On 9 August 2019 a Fatal Accident Inquiry report into the death of Allan Stewart Marshall was published. It concluded that the cause of the accident that led to Allan Marshall's death was the continual physical restraint and forceful resistance of this restraint. The incident occured at HMP Edinburgh's Segregation and Reintegration Unit on 24 March 2015, whilst he was suffering from an episode of Excited Delirium Syndrome. The inquiry found that there were a number of precautions which could reasonably have been taken, and which had they been taken, might realistically have prevented his death. It highlighted system failures; training failures; defects in systems of working; unclear chains of command and responsibility; and credibility and reliability issues with many of the prison officer witnesses. Following its publication, questions were raised about the decision taken not to instigate criminal proceedings and to grant immunity to the SPS officers involved. It was also reported that SPS took court action to prevent the publication of CCTV images of the incident, which contradicted evidence given during the inquiry.

FAI - Allan Marshall

Scottish Government response to FAI

The news that the SPS is to suspend its Throughcare Support Service (TSS) and reassign all Throughcare Support Officers (TSOs) to Prison Officer roles, demonstrates the immense pressure SPS is under and the need for immediate action to reduce our prison population.

The average daily population has consistently risen above 8,000 in 2019, standing at a current figure of 8,190 as at 12 July 2019[i]. By comparison, the maximum capacity of the Scottish prison estate is only around 7,564 places.[ii] Even assuming a slightly higher operational capacity (of 7,725 places), according to the most recently compiled Council of Europe statistics, the current population figure shows overcrowding at a density of 106.4 prisoners per 100 places, ranking Scotland as ‘high’ compared with the European median value as at 31 January 2018.[iii]  

These rates are unsustainable, and they signal an urgent need for significant policy change. 

The current statistics raise immediate concerns for the general safety and wellbeing of prisoners and prison staff. Prison overcrowding can also breach prisoners’ human rights, contrary to the prohibition against ‘inhuman or degrading treatment or punishment’ under article 3 of the European Convention.[iv] Looking beyond the prison walls, it has been acknowledged that the ‘morally debilitating’ effect of overcrowding ‘reinforces the detainee’s detachment from society and therefore only increases exponentially the risk of reoffending’.[v] Prison overcrowding can therefore adversely affect recidivism in the wider community.

The news that SPS is to reassign Throughcare Support Officers to Prison Officer roles highlights the severity of the situation. It paints a picture of a service that is being forced to concentrate on internal day to day operational issues at the expense of managing the effective transition of prisoners back into their local communities. This is particularly unfortunate given the findings of the recent HMP YOI Grampian Inspection[vi] which advised that “[its] strongest area of performance related to the preparation of prisoners for their successful return to the community” and that its “Community Integration (CIU) facilities, supported by the throughcare support officers (TSO) were excellent”.

We welcomed the beginnings of policy change, in particular the recent extension of the presumption against short prison sentences from 3 to 12 months, which may be expected to divert at least some offenders from prison to community based disposals.[vii] In the context of life sentences, however, it has recently been observed as ‘striking’ that ‘the level of punishment parts has increased substantially’ in recent years.[viii] If the prison population is to be reduced to any significant extent, as we contend that it should be, then the rationale of imposing long-term prison sentences will also require further consideration, including the potentially adverse consequences of regressive measures such as the proposed Whole Life Custody (Scotland) Bill for prison turnover ratios and future overcrowding. 

Given the high proportion of prisoners currently awaiting trial or sentence, too – now some 20%, according to the latest figures[ix] – the limited use of alternatives to remand, such as supervised bail, remains a cause for concern. According to recently updated national guidance, bail supervision is intended to be ‘a robust and credible alternative to remand’ to ‘help ensure that remand is only used where necessary and appropriate’.[x] Yet bail supervision rates have consistently fallen over the last decade.[xi]

Ultimately, we maintain that the solution to the current problem of prison overcrowding lies not in the building of larger prisons, which merely treats the symptoms of a rising prison population, but in a fundamental policy shift in relation to the purposes of imprisonment. We have consistently campaigned for the use of imprisonment as a measure of last resort, where it is necessary to manage any significant risks to public safety.

We will be unable to stop the prison population from rising until we can answer the essential question, ‘what is prison for?’ .  If we take this question seriously, we should recognise that many of those who are currently in prison simply do not belong there – in particular, many of those on remand and those whose offences are such that they pose no risk to public safety.