THE Justice Secretary Keith Brown has blamed the number of historic sex offenders in custody as one of the reasons why Scotland's prison population has not fallen 14 years after a landmark report called for the high incarceration rate to be cut.

Ministers were told 14 years ago that they should decrease the number of inmates from 8000 to 5000 amid concerns more people were being jailed per head of population by Scottish courts than other parts of western Europe.

However, despite the recommendation made in the report in 2008 by the Scottish Prison Commission, chaired by former First Minister Henry McLeish, the prison population increased further.

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Official statistics show the average daily population increased almost 10 per cent between 2017/18 and 2019/20, from 7,464 to 8,195.

Ahead of the pandemic in February 2020 it was 8027, while it currently stands at 7533 - of whom 7260 are men - after some prisoners were released during the Covid crisis.


Last week Mr Brown (pictured above), who was appointed Justice Secretary following last May's Holyrood election, unveiled a new 'vision' to reform the country's justice system with a central plank focussed on tackling the high prison population.

However, critics are sceptical Mr Brown will achieve his ambition.

In an interview with the Herald, the Justice Secretary was asked why the government had not implemented the 2008 recommendation.

"I read the Henry McLeish report which is a very good report and well worth re-reading. It was one of the first things I did when I got the job," said Mr Brown.

"But one big change in the prison population is the number of sex offenders. Historic child abuse, historic sexual crimes. So you have a lot more middle aged and older men who didn't feature [then]. You will see very little in Henry McLeish's report because that wasn't such an issue at the time."

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The Herald then asked if people who committed less serious sex offenders should be in prison given their impact on the prison population.

Mr Brown said: "I would tend to trust the courts that they put people in prison who need to be there as they are a danger to society. True to say we shouldn't just lock people up and throw away the key, that's never going to be the right approach, there is work that can be done with people in prison."

He was pressed on whether the issue of historical sex offenders would continue to be a challenge in attempts to reduce the prison population.

Mr Brown said: "I lot of the crimes were historic crimes. We saw a bulge coming through which is not to say it is not still a problem. The vision that we set out yesterday has at its heart the idea that prison is there mainly for public protection and that's what the courts will do and sexual offending is a danger to society and people have to be protected from that."

In 2011 a presumption against prison sentences of less than three months was brought in by the Scottish Government in the hope of dissuading judges from handing out short sentences and in a bid to reduce the prison population and promoting community-based alternatives. The policy was extended to sentences of up to 12 months in 2019.

One consequence of the policy was that the average sentence for a prisoner was now longer.

Pressed about others reasons why the prison population had not fallen, Mr Brown said historic sex offences was "one of the factors", adding: "And also although we brought in the presumption against short sentences, people in prison are in prison for longer sentences."

Mr Brown declined to say what the target prison population should be in the course of the next decade adding that the government was conscious of being an "outlier"  ompared to other western countries. He said prisons were more effective in terms of their rehabilitation work if there were fewer prisoners.


Cyrenians supervisor Laura Mulcahey with Justice Secretary Keith Brown during a visit to the walled garden at Dollar Park in Falkirk last year where ex-offenders have helped restore the park as Community Payback orders. Photo: Gordon Terris Herald & Times.

"I won't give a number for it. But what I would say is that we are the outlier," he said.

"We are the ones who have more [prisoners] than anyone else and I don't want to be in that position.

"During the pandemic prison officers - because of a release of a number of prisoners - found the job they were doing was much more the job they anticipated when they joined the service. Much rounded, more emphasis on rehabilitation."

The Cabinet Secretary also admitted another part of the problem was insufficient alternatives to custody for judges to consider when sentencing a convicted person and that this was a measure his government wanted to address.

"What we are also trying to say in relation to people who are in prison - I'm not talking about sex offenders necessarily - is to increase provision for community sentencing so that [those who] don't represent a danger to society [have] opportunities for community sentencing," he said.

"A large part of the vision is given over to that and that requires us to make sure we have across the country - and I admit we don't have sufficient usage just now - a sufficiently consistent and standardised set of disposals for courts across the country.


Labour MSP Pauline McNeill argues provision for community sentences has been underfunded.

"So if a court knows if it gives a person a community sentence, it will be carried out and that will have the effect of course or reducing the number of people in prison...It is our ambition to increase the number of people on community pay back orders."

Brown added such orders can be effective in rehabilitating prisoners and stimulating interests in activities such as gardening.

The Herald also asked whether more guidance could be given to judges on sentencing.

Mr Brown noted the work of the independent body, the Scottish Sentencing Council, which recently said that if a convicted person was 25 or under, the court should be obliged to consider the person's age and consider whether a community sentence would be more appropriate than custody.

The latest Scottish Prison Population Statistics, published for 2019-20, found a substantial increase in the average daily population of those serving sentences for sexual offences (rising from 8% of the average daily sentenced population in 2009-10 to 16% in 2019-20).

It found while there was an increases across all the sexual offence categories, the most marked increase was in the population serving sentences for rape and attempted rape, trebling from 213 in 2009-10 to 640 in 2019-20. 

A downward trend was observed for the average daily population serving sentences for other offences including a 36% reduction serving sentences for drugs offences.

Official figures from 2018/2019 found that Scotland had a prison population rate of 143 per 100, 000 population, compared to 140 for England and Wales, 37 for Iceland, 51 for Finland, 78 for Ireland and 76 for Northern Ireland.

Responding to Mr Brown's comment the Scottish Conservatives accused the government of adopting a "soft-touch justice" approach, while Labour and the Lib Dems said alternatives to prison had been underfunded. 

Scottish Conservative Shadow Justice Secretary Jamie Greene said: “The SNP’s latest Justice Secretary is hellbent on continuing the soft-touch justice attitude of his predecessors.

“Their latest consultation would see prisoners released after serving just a third of their sentence. All too often on the SNP’s watch our justice system is stacked in favour of criminals rather than victims.

Rather than talking up the prospect of reducing our prison population, the SNP Justice Secretary should be backing our calls to end automatic early release.

“That would ensure dangerous criminals serve the sentences they received and victims see justice done.”

Scottish Labour's Pauline McNeill said: “It is clear that 14 years on from vowing to cut the prison population this SNP government has entirely failed to turn their rhetoric into a reality. This failure did not occur overnight – it is the result of years of SNP inaction and underfunding.”

The Lib Dems's Liam McArthur said: "The arrival of a new Justice Secretary should have been the moment to break away from the failures of past regimes and do better....Scottish prisons are grim, Victorian institutions. We know there is record overcrowding and spiralling rates of self-harm. Proper investment in bail supervision orders and electronic tagging could mean that remand is only used where it is necessary to safeguard communities and public safety."

A Scottish Government spokesperson said “A wide range of factors impact on the number of people held in custody including levels of detected crime, the nature of offending behaviour and the sentencing decisions of the independent courts.

“As such, the Scottish Government welcomed the findings of the McLeish Commission report overall, but did not agree that setting a target for the prison population was appropriate given the wide range of factors that would influence achieving such a target.

“We remain clear prison is needed for those who pose a risk of serious harm. However, the reality is it often disrupts families and communities, adversely affecting health, employment opportunities and housing which we know can lead to re-offending. That is why we are focused on reducing the use of imprisonment, in particular short-term imprisonment which we know is ineffective at reducing reoffending.

“To further shift the balance towards a greater of use of community-based disposals, we need to ensure the relevant services are available, consistent, and of high quality and in order to achieve that goal we provided an additional £11.8 million to support community justice services in recovering from the pandemic in 2021-22.

“We plan to increase that investment to £15 million for a further year, in addition to around £119 million of continuing funding for community justice.”