Scotland's "Soft Touch" Justice Under Fire Amidst Prison Overcrowding Crisis
Critics accuse the Scottish government of prioritizing prison capacity over public safety as prosecutors are directed to consider leniency.
Scottish prosecutors have been instructed to consider imposing lenient penalties, including warnings and fines, as a temporary measure to alleviate severe overcrowding in the nation's prisons. This directive comes as the prison population in Scotland reached record levels, prompting criticism that the government is adopting a "soft touch" approach to justice.
In March, Scotland's prisons held 8,452 inmates, a number that has strained the system to its limits. The annual report from Deborah O’Brien Demick, His Majesty’s Inspector of Prosecution in Scotland, indicated that prosecutors have been advised to view the current prison population pressure as a relevant public interest factor in their decision-making. This guidance encourages the use of "direct measures" – alternatives to prosecution such as fiscal fines, restorative justice, and diversion programs linked to mental health or social work support.
Stephen Kerr, justice spokesman for the Scottish Conservatives, accused the Scottish National Party (SNP) government of a "surrender to criminals." He argued that criminals should not receive leniency simply because the government has failed to manage prison capacity. "Instead of watering down punishment, the SNP should expand capacity and back our plans to send prisoners abroad, so criminals serve the sentences handed to them in full," Kerr stated, emphasizing that victims deserve justice.
The Sentencing and Penal Policy Commission, established by the SNP government, has also supported "proportionate measures" that have shown "strong evidence of effectiveness." Another recommendation suggests empowering police to issue fixed penalties for offenses like threatening behavior, which could further divert individuals from the court system.
Separate figures from the Crown Office revealed that direct measures were used in over 550 cases involving alleged domestic abusers in the year leading up to 2024, an increase of more than 18 percent from the previous year. These "soft-touch" measures can result in fines as low as £50.
Former Lord Advocate Dorothy Bain KC acknowledged the issue, stating that overcrowded prisons do not serve public safety. "Prisons are full beyond their capacity, which will not deliver justice or public safety," she noted. The Scottish Prison Service's annual report highlighted unprecedented challenges from overcrowding, with the average daily prison population reaching a record 8,278 inmates in 2025-26, and peaking at 8,603 inmates this year, far exceeding the estate's designed capacity of 7,805.
In May 2024, Scotland's top judge, Lord Carloway, urged sheriffs to consider alternatives to short prison sentences to mitigate the overcrowding crisis. David Threadgold, chairman of the Scottish Police Federation, expressed concern that justice policy is increasingly dictated by logistical constraints rather than public safety, questioning the effectiveness of fines for individuals who cannot afford them.
A spokesman for the Crown Office and Procurator Fiscal Service maintained that direct measures have long been an established option and that guidance issued in response to prison population pressures did not alter the requirement for independent prosecutorial decisions based on the facts and circumstances of each case. The Scottish Government was approached for comment.