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 familiesresearchers 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. 

The curious drop in prison population during Covid-19

The prison population seems to have fallen in the absence of formal action to reduce it.

What has happened and why?

Prison pop overall
Source: all prisons data from SPS web reported Prison Population; charts created by SPARC

The Scottish prison population has decreased significantly and rapidly since the UK Government announced lockdown measures in response to the Coronavirus pandemic. By the end of April 2020 it stood at 7,176 (weekly average at 24 April), down from 8,213 a year ago (at 20 April 2019). The impact of Covid on this decline is unmistakable. Over 80% of this decrease has happened in the last month alone. In this month (from 20 March to 24 April) the average daily prison population has dropped by 10%. Compare this to the previous 11 months, during which there was an aggregate decline of 3%. Overall, there were, on average, 839 fewer people in prison the week of 24 April than there were during the week of 20 March. That is the size of a large Scottish prison.

Changes in types of imprisonment

The average number of sentenced prisoners in the population fell by 358 while the number of remand prisoners decreased by 220 in the month covered by pandemic lockdown.

Among those classified as remand prisoners, the decline has been sharpest among those who are convicted but awaiting sentence.

Untried (lefthand y-axis); Convicted awaiting sentence (righthand y-axis)

A presumption against use of HDC was announced 10 April 2020 (see SPARC Covid-19 timeline), and HDC use has increased only slightly since then. It had already been rising since the start of lockdown, but the numbers are still very low (a high of 64 HDC prisoners in mid April) compared to its former level of use (averaging 300-350 people on HDC pre-2019).

Changes in Court Business

Court business is beginning to show some change, with a decline in cases before the highest volume criminal courts: Sheriff Summary business and Justice of the Peace courts. An historically high and rising level of cases being prosecuted involving sexual offences has meant High Court and Sheriff Solemn court business remains unchanged.

Third Quarter Criminal Court Cases and Change since Second Quarter

N% change
All Courts first instance cases25,815-3.4%
High Court indictments274No chg
Sheriff Solemn petitions2,492No chg
Sheriff Summary complaints 16,138-4%
JoP cases registered7965-4%
Third quarter numbers and percentage change compared to the second quarter of 2019/20
Source: Scottish Courts and Tribunal Service statistics

Scottish Ministers so far have not exercised newly legislated powers to allow early releases from prison to contain/prevent Covid-19 infection, so what explains this remarkable drop?

Factors affecting prison population

Input factors

Recorded Crime and Arrests: Media reports that 2,700 (or 1 in 6) police were off sick/absent at the end of March 2020 and that this is higher than usual absence levels. Media reports also have claimed recorded crime is down (which is partly determined by police numbers) by 25% overall, with 40% decrease in serious assaults and 30% decrease in break-ins.

Use of Remand: SPARC reported on 31 March rumours Procurator Fiscals have been open to more bail requests, and willing not to push for remand. The biggest percentage drop has been in people who were remanded following conviction to await sentence, possibly reflecting less PF opposition to defence requests.

Court cases and sentencing trends: The busiest criminal courts are seeing reduced business, but the courts hearing serious cases most likely to result in the longest periods in detention are not. The recently implemented presumption against short sentences (PASS) of 12 months or less may be having an impact generally; a report reviewing sentencing between July-December 2019 showed there was a drop in sentences of 12 months or less, and no increase in sentences just over 12 months.

Changes in the sentenced population in prison: No data during Covid-19 is currently published on sentences. The Scottish Government stopped publishing detailed information showing prison population breakdowns by length of sentence in 2013-14.

Parole recalls: The Parole Board for Scotland has not published data on releases during Covid-19. 

Community sentence breaches: Data have not been published on numbers of community sentence breaches resulting in custodial sentence. Any changes in this would affect sentences at the short end of the scale and unlikely to have major impact on overall prison population numbers.

Output factors

HDC: HDC use has slightly increased but the numbers are too small to impact overall prison population.

Parole releases: SPARC have heard from insiders that more people are getting parole on first attempt, but official numbers on decisions during Covid-19 have not been published.

Discretionary releases: Emergency Covid-19 legislation now allows some release; these have not yet been exercised as of 1 May 2020.

What can we learn from prison population reduction during Covid-19?

Prison population reduction in the absence of prison reform. It is stunning to see massive population change achievable where major reform efforts have so far had little (or counterproductive) impact. The more optimistic lesson is to see that reducing prison populations is possible, just as we have seen positive impacts on air quality and the environment generally where years of climate agreements have failed to achieve targets.

Prosecutors have great power over prison population size, and this is almost entirely ignored in policy and research. They can oppose or encourage bail and influence sentencing, as we have been hearing from insiders. 

We need data. To understand changing population numbers and to fulfil democratic government’s duty of transparency and accountability, accurate and current data is needed. This is more urgent where people are in state custody, in which the state effectively exercises the power of life and death. We commend whoever in SPS is continuing to publish weekly prison population data. We strongly criticise the lack of an official statistics publication on prison population for the past five years. We urgently request that agencies prioritise collection and reporting of data which can allow for analysis of populations, especially given that rights monitoring has effectively been suspended in Scottish prisons.

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:

Policy note:

Explanatory notes here – 

The 2011 Prison Rules (prior to the amendments):

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

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.


SPARC statement on COVID 19 – Friday 27 March 2020

  1. SPARC is deeply troubled about the lack of speed and clarity about the response to Covid 19 in Scottish prisons. While the pandemic is evolving rapidly, we remain concerned that the response from the SPS and Scottish Government has not. There appears to have been little meaningful progress since our statement of Tuesday 17th March, where we outlined serious concerns and made a number of urgent recommendations, not least the call for publication of a clear, detailed plan.
  1. We would view a satisfactory plan as one that includes: information for families about testing, isolation protocols for the unwell (including how family can receive updates on those isolated); details of modes and frequency of maintaining family contact; appropriate and specific policies applying to different prisons given distinct populations (such as much older age groups in Glenochil, mixed gender and ages in other prisons); accessible and accurate information about crowding and issues in establishments, such as the availability of phones, soap, hand sanitiser and other toiletries for all prisoners regardless of income.
  1. The need for action could not be more urgent given the current crisis inside Scottish prisons, which provides a perfect environment for the virus to spread. Prisons are overcrowded, and prison numbers significantly above the estate’s operational capacity. 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.
  1. Further, self-isolating in a prison environment may be detrimental to mental health, which is already a particular concern in prison, as we know contact with family and other supportive individuals can protect against the risk of suicide. This point has been unaddressed in official responses to date.
  1. On Monday 23rd, it was announced that visits would be suspended from the following day. However, other than publicising that a help-line for families would be available from Friday 26th, there has been no information shared with families as to how they can keep in contact. On Tuesday 24th, the Justice Secretary noted that family contact is “crucial” and acknowledged that: “We know that technology exists elsewhere in relation to mobile phones that have restricted call lists, and we are looking at other measures such as videoconferencing.” Yet despite this acknowledgement that the technology exists, there has as yet been no action here. Meaningful measures to support family contact must be introduced urgently.
  1. There are short-term low risk prisoners, as well as long-term prisoners at the end of their sentence, all of whom could be released on HDC. And this would free up space needed to reduce the harm caused by Covid 19 inside Scottish prisons. Both prison staff and families of prisoners have contacted SPARC to express their distress at the current handling of the situation. The Scottish government need to make the brave but also the socially just decision to release these prisoners. A prison sentence should not be a death sentence.