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The Community Orders (Coronavirus)(Scotland) Regulations 2021

On 28 January 2021, The Community Orders (Coronavirus)(Scotland) Regulations 2021 were laid to reduce the outstanding number of unpaid work hours under existing Community Payback Orders by 35% (except those imposed for domestic abuse, sexual offences, or stalking). We wrote to the Justice Committee supporting the secondary legislation, but questioning the fairness and validity of the exclusions. The statutory instrument was passed.

The Restorative Justice (Prescribed Persons) (Scotland) Order 2021

On 22 January 2021 The Restorative Justice (Prescribed Persons) (Scotland) Order 2021 was laid before the Scottish Parliament to give Restorative Justice guidance a statutory basis, so that prescribed people must have regard to it. It’s a piece of secondary legislation (SSI) connected to the implementation of the Victims and Witnesses (Scotland) Act and is something which we support. We look forward to details on how Restorative Justice will be be introduced across Scotland by 2023, as previously advised in the Restorative Justice Action Plan.

Allan Marshall FAI Recommendations

On 21 January 2021 (18 months after the FAI), the SPS advised Allan Marshall’s family of their decision not to implement three of the 13 recommendations from the FAI. One of the recommendations not implemented referred to the use of feet by prison officers when restraining prisoners. As we know there is no legal imperative for the SPS (as with other organisations) to adopt the recommendations of this or any other FAI.

This tragic case continues to give rise to various questions about past and current practices within the prison service: as early as the preliminary hearing, control and restraint documents required by the inquiry were knowingly withheld and unnecessarily redacted by SPS. Vital evidence was destroyed, and on multiple occasions, statements given to the FAI by both prison officers and senior management were flatly contradicted by CCTV evidence, leading Sheriff Gordon Liddle to describe prison staff as "mutually and consistently dishonest". SPS then went to great lengths to try to keep the CCTV footage out of public sight. In an extremely rare move, the officers called to give evidence at the FAI, were granted immunity from prosecution. 

All the prison officers, bar one, initially told the inquiry that they were unaware of any officer using their feet during the restraint. When confronted by the video evidence, most of them changed their position, with one officer describing his own behaviour in using his feet to "stamp on" Mr. Marshall, as "totally out of order". Officers used their feet on more than ten occasions, which were clearly seen in video evidence. Expert witnesses confirmed that the use of a foot was not a recognised control and restraint technique and were quite clear that the use of feet was not justified. Both of the expert witnesses advised of the particular risks to breathing associated with the use of feet.

However, SPS has chosen not to implement the recommendation to provide specific training on the use of feet as a control and restraint technique, or to specifically disallow it. Instead, "in exceptional circumstances" SPS will allow its staff the scope to use dangerous and unapproved control and restraint techniques for which they haven't received specific training. Our belief is that Allan Marshall's death occurred in such "exceptional circumstances" - exactly the type of circumstances in which prison officers needed to know how to mitigate the potential consequences of their unapproved actions, either through thorough training or by being prevented from using such potentially life-endangering actions at all. 

In October 2019, SPS advised that they would be unlikely to implement Sheriff Liddle's recommendation that a clear policy be put in place where prisoners presenting with symptoms of psychosis must not be placed under physical restraint until they had been assessed by healthcare professionals and it having been deemed safe for the prisoner to be restrained. It has taken until January 2021 for SPS to reiterate that this would "be challenging to implement ... given SPS' duty of care that requires prison officers to respond immediately where an individual is at risk of harm to themselves or others" and that "[t]here is a section within the revised manual designed to begin to address these challenges ... with a focus on de-escalation". Almost six years after Allan Marshall's death, there isn't a clear policy to prevent this happening to someone else in the future, merely a section in a training manual which "begin[s]" to address these challenges and a statement that "SPS is giving further consideration to prevention strategies and managing behaviour in order to avoid the need to use restraint". 

In much the same way that the FAI determined that it can't be left to SPS to choose what evidence to redact, Howard League Scotland believes that it shouldn't be up to SPS to decide which of the recommendations they're going to implement and which they're not. Their conduct in this case suggests a wish to actively avoid external scrutiny, and in some circumstances, to behave with impunity. SPS's long-overdue response to the recommendations of the FAI is far from satisfactory and should not go unchallenged. 

 

The Parole Board (Scotland) Amendment Rules 2021

On 12 January 2021 secondary legislation “to improve Scotland’s parole system, providing greater transparency for victims, relatives and the public” were introduced to Parliament. The report on the Transforming Parole consultation had promised actions to "help victims, support prisoners and assist the Parole Board to become more open, visible and transparent", however, only actions relating to victims have been included. One of our Committee Members, Dr. Katrina Morrison attended the latest meeting of the Transforming Parole Implementation Group on our behalf, where it was clear that a lot of consultation with victims’ groups had taken place recently, but that this process had not been mirrored by similar opportunities for high level Government meetings for those seeking parole. This is something we intend to continue to question.

Effects of New Covid19 Variant

During January 2021 and in response to the increasing spread of the new variant of COVID-19 across Scotland, a number of measures were advised:

- the Lord President announced that criminal courts would focus on the most serious trials and the majority of summary trials in the Sheriff Court and Justice of the Peace Court would be adjourned. This was estimated to reduce the overall number of criminal trials taking place during lockdown by up to 75%

- Social Work Scotland announced that for the same reason, face to face unpaid work as part of CPOs would be suspended as part of the current lockdown

- HMIPS announced that they had taken the decision to suspend on-site monitoring and liaison visits to prisons and Court Custody Units - a decision that would be reviewed on a fortnightly basis.

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