Scottish prosecutors urged to weigh prison overcrowding when charging suspects
Scottish prosecutors have been told to consider prison overcrowding when deciding whether to charge suspects, with warnings, fines and other direct measures presented as ways to ease pressure on jails. The guidance has drawn criticism from the Scottish Conservatives, who say it could mean offenders avoid appropriate punishment and victims are denied justice.
An inspector’s report said 8,452 people were in Scottish prisons in March and described the population pressure as an ongoing issue. Crown Office figures show direct measures for suspected domestic abusers rose from 469 cases in 2022–23 to 555 in 2023–24, an increase of more than 18 per cent; fiscal fines can be as low as £50. The Scottish Prison Service reported an average daily population of 8,278 in 2025–26, while ministers said numbers peaked at 8,603 this year.
- Prosecutors are asked to consider prison pressure when deciding whether to charge.
- Direct measures for suspected domestic abusers rose by more than 18 per cent.
- Conservatives say overcrowding should not determine whether offenders face prosecution.
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Scotland's prisons are heavily overcrowded, with the prison population peaking at over 8,600 inmates this year. In response, prosecutors have been instructed to consider prison capacity when deciding whether to bring charges against suspects.
Instead of pursuing prosecution, prosecutors can use alternatives such as warnings, fines or other direct measures. These approaches prevent cases from proceeding to court and reduce the number of people sent to prison.
The policy has drawn criticism from the Scottish Conservatives, who argue that offenders may escape appropriate punishment and victims could be denied justice. Supporters say these measures help ease pressure on Scotland's overburdened prison system.
Both sides, in good faith
The strongest fair case each way — we don't pick a winner.
The case for
Prosecutors operate within a constrained system, and prison overcrowding is a documented problem affecting the entire justice system's functionality. Diversion measures like warnings and fines can hold individuals accountable whilst freeing limited resources for more serious crimes, and evidence suggests such approaches can reduce reoffending. This represents pragmatic resource management that allows prosecutors to ensure appropriate consequences across their entire caseload more effectively.
The case against
Charging decisions must be grounded solely in evidence and the public interest, not in prison capacity, which represents a separate policy problem entirely. Allowing overcrowding to influence prosecutions undermines victim confidence in justice and risks under-punishing or failing to prosecute serious offenders. Prison populations should be managed through appropriate sentencing reform, rehabilitation investment, and other systemic solutions rather than by reducing prosecutions.
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Originally published by Daily Mail as “Scottish Tories accuse SNP of surrendering to criminals as prosecutors are warned: Our jails are too full”.