# The Prisoners (Early Release) (Miscellaneous Amendment and Transitional Provisions) (Scotland) Regulations 2026, Note: Explanatory note


(This note is not part of the Regulations)
Section 1(1) and (1ZA) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (“the 1993 Act”) makes provision for the automatic early release of certain short-term prisoners. A “short-term prisoner” is defined in section 27(1) of that Act as a prisoner serving a sentence of imprisonment for a term of less than 4 years. Short-term prisoners who are sentenced to a term of 6 months’ or more imprisonment for an offence listed in schedule 3 of the Sexual Offences Act 2003 (i.e. one where sex offender notification requirements apply upon conviction) are dealt with separately under section 1AA of the 1993 Act. Terrorist prisoners are also dealt with separately and are provided for in section 1AB of the 1993 Act.
Section 1(1) provides that Scottish Ministers are required to release most short-term prisoners after the prisoner has served two-fifths of their sentence. However, the effect of subsection (1ZA) is that short-term prisoners serving a sentence of imprisonment for a “domestic abuse offence” (defined in subsection (10)) or a sexual offence (not already falling within section 1AA), require to be released after serving half of their sentence.
Section 5 of the 1993 Act (fine defaulters and persons in contempt of court) provides that short-term prisoners falling within that section require to be released as soon as the prisoner has served two-fifths of their term of imprisonment.
Under section 208 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), children (i.e. those under 18) who are convicted on indictment can be sentenced to detention if the court is of the opinion that no other method of dealing with them is appropriate. Section 7 of the 1993 Act makes provision regarding the release of such children. It similarly provides that Scottish Ministers are required to release a child detained for less than 4 years after two-fifths of their sentence has elapsed. However, as with short-term prisoners, this is subject to an exception for those sentenced for sexual offences or domestic abuse offences, who require to be released after serving half of their sentence.
Under section 44 of the 1995 Act, children who are convicted in summary proceedings can be sentenced to detention for up to a year. The effect of subsections (6), (6A) and (6B) of section 44 is to provide that such a child must be released no later than the date by which they have served two-fifths of their sentence. This is subject to the exception for those detained in respect of sexual offences or domestic abuse offences who must be released no later than the date on which they have served half of their sentence.
Regulation 2 amends sections 1(1)(b), 5(2)(a) and 7(1ZA)(b) of the 1993 Act to provide that instead of being released after serving two-fifths of their custodial sentence, prisoners or children falling within those provisions are required to be released after serving three-tenths of their sentence. Prisoners or children serving a sentence of imprisonment or detention for a domestic abuse or sexual offence will continue to require to be released after serving half of their sentence.
Regulation 3 similarly amends section 44(6A)(b) of the 1995 Act to provide that children detained under that provision must be released no later than when three-tenths of their sentence has elapsed, rather than when two-fifths of their sentence has elapsed; again however for children serving a period of detention for a domestic abuse or sexual offence they must be released no later than when half of their sentence has elapsed.
Regulation 4 makes transitional provision about how the release of individuals is to take place immediately after these Regulations come into force. Paragraph (1) provides that existing prisoners whose release dates are changed by these Regulations and who are listed in the first column of the table in paragraph (2) are to be released within the period provided for in that table instead of being released on the new release date which would apply to them under section 1 of the 1993 Act.
Paragraphs (1) and (2) together provide as follows—
A prisoner whose new release date falls on or before the day that is 30 days before the 12 May 2026 is to be released in the period of 3 days beginning on 26 May 2026.
A prisoner whose new release date falls in the period starting 29 days before the 12 May 2026 and ending 11 May 2026 is to be released in the period of 3 days beginning on 9 June 2026.
A prisoner whose new release date falls in the period starting on the 12 May 2026 and ending on 22 June 2026 is to be released in the period of 3 days beginning on 23 June 2026.
Paragraph (3) provides that if release under the provisions set out in the table would lead to the prisoner being released later than their original release date, they are instead to be released on their original release date.
Paragraph (4) makes provision in relation to children who are sentenced to a period of detention upon conviction for an offence. If their release date is changed by these Regulations and their new release date would therefore have arisen prior to the coming into force date, they are to be released on the date which these Regulations come into force.
Paragraph (5) sets out the definitions which apply for the purpose of these transitional provisions.
Regulation 5 makes transitional provision for short-term prisoners who are on licence at the point when the changes made by these Regulations come into force. This covers both those on licence under section 3AA (home detention curfew) of the 1993 Act and those who have been granted compassionate release on licence under section 3 of that Act. Section 11 of the 1993 Act makes provision for the duration of the licence granted to such short-term prisoners and is tied to the point when, had the prisoner not been released on licence, they would have been released under section 1(1) of that Act. Paragraphs (2) and (3) together provide that where a person’s licence end date is changed by these Regulations, the person’s licence is to end (unless revoked earlier) on the later of the date on which these Regulations come into force or the date on which the licence would otherwise have ended.

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Source: https://www.legislation.gov.uk/sdsi/2026/9780111065778/note (the official version)
Page: https://openlegislation.uk/draft-prisoners-early-release-miscellaneous-amendment-and-transitional-provisions-scotland-regulations-2026/note
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.