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.