a governor’s veto is also important to support the protection of a number of rights under the European Convention on Human Rights. Articles 2, 3 and 8 together protect individuals’ right to life and their physical integrity." 

It added: "The use of the governor’s veto helps to ensure that where the GIC (governor in charge) is aware that a prisoner eligible for the emergency release presents an immediate risk of such harm to an identified individual or group of individuals (including the prisoner themselves), that those rights can be protected."

The guidance was used extensively during the summer and reduced the number of prisoners who were due to be let out by 25%. 

Concerns over the scheme arose after the Scottish Prison Service revealed last month that 57 of those freed in June and July had returned to custody by September 18, equating to 12% of all those released.

The Prisoners (Early Release) (Scotland) Bill bill passed its first parliamentary stage last Thursday and is due to debated and voted on at its second and third stage on Tuesday. 

Ministers say existing legislation to allow the early release of short term prisoners does not include a governor's veto and the emergency scheme in the summer included one because of arrangements "discretionary nature".

A submission to the criminal justice committee by the Prison Governors Association Scotland this month did not seek the inclusion of a governor's veto in the bill.

"The context of the Early Release Bill is a decisive action to reduce remission to 40% for Short Term Prisoners, (with clear caveats) and is a change to sentencing rules, policy and guidance.

"We are clear on that basis, that a person should be liberated on their Earliest date of Liberation (EDL) as per liberation processes and that a governor’s veto should not be part of any such sentencing change," the organisation told MSPs.

But Kate Wallace, chief executive of Victim Support Scotland (VSS), said the absence of the veto from the bill will "inevitably result in the creation of more victims".

Victim Support Scotland chief executive Kate Wallace (Image: Julie Broadfoot)

"The governor’s veto is a crucial safeguarding element, and it is extremely concerning that the Prison Early Release (Scotland) Bill will not contain this vital aspect of risk assessment," she said.

"VSS lobbied strongly for the veto to be included...in this summer's Emergency Early Release scheme. Prison governors' knowledge of the prisoners in their estate rightly prevented the early release of 171 prisoners - there will be no such safeguard in this new bill.

"The lack of inclusion of a governor’s veto will endanger victims and the wider public by providing the opportunity for those who had been previously vetoed, and other dangerous prisoners, to be automatically released.

"It will put people at risk and inevitably result in the creation of more victims, as it did earlier this year when 12% of prisoners released early reoffended within three months.

“Inclusion of a governor’s veto is a vital safeguard that will help victims and the wider public feel safe. As the prisoner in their case is now potentially being released at an even earlier point in their sentence, at 40% instead of 50%, it is crucial way of providing victims with confidence in a criminal justice system that has their safety at its heart.”

Ms Wallace wants to see the legislation amended to include the governor's veto and also to provide other assurances for victims of crime.

Ministers have defended the use of early release of prisoners arguing it is needed as the prison population continues to rise and put the system under strain.

Ms Constance said on Tuesday: “The prison population has continued to rise and is projected to reach critical levels again.

“Long-term action is necessary to deliver a sustained reduction to the prison population and support the effective functioning of prisons."

A report published by the Scottish Government last month showed the overall prison population in Scotland was 8,247 as of September 20, 2024, while modelling indicated that the population will be between 7,750 and 9,250 in January 2025. 

Responding to VSS's concerns, Ms Constance said:  “I am acutely aware that victims and their families will have concerns at the proposed changes and I will continue to work with victim support organisations throughout the process.

“We are not changing the process of release for short-term prisoners, we are changing the point at which they are released. There is no veto involved in standard release arrangements now, so we will not be introducing one. Such a veto was in place during the emergency release arrangements because of their discretionary nature.”