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UN Committee Against Torture - Key Concerns

The UN Committee Against Torture will shortly conduct a review of UK progress in implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment . (For background, the Scottish Government published an update on the UN Human Rights Council recommendations from the last review.) Alongside our partners in Human Rights Consortium Scotland, we have raised the following key concerns to the UN Committee Against Torture:

1. Deaths in police and prison custody

Each year for the last several years a significant number of prisoners have died whilst in SPS custody.[1] Various factors, including both the poor physical and mental health experienced by many people on entry to the prison and the rising number of old people in prisons, combine to produce these outcomes. In Scotland, deaths in custody are subject to a mandatory Fatal Accident Inquiry (FAI) chaired by a judge.[2] However, there is no statutory time limit on this process and there is a substantial backlog in completing these.

Our analysis of information on the 50 most recent FAIs provided by Scottish Courts and Tribunals Service, shows that whilst most take place within 12 months of the date of death, there are instances where this has taken up to 4 years. None of the resulting determinations included recommendations for improving systems or processes, and there was much variance in time taken to publish i.e. from a matter of days to over a year.

In Scotland, remand prisoners make up 18.7% of our prison population, but account for 27% of the deaths in custody, thus being on remand disproportionately increases a person’s chance of dying whilst in custody.

Actions

The UN Committee Against Torture may wish to seek further information on these matters in discussion with the Scottish Government, including consideration of the following: increased scrutiny of health care and management of older prisoners; the implementation of effective suicide prevention strategies in Scottish prisons; management of the investigations of deaths and associated delays being more transparent; and the Scottish Government ability to restrict the courts’ use of remand.

2. SPS overuse of long-term segregation which amounts to solitary confinement

Scottish prisoners whose behaviour is judged to be prejudicial to the good order and discipline of the institution may be removed from association and located in a ‘Separation and Reintegration Unit’ (SRU) under Rule 95 of the Prisons and Young Offenders Institution (Scotland) Rules 2011.Although such orders are initially made for a period of up to 72 hours they can be repeatedly extended with reference to the delegated authority of Scottish Ministers.

Concerns include that such extensions arise recurrently in the case of certain prisoners such that they come to be removed from ‘the mainstream’ for many months in succession. There has been a limited (though notable) amount of prisoner litigation on this issue[3] but little or no current research or recent public discussion on policy. Statistics provided by the SPS in response to a Freedom of Information request[4] showed that on 1 January 2017 one prisoner had spent over 800 consecutive days in a SRU in one prison (Grampian), one over 700 days (in Edinburgh) and another 7 over one year.

Actions

The UN Committee Against Torture may wish to pursue these matters in discussions with the Scottish Government and SPS.

3. Imprisonment of women

In 2015 the Scottish Government decided not to proceed with plans for a new women’s prison at Inverclyde. Instead, it resolved to create five small ‘community custody units’ in Scotland’s larger cities and one national facility with places for 80 women to replace the existing women’s prison at Cornton Vale.It was advised that the new female prison estate would hold 230.

As at 15 January 2019, the female prisoner population stood at 381, with women held in several locations, including a number of prisons formerly exclusively for males (Edinburgh, Greenock, Grampian, Polmont).

Two of the three community custody units (circa 36 places), are due for completion by the end of 2020, with no details as to when the remaining three will come on-stream. In answer to a Parliamentary Question re the women’s estate on 15 January 2019[5], the Cabinet Secretary for Justice advised that fuller detail would be provided.

Given the significant changes currently in hand, confirmation of the consequences for women in custody during the current transitional period would be timely.

Serious concerns have arisen recently about the use of restraints especially as applied to women and searching practices. We have received reports, which we are not in a position to investigate further, of intimate body searches of women by teams including male officers.

The safe and appropriate treatment of persons in custody who are transitioning/ transgender is a question that has recently come into sharp focus, and it is one with which the UN Committee Against Torture should rightly be concerned. 

In our view the safety of all persons in custody is a non-negotiable priority which imposes clear duties on the responsible authorities. All prison services should be held accountable for their performance in this respect. All persons have the right not be victimised or re-traumatised in prison or detention. 

In Scotland, the vast majority of trans/transitioning people in custody are m2f, the majority of them have not yet had gender reassignment surgery.

The Scottish Prison Service is currently consulting on their approach to the care of transgender people in custody. Their current approach allows anyone who self-identifies as transgender to be recognised as such, regardless of medical or psychological certification which supports this. This reflects the national approach to gender recognition taken by the Scottish Government.

The English and Welsh approach on the other hand, only recognises transgender people after a process of being granted a Gender Recognition Certificate which takes at minimum two-years and which has been criticised by the Scottish Government, amongst others, as being overly intrusive and onerous.

Significant and complex problems may arise however where transitioning /transgender prisoners elect to be housed in women's prisons. Women in custody are an especially vulnerable group, many of whom have also been the victim of sexual violence in their lives. The rights of women to be safe and to feel safe - including their rights to be housed in female-only settings - whilst in the care of custodial institutions cannot be compromised for any reason. The views of women prisoners should be specifically sought in consultation processes. 

Actions

We recommend that the UN Committee Against Torture seeks further information on interim plans for the women’s estate and evidence of the possible use of restraints.

We urge the UN Committee Against Torture to attend to the issues re transitioning/transgender prisoners with some urgency with a view to providing clear guidance of good practice for prison services in this area. This should include the Committee’s own investigation into international best practice - including the differences between the Scottish and English and Welsh approaches - and careful ethical consideration. 

[2] Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2)

[4] http://www.sps.gov.uk/FreedomofInformation/FOI-5783.aspx

[5] http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11885&i=107462

New Strapline Brief

No incentives. No terms and conditions. Just a simple brief and the opportunity to contribute to making Scotland a better and safer place. 

We're proud to follow the search John Howard took between 1775 and 1790 to find a humane prison system, and to work with associated organisations founded in his name across the world. In 1979 our unique penal system called for the establishment of an independent Scottish organisation, and to mark our 40th Anniversary this year we'd like your help in coming up with a strapline to reflect and celebrate what we stand for. Email responses to: info@howardleague.scot.

Strapline Brief

Background

Howard League Scotland (HLS) is Scotland’s leading independent campaigning organisation for the rights of prisoners and other offenders. Established in 1979, we promote just responses to the causes and consequences of crime, convinced that prison should be a place of last resort. We do not seek Government funding and HLS is entirely funded by voluntary donations, allowing us to speak freely on issues of concern.

We focus on how to reduce the number of people in prison, and on prison conditions and regime. We campaign for progressive approaches to prisoners, based on evidence of ‘what works’ and on a humane approach to ‘what’s right’. For example, we believe that the Minimum Age of Criminal Responsibility should be raised from 8 to 16 years of age; that all prisoners should have voting rights; that more use should be made of non-custodial sentences; and we are opposed to the building of a new super-size prison to replace Barlinnie.

We don't represent individuals or provide services. Working with MSPs, other decision makers and influencers, we aim to highlight key areas of concern and present evidence on penal reform issues via our website, social media channels and the media, as well as directly to Parliamentary Committees.

The HLS Committee is made up of experts drawn from legal, academic, voluntary and public sector backgrounds, who all give freely of their time and expertise.

Requirement

A strapline, which we would like to add to our existing logo and launch at our 40th Anniversary Conference in May 2019: ‘Reimagining justice in Scotland’.

Examples of how the strapline and logo could be executed creatively would also be welcome.

Objectives

  • help to position Howard League Scotland as a separate entity from the Howard League for Penal Reform, which whilst describing itself as a national charity, operates in England and Wales
  • provide clarification of what we stand for, in order to boost membership and support our fundraising applications and activities

Target Audience

Key parliamentarians; civil and other public servants; funders; academics; practitioners; members of the public interested in penal reform; media; other penal reform organisations.

Tone

Inspiring

Call for Submissions: 40th Anniversary Conference 'Reimagining the Future'

Our 40th Anniversary conference in Edinburgh on Wednesday 22 May 2019, will ask “what should the next 40 years of criminal justice in Scotland look like?”. We want to explore new ideas and new directions for the future of criminal justice in Scotland - to stimulate new thinking about how we can work towards a better future.

The conference will be organised round twelve brief presentations. Each speaker will have ten minutes in which to present a new proposal for penal reform, a new idea about how we could improve our system of criminal justice, or a new direction for penal thought. We will also encourage questions about, and comments on, the proposals from other participants in the conference.

We now invite submissions for these presentation slots from a wide spectrum of participants, and would particularly welcome submissions from early career researchers, from practitioners, and from those with lived experience of the criminal justice system.

All we need is a half-page proposal and a brief biography by the end of February 2019. (Although links to previous presentations would also be very welcome.) We will confirm attendance with you by the end of March 2019, and where it is not possible to accommodate a presentation, we will endeavour to include your contribution in some other format during the conference. Please email: emma@howardleague.scot

First HLS Student Society Launches

 

We are delighted to announce that Scotland’s first HLS Student Society is launching at Edinburgh Napier Univeristy, where this is a strong reputation for criminal justice, policing and social studies of punishment. As the first of its kind, the HLS student society is interested in encouraging debate about punishment, social justice, human rights and fairness, as well as developing a more critical understanding of Scotland’s distinct penal issues among the student community. They intend to organise debates, field visits, lectures, roundtable discussions as well as social events.

By becoming a member students will automatically become a member of HLS. This means all Howard Leagues Scotland events will be free to them. 

Organised events so far include:

  • A screening of Michael Inside 1 November, 6pm
  • A screening of On the Outside in early January

Further events are being planned for throughout 2019.

Formed in 1979, HLS is Scotland’s oldest and leading independent penal reform organisation.  We campaign for the Scottish penal system to be just, progressive and humane and that prison becomes a measure of last resort.

To find out more contact: K.Morrison@napier.ac.uk

Critical Issues in Scottish Penal Policy: Prison Reductionism

This week HLS has invited a selected group of experts to reflect upon critical issues in Scottish penal policy. Today, our post is from SPARC (Scottish Prisoner Advocacy and Research Collective), an exciting new voice in Scottish penal reform. They advocate that rather than refining the prison, making it more caring, we must remain committed, first and foremost, to reducing the prison – we cannot lose sight that prison is inherently damaging for those imprisoned there, their families and wider society. 

Why penal reductionism must be at the centre of prison reform 

 

Once you are in it is difficult to get out.

It is well established that prisons do not reduce re-offending. For individuals released from custody in 2014-15 (the last year where detailed statistics were published by the Scottish Government) 60% of those serving a sentence of less than three months were reconvicted. While reconviction rates for longer sentences are lower, almost a quarter of those serving between 2 and 4 years were reconvicted (Scottish Government 2017). So what effect does the prison have?

The prison of course makes a massive impact on individuals, families, communities and society. Counter to current prison policy, we suggest that it is crucial to examine the effect of prison itself, rather than continuing to pathologise those within it as “bad” or “anti-social”, constantly positioning the prison as a site where these people can be repaired and from which good can flow. Indeed, there is strong evidence that criminal justice system contact can be criminogenic, with young people who are drawn into the justice system less likely to desist than those who engage in the same behaviours, but do not experience an intervention from the criminal justice system (McAra and McVie 2005).  

Similarly, in 2008 the Prisons Commission highlighted that even short periods in custody disrupts positive and supportive relationships in the community and, notably, that the physical geography and institutional regimes of prisons discourage independence and personal responsibility, institutionalising (and we would add traumatising) many of the people who are sentenced to this form of punishment. Imprisonment can also create or exacerbate problems relating to housing, child care, employment and discriminatory public attitudes[1].  For instance, a 2016 YouGov survey commissioned by DWP found that that 50% of employers would not consider employing an offender or ex-offender (House of Commons Work and Pensions Committee 2016).  Thus, for many people, imprisonment reinforces barriers to paid work, secure housing and personal and family wellbeing; all of which are factors supportive of desistance.  

 

Progression – a game of snakes and ladders

An issue of particular concern to SPARC is that for those serving long or life sentences it can be incredibly difficult to progress through the system.  Progression is central to how lifers and long termers are managed. Prisoners are meant to incrementally graduate to lower levels of security, ultimately as a means to test and monitor their levels of responsibility and safety, ultimately achieving parole – a process that we have elsewhere likened to a game of snakes and laddersas many prisoners are downgraded and held back. While we know that the average tariff a person on a life sentence serves has almost doubled between 2000-2012 (Howard League Scotland, forthcoming), the number of “lifers” in Scotland who are serving time over their tariff is not routinely made publically available.

Our own advocacy/research work suggests that those who are most likely to experience delayed progression through the system are those who are already the most disadvantaged: those with addictions, poor mental health, difficulty building relationships with officers, those who are less able to advocate for themselves.  Yet, even when people in custody do face these barriers, the availability of places on courses which are required to reduce risk or move on to the next “stage” of their sentence can create considerable delays. 

This raises fundamental questions about justice, fairness and what are people in prison being punished for?  We contend that it is unacceptable for people to be held in custody solely for reasons relating to poor mental health, addictions or a lack of resources. 

This issue takes on a particular urgency and salience in Scotland because the number of sentences imposed is disproportionality high here. Speaking at the Howard League Scotland in March 2018, Professor Dirk Van Zyl Smit noted that the number of people serving life sentences has steadily risen over the last 15 years, with “lifers” accounting for 19% of the prison population.  The comparable figure across European countries is 3%, with lifers accounting for 0.9% of the prison population in France and 6% in Turkey. Indeed, Scotland has more than double the number of lifers than France (1,083 vs 489).  Together, the UK and Turkey have more lifers than the rest of Europe combined, including Russia[2].  

This is troubling for a country which, ten years ago, sought to position itself as in line with the apparently more progressive approach of the Nordic/Scandinavian jurisdictions. Professor Van Zyl Smit concluded that this raises questions about how Scotland responds to serious crimes and the utility of mandatory life sentences. These must be used only in circumstances where no other sentence will do, as the effects of being of life licence retain a person permanently within the criminal justice system, undermining their ability to return to “full” citizenship.   

 

Within a custodial environment instruments of care become tools of punishment 

The Prisons Commission was also critical of what it termed Scotland’s “warehousing problem”, or the unnecessary use of prison to hold people suffering from trauma, abuse, victimisation, addictions and poor mental health. 

We would agree that this is an unnecessary and unproductive use of custody which must be curtailed. However, we also want to build on this point to suggest that very often when a “care” or personal development need is identified in prison, the response is framed in terms of addressing offending behaviours e.g. expressing frustration, distress or anger may lead to a referral to anger management course; or a desire for more contact with children may lead to a parenting course. 

This is problematic because it has the effect of re-framing what are often structural problems such as poverty, or genuine health needs such as mental illness, as personal choices and failings (Kendall 2002); which can in turn warrant an additional criminal justice response.  This is perhaps seen most clearly in the response to addictions.  While we would argue this should be seen as a health issue, not least because the prison environment can exacerbate or shape drug use in particularly harmful ways[3]failing to manage or overcome an addiction can delay progress towards release, effectively imposing additional punishment on those with addictions.    

 

Prison harms 

Finally, and most importantly, our reliance on prison must be reduced because prison harms.

Reviews of research suggest that time in prison is itself damaging to cognitive function (Meijers et al 2015). Research on Scotland by Prof Lesley Graham has further established that those who are in prison have higher mortality rates, of two to more nearly six times higher, than those in the general population, even when controlling for social deprivation. Such work establishes, unsurprisingly, that confinement of human beings is deeply damaging, and this damage should be carefully considered.

This is reflected in the higher than average rates of drug and alcohol use and poor mental health identified by the Prisons Commission.  While detailed data on the prevalence of mental health problems in Scottish prisons has been argued to be lacking, research suggests that mental health is one of the most important health issues in prisons, with the majority of prisoners having at least one mental health problem[i](Gillies, Knifton and Dougall 2012). While areas of good practice have been identified, mental health services in prisons have been argued to be under-resourced, leading to significant unmet need[4](ibid). 

Mental health problems can be fatal.  When we look back to deaths in custody in 2013, which is the first year in which at least some of the families in question are not still awaiting the outcome of a fatal accident inquiry, seven men committed suicide and a further two died in an “Event of Undetermined Intent/Overdose”.  The deaths of these men equate to over a third of fatalities in custody in that year. 

Finally, prison also harms families and communities. Supporting a person in custody requires a considerable investment of time, money and emotional labour from families. Concerning, it can also create or exacerbate poor relationships between families and the criminal justice system, undermining both feelings of citizenship and penal legitimacy (Jardine, forthcoming).  

When we recognise this harm, we are compelled to scrutinise even the best intentioned use of imprisonment. The best way to reduce these harms is to reduce our reliance on this damaging form of punishment. 

 

This post is based on SPARC’s presentation at the 10thAnniversary of the Scottish Prisons Commission 

Author Information: SPARC is a research and advocacy collective who campaign for reform in the use of imprisonment in Scotland, comprising researchers at all stage of career and many with long-term, personal experience of imprisonment. 

 

References 

Gillies, M., Knifton, L. & Dougall, R. (2013) Prison Health in NHS Greater Glasgow & Clyde: A health needs assessment. Glasgow: NHS Greater Glasgow and Clyde. Accessible here: https://strathprints.strath.ac.uk/42745/1/FINAL_PRISON_HNA_REPORT_2012.pdf

Graham, L. (2012) Justice Committee, Transfer of prison healthcare to the NHS Written, submission from Dr Lesley Graham: http://www.parliament.scot/S4_JusticeCommittee/Inquiries/Dr_Lesley_Graham.pdf

House of Commons Work and Pensions Committee (2016) Support for ex-offenders: Fifth Report of Session 2016–17, London: House of Commons. https://publications.parliament.uk/pa/cm201617/cmselect/cmworpen/58/58.pdf

Jardine, C. (In press) “Eroding legitimacy? The impact of imprisonment on relationships between families, communities and the criminal justice system”, in Condry, R. and Scharff-Smith, P (eds.) Prisons, Punishment and the Family: Towards a New Sociology of Punishment, Oxford: Oxford University Press.  

Kendall, K (2002) ‘Time to think again about cognitive behavioural programmes’ in Women and Punishment: The Struggle for Justice, Carlen, P (ed), Willan: Devon

McAra, L., & McVie, S. (2005). The Usual Suspects? Street-life, Young People and the Police. Criminal Justice5(1), 5-36. DOI: 10.1177/1466802505050977

Meijers J, Harte JM, Jonker FA and Meynen G (2015). Prison brain? Executive dysfunction in prisoners. Front. Psychol. 6:43. doi: 10.3389/fpsyg.2015.00043

Scottish Government (2017) Reconviction Rates in Scotland: 2014-15 Offender Cohort Edinburgh, Scottish Government.  Accessible here: http://www.gov.scot/Resource/0051/00517255.pdf

Van Zyl Smit, D. (2018) Life imprisonment: an appropriate ultimate penalty in Scotland?, Lecture hosted by Howard League Scotland, 12 March 2018. 

Endnotes

[1]There is a large body or research evidencing the harm and damage caused by imprisonment.  See, for example, Kendall (2002); 

[2]http://www.heraldscotland.com/NEWS/16079679.Scotland_told_to_scrap_automatic_life_sentences_for_murderers/

[3]For instance, a desire to avoid detection in MDT’s can encourage the use of more addictive substances or legal highs

[i]The authors note “The most comprehensive and robust data on the prevalence of psychiatric disorder in the prison population in the UK are from a 1998 Office of National Statistics study of 1,250 men and 187 women aged 16 – 64 years imprisoned in England and Wales (Table 3) [29]. The prevalence of mental disorder in the prison population was high; over 90% of prisoners had one or more psychiatric disorder (psychosis, neurosis, personality disorder, drug or alcohol dependence). Dual diagnoses were extremely common; 80% of prisoners had two or more psychiatric disorders (most commonly a major psychiatric illness and substance misuse) and 12 – 15% of prisoners had 4 or 5 co-existing disorders.” (Gillies, Knifton and Dougall 2012: 59)

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