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SPS Covid19 Route Map

On 25 June 2020, SPS published their Covid19 Route Map. Previous communication had referred to an unpublished Pandemic Plan and an explanation of how SPS planned to ease prison regime restrictions was keenly awaited. It contained a huge amount of operational detail, covering a wide range of areas. It was criticised by many, however, for being overly complex and being targeted at various audiences - both internal and external. It contained no information re timeframes of moving between phases, although advised that this would not necessarily mirror the rate of lifting of similar restrictions in the wider community. We were particularly troubled by the advice that transitions from each phase would be "premised [firstly] on having the appropriate level of staff resource available to safely make these changes for all who, live, work and visit our prison estate" i.e. not premised on the wellbeing of prisoners or human rights obligations.

It was published against the backdrop of a Ministerial Statement on 17 June 2020, which advised that the 15% reduction in the prison population should not be temporary.

Scottish Crime and Justice Survey 2018-19

On 16 June 2020, the Scottish Crime and Justice Survey 2018-19 was published. (An updated version, which supersedes the original, was published in October 2020.) The report covers 5,537 interviews conducted between April 2018 and May 2019 and presents statistics on the extent of crime in Scotland, importantly including crime that is not reported to the police, although does not cover all crime types*.

It found that the volume of crime in Scotland, including incidents not reported to the police, fell by 45% over the last decade and by 20% since 2016/17.  The proportion of adults experiencing crime decreased from one-in-five to one-in-eight between 2008/09 and 2018/19. Consistent with previous years, the majority of violent incidents - which made up 29% of all crimes - were cases of minor assault resulting in no or negligible injury (60%), with instances of serious assault (7%) and robbery (3%) remaining relatively uncommon.

Victims of two or more incidents (3.5% of adults) accounted for over half (55%) of all crime in 2018/19, with repeat victims of violence (0.7% adults) estimated to have experienced three-fifths (60%) of all violent crime in 2018/19.

It found that the the likelihood of being a victim of any crime in 2018/19 was higher for those living in the most deprived areas of Scotland, and that violent crime continues to be experienced disproportionately among some groups in the population. 

*experiences of sexual offences are not included in the main estimates 

HMIPS Inspection of HMP Edinburgh

On 10 June 2020, HMIPS published a report on its full inspection of HMP Edinburgh. The inspection took place pre-COVID (October - November 2019), but noted even then that the amount of time spent in cells "may amount to effective solitary confinement". As we know, the UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), defines this as "[t]he confinement of prisoners for 22 hours or more a day without meaningful human contact". The issue of what qualifies as "meaningful human contact" has gone on to be a very important one, since our human rights obligations expressly state that this cannot be limited to those interactions determined by medical necessity. Other notable findings in the report concerned the poor mental health of prisoners and high rates of staff absence which led to frequent cancellation of work sheds.

Jackie Tombs – A Note of Appreciation

We at HLS are sad to report the death of Professor Jacqueline Tombs, following a short illness. Jackie was a stalwart supporter of HLS and a former committee member. Her passionate support for penal change reflected her lifelong commitment to fairness, social justice and decency – qualities that were evident to all who knew her in everything she did.

Jackie was a significant figure in criminal justice policy and research throughout her career and in a range of different roles. She was formerly Head of the Central Research Unit in the then Scottish Executive, during a period when it was noted for producing imaginative and challenging policy research.  A number of highly distinguished researchers – including Lesley McAra, Susan McVie and Michele Burman – began their careers there under her mentorship.

Later on, she was successively Professor of Criminology at Stirling, and Professor of Criminology and Social Justice at Glasgow Caledonian University. She was a founding and key member of the Scottish Consortium on Crime and Criminal Justice, for whom she wrote the important and insightful study A Unique Punishment: Sentencing and the Prison Population in Scotland (2004).  Few people – if indeed any other – have done so much to maintain the vital links between research-based knowledge and policy in Scotland.

Jackie never lost her radical convictions, and she was not afraid to voice her views with passion and force in any context. Yet her innate empathy and her grasp of complex situations always enabled her to see others’ points of view. That made her a unifying figure, as comfortable among senior judges as among prison abolitionists, and held in similar affection and esteem by both. 

Jackie was a vital and energizing person, fiercely loyal both to people and to causes. HLS, the worlds of criminal justice policy and criminological research in Scotland all owe her many debts. We send our greetings and condolences to her children Gael and Mark and all her other family and friends.  She will be well remembered and greatly missed.

Three Keys to Unlocking the Problem of Prisons in a Pandemic

The current pandemic has had a significantly damaging effect on life in our prisons. Apart from the risks of infection to which prisoners and staff are all exposed, prisoners have been forced to spend far more of each day (up to 23 hours) in their cells, deprived of access to education and training programmes, deprived of social contact with other prisoners, and deprived of visits from loved ones. This has led the Scottish Human Rights Commission to become ‘deeply concerned’ that ‘current conditions being experienced by some people could amount to inhuman and degrading treatment, in breach of Article 3 of the European Convention on Human Rights’.

The Scottish Government and the Scottish Prison Service have been making substantial efforts to mitigate such damage, both by protecting against the risk of infection and by beginning to make (security-adapted) mobile phones and ‘virtual visits’ available to prisoners; prison numbers have also been reduced, thus exposing fewer people to these damaging effects, and reducing infection risks by increasing single cell occupancy (at 80% on 11th of June). However, we believe that more needs to be done, and faster. 

Given the significant impact that lack of family communication has not only on those in prison, but also for their partners and children, the provision of mobile phones, and of virtual visits, should be expanded across the prison estate without further delay. But further urgent steps must also be taken to reduce the number of people entering prison. The prison population has decreased by 15% since the onset of the pandemic, from 8,094 on 5th of March to 6,909 on 12th of June, but this has been largely due to the suspension of criminal trials. Given the significant backlog of cases, we must fear that, unless further steps are taken, the prison population will increase again when trials resume, to its previous unsustainable level as the highest (pro rata) in Western Europe. 

Following the Justice Secretary’s commitment to release up to 445 prisoners who were coming towards the end of their sentence, 348 have actually been released. This is a welcome start on the process of reducing prison numbers, but more can and should be done.

There are three key ways in which the numbers being sent to prison or kept in prison can continue to be reduced without creating significant dangers to the public; two of these have been highlighted by recent decisions from the High Court of Justiciary, and a third has yet to receive the attention it deserves. We urge reflection on the potential for greater use of these existing measures, as a valuable part of the pandemic response.

Sentencing in ‘threshold cases’

In HM Advocate v Lindsay [2020] HCJAC 15, the Court held that in ‘threshold cases’ (where the choice between a sentence of imprisonment or community is ‘finely balanced’, or where the prison sentence is a very short one), ‘the fact that prisons may not currently be operating normally may be a factor to weigh in the mix’. Bearing in mind that the courts anyway operate with a presumption against sentences of less than one year, we welcome this ruling: if there is any opportunity to avoid imprisonment, sentencers should take it.

Remanding in custody

In HM Advocate v JD and BK [2020] HCJAC 15, the Court ruled that ‘the length of time during which a person is likely to remain on remand is a factor in deciding whether to grant bail. This factor must be given greater weight than hitherto’, for as long as the current crisis lasts. Being remanded in custody while awaiting trial is always damaging, and is even more harmful under current conditions. 20% of the prison population is currently held on remand. Courts should make every effort to avoid such remands and to grant bail to the accused, subject to appropriate conditions.

Home Detention Curfew

Early release through the use of Home Detention Curfew (HDC) is another way of reducing the prison population. Despite being long-established, the scheme remains seriously underused: only 75 prisoners are currently on HDC, one third of the number released on the same scheme at the end of 2018. There is no obvious explanation for the strikingly small numbers released, especially at a time when we would expect use of the scheme to be at its highest. We therefore call on the SPS to encourage greater use of HDC amongst its decision-makers, and to avoid the ‘error terror’ that makes it hard to release prisoners.

We will continue to monitor developments in these key areas.  

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