Firefighters’ Pension Scheme (Amendment) (Scotland) Regulations 2025 (SSI 2025/149)
A very good morning, and welcome to the 19th meeting in 2025 of the Criminal Justice Committee. We have received apologies from Fulton MacGregor; Michael Matheson joins us in his place.
Our first agenda item is consideration of a Scottish statutory instrument that is subject to the negative procedure—SSI 2025/149. I refer members to paper 1, which sets out the purpose of the instrument. Do members wish to make any recommendations on the instrument?
As members have no recommendations to make, are we content for the instrument to come into force?
Members indicated agreement.
We will have a brief suspension to allow the cabinet secretary and her officials to join us.
09:00 Meeting suspended.Home Detention Curfew (Amendment of Specified Time Periods) (Scotland) Order 2025 [Draft]
Our next agenda item is an oral evidence-taking session on the draft Home Detention Curfew (Amendment of Specified Time Periods) (Scotland) Order 2025, which is an affirmative instrument. I welcome to the meeting the Cabinet Secretary for Justice and Home Affairs, who is joined by Scottish Government officials Ruth Swanson, solicitor, and Kevin Fulton, community justice division. I refer members to paper 2. I intend to allow up to 20 minutes for this evidence session.
I invite the cabinet secretary to make some opening remarks on the SSI.
Good morning. I thank the Parliament clerks, the Delegated Powers and Law Reform Committee and the Criminal Justice Committee for agreeing to accommodate the scrutiny of the SSI within the minimum SSI laying period of 40 days.
I hope that the committee and the wider Parliament will support the proposals, which will allow us to complete the SSI process before Parliament rises for the summer recess. That will provide the Scottish Prison Service and justice social work staff with as much time as possible to make preparations before the proposed changes come into force on 20 October.
As members will be aware, the changes that are set out in the SSI relate to a commitment that was made in the programme for government for 2024-25. They are part of our on-going efforts to achieve an effective balance between the use of custody and the use of community alternatives, and they will support our efforts to achieve a sustainable population across our prisons.
Home detention curfew is a long-standing part of the prison system that is consistently deployed as a method of easing the transition from prison sentence back to the community. Home detention curfew provides a structured way to manage that transition, placing the individual under clear licence conditions and a nightly curfew, while allowing them to readjust to life in the community and engage with any support that they need.
The foundation of home detention curfew is the individualised risk assessment that is conducted by the Scottish Prison Service, with evidence provided by community-based justice social work staff before any individual is permitted release on home detention curfew. I assure members that the proposals in the SSI will not alter any of the risk assessment aspects of the HDC process.
The SSI proposes to allow home detention curfew to be granted from an earlier point in a prisoner’s custodial sentence, from the current point of 25 per cent of their sentence served in custody to 15 per cent. That change will help to realign the home detention curfew process with the new automatic release point for eligible short-sentence prisoners at 40 per cent. It will enable individuals to spend a similar proportion of their sentence on HDC to what they would previously have done. The SSI includes a further proposed change to increase the maximum permitted period that an individual can be granted home detention curfew, from 180 days to 210 days. That change will affect only a minority of prisoners, whose sentence length and other circumstances make it possible for them to be granted a longer period of HDC.
All eligible individuals will continue to have to pass the risk assessment and community assessment process before they are granted home detention curfew. HDC will continue to be based around the same risk assessment of each eligible individual. It is therefore not expected that those changes in time criteria will produce a significant increase in the number of individuals being granted HDC. Instead, it will facilitate suitable individuals to be granted more time on HDC than they currently can be, following the change in the automatic release point. That is likely to result in more individuals being in home detention curfew at any one time. However, the number of prisoners who will access home detention curfew in the future will continue to be shaped by the number of eligible individuals in the prison population at any one time and by how many of them pass the risk and community assessments.
Overall, the proposed changes are relatively straightforward. They are intended to enable individuals who are eligible and have been assessed as suitable to be granted more of the days on home detention curfew that they are eligible for. On that basis, I encourage members to indicate their support for the SSI. As always, I am happy to answer members’ questions.
Before I open up to members for questions, I will kick things off. As you stressed, cabinet secretary, the SSI seeks to alter the timescales around eligibility for HDC. Can I confirm that that does not mean that eligible people will necessarily be in the process for HDC, and that nothing in that regard will change by virtue of the timescales being altered?
As members will be aware from the policy memorandum, there are clear statutory exclusions. Members will be familiar with what they are. That means that there is a cohort of people who are not considered for HDC. There are also other statutory criteria, all of which have to be met. Sentences must be three months or more. People must have served at least a proportion of their sentence—that is one of the things that we are proposing to change. People can be on HDC only for a minimum of 14 days and for a maximum period. The criteria around sentence length, eligibility, proportion of sentence served, and minimum and maximum period all have to be met.
The reality is that if, for example, someone was sentenced to one year, the change to the automatic early release point for some short-term prisoners will mean that they are released after 144 days, rather than after 180 days, which would have been the case before the changes. Due to the changes in relation to the short-term population, the potential time spent in HDC has reduced from 90 days to 54 days.
We want to realign the HDC process with the short-term prisoner 40 per cent programme. It does not mean that every prisoner who is eligible for home detention curfew will be eligible for the maximum time, because it depends on the length of their sentence, how long they have spent on remand, how long the assessment process takes, and how long it takes to gather information, particularly from the community. Of course, people must pass the assessments as well.
Thank you. It was quite helpful to hear the example, which perhaps helps members to work out the changes in their heads.
What does the data show will be the impact of the reduction on rehabilitation? Arguably, if there is less time in prison, there is less time for prison rehabilitation to work and to prepare people for the outside. One would hope that the data is robust, but I ask the question because it could look like just another way to empty the prisons, with criminals serving ever-shorter sentences, at 15 per cent.
It is certainly not a way to empty our prisons—that is for sure.
I will give an example. At any given time, there are around 3,000 short-term prisoners. Yesterday, there were 106 people on home detention curfew. I hope that that gives a sense of proportionality. There is absolutely no automatic right, even when we change two of the criteria. It is all subject to risk assessment. It is also important to say that home detention curfew has a high rate of successful completions.
On rehabilitation, it is important to point out that our prisons are for rehabilitation as well as punishment, so what happens in relation to the rehabilitative process in prison is important. However, for some prisoners, home detention curfew shifts the balance between time spent in custody and time spent sentenced in the community, and we must bear in mind that they are tagged, electronically monitored, on a licence and on a nightly curfew.
Home detention curfew is a restrictive way to ensure that people can spend part of their sentence in the community. It also enables people to engage with support that they require in the community. It is a managed process of reintegration, and the evidence shows us the value of community-based approaches in comparison with time in custody. I stress that the rate of successful completion of home detention curfew is very high.
I am grateful for the answer. I say that with great respect, because I enjoy our exchanges, cabinet secretary, but I am not sure that it answered my question, which was about the data and the research that has been done on the impact that the reduction will have on rehabilitation in prison. If you have that data, perhaps you could outline it in your response to my next question.
In your opening remarks, you said that there would be no change to the risk assessments. However, if people are in and out of prison sooner, it would, logically, be more difficult to risk assess them and to address any issues that they are bringing with them from the outside. You say that there will be no change to those assessments, but has there been any investigation as to whether there might be a need for such a change, or has it just been assumed that there is not?
09:15
On your first point, the successful completion rate for home detention curfew, from the latest figures available, is 93 per cent, which means that there is a 7 per cent recall rate.
On your point about how rehabilitative opportunities can be supported if people are in custody for a very short time, the reality is that, although someone currently becomes eligible at the 25 per cent point in their sentence—that is one of the eligibility criteria; we are advocating that we change that—that does not mean that they will be released at that point, because they cannot be released until the risk assessment process is complete.
That process is significant—it would start with screening for eligibility. It is important to say that application is voluntary; prisoners cannot be made to go out on home detention curfew, and not every prisoner wants to be released on that scheme, which speaks to the restrictive nature of it—it is a licence tag curfew.
Once an application for home detention curfew has been submitted, the prisoner has to undergo a full risk assessment. I can talk you through that if need be—there are practice standards for that. If the assessment is positive, the prison will contact justice social work, which will look at suitability of address and speak to other individuals at the address. Information from social work and police is important.
To get to the nub of your question, a person cannot be released if they are not eligible and have not passed the risk assessment process.
Has any research and investigation been done, prior to the laying of the instrument, into the impact of reducing the threshold for time served to 15 per cent on victims and/or on the general public’s respect for and perception of sentencing in Scotland, given that a criminal can be sentenced to prison but may serve only 15 per cent of their sentence inside?
With regard to research, home detention curfew has been with us for a long time—for decades now—and it is rooted in the Prisoners and Criminal Proceedings (Scotland) Act 1993. As a concept for the justice agencies to work with and assess, therefore, it is well established. It runs in parallel with the victim notification scheme, in which I know the committee has taken a great interest; there are improvements to that scheme in the Victims, Witnesses, and Justice Reform (Scotland) Bill.
On whether there has been any research on the specific change, the answer is no, but the change is being made to align ourselves with the position that we took before changes were made to the short-term prisoner automatic release scheme. Before the Prisoners (Early Release) (Scotland) Bill was passed by the Parliament at the end of last year, on any given day, we had around 150 people on home detention curfew. Because of those changes, and particularly the changes to the transition period, in which people were released in three tranches, the numbers reduced to between 70 and 80, but they have slowly increased since then.
Essentially, the order is a realignment to optimise HDC so that it is at the level that it was prior to the changes to the point of automatic early release for some short-term prisoners.
Finally, you said that there would be more people out on HDC—although not significantly more, to be fair. Logically, your 7 per cent failure rate will increase if more people are subject to the regime. Ultimately, it is for the SPS to consider breaches and whether or not to recall people. What research has been done on the SPS’s freedom to make a decision, given the context, which is that our prisons are full? Does that stay the SPS’s hand when deciding whether to recall people from HDC?
If someone is recalled from HDC, that would have to be proportionate in relation to the breach of licence. The decision would be framed by whether someone has breached their licence and the circumstances around that. Although optimising the use of home detention curfew assists with the management of a very large prison population, it is also a reintegration tool. It is certainly not a silver bullet for our large prison population. I reassure Mr Kerr that the operational decisions that the SPS makes are based on an assessment of risk, its partnership work with communities and the information that it has about whether someone has breached their licence or not. Those are the things that determine when a decision has to be made about whether someone is recalled. If it is helpful, I could ask the Prison Service to provide more information to the committee on that point.
I would be grateful if you could do that.
The next item of business is consideration of a motion to approve the draft affirmative SSI on which we have just taken oral evidence.
Motion moved,
That the Criminal Justice Committee recommends that the Home Detention Curfew (Amendment of Specified Time Periods) (Scotland) Order 2025 [draft] be approved.—[Angela Constance]
The question is, that motion S6M-17635 be approved. Are we agreed?
Members: No.
There will be a division.
For
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Clark, Katy (West Scotland) (Lab)
Against
Kerr, Liam (North East Scotland) (Con)
Sharon Dowey (South Scotland) (Con)
The result of the division is: For 6, Against 2, Abstentions 0.
Motion agreed to.
Are members content to delegate responsibility to me and the clerks to approve a short factual report to the Parliament on the affirmative instrument?
Members indicated agreement.
The report will be published shortly.
I suspend the meeting briefly to allow for a change of officials before we begin our next agenda item.
09:24 Meeting suspended.Previous
Attendance