Scottish Prison Service issued details yesterday (28 April 2020) of the regime for those in isolation due to Covid-19.  The policy states that, on the advice of Health Protection Scotland, SPS ‘should consider a prison cell a household’ for the purposes of self-isolating in a closed prison setting.  The practical consequences of this approach raise a number of concerns regarding the safeguarding of prisoners’ rights during the Covid-19 crisis.

Prisoners symptomatic of Covid-19 ‘must be held in isolation…for a minimum of 7 days or until they are asymptomatic’ in terms of rule 41 of the prison rules (as amended for the duration of the coronavirus outbreak). 

But equally, those sharing a cell with symptomatic prisoners ‘must be held in isolation…for a minimum of 14 days’ in terms of the same rule.

This policy places exceptional restrictions on prisoners’ daily lives, albeit in the legitimate interests of public health, well beyond those endured by following the government advice to ‘stay at home’ in the community. 

‘Self-isolating’ prisoners must take all meals in their cell, have no access to recreation or outside exercise and only restricted access to communal phones.  In the case of concerns for mental wellbeing as a result of ‘prolonged isolation’, limited access to outside exercise may be provided subject to risk assessment.  But what does prolonged isolation mean?  The usual maximum period of 72 hours isolation (under rule 41) is already prolonged to 14 days before prison governors require to seek authority for any extension. 

These measures, of themselves, present a serious threat to the residual liberty and humane treatment of segregated prisoners.  But above all, if a prison cell is to be classified as a ‘household’, then it will be especially important to tackle the enduring problem of prison overcrowding. 

As the Scottish Human Rights Commission has highlighted, in its letter to the Scottish Parliament’s Equalities and Human Rights Committee, ‘key concerns relate to reducing the detained populations to mitigate the inherent risk of maintaining people in close confinement and spreading the virus’.  We share the concerns of the SHRC that ‘extended solitary confinement in spaces designed for one but holding two will be detrimental to both physical and mental health’.

Prisoners in shared cells face a greater risk of being held in isolation (aside from the increased risk of infection) than if they occupied single cells alone.  A policy of ‘prisoner householding’ therefore risks criticism as unreasonably and unlawfully placing prisoners at risk. 

How could things be done differently?  The policy itself provides some answers.  Prisoners who are ‘shielding’ as clinically extremely vulnerable will be accommodated in single cells, and ‘offered an opportunity to take outside exercise 3 times a week’.  Others with underlying health conditions who ‘may wish to restrict contact with others’ should be accommodated in single cells ‘where possible’ and should be ‘offered outside exercise on a daily basis’.  In all such cases, the policy anticipates that social distancing will be adhered to at all times.  These conditions should be available to all prisoners. 

All possible steps must be taken, therefore, to safely reduce the prison population, so that the significant threats posed by ‘prisoner householding’ in shared cells are avoided. 

The first executive ‘early releases’ of prisoners in Scotland are due to take place tomorrow (30 April).  Updated weekly prison population figures, taking account of those releases, are due to be published on Friday (1 May).  We have already seen the potential for legal action if executive powers of release are not utilised to the fullest extent.  Howard League Scotland will continue to monitor the data closely.

In response to the severe threat to prisoners and prison staff posed by COVID-19, we wrote to the Cabinet Secretary, Humza Yousaf MSP, on 19 March 2020. Our letter was as follows:

Dear Cabinet Secretary,

Scottish Prisons: Covid-19

On Tuesday 16 March 2020, we learnt from media reports that two people in prison at HMP Kilmarnock were in self-isolation in response to the first suspected cases of Covid-19 in Scottish prisons.

A brief statement released from SPS on Wednesday 17 March 2020 advised that 12 individuals were self-isolating and that “robust pandemic plans [were] in place”. This has been superseded by another brief statement today advising that two people have tested positive for Covid-19 in HMP Kilmarnock and that SPS is following advice from Health Protection Scotland. It also advises there are “no restrictions on movement in place therefore establishments are continuing to operate visits as normal”.

The latest information posted on the SPS website is dated 11 March 2020 and advises against visiting a prison establishment if you have been to a place affected by Coronavirus in the last 14 days; if you are displaying symptoms of the Coronavirus; or if you have come in contact with someone who is known to have the Coronavirus.

Thus, 18 days since the first reported case of Covid-19 in Scotland, and one day after it was confirmed that the first prisoner in the UK has died of Covid-19, this is the only prison-specific information which has been made publicly available.

As we know, the current prison population of 8,094 (as at 13 March 2020), includes areas of significant overcrowding, where many single cells are doubled up, and in some instances where double cells have been found to be accommodating three people: creating conditions in which the virus could spread rapidly amongst a population known to be in physically poorer health than the general population. The pressures of space would suggest that self-isolation will also pose particular logistical problems.

We are therefore calling on the Scottish Government to provide a clear Covid-19 specific plan of action to protect the physical and mental health of those working and living in our prisons, including a detailed explanation of how the Chief Medical Officer’s ongoing advice will be applied – particularly around ‘social distancing’ – with regular updates being made available without request.

We would expect that some of the wider measures being considered include an immediate expansion of Home Detention Curfew (HDC) and restrictions on the use of remand, and thus look forward to hearing which proposals will be implemented as a matter of extreme urgency.

Yours sincerely

Howard League Scotland Committee