9 July 2020
SPARC campaigns for a reduction in Scottish prison numbers and to promote social justice. We comprise researchers from various universities across Scotland, many with long-term, personal experience of imprisonment. SPARC writes collectively because we are committed to inclusivity. You can read more about SPARC and our work on our website.
This response has been written collaboratively by SPARC in close consultation with people in prison and families affected by imprisonment, many of whom have contacted us because they feel their concerns have been dismissed when they have raised these through formal channels. We have gathered these responses here to demonstrate the true impact of COVID 19 on these groups, and the urgent need for their voices to be heard.
Which equality groups are being disproportionately negatively affected by the coronavirus, and by some of the measures taken to deal with it?
SPARC has been closely monitoring the impact of COVID 19 and the measures taken to contain it in Scottish prisons. At the outbreak of the crisis, Scotland’s incarceration rate was one of the highest in Europe, at 150 people per 100,000 of the population. The combination of overcrowding, cell-sharing, Victorian infrastructure, a lack of PPE, often insufficient hygiene facilities, an aging prison population and the poor health of many people in custody creates near perfect conditions for the virus to spread. Tragically, at the time of writing, six people in custody have died from the virus.
As of the 13th March, when the country began to move into lockdown, there were 8,094 people in Scottish prisons (SPS, 2020), significantly higher than the operational capacity of 7,676 (Audit Scotland, 2019). As of late June there were, 6,909 men, women and children are in custody across the Scottish prison estate.
This reduction is welcome, but as we have argued in more detail on our website, it has been highly influenced by the slowing of court business and is not just a product of early release measures. The prison population is therefore at risk of rising again as courts begin to hear more cases; there may already be early signs of this, as the first week of July saw the prison population rise to over 7,000. The dangers of Covid to the health and wellbeing of people in prison remain as serious today as they did at the beginning of the crisis.
What equality and human rights impacts there have been?
1. Lack of consultation and communication: SPARC has been deeply troubled about the lack of speed and clarity regarding the response to the pandemic in Scottish prisons. We have outlined our concerns in detail on our website. Without repeating these at length here, we wish to convey to the committee that the response to the pandemic from the Scottish Government and SPS in terms of prisons has been deeply reactive rather than proactive. This has been the case from the very outset of the crisis: on March 16, two people held in HMP Kilmarnock were reported to be self-isolation with suspected Covid 19, but no statement or plan was published by the SPS. When this came the following day, it consisted only of vague assurances, with visits not being suspended until March 24, and a family helpline not being established until March 25.
To take a more one recent example, the announcement that video visits were to be introduced was made in an article in the Scotsman, rather than by engaging directly with families. While the SPS has begun to upload key communications relevant to families to their website, accessing this requires navigating multiple menus and is particularly challenging on mobile devices. As a consequence, families have told us they feel ignored and excluded from these discussions, and do not trust that announcements such as mobile phones and video visits will come into fruition.
Thus, at each step of the way there has been a lack of consultation and communication with people in prison and their families, causing needles distress and conveying a disregard for people in custody and their families. The importance of an ongoing and respectful dialogue with those most impacted by COVID cannot be overstated if prisons are to respond effectively, meaningfully and humanely to the pandemic.
2. Weakening of Legal protections: Changes to the Prison Rules Scotland have reduced the minimum protections for people in prison, and it is not clear the extent to which independent rights or reform bodies have been consulted to ensure respect for rights. As we have argued previously, almost all of these rule changes relax requirements on Prison Governors to ensure that people in prison are provided with opportunities and resources to meet basic needs including nutritious food, clean socks and underwear, access to bathing or showers, family contact, reading material, and purposeful activity. In a context whereby the provision of many of these items has become more challenging for prisons, the rules should exist precisely to ensure that they are still prioritised.
3. Severely restricted regime: Scottish prisons are currently operating with an extremely restricted regime due to high levels of staff sickness and measures to promote social distancing. Prisoners tell us that this creates anxiety and poor interactions with prison staff. These tensions are heightened by a lack of clearly communicated strategic direction, leaving prison staff with little meaningful information to share with people in prison.
The Scottish Human Rights Commission has recently written to the Scottish Parliament Justice Committee warning of potential breaches to Article 3 of the European Convention on Human Rights, which prohibits torture and inhumane and degrading treatment. The Commission’s concerns related primarily to:
1) Confinement in cells for extended periods, currently almost 24 hrs a day,
2) Lack of shower facilities, time out of cell, and outdoor exercise
3) Limited contact with lawyers
4) Limited contact with family
These issues must urgently be addressed. Families have contacted us expressing dismay and distress that their family member is not able to shower daily, and they feel that this contradicts the messages they are receiving about the importance of hygiene during this pandemic.
There is also a need to monitor and remedy some of the perhaps unintended consequences of these operational decisions. For instance, it is our understanding that the restricted regime means that only a very small number of prisoners are attending work, and the teams which work in ‘key’ roles such as the kitchen or the laundry have been doing so for many weeks without a day off, as prisons seek to reduce movement within the institution. This has been described to us by a family member as ‘borderline slavery’, and we have been told that prisoners are too scared to ask for time off to rest in case this impacts negatively on their sentence progression.
Steps must be taken to minimise the use of solitary confinement. We respectfully direct the Committee’s attention to the Mandela Rules (the UN Standard Minimum Rules on the Treatment of Prisons), Rule 44 of which defines solitary confinement as “confinement for 22 hours or more a day without meaningful human contact”, and any continuation of this in excess of 15 consecutive days as “prolonged solitary confinement”. The Mandela Rules state that solitary confinement must only be used in exceptional cases and for as short a time as possible. The Rules prohibit prolonged solitary confinement being used as a disciplinary sanction, on grounds that this is cruel, inhumane and degrading.
There is not only a moral case for this prohibition, academic research shows that solitary confinement can cause severe psychological harm, including: hyper-responsivity to external stimuli (such as noise); distortions in perception and hallucinations; panic attacks; difficulty with thinking and concentration; disturbed sleeping patterns; intrusive thoughts; paranoia; and problems with impulse control. While acute symptoms may subside, expert testimony suggests that the psychological damage caused may be “prolonged or permanent” and may “seriously reduce the inmate’s capacity to reintegrate into the broader community”.
If this were not reason enough to urgently reduce reliance on an extremely restricted regime as a strategy for addressing the pandemic, research shows that those who are subjected to solitary confinement are more likely to die in their first year after release. Whilst this is an American study, the findings which are particularly concerning in a Scottish context is that those who had been placed in restrictive housing were 78% more likely to die by suicide, and 127% more likely to die by opioid overdose.
4. Deterioration of mental health: self-isolating in a prison environment may be detrimental to mental health, which is already a serious concern in the context of imprisonment. This point has been unaddressed in official responses to date. Again, a number of families have contacted us to raise concerns about how the restricted regime is impacting on their partner or child’s mental health, and some have reported a less than sympathetic attitude amongst prison staff, with one mother telling us her son had been told he was “f**king lucky they are getting the phone”. But as research has repeatedly shown, contact with family and other supportive individuals can protect against the risk of suicide.
5. Health inequalities: Addressing COVID 19 within the context of imprisonment must be done in the full awareness of the health inequalities experienced by those in prison. It is well-established that people in prison experience poorer physical health than the general population. The UK government guidance published on 16th March identifies a number of ‘vulnerable’ groups, and people in prison find themselves over-represented within some of these groups. Data from 2007 identified 12% of people in Scottish prisons as having asthma, compared to 5% of the general population (Graham, 2007). The same report estimates a high proportion of Hepatitis C among people in prison (20%), and a higher rate of liver problems due to alcohol use. These pre-existing vulnerabilities make many people held in prison particularly vulnerable to coronavirus.
Despite this increased vulnerability, while the number of people entering prison through the courts has reduced, movement between prisons has continued. Families have contacted SPARC to raise serious concerns that these transfers heighten the risk of spreading of COVID 19 between prisons. This creates anxieties for those supporting a person in prison. Families and people in prison also tell us that the use of PPE among prison staff (reportedly including health care and other professionals) is inconsistent, and this increases anxieties about keeping safe. Whilst social distancing measures can limit interaction between prisoners, just as in care homes – where professionals are repeatedly leaving and entering the prison – vigilance about the use of PPE must be paramount.
Alongside the issues surrounding the risks of Covid and the apparent sporadic use of PPE, families have also contacted us to highlight their worries that people in prison are not being able to access healthcare for pre-existing and ongoing health conditions. One family member shared with us that their relative only received the medical care they need after the family contacted the prison to advocate on their behalf. However, the family now worries that this intervention may cause resentment amongst prison staff, or might even lead to poorer treatment.
6. Lack of consideration of the needs of specific groups: Whilst many of these issues will impact on many of the people within the prison estate, there are also specific groups whose needs would benefit from further consideration. For example, as of the week of 3 July there were 19 young people aged 16 or 17 being held in Scottish prisons, with a further 205 18-20 year olds being held across the estate. There is a wealth of evidence to suggest that young people who are held in Scotland’s prisons have significant experiences of adversities and trauma, including but not limited to: victimisation; poverty; loss; abuse; family breakdown; parental ill health; homelessness; mental health difficulties; and substance misuse.
This makes them an exceptionally vulnerable group. As we have argued in more detail on our website, their specific needs and circumstances must be met with clear steps to support them in an age appropriate manner. However, to date, there has been no clearly articulated strategy to address the needs of young people in custody during the pandemic, or indeed any other potentially vulnerable group (e.g. pregnant women, single parents, trans prisoners, people with disabilities etc.). The pandemic itself may also create groups with particular vulnerabilities; for instance, consideration may be required as to how allow people who in custody who have been bereaved to grieve these losses, and to supported appropriately.
7. Progression: SPARC has long argued that sentence progression for long-term prisoners in Scotland is in urgent need of increased research, government data gathering and policy attention. Through ‘sentence progression’, prisoners are meant to transition to lower levels of security, testing their levels of responsibility and safety, ultimately achieving parole. However, while some prisoners obtain parole ‘on time’ (serving no more nor less time in prison than the minimum they were sentenced to do by a court), others are held back in prison, sometimes for years, or even decades. Personal and research evidence suggests there are a range of reasons for this, and we argue that amongst these, administrative delays and non-criminal conduct, rather than criminal or dangerous conduct of the prisoner, are often to blame.
These issues have been heightened by the response to the COVID 19 pandemic. As a consequence of the limited regime, people in custody have fewer opportunities to demonstrate that they are progressing positively though their sentence. For instance, there is currently no access to the behavioural courses which are often required as part of a sentence plan, and men in Castle Huntly (Scotland’s only open prison) cannot attend their work placements in the community and take their home leaves. Families have told us that they are “extremely worried” about how these disruptions might impact on progression. These concerns have been compounded by prison based social work teams being reportedly “completely absent” in some establishments, with families telling us that the promises that social work services would be provided have not been upheld.
8. Lack of family contact and delayed, limited measures to mitigate this: On Monday March 23rd, it was announced that prison visits would be suspended from the following day. It took three months ago for video visits to begin, and families are still waiting for mobile phones to be made comprehensively available across the estate.
People in custody tell us that it is difficult to know from one day to the next if and when they will be allowed access to the phone. This makes it difficult to make arrangements to speak to family as there is no routine to plan around. This places further stress on prisoners and their families and makes maintaining family contact difficult and distressing. Families echo these concerns, telling us that during this time they have only been able to keep in touch through sporadic five-minute phone calls. Parents are extremely worried about the impact this is having on their children.
This runs contrary to the advice of the Scottish Government who state the importance of ‘creating a healthy routine’ which specifically states ‘schedule times to catch up with friends, just as you would if you were going out to meet them’. This advice also stresses the need to ‘stay connected’ through phone calls and digital media.
While the introduction of video calls to mitigate the pains of separation is welcome, this has been a protracted process wrought with frustration for prisoners and their families, with many concerned it would actually happen. Now that the process has finally begun, frustrations, rather than being mitigated, have simply been shifted to the extremely limited proposed access of one thirty minute slot per prisoner per month, with one call to one call address. This places prisoners in the position of choosing between households, between families, partners or children, who under lockdown restrictions cannot physically be in the same space to receive these calls. Furthermore, a lengthy list of conduct rules have not just severely hampered the use of a versatile technology at the time it would be most beneficial for the health and wellbeing of prisoners and their families; it has exploited this technology to take an unprecedentedly intrusive and restrictive overstep into their privacy. Indeed, the guidance for families emphasises that all the rules which govern a regular visit (such as remaining static; children not being share pictures, drawings or homework with the person in custody; a ban on the use of mobile technologies; and the power of prison staff to monitor and terminate visits at their discretion) all still apply; but are now to be enforced within the family home.
Similarly, the introduction of mobile phones, while welcomed, remains much reported but as yet unrealised. With an allocated 300 minutes a month working out at just ten minutes a day proposed, and phones active only in one of three two-hour time-slots which change on a weekly rotation in each hall, prisoners and their families are equally frustrated. It has been shared with us that people in custody have concerns that they may have given weeks where the time-slot does not suit their family or partners routine. Those with large families worry that ten minutes a day is barely a catch up. With the response from staff that the phones were ‘not for yapping, just for checking in’ they were given little hope of their concerns being acknowledged or treated with compassion. This does not promote meaningful contact or support relationships.
9. A routemap for the future: The lack of clarity about what is happening and going to happen with prisons in the coming week sits in stark contrast to what is happening “outside”. In the community, regular updates have been given (with indicative dates) as to when schools can begin to resume and when shops can start to open. However, a “Route Map” for resuming a less limited regime within Scottish prisons was only made public on 25th June, more than three weeks later than a plan for prisons in England and Wales was published. Upon publication, the Scottish Route Map contained a number of inaccessible hyperlinks, which directed the reader to the SPS internal sharepoint site, limiting its utility. This issue aside, it is unclear how this largely digital document would be shared with people in prison.
The inaccessibility of information does not only impact on prisoners. Families feel this lack of planning and communication as deeply frustrating, and as having a profoundly negative impact on children. For instance, one mother told us that she finds it “very hard to explain to my daughter why she still cannot get any contact with her dad” when her child can see the effects of lockdown slowly easing outside.
What the Scottish Government can change or improve to mitigate against these impacts?
Actions relating to prison numbers
The number of people in custody must be urgently reduced, making use of all the mechanisms available (e.g. HDC, new early release powers, a reduction in the use of remand).
As court business begins to resume, there must be a close monitoring of the impact of this on prison numbers, and a recognition by sentencers that the current prison environment is more punitive and restrictive than before the pandemic. Consequently, we welcome the judgement in the case of HM Advocate v Lindsay, which notes that the currently highly restrictive regime within prisons can be taken into consideration in sentencing decisions on the borderline between a community and prison disposal.
Actions relating to people in custody
Where there are significant policy developments (such as the changes to the Prison Rules) an impact and equalities assessment must be conducted. Much greater efforts must be made to consult meaningfully with the groups most affected before significant changes are made.
Steps must be taken to limit the amount of time people are locked in their cells, and particular attention paid to the potential damage caused by solitary confinement.
There must be ongoing reviews of measures introduced to replace the previous regime of purposeful activity. This should be devised in consultation with people in custody.
Access to physical and mental health care must be carefully monitored, and improved where necessary.
Transparent information must be provided about access to social work professionals across the estate, and action taken to improve access where necessary.
A clear plan must be put in place for people in custody who require access to particular courses, community placements or professional services in order to progress through their sentence “on time”. People must not be held back because of the pandemic, and this plan should be made freely available to people in prison and their families.
For young people in custody, there must be a strategy to meet their specific needs, and a transparency as to how a child centred approach to the COVID crisis will be delivered.
Young people must be given opportunities to continue or resume their education.
For people leaving prison, there must be carefully planned – and appropriately resourced – throughcare.
Actions relating to family contact
New measures to support family contact such as mobile phones and video visits must be made as widely available as possible. These should be evaluated on an ongoing basis, with particular attention being given to issues of affordability, accessibility, privacy for families, and how these schemes meet the needs of families in contemporary Scottish society, many of whom may be spread across households and geographic locations.
Financial support should be made available to families who require it to access these technologies, or to pay for charges for video visits, should these be introduced in the future.
Measures to support family contact should also be evaluated with regard to how far they support the Article 8 right to family life for children with a parent in prison.