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.

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

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.