Category: Covid-19

Posted on in Covid-19

Scottish Prisoner Advocacy and Research Collective (SPARC) submission to the Scottish Parliament Equalities and Human Rights Committee

9 July 2020

About SPARC

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.

Posted on in Covid-19

SPARC statement on mobile phones in Polmont

Recently a number of news outlets covered the story that young people in HMP Polmont who had been given mobile phones used these to make “mischief” calls to the police. 

We are disappointed that some journalists chose to focus on this misuse of the mobile phones. A focus on this behaviour alone wilfully ignores much greater questions surrounding the extremely restrictive conditions in which Scotland tolerates holding some of our most vulnerable children and young people, and whether children should ever be imprisoned at all. 

The latest figures published by the SPS show[i] that on the week ending June 26th, there were 221 young people aged 16-20 held in Scottish prisons. The number of 16 to 17 year olds in prison actually rose 40% over the last month; the numbers are small (from 15 to 21), but the trend for the very youngest in prison is worrying. Of all young people, 69 (or 35%) of 18-20 year olds were awaiting trial, as were 13 (or 63%) of 16 or 17 year olds. These figures – and particularly the number of children and young people being held awaiting trial – should provoke much greater outrage than a small number of nuisance phone calls. 

Here’s why:

Prison is not an appropriate environment for children 

Even when we are not faced with a global health pandemic, prison is not an appropriate environment for children. In 2015, the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment highlighted the grave risks imprisonment poses to children’s safety, wellbeing, development and mental health:

Children deprived of their liberty are at a heightened risk of violence, abuse and acts of torture or cruel, inhuman or degrading treatment or punishment. Even very short periods of detention can undermine a child’s psychological and physical well-being and compromise cognitive development. Children deprived of liberty are at a heightened risk of suffering depression and anxiety, and frequently exhibit symptoms consistent with post- traumatic stress disorder. Reports on the effects of depriving children of liberty have found higher rates of suicide and self-harm, mental disorder and developmental problems. 

The risk of suicide and self-harm in Young Offenders Institutes cannot be ignored in Scotland. As the Centre for Youth and Criminal Justice argue, not only do young people in custody often not feel safe, but imprisoning children and young people can have tragic consequences, with 24 deaths of young people under the age of 25 recorded between 2009 and 2019. The suicide rate in prison is 10 times the rate of suicide for younger age groups outside prison.

Further, young people held in Scottish prisons are a particularly vulnerable group. Whilst the age of criminal responsibility in Scotland has been raised from 8 to 12, research shows that cognitive and psychosocial development continues at least until age 25. A wealth of research shows that the young people who are held in Scotland’s prisons have significant experiences of adversities, including but not limited to: victimisation; poverty; loss; abuse, trauma; family breakdown; parental ill health; homelessness; mental health difficulties; and substance misuse[ii]. Almost half of young people in Polmont reported being in care as a child[iii]; however the charity Who Cares Scotland has argued that this is an underestimate of true numbers of care experienced young people in prison.

COVID 19 and the increased risks of custody

Increased health risks

As we have argued elsewhere, prisons are an ideal environment for the virus to spread. Many people held in Scottish prisons suffer poor health and are consequently more likely to be vulnerable to the virus. Yet, there is little space to self-isolate, as many prisoners are already sharing a cell. With regard to Polmont specifically, a lack of support for health care staff, and a lack of understanding amongst managers as to how this is essential in providing high quality care, was identified as an issue in the most recent inspection. Scotland may have avoided the worst scenarios of infection in prison, but this has required incredibly tough forms of isolation and loss of contact with loved ones. This has affected all prisoners, but research shows family support is particularly crucial for younger people. 

Reduced legal protections

Changes to the Prison Rules Scotland allow the SPS to provide an extremely restricted regime as a means of preventing the spread of the virus. 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. This letter highlights particular concerns surrounding prisoners being confined to their cells for almost 24 hrs a day; a lack of access to showers, recreation and outdoor exercise; limited contact with lawyers; and greatly reduced family contact. 

Damage to mental health

That the Commission are concerned about solitary confinement in cells is particularly troubling in regard to children and young people, not least because access to time outside for young people in Polmont had already been raised as an issue with Prison Monitors before this crisis began. There is also clear evidence maximising the time young people can spend outside their cell, the provision of stimulating activities and support for meaningful social relationships are key factors in promoting the wellbeing of young people in custody and reducing the risk of suicide. 

We also know from research with the prison population more generally that solitary confinement can cause multiple, and potentially permanent, psychiatric harms. Yet any mention of the damage done by imprisonment to the mental health of young people has been entirely absent from the reporting. This is particularly shocking given the recent history of Polmont. Only last year an HMIPS Expert Review of mental health services in the prison was published; a report specifically requested by the Cabinet Secretary for Justice following the tragic deaths of Katie Allan and William Lindsay (Brown). 

Even if journalists had felt the story of the misuse of mobile phones to be truly newsworthy, failing to consider how the prison conditions in which young people are being held might have led to this behaviour shows a clear lack of compassion and critical insight. 

Damage to family relationships

Indeed, more insightful coverage of this story might have asked why mobile phones were only made available to young people in Polmont on June 17th, more than three months after all visits to prison were cancelled. This is despite the recommendations of the HMIPS expert review, made in 2019, that the introduction of in-cell telephones should be considered as part of a suicide and self-harm prevention strategy for young people. These were echoed in the most recent inspection of Polmont. 

Such technology is not only necessary to support the emotional wellbeing of young people in custody; it will also benefit their children. Statistics suggest that one fifth of young people in custody have at least one child; that the vast majority of these young men were actively involved parents before they were sentenced (76%); and virtually all planned to care for their children upon release (94%)[iv]. As these children are likely to be very young, contact with them will be difficult to sustain by phone or letter. The provision of regular video visits must therefore be a particular priority for young people in Polmont. 

What should be done?

Rather than punitive action, what is required is an acknowledgement of the vulnerability of young people in custody, and the risk the risk that the current Covid restrictions present to their wellbeing and human rights. 

The current public health crisis makes the need to reduce the number of young people in Scottish prisons particularly urgent, as the pandemic has seen increased risks to health, mental wellbeing, and family ties, coupled with a limited regime and weakened legal protections. However, we should also ask pressing questions as to why imprisonment plays such a central role in our youth justice system, and if this achieves justice at all. 

Such a debate is necessary because not only have justice experienced young people suffered considerable adversity, but the systems which led to their imprisonment discriminate against them on the basis of this vulnerability. The ground-breaking Edinburgh Study, a longitudinal project involving more than 4,000 participants, demonstrates that the criminal justice system targets and discriminates against young people living in poverty. As the study directors, Professors Lesley McAra and Susan McVie, argue:

“The youth and adult criminal justice systems appear to punish the poor and reproduce the very conditions that entrench people in poverty and make violence more likely.”

Prisons are not only profoundly damaging to young people, they also fail to protect communities or reduce future violence or victimisation. A critical and responsible public media could, if it were brave enough to confront these issues, play a crucial role in beginning an inclusive public discussion which questions whether our systems and institutions truly achieve justice for young people in Scotland. 

[i] Scottish Prison Service (2020), Prison Statistics, Accessible here: https://www.sps.gov.uk/Corporate/Information/SPSPopulation.aspx

[ii] Nolan D, Dyer F and Vaswani N. (2018) ‘Just a wee boy not cut out for prison’: Policy and reality in children and young people’s journeys through justice in Scotland. Criminology & Criminal Justice 18: 533-547.

[iii] Scottish Prison Service (2018), Young People in Custody 2017: 16th Survey Bulletin. Accessible here: https://www.sps.gov.uk/Corporate/Publications/Publication-6075.aspx

[iv] Scottish Prison Service (2018), Young People in Custody 2017: 16th Survey Bulletin. Accessible here: https://www.sps.gov.uk/Corporate/Publications/Publication-6075.aspx

Posted on in Covid-19

Can crisis change our prisons?

Most of us don’t change until we have to, and crisis is often what obliges us to do so. Crises are often resolved only through a new identity and new purpose, whether it’s that of a nation or a single human being ― Rebecca Solnit, The Faraway Nearby

The idea that crisis can lead to positive change pervades our cultural imagination, and since the outbreak of COVID 19, many may have found comfort and purpose in the sentiment expressed in the quotation above. 

However, when it comes to prisons, the links between crisis and reform are highly contested. As critical criminologists such as David Scott and Joe Sim argue, prisons have always been damaging to those held within them, and therefore each generation of politicians will face its own prisons crisis, with the outbreak of COVID 19 being just the latest example. 

Indeed, is not so many years ago that Scotland faced a profound period of prisons crisis. The mid 1980s were a time of significant overcrowding, conflict and unrest in Scottish prisons, characterised by serious disturbances, roof-top occupations, dirty protests and industrial action. In 1987, fears that the government response to this unrest was insufficient led to the formation of Independent Inquiry into events at Peterhead prison. The findings of the Inquiry, which was led by a team including Jimmy Boyle, Alistair Duff, Phil Scraton and Joe Sim, were published in the report The Roof Comes Off. 

In this blog we outline how many of the issues facing families today were also raised in the Roof Comes Off inquiry more than 30 years ago. This helps us to see what has changed (or not) for families affected by imprisonment, and raises important questions as to whether or not prisons as institutions are capable of meaningful reform in the face of adversity. 

Barriers to regular contact 

The Roof Comes Off reported that families found the journey to the remote Peterhead prison to be long and exhausting. These trips frequently took many hours, often on multiple forms of public transport. The financial cost could be a significant barrier to visiting, and while some financial assistance was available, the report noted that this was limited and could be humiliating to claim.

Prior to the outbreak of COVID 19, these difficulties for families persisted. The most recent SPS Prisoner Survey found nearly half of those in custody (47%) reported problems in receiving visits, due to distance, cost, lack of public transport, lack of childcare and the general stress of visiting. While families on low incomes may access financial supports, they must pay all these expenses first, and then wait to claim this money back. This stretches already limited budgets, and disadvantages the many families affected by imprisonment who are already living in poverty. 

The advance of technology offers opportunities to relieve some of these burdens, and ‘email a prisoner’ schemes, virtual-visits and regular phone contact can be a valued means of contact. The accessibly of these technologies to people in prison is crucial, as fifteen years ago criminologists Alison Liebling and Shadd Maruna warned of “a growing dissonance between an increasingly connected world and the particular capacity of the prison to ‘cut off’”[i].

The outbreak of COVID 19 not only highlights this continued dissonance, but brings an urgent need for action. In a recent speech, Nicola Sturgeon emphasised the importance of family to all citizens, explaining that she also missed hers, and thanking children because “not being at school, or seeing your friends, or hugging your grandparents is really tough”. Yet while families in the community make increasing use of the internet and video calls to stay in contact, eight weeks after visit to prison were suspended, families affected by imprisonment still await a technical solution to facilitate regular contact. This is despite an announcement last week that video visits are to rolled out in prisons in England and Wales. 

That the only universal measure to be introduced to all prisons in Scotland to support family ties has been an extra £2.50 a week to buy phone credit to use phones on prison landings highlights the reliance on ‘traditional’ technologies, and the lack of infrastructure to support families to continue to communicate in the ways they would at home. The Scottish Government has sought to address this lack of infrastructure by providing people in custody with heavily restricted mobile phones, but again, families are still waiting for these to be made available. These delays inevitably raise questions as to whether earlier investment in modern technologies to support family contact in meaningful and accessible ways (for instance, facilities for video visits and in-cell phones) would have avoided the very difficult circumstances families affected by imprisonment now find themselves in. 

The quality of family contact 

In the Roof Comes Off, the Inquiry Team were strongly critical of the Peterhead visiting room, noting that the booths in the visiting room were made up of a “fixed wooden base topped with glass to prevent easy physical contact”. They argued strongly for more relaxed visiting conditions which would allow families to spend quality time together, which they describe as including: easy physical contact, taking photographs together, sharing meals, and exchanging gifts at Christmas, birthdays, and other significant events. 

This is an area where there has been some progress, particularly in terms of the material setting for visits. The SPS has made considerable investments in modernising the prison estate, and is working towards providing Visitors’ Centres (for families to wait, access information and seek support) at all prisons. Prior to the suspension of visits, improvements in the services available to families have also seen the introduction of more relaxed visiting sessions for children, family fun days, and homework clubs, and other similar projects. However, concerns remain that these are primarily aimed towards families with young children, and that these more relaxed visits still represent a minority of visiting sessions. Those attending ‘regular’ visits will do so in more modern rooms, but which are often busy, loud, lacking in privacy, and which have tables and chairs fixed the floor. 

The 1987 report also documented profound difficulties faced by people in prison and their families when attempting to maintain relationships in meaningful ways. For instance, when ordering supplies from the prison canteen, should limited prison wages be spent to buy tobacco, stamps or toothpaste? What should families do when they find that the person has been moved to a different prison without notice, or that their phone messages go unanswered? Again, these issues persist, with families, researchers and charities in Scotland and across the UK noting that families face considerable challenges in maintaining regular contact and navigating prison systems. Low prison wages contribute to these difficulties, and ‘rationing’ deodorant to pay for phone credit remains a painful reality for some people in prison today. 

As the 1987 Inquiry report notes, issues of this sort stem from both the complexity of prison systems and a lack of flexibility when the needs of families conflict with the prison’s working practices. The steps which have been taken so far to maintain family contact throughout the COVID crisis suggests that this fundamental power imbalance between families and the prison persists. Measures which may benefit families, but will also reduce the administrative burden on institutions (such as the ability to pay in money electronically, a dedicated family helpline and an online FAQ), are now in place. However, those that will support quality contact, such as mobile phones and video visits have not, as yet, materialised. 

Crisis and Reform?

So what has changed for families since the publication of The Roof Comes Off back in 1987, and what might these two periods of crisis teach us? We suggest that the ill-effects of imprisonment for many families are not only inherent to this form of punishment, but they are also enduring. The last three decades have seen some improvements in services and facilities, but the fundamental power that the prison has to separate families, dictate what contact is permitted, incur costs for visits, monitor communication and subject families to other intrusive security procedures remain unchanged. 

Consequently, there is an urgent need for action to better support families affected by imprisonment. In the current crisis, we must all work towards:

  • The introduction of technologies to facilitate video (and other virtual) forms of contact. 
  • A transparent conversation around the challenges of utilising these technologies in a prison setting, and how this might be overcome. 
  • Opportunities for families and people in prison to be part of these discussions. 
  • The publication by the Scottish Government and SPS of clear timeline of when virtual contact will be introduced.

Going forward, such efforts can support a fundamental shift toward prioritising the quality of family contact, even when this is burdensome to the institution, or difficult or challenging to achieve. When it is safe for visits to resume, there must be an urgency around sustaining and improving recent positive initiatives to support families. This might include: 

  • A greater role for Family Contact Officers, and efforts to ensure groups who might particularly benefit from their support (for instance, those on remand) can access this. 
  • A continuation and extension of activities such as homework clubs, shared meals, family days and other initiatives which prioritise high-quality contact.
  • Engagement with a range of organisations to ensure a programme of activities is available to support all family ties, not just those between parents and young children. 
  • Regular consultation with families themselves, to find out what might best meet their needs. 
  • Greater opportunities to learn from projects or initiatives which have been particularly successful.

That many of these suggestions closely resonate with the recommendations made in The Roof Comes Off over three decades ago is deeply troubling, and challenges notions that when it comes to prisons, adversity might, in of itself, speed up progressive reform. It will be vital, then, that the impact of the COVID crisis on family contact for families affected by imprisonment is closely monitored and, like in the Peterhead Inquiry, that families themselves are central to this process. 

[i] Liebling, A. and Maruna, S. (2005) The Effects of Imprisonment, Abbington: Routledge. 

Posted on in Covid-19

SPARC Statement on Changes to Prison Rules

9 April 2020

SPARC have carefully read (and provided a plain language summary below of) the amendments to the Prison Rules in Scotland, being brought in in response to the coronavirus situation. 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. The rules consistently water these down, so that Prison Governors are only required to do this where it is “safe and reasonably practicable” to do so, or are allowed to not fully meet these requirements for extended time periods. 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.

In justifying these changes, the policy note suggests that the amendments relate to services “which although important, are not critical to the security and health of SPS staff and prisoners”. Reviewing these rule changes, it is clear that in the context of coronavirus, care of people in prison is being reconceptualised purely in terms of protection from coronavirus and health is being reconceptualised only as bare physical survival. 

People in prison are already at increased risk of poor mental health and death by suicide. In this context, family contact, diversionary activities, and time out of cell clearly are critical to health. We also have considerable concerns that these changes to the Prison Rules will profoundly impact upon mental and physical wellbeing: the reduction of guaranteed access to washing facilities from every second day to twice per a week is a clear example here, as are provisions which increase the length of time the Scottish Ministers can allow prisons to fail meet the minimum standards for clean clothing, without being in breach of the Prison Rules. The rule changes also allow for suspension of exercise, recreation, access to books and personal items in cells, healthy and varied food – all the things that those of us under ‘lockdown’ outside of prison are being told are essential to survive this pandemic.

These changes to the Prison Rules were introduced without warning or consultation. The Policy Note accompanying the legislation acknowledges that this is unusual, and that ordinarily key SPS employees, the POA Trade Union, and other stakeholders such as Police Scotland and NHS providers would have been consulted. We are disappointed that this has not taken place, and that people in prisons, their families, Third Sector colleagues and academics are not seen as key stakeholders for consultation of this nature. Taken together with the failure to publish the Equality and Human Rights Impact Assessment, we are deeply concerned about the lack of transparency surrounding these changes. This has clear implications for human rights and the ability for these to be protected and defended. Prison Rule 7 requires that the Rules are “readily available for inspection by officers and prisoners in each accommodation block and in the prison library”, yet the new provisions are silent as to how people in custody will be informed of the new Rules. 

Relatedly, none of the rule changes seem to place additional requirements on prisons to provide information, connectivity and support for people in prison at this time. They don’t say anything about what the prisons can and should be doing for people in prison, just what they can (under certain circumstances) get away with not doing. One area where the rules could have been used to improve provisions for people in prison is around information. SPARC has recently raised concerns about a poverty of information for people in prison. NHS Scotland’s own information website emphasises that “During the pandemic, it’s important to have the right information. Getting news from unreliable sources can make you feel more upset and anxious, which is unhelpful when it comes to mental wellbeing.” Yet we know from people in prison that this is too often the case.

There have been no additions to the prison rules to bolster the rights of people in prison to reflect the current context. For example, an extension on the time frame for Scottish Ministers to investigate and respond to an appeal of a disciplinary procedure, is not accompanied by a corresponding extension for the prisoner to appeal the decision. Notably, there does not seem to have been any amendment to rule 82* which states that subject to certain specified provisions “every prisoner is required to work in prison”. Although this rule ceases to apply when work has been suspended by the Governor, there is no provision that allows for prisoners to refuse to work because of their own concerns about contracting the virus; and we know from media reports that prison staff are concerned about the lack of PPE in prison. While Prison Governors are being enabled to take decisions to safeguard people’s health, it is not obvious that people in prison are being supported to make their own decisions regarding the risk they are willing to tolerate. 

Reducing the prison population, and the current crowded conditions of prisons in Scotland, is the most effective means of reducing risk in prison and offers the best chance of protecting lives. The proposed rule changes make it absolutely clear that authorities do not feel prisons currently offer a safe environment. One of the few changes to these rules that addresses the root cause of prisons being an unsafe environment in a pandemic is an extension of home leave from seven to fourteen nights. This offers an immediate mechanism for doing this, alongside expanded use of Home Detention Curfew use and provisions for early release introduced in the Coronavirus Scotland Act. It is worth noting though that fourteen nights is still a highly limited time period in the current context and, unlike other rule changes, the option of applying for a further extension to this time period does not seem to have been left open.

On balance, it is difficult to conclude that the changes to the Rules do anything other than dilute the legal obligations upon the SPS which, until yesterday, it had been agreed following a long consultation process were the minimum standards required to protect the rights of those in custody. We recognise that the current circumstances are exceptional, and huge pressures are being placed on individual institutions, and the criminal justice system as a whole. Yet many of the issues the COVID-19 pandemic has brought to the fore, such as overcrowding, pressure on prison budgets, difficulties in providing healthcare and staff shortages are not new. Seeking to resolve the pressures on the system caused by this crisis by reducing the rights of people in prison is not only unjust and misguided, but sets a dangerous precedent as to what Scotland as a country views as an acceptable solution to a crisis.  

Plain English summary

[Please note: It is important for prisoners, their families and the public to have accessible information about how civil liberties of people in prison are being changed, and we offer this below. It does not constitute legal opinion as we are not lawyers.].

The accompanying policy note says that the amendments:

  • Are a ‘response to the exceptional pressures facing prisons during the current Coronavirus outbreak and the impact that staff shortages within prisons’ and ‘prison staff self-isolat[ing] to prevent the spread of the virus’
  • Overall their effect is to ‘generally provide Governors with flexibility in regards to compliance with timescales and the provision of those services’, that have been deemed ‘not critical to the security and health of SPS staff and prisoners’
  • The rule changes aim to ‘enable SPS staff to focus on key functions and to help protect the health and safety of staff and prisoners’
  • They are allowed ‘only [to] be in force for the duration of a Coronavirus outbreak’ [currently defined as lasting until 30 September 2020]

Section 1 states that these changes to the Prison Rules will come into force immediately. 

Section 2(2)(b) details how long these changes will be in force. They have immediate effect and are in place until 30 September 2020.

The remainder of Section 2 makes changes to 22 Prison Rules, primarily dealing with supervision levels, prisoner welfare, purposeful activity, discipline procedures, complaints, and transfer and temporary release. 

17, 19, 20, 21 Supervision levels: Prison Rule 17 states that all prisoners must be assigned a supervision level. The changes to Rules 19, 20 and 21 reduces the obligations of the SPS to deal with aspects of this process within particular time-scales and the form in which certain decisions are communicated. Instead of assigning a supervision level within 72 hours of a person coming into custody, this now must be done within a week. Reviews of supervision levels which were required to be undertaken at 6 or 12 month intervals are now to be done when “reasonably practicable”. 

Where a supervision level is maintained or lowered on review, Governors are no longer obliged to provide the prisoner with the reasons for this in writing, although reasons should still be communicated as soon as is practicable. Similarly, changes to Rule 21 mean that where a prisoner is to be assigned a higher supervision level, or certain categories of prisoner (primarily those serving a life sentence) are to be assigned a supervision level other than low, Governors are no longer obliged to provide prisoners with advance written notice of this, although prisoners must still be informed. Governors were previously obliged to provide prisoners with documents or information which informed their decisions (subject to reasons not to set out in Rule 27), however these changes mean they are now only obligated to do so “as far is reasonably practicable”. 

33 Prisoner Clothing: Rule 33 sets out the minimum expectations as to what clothing should be provided to people in prison – under the old rules, this includes clean socks and underwear for every day, and other clothing as is necessary to maintain hygiene. If exceptional circumstances occur whereby this is not possible, the Scottish Ministers can direct that this only applies subject to restrictions which they consider appropriate, for a period of up to one month. The changes to the Prison Rules extends the period during which Rule 33 can be followed subject to restrictions, allowing the Scottish Ministers to authorise continued exceptions to this minimum standard for further successive periods of a month at a time. In sum, changes to Rule 33 allow prisoners to go without daily clean underwear and clothing for multiple periods of up to a month at a time, with the consent of the Scottish Ministers. The Scottish Ministers must give their reasons for approving this, and the Governor must “take such steps as are reasonably practicable” to inform those who are affected. 

34 Personal hygiene: the changes to Rule 34, reduces the frequency by which people in prison must be given access to facilities for bathing and showering from ‘on a daily basis’ (where adequate arrangements cannot be made for this to happen every day) to ‘at least twice a week’.

35A Prisoners’ food and drink: In summary, the change to this rule enables an extended period of time by which prisons are able to operate under restricted (i.e. lesser) requirements around the food that they are required to offer prisoners. Existing rule 35 outlines that prisons must provide people in prison with well-presented, wholesome and nutritious food, of sufficient quantity as required for maintaining health and nutrition. So far as practicable, this food must be appropriate for the prisoner’s age, health and religious, cultural, dietary or other requirements. The rule states that the prison must taste samples to check quality and condition. It also maintains that storage, preparation and serving areas must be regularly facilitated. There was already a provision within this rule that where exceptional circumstances or temporary lack of facilities last for more than 48 hours, the Scottish Government can restrict these requirements as appropriate, but not for more than one month. The change to the rule is that where it is deemed necessary due to coronavirus, on application of the governor prior to the expiry of the direction, the prison can “make any number of further directions continuing the effect for successive periods of no more than one month”. This change make it possible for prison Governors, so long as they apply to Scottish Ministers before the direction expires, to extend the direction for another month (and another…).

40A, 41A Recommendations by healthcare professionals / Accommodation in specified conditions: The changes to these rules enables prisoners to be confined to their cell / prevented from participating in specified activities (or for specified periods) for up to 14 days following recommendation from a healthcare professional. Senior SPS staff (on advice of healthcare professional) can extend this for further periods up to 14 days. This appears to be any healthcare professional and not, for example, someone with designated responsibilities or expertise in this area. 

43A Prisoners’ welfare: This change means that Governors are no longer required to “ensure” reasonable assistance and facilities are given to maintain and develop relationships with family and friends, but rather they must provide this “so far as it is reasonably practicable to do so”.

52 Supplies of books, newspapers, etc to prisoners: Delivery of “ books, newspapers, writing materials and other means of occupation as the prisoner may wish to use” is now subject to the limitation that the Governor must consider such arrangements “safe and reasonably practicable”.

63A. Visits: Governor can limit, end, specify groups getting visits (must be retrospective as this was already being done). Governor ‘must regularly review any suspension of visits to assess whether it remains necessary and proportionate in response to effects of coronavirus. 

81A. Work, Education, Programmes: Arrangements for work, education and counselling: Reduces requirements on prisons to assess and determine work/education/programs based on ‘prisoner wishes and needs’; under rule change this becomes discretionary. Suggests prisoners may be ordered to do certain activities (e.g. defined as essential for running prison). As with other rules, this must be reviewed regularly to ensure it is being used in a necessary and proportionate way.

84A Purposeful Activity: Governor may suspend some or all purposeful activity. The rules are unclear as to whether prisoners might be ordered to do prison jobs and subject to discipline for refusing. There is no provision in the rules for a risk assessment of how safe jobs are.

88 Recreation: Governor can suspend some or all recreational activity with same caveat of being required to review regularly to ensure necessary and proportionate.

111A & 116A Reporting breaches of discipline: Officers no longer need to immediately report breaches of discipline but can do so when ‘reasonably practicable’. A 3 day requirement to report a breach when prisoners move prisons has been increased to 14 days.

118A Disciplinary appeals: A prisoner found guilty of a breach of disciplinary procedure is allowed to appeal a decision within 14 days. This appeal is made to Scottish Ministers where the disciplinary hearing was chaired by the Governor in charge, or where it occurred in a contracted out prison. This rule change extends the time period for the Scottish Ministers to investigate and provide a response from 14 days to “as soon as reasonably practicable”. Notably, there does not seem to be any corresponding extension to the time period for prisoners to make an appeal, given the context. 

120A Requests to speak to certain persons: People in prison can make a request to an officer to speak to a member of staff of the Scottish Administration, a member of the visiting committee or a sheriff / justice of the peace visiting the prison. Previously the officer had to act on this “without delay” but this has been changed to “as soon as reasonably practicable”.

122A Complaints to the residential first line manager: This extends time limits on responses from the residential first line manager from 48hrs (or where this cannot be met, 5 days for a written response) to “as soon as reasonably practicable”.

123A Referral of complaints to the Internal Complaints Committee: Changes the time limit within which a Governor must inform the prisoner regarding the ICC’s decision (and related information) from within 20 days of a complaint being referred to “as soon as reasonably practicable after that period.”

131A Healthcare assessment prior to transfer: This changes the requirement for the Governor to seek advice from a healthcare professional regarding a prisoner’s fitness to travel before transfer, so that this now only needs to happen “where appropriate to do so in the circumstances’.

136b Extension of certain periods of temporary release: This change extends the time period that someone can spend on home leave from up to 7 nights to 14 nights (excluding travel time). 

Relevant documents

The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020:

http://www.legislation.gov.uk/ssi/2020/122/article/2/made

Policy note: http://www.legislation.gov.uk/ssi/2020/122/policy-note/contents

Explanatory notes here – http://www.legislation.gov.uk/ssi/2020/122/note/made 

The 2011 Prison Rules (prior to the amendments): http://www.sps.gov.uk/nmsruntime/saveasdialog.aspx?lID=1375&sID=630

https://www.sps.gov.uk/Corporate/Information/PrisonRulesandDirections.aspx

*This was amended at 13:05 on 09.04.20. It previously said ‘rule 35’ in error.

Posted on in Covid-19

Prisoners cannot wait: acting now will save lives

Yesterday, the Scottish Government has released a Covid-19 related Bill. Amongst other issues, the Bill set out (inSchedule 4, Part 9, subsection 4) provisional rules on the early release of prisoners in Scotland and was debated in Parliament yesterday.

Within the Bill it stated that Ministers should be able to sanction the early release of people residing in prison if they deem it a “necessary and proportionate” action to help mitigate current or future impacts of the coronavirus. Early release would be enacted, if necessary, to firstly: protect the security and running of prisons and secondly: safeguard the health, safety, and welfare of people living and working in the prisons.

After the debate on this legislation, SPARC are stunned that Government have refused to make prisoners a priority and to treat them as equal human beings. The necessary legislation required to reduce the prison population and save lives is still seen as ‘a measure of last resort’, revealing the limits and meaning of justice in Scotland.

From our understanding, it’ll be three weeks at the earliest before the necessary secondary legislation to release prisoners can be considered. Over the last three weeks, the UK went from 8 deaths to 2,352, and there have been dramatic changes in public life. To leave prisoners waiting this long is to ignore everything we now know about this virus. This inaction verges on being reckless: It will mean a death sentence for some.

This also ignores the fact that viruses spread more rapidly in confined environments. This means that prisoners and prison staff health is being put at risk if we do not reduce the levels of incarceration in Scotland. For justice to mean anything the release of prisoners needs immediate action.

The Government noted that these are “extraordinary measures required to respond to an emergency situation” and explicitly stated, within the policy memorandum, that new legislation was necessary because existing mechanisms for releasing people in custody are not appropriate. However, we would argue that there are still existing options which need to be considered and acted upon now. For example, current legislations state that bail can currently be granted in Scotland for any remand prisoner at any stage pre-trial without the need for additional legislation. Given that remand prisoners account for almost 20% of the prison population and 54% of these individuals are being held for non-violent offences we urge the government to begin looking at their release.

We also know that despite overly cautious and risk averse guidance to the use of Home Detention Curfew (HDC) this is an option that would allow SG to act now. The Scottish Government should be doing everything in their power to increase its use. We know that over 20,000 people have been released on HDC licences since 2006 with a successful completion rate of around 80%. In this current time of crisis, that this mechanism has not been expanded is inexplicable.

The Scottish Government has also rejected the use of temporary release on the grounds that people liberated in this way cannot access the benefits system. This is undoubtedly an important point: releasing people with no means to support themselves is not in their interests, or in the interests of their families and communities. Making early release contingent on family support risks placing considerable pressure on families at home. However, Castle Huntly, Scotland’s only open prison, has a capacity of 285 men. The majority of these will already be receiving regular home leave, they will have been thoroughly risk assessed and have ongoing social work involvement. SPARC advocate a targeted use of resources to extend these periods of release of people in Castle Huntly, which will free up desperately required space inside the prison system.

This is urgent. But what are the barriers to making the necessary releases possible? The only risk being accounted for right now is the risk to the public and community from crime. The Scottish Government must move their thinking forward, to see people in prison not only in terms of the risk they create for others, but the risk they are forced into because of Scotland’s overcrowded prison conditions. People cannot wait, acting now will save lives.