More criminals could escape prosecution with ‘soft-touch’ warnings and fines as ministers seek to ease overcrowding in Scottish prisons, the Mail can reveal.
Prosecutors have been instructed to consider less severe penalties when deciding whether suspects should be charged, amid mounting pressure on the country’s jails.
Ministers have already approved the early release of hundreds of offenders, including violent criminals, to reduce inmate numbers in prisons struggling to cope.
Critics warn that the expanded use of so-called ‘direct measures’ to keep offenders out of prison could result in more dangerous criminals being released back onto the streets.
Scottish Tory justice spokesman Stephen Kerr accused the SNP Government of a ‘surrender to criminals’.
He said: ‘This is the latest example of the SNP’s soft-touch justice because they have failed to get a grip on Scotland’s prison crisis. Criminals should not get a slap on the wrist because ministers have run out of space in our jails.
Stephen Kerr MSP has accused the SNP of surrendering to criminals
More criminals could receive warnings or fines as ministers try to relieve pressure on overcrowded Scottish prisons
‘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.
‘Victims deserve justice – not a system in which prison capacity determines whether criminals face the full force of the law. This is nothing short of a surrender to criminals.’
The annual report by Deborah O’Brien Demick, His Majesty’s Inspector of Prosecution in Scotland, described the country’s prison population as an ‘ongoing issue’.
It recorded that 8,452 people were being held in Scottish prisons in March this year.
The report said prosecutors had been ‘instructed to have regard to the current pressure on prison population as a relevant public interest factor in their decision-making until the issue is alleviated’ as a ‘temporary and exceptional measure seeking to reduce the Scottish prison population’.
It added: ‘As part of this, prosecutors were asked to take the use of direct measures into consideration.’
Earlier this year, the Sentencing and Penal Policy Commission, established by the SNP Government, supported ‘proportionate measures’ including warnings, fiscal penalties, restorative options such as offenders apologising to victims, and diversion linked to mental-health, substance-use or social work support.
The commission said there was ‘strong evidence of effectiveness’ behind those measures. It also recommended allowing police to issue fixed penalties for threatening behaviour and to ‘ascertain if there are further statutory offences that would be suitable for police direct measures’.
That would allow even more people to avoid prosecution by paying a fine instead.
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Separate figures published by the Crown Office in 2024 showed that direct measures, including fines and warnings, had been used in more than 550 suspected domestic-abuse cases during the previous year.
Under the system, suspects can avoid prosecution with a ‘fiscal fine’ of as little as £50.
Former Lord Advocate Dorothy Bain KC said overcrowded prisons would not ensure public safety
The number of direct measures dished out to alleged domestic abusers rose from 469 to 555 between 2022-23 and 2023-24, an increase of more than 18 per cent.
The Crown Office has backed the ‘consistent use of prosecutorial direct measures’.
Former Lord Advocate Dorothy Bain KC, who stepped down in May, said she ‘recognised that prisons are full beyond their capacity’ which ‘will not deliver justice or public safety’.
Scotland’s prisons were packed to record levels last year despite emergency early releases, with the prison service admitting it faced ‘unprecedented challenges’ from overcrowding.
The Scottish Prison Service annual report published earlier this week reveals the average daily prison population reached a record 8,278 inmates in 2025-26, while ministers have separately disclosed that prisoner numbers peaked at 8,603 this year despite the prison estate being designed to hold 7,805.
In May 2024, it emerged sheriffs had been urged by Scotland’s top judge to send fewer criminals to jail for short sentences amid a prison overcrowding crisis.
Lord Carloway – who was then the Lord President, the country’s most senior judge – encouraged sheriffs to consider alternatives to jail such as Community Payback Orders to ease pressure on prisons.
David Threadgold, chairman of the Scottish Police Federation, representing rank-and-file officers, said: ‘We need much better deterrent to crime and at the moment we just don’t have that.
‘It’s hard to see how any of this will deter crime, when you have more and more justice policy dictated by logistics rather than public safety.
‘Fining people doesn’t work when the people on the receiving end don’t have the cash anyway – it’s a waste of time.’
A spokesman for the Crown Office and Procurator Fiscal Service said: ‘Direct measures are a long-established option available to prosecutors in appropriate cases.
‘Guidance issued in response to pressures on the prison population did not alter the requirement for prosecutorial decisions to be taken independently, on the facts and circumstances of each case, and for prosecutors to determine the most appropriate action in the public interest.’
The Scottish Government was approached for comment.