10. Access to Justice and Human Rights in Places of Detention
The fundamental principles of justice and human dignity are universal and inviolable, and Scotland’s human rights obligations apply to all its places of detention. In addition to the domestic inspectorates that take a rights-based approach to inspecting and monitoring places of detention in Scotland, the Scottish Government is fully committed to engaging with international human rights treaty bodies such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) and the UN’s Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“SPT”), and welcomes scrutiny of its record in this area.
Since the UK’s last UPR round, the Scottish Government has facilitated several visits to Scotland by the CPT and SPT in collaboration with the UK Government, and has engaged directly with both bodies and the Scottish Sub-Group of the National Preventive Mechanism on substantive issues relating to human rights in places of detention (see Annex A).
A) Vision for Justice
The criminal justice system can be a complex arena for people to navigate. The Vision for Justice in Scotland was published in February 2022, and aims to ensure that people in contact with the justice system are supported to navigate it and to understand the processes of justice. This is a key component in minimising re-traumatisation for victims and ensuring appropriate support to reduce re-offending.
Many of the issues that bring people to the justice system are very traumatic. It is our duty to ensure that we minimise further trauma to aid recovery. The Vision for Justice in Scotland therefore has a transformational priority: justice services must be person-centred and trauma-informed and ensure that a person’s needs and values are respected. This means ensuring timely and clear communication, involving individuals and families in decisions which affect them, and, within the legal parameters of justice processes, treating people with empathy and kindness and providing them with the support they need to thrive.
B) A Victim-Centred Approach
The Scottish Government’s Victims Taskforce is leading work to develop a more victim-centred approach in Scotland, to ensure victims are heard, are treated with fairness and compassion, have access to consistent, appropriate and timely information and support and are empowered to participate effectively in the justice process. The Scottish Government also recognises that communications for victims provided by criminal justice organisations can often be complex and impersonal and cause victims further anxiety. In conjunction with partners across justice and victims, the Scottish Government has developed a new style guide to provide advice and support in developing trauma-responsive communications across the system. This is scheduled for publication in autumn 2022.
The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 is designed to embed a presumption towards the pre-recording of evidence from child and deemed-vulnerable witnesses in criminal cases, except where it is shown that this would significantly prejudice the interests of justice. The implementation of specific provisions since then means that child witnesses in many of the most serious criminal cases now have their evidence pre-recorded, avoiding the trauma of them having to give evidence at trials. Further roll-out of this Act will extend these provisions to a wider cohort of child witnesses and adults that are deemed to be vulnerable when giving evidence in the High Court.
In early 2020, work commenced to develop a National Referral Mechanism (“NRM”) toolkit. The toolkit takes a trauma-informed approach to identifying vulnerable adults and children and provides helpful advice on how to provide a safe environment to encourage potential victims to disclose their experiences.
We are committed to exploring the full range of options for ensuring that Scotland’s justice system is one in which the victims of sexual offences can have confidence. The Lady Dorrian Review, published in March 2021, provides a clear and ambitious set of proposals for how to improve the management of sexual offences, including through the creation of a specialist sexual offences court and introducing independent legal representation for complainers. We have committed to giving serious and careful consideration to the recommendations as set out in the Review. We are engaging with justice partners, stakeholders and the public through the Lady Dorrian Review Governance Group as well as our Improving Victims’ Experience of the Justice System Consultation to carefully consider the recommendations.
C) Legal Aid
In 2019, the Scottish Government consulted on enhancements to the legal aid system in Scotland. In the Programme for Government 2021-2022, we committed to engage with legal professionals and other stakeholders, including victim support organisations, to reform the legal aid system, and we intend to introduce a Legal Aid Reform Bill in this Parliament, to ensuring that the system is flexible, easy to access and meets the needs of those who use it. Particular consideration will be given during the development of the Bill to how more targeted and planned interventions can support user needs, align with other identified government priorities, and assist legal aid in being rightly recognised as an invaluable public service.
D) Managing Court Capacity
The COVID-19 pandemic had a significant impact on the capacity of the courts to progress criminal trials. There were no criminal trials in Scotland between April 2020 and July 2020, and for a considerable period afterwards, necessary public health measures meant that the number of trials taking place was greatly reduced. As has been the case in many countries, this has created a significant backlog of cases within the justice system. As the criminal courts seek to recover from the pandemic, the backlog of cases remains significant.
To manage this backlog, the Scottish Parliament legislated in April and May 2020 to temporarily extend various criminal procedure time-limits, including those relating to the length of time for which an accused person can be remanded in custody prior to trial without the prosecution having to apply to the court for an extension. This meant the period within which cases needed to progress from one stage of a case to the next was lengthened, and allowed court and prosecutorial resources to be focused on the throughput of trials.
The Coronavirus (Recovery and Reform) (Scotland) Act was passed in June 2022 and means the extended time-limits will remain in place until at least 30 November 2023. They can be extended for further periods not beyond 30 November 2025. The intended outcome is that courts and prosecutors can spend more time on trials and less time on procedural matters leading up to the trial, helping to increase their capacity to reduce the backlog of cases that has built up.
E) Inspection and Monitoring of Police Custody
HM Inspectorate of Constabulary in Scotland (“HMICS”) has wide-ranging powers to look into the “state, efficiency and effectiveness” of both Police Scotland and the Scottish Police Authority (“SPA”). HMICS have carried out a number of inspections of police custody arrangements in Scotland in recent years to assess the care and welfare of detainees, in recognition of the fact that Police Scotland is responsible for the proper care and protection of those in custody, including their physical, mental and welfare needs.
Responsibility for the provision of healthcare in police custody transferred from Police Scotland to the NHS in 2013. To date, HIS have not had a role in inspecting healthcare in police custody centres, and HMICS considers healthcare arrangements as part of its inspection process at a broad level, such as checking that detainees who require healthcare receive it. Given the importance and priority of this work, the Scottish Government has recently provided funding to HIS which will allow joint inspections of Police Scotland Custody Centres alongside HMICS to take place in 2022-2023.
Since 2013, the SPA has had a statutory duty to maintain and manage an Independent Custody Visiting Scheme (“ICVS”) to monitor the welfare of people detained in police custody facilities throughout Scotland. Independent Custody Visitors are volunteer members of the local community who visit police stations unannounced to check on the treatment of detainees, the conditions in which they are being held and that their rights and entitlements are being observed. There are approximately 140 volunteer visitors across Scotland and the SPA produces an annual review of their related activities.
Independent Custody Visitors are trained to ask detainees if a third party has been notified of their detention and to confirm this with custody officers and staff. This check is also set out in the checklist provided for Visitors to use during visits. This aligns with recommendation 70 of Dame Elish Angiolini’s Review of Police Complaints Handling and Misconduct (see Section 10(F)).
F) Handling Police Complaints and Misconduct
Public confidence in policing in Scotland is generally strong, as illustrated in a recent survey which points to continued public confidence in the service. However, when things go wrong, it is vital that complaints are investigated timeously, thoroughly, fairly and transparently, and that our police service is held to account, lessons are learned, and improvements are made. Equally, police officers and staff have a right to expect that they will be treated fairly and proportionately if a complaint is made against them, and that complaints will be investigated promptly through a clear process.
That is why the Scottish Government asked Dame Elish Angiolini to undertake an independent review of complaints handling, misconduct and investigations. Her final report on Complaints Handling, Investigations and Misconduct Issues in Relation to Policing was published in November 2020 and made a series of recommendations to improve the fairness, transparency, accountability and proportionality of the systems and structures which underpin the ways in which complaints about the police are received, managed and investigated. Dame Elish’s report identifies barriers that currently exist and examines how these can be reduced or removed to make the systems more accessible and to improve the experience of all those involved in the process, including police officers, the public, and victims and witnesses of crime.
The Scottish Government regularly reports on progress via its Thematic Progress Reports, the third of which was published in June 2022 and shows that over a third of her recommendations have now been discharged. These reports are underpinned by a governance and reporting framework which provides assurance to Ministers on progress made towards implementing Dame Elish's recommendations.
Many of the recommendations do not require legislation and have been taken forward by partners, including Police Scotland, the SPA, the Police Investigations and Review Commissioner (“PIRC”), COPFS, and HMICS, since Dame Elish’s Preliminary Report was published in 2019. Other recommendations do require legislative change, so between May 2022 and August 2022 the Scottish Government ran a public consultation on proposals for new laws to improve transparency and further strengthen public confidence in policing following Dame Elish’s review. The Programme for Government 2022-2023 outlines the Scottish Government’s intention to introduce a Bill on Police Complaints and Misconduct Handling in May 2023.
G) Healthcare in Police Custody
Medical provision for persons in custody is the responsibility of NHS Scotland. Should medical advice or assistance be required in relation to any person in custody, it is the responsibility of the custody supervisor to make direct contact with the relevant Healthcare Partnership.
The Scottish Government has recently allocated funding to HIS for 2022-2023 to allow it to move forward with joint inspections of police custody centres alongside HMICS. In the meantime, the Scottish Government will continue to work in collaboration with key partners, including the SPA, Police Scotland, and NHS Scotland to continue to meet the often acute needs of those entering police custody.
H) National Police Care Network
The National Police Care Network aims to support consistency in service quality and healthcare outcomes for individuals in police care who receive services across Scotland, recognising that each NHS Board will have different service models which meet the needs of their population and geography. This includes facilitating and supporting the delivery of person-centred healthcare for people in police custody, and high quality forensic medical services, undertaken in an appropriate environment, using the most up-to-date or appropriate specification kit and sampling techniques.
I) Human Rights Training of Police Officials
Police Scotland has established a Strategic Oversight Board to mainstream equality, diversity, and inclusion throughout all aspects of the organisation’s planning and delivery while ensuring that the statutory obligations of the Equality Act 2010 are fulfilled. An Independent Review Group has also been established to act as a critical friend and partner supporting Police Scotland to deliver sustainable improvements to equality, diversity and inclusion outcomes across the service. A report on findings and progress towards the outcomes is anticipated to be publicly reported by the SPA Board later this year.
Since September 2020, HMICS have published two reviews of Police Scotland’s training and development. The first report highlighted a lack of diversity training for police officers and staff in leadership roles, while the second report focused on the internal aspects of equality, diversity and inclusion in Police Scotland. An action plan was created to address the recommendations from HMICS on leadership, training, and development, including:
- working to review and identify gaps in the diversity content of all leadership courses;
- designing and piloting a number of new training and development programmes, such as the RISE Programme, which provides support and coaching to minority ethnic female officers from various ranks and roles across policing;
- developing senior leadership programmes, such as:
- Your Leadership Matters, which is aimed at superintendent and staff-equivalent roles across Police Scotland and the SPA, and a key theme of which is equality, diversity, and inclusion;
- a new Police Officer Probationer Training Programme which incorporates updated equality and diversity content;
- a refreshed Police Staff Induction and Equality and Diversity Course;
- developing an equality and human rights impact assessment tool to support the development of all new courses and programmes.
J) Inspections and Monitoring of Prisons
In May 2018, HM Inspectorate of Prisons for Scotland (“HMIPS”) published revised Standards for Inspecting and Monitoring Prisons in Scotland which make clear the Inspectorate’s human rights-based approach to the inspection and monitoring of Scotland’s prisons.
During the COVID-19 pandemic, HMIPS developed an adapted methodology for inspection and monitoring, resulting in a Remote Monitoring Framework and Liaison Visits Framework to continue to provide assurance about the conditions and treatment of prisoners. This focused on the key human rights issues contained in the Standards for Inspecting and Monitoring Prisons in Scotland which are followed during the normal inspection process.
In January 2022, HM Chief Inspector of Prisons for Scotland published a Summary Report of Covid Liaison Visits which commended the Scottish Prison Service (“SPS”) for its continuing efforts to manage the acute impact of the pandemic and for the rapid and responsive actions taken to keep those working and living in prisons safe.
K) Prison Population Size
Scotland’s prison population was stable at around 7,500 between 2012 and 2018, before rising by around 750 places over the subsequent 12 months. The population dropped below 7000 during 2020 as a result of the COVID-19 pandemic, which prompted a significant reduction in court business and the early release of a limited number of short-sentence prisoners. However, with a high number of individuals on remand and court business increasing, the population rose to around 7,500 by October 2020, where it remained until August 2022. The composition of the population also changed in that time, from around 20% on remand pre-pandemic to around 30% on remand from 2021 onwards.
The SPS monitors its population daily, and where areas of pressure occur, decisions are made to transfer individuals between establishments. This includes monitoring the Single Cell Occupancy across all establishments, which is done on a weekly basis to ensure that no establishment is overly affected by fluctuations in the population. In order to plan for any potential further rise in the prison population, work has been undertaken by the SPS to identify the best use of the prison estate.
The powers established under the Coronavirus (Scotland) Act 2020 for Ministers to instruct the emergency early release of prisoners in response to the impact of COVID-19 on the prison estate have been extended in subsequent legislation, and will – subject to Parliamentary approval – be extended further until 2025, if necessary. These emergency early release powers have been utilised once, in May 2020, and the Scottish Government continues to liaise with the SPS with the option to take further action available should conditions in the prison estate justify a future emergency early release process.
The Consultation on Bail and Release from Custody Arrangements in Scotland ran for 12 weeks between November 2021 and February 2022. This wide-ranging consultation sought views on a number of proposals including:
- requiring the court to have a particular regard for victim safety when making decisions about bail;
- enhancing the role of justice social work in the bail process;
- giving greater consideration to electronic monitoring for bail;
- creating greater opportunities to support prisoners’ reintegration on their release from custody.
The Scottish Government subsequently introduced legislation to the Scottish Parliament which is intended to change the way imprisonment is used. The Bail and Release from Custody (Scotland) Bill proposes reforms to bail law and to how certain release from prison mechanisms operate. While the Bill is not intended to have a direct impact on prison numbers, it is part of a wider programme of work to change how prison custody is used in Scotland. Parliamentary scrutiny on the Bill is currently underway with Stage 1 expected to conclude in early 2023.
Steps are also being taken to further shift the balance towards a greater of use of community-based disposals, ensuring that the relevant services are available, consistent, and of high quality. The revised National Strategy for Community Justice was published in June 2022 and sets out the national direction for community justice by building on progress made to date. The strategy retains our longstanding aim to take a person-centred, rehabilitative approach to community justice, encouraging a shift in the balance between custodial and community interventions. It recognises that while public protection is paramount, there is clear evidence that community-based interventions and sentences can be more effective in reducing reoffending and assisting with rehabilitation than short term custodial sentences, leading to fewer victims and safer communities. A delivery plan is being developed with partner organisations and will be published to ensure implementation and drive towards actions at a national and local level.
In 2021-2022, we provided an additional £11.8 million to support community justice services in recovering from the pandemic, which has increased to £15 million in 2022-2023, with specific investment in relation to alternatives to remand. In addition, around £119 million of continued funding will help build capacity and resilience to support a sustainable recovery and the delivery of the revised National Strategy for Community Justice.
L) Purposeful Activity
The SPS has made progress in reinstating activity levels despite the challenges of the COVID-19 pandemic and new resource and staffing pressures. A Short Life Working Group has been established to develop an understanding of the kind of activity currently being delivered in prisons and the perceived outcomes of that activity, and to further consider what might constitute meaningful and effective activity in the future. This working group is developing a flexible framework with underpinning principles to ensure that the implementation of new activities, or any review of existing activities, provides evidence to support the successful return of prisoners to their community.
M) Prison Estate Modernisation
The SPS has been taking forward its priorities for modernising the prison estate, including the new female custodial estate and the replacement prisons for HMP Inverness and HMP Barlinnie.
This new estate encompasses a new national facility for women with more complex needs and two innovative Community Custodial Units (“CCUs”) for women who will be able to benefit from engagement with local services and increased community contact (see Section 10(Q)). The first CCU opened in Dundee in August 2022. The second is due to open in Glasgow later this year. The new national facility, HMP Stirling, is under construction and is scheduled to open in summer 2023.
The work on the replacement for HMP Barlinnie, HMP Glasgow, is progressing. The contract for pre-construction services as part of the two-stage procurement process was awarded in July 2022 and construction work is currently scheduled to commence in 2023. In the meantime, improvement works within HMP Barlinnie are progressing, including upgrades to the prisoner healthcare facilities and the reception area.
Work is also underway to replace HMP Inverness with HMP Highland at the chosen site at Inverness Retail and Business Park. The initial contract was awarded in October 2021 and pre-construction work has started.
N) Violence in Prisons
Scotland’s prisons hold increasingly complex and challenging prisoner populations. The SPS’s Annual Report and Accounts 2020-21 show that there have been reductions in all types of assaults in our prisons. This includes reductions in both “Serious Prisoner on Staff” assaults and “Minor and No Injury Prisoner on Staff” assaults. There has also been a reduction in “Serious Prisoner on Prisoner” assaults, which reduced in 2020-2021 to 67 in comparison to 112 incidents in 2019-2020, a fall of over 50% over the last two years.
Through its national Strategic Risk and Threat Group, the SPS continues to seek to understand the changing nature of the prison population profile and the subsequent impact on violence, particularly in relation to serious organised crime. Violence reduction meetings take place across Scottish prisons to discuss notable incidents, trends, and preventative actions.
O) Deaths in Custody
In November 2019, the Cabinet Secretary for Justice announced a review into the handling of deaths in prison custody, to report in summer 2020. The independent review was led by HM Chief Inspector of Prisons for Scotland and co-chaired by the Chief Executive of Families Outside and the Chair of the SHRC to ensure that an independent human rights-based perspective was firmly built into the review. The review examined the operational policies, practice and training in place within the SPS and NHS relevant to the deaths of prisoners, with a view to identifying and making recommendations on areas of improvement in the immediate aftermath of a death in custody.
This review was published in November 2021 and contained 7 broad findings and 26 recommendations. Upon its publication, the Cabinet Secretary for Justice and Veterans made a statement to the Scottish Parliament welcoming the report and accepting all its recommendations in principle. The Scottish Government will work with COPFS, the SPS, and NHS partners to progress the recommendations and to consider their legal, practical and operational impact as quickly as possible. The Cabinet Secretary has appointed an external Chair to oversee the implementation of the recommendations, and provided Parliament with a progress update against all recommendations in June 2022.
Fatal Accident Inquiries ensure that there is public scrutiny of the circumstances of a death of someone in legal custody. When a Fatal Accident Inquiry is held, consideration is given to what steps, if any, might be taken to improve prisoner safety and to prevent other deaths in similar circumstances.
P) Prisoner Voting
The Scottish Elections (Franchise and Representation) Act 2020 has allowed prisoners sentenced to one year or less to vote in Scottish Parliament and local government elections since April 2020.
Q) Working with Women in Custody
The SPS published a new strategy for working with women in custody in June 2022. This sets out practice, tools and services that are gender-specific and trauma-informed, matched to the specific needs and characteristics of women in custody, including support to improve women’s mental health and physical health, wellbeing, and recovery from addictions.
The first CCU, the Bella Centre, opened in Dundee in August 2022. The purpose of CCUs is to provide safe accommodation and to support the needs of women who will benefit from closer community contact and access to local services and to create and sustain independence in preparation for successful reintegration into the community (see Section 10(M)).
This approach is founded on the principle that all aspects of the care of women in custody should be designed for women and take account of their likely experience of trauma and adversities. All aspects of the approach will therefore be both gender-specific and trauma-informed. Drawing on international best practice, this new model of custody gives women in custody wider opportunities to explore and understand the life circumstances and choices that have led them to being in custody.
Another CCU for women, the Lilias Centre, is opening in Glasgow and a new national facility to replace HMP Cornton Vale is due to open in 2023.
R) Mental Health in Prisons
The Scottish Government’s Mental Health Strategy 2017-2027 outlines our commitment to funding 800 additional mental health workers in key settings, including prisons and police station custody suites. Almost £84 million has been allocated since 2018-2019 to deliver this commitment, with the original commitment ceasing at the end of the 2021-2022 financial year. At the end of the commitment in April 2022, an additional 958.9 WTE mental health posts were recruited under this commitment, including 54.4 WTE posts located within prisons.
At the end of 2018, the Scottish Government commissioned HM Chief Inspector of Prisons for Scotland to undertake an independent expert review of mental health and other support for young people entering HMP & Young Offenders Institution (“YOI”) Polmont. The report was published in May 2019 and the Programme for Government 2019-2020 contained a commitment to take forward its recommendations to improve mental health services for young people at HMP & YOI Polmont.
In January 2020, the Scottish Government provided an update on actions taken in response to the findings of that review to the Scottish Parliament and other stakeholders. Since the publication of the expert review there has been significant investment in staffing and staff training, suicide prevention processes have been reviewed, and a new workforce and training strategy has been developed to ensure all of the healthcare recommendations of the Review are met.
Separately, in March 2019, the Scottish Government commissioned an Independent Review into the Delivery of Forensic Mental Health Services. The principal aim is to review the delivery of forensic mental health services at all levels, including the justice system. The review published its final report in February 2021 and included 67 recommendations. The Scottish Government published its Response to the Independent Review into the Delivery of Forensic Mental Health Services in October 2021 and is working with key partners to address the recommendations of the review. In November 2021, the Scottish Government established a Short Life Working Group to develop options aimed at increased support for the planning and improvement of forensic mental health services in Scotland.
The SPS is developing a new Health and Wellbeing Strategy that recognises the increasing complexities and underlying health conditions of the prison population in comparison to the wider population. The new strategy will take a public health approach by promoting and protecting health and wellbeing, preventing ill-health, and prolonging life through the organised efforts of the SPS in partnership with key partners and stakeholders. The new strategy will provide the overarching framework for all health-related strategies including drugs & alcohol, physical health, and mental health, which will also include a bespoke component for children and young people.
The Scottish Government is working with partners to re-establish high secure mental health care provision for women in Scotland. Initial discussions are underway for the establishment of a safe, person-centred service, with the creation of a ward within the State Hospital as an interim solution. Continuing work with the State Hospital Board for Scotland aims to develop this resource in a way that will support longer-term provision and improvement across women's forensic mental health services.
The SPS takes all instances of self-harm and threats of suicide very seriously and constantly reviews its processes to ensure those at risk are identified and supported effectively.
S) Health and Social Care Needs Assessment
It is vital that we understand the extent and nature of the current health and social care needs of people in prisons. The Scottish Government has therefore committed to delivering a comprehensive health and social care needs assessment of Scotland’s prison population looking at different domains of need, including social care, substance use, mental health and physical health, by autumn 2022. This will include the needs of sub-populations such as older people and the health needs of women in custody.
The aim of the final report’s recommendations will be to provide a better understanding of the current needs of the prison population, including the most appropriate services, in order to support people during their time in prison and during transitions in and out of prison.
T) National Prison Care Network
The National Prison Care Network was established in July 2019 to resolve issues that require a national and consistent approach, to spread and share best practice, and to support healthcare professionals to adopt innovative changes which will enhance services and patient care and to ensure that they are safe, consistent, and timely. The Network works in partnership across traditional organisational and geographical boundaries to realise a programme of work that supports the delivery of health and social care in a prison setting.
The Network has carried out a reprioritisation exercise to ensure that its work plan delivers maximum impact and that it benefits those living and working in prisons. This exercise brought into focus key priority areas where the Network could add the most value, including strengthening work on mental health and substance use referral pathways and improving the continuity in care for individuals.
NHS Near Me has been made available in all of Scotland’s prisons, allowing patients to attend virtual consultations with clinicians and providing people in prison with a greater choice in how they access healthcare. Access is generally provided within prison health centres, but Near Me is also being used in other settings including within residential halls and individual cells in some prisons.
V) Opiate Substitution Treatment
As part of the pandemic contingency response, the Scottish Government provided £1.9 million to support people in prison on prescribed opiate substitution treatment to switch to a new longer-acting form of Buprenorphine called Buvidal. The initial evaluation of this pilot has demonstrated the potential of longer-acting Buprenorphine to provide significant improvements in opiate substitution treatment service provision in prisons, by releasing clinical time for other interventions, releasing SPS operational time to support purposeful activity, and through addressing stigma.
In the 2021-2022 financial year, £4 million was allocated to NHS Boards to help the rollout of this treatment across Scotland in community and prisons. Work is underway to ensure that longer-acting Buprenorphine will be more readily-available as a treatment option in community settings, to support the continuity for those transitioning out of prison.
W) Human Rights Training for Prison Officials
All prison staff undertake human rights awareness training, developed by the SPS College. The training is undertaken by existing prison staff and new recruits to the SPS.
X) Control and Restraint in Prisons
SPS staff will, wherever practical, use communication skills and other non-physical techniques to enlist the cooperation of individuals and de-escalate a situation. The use of force will only be considered as a last resort when all other means have been exhausted. In these instances, de-escalation must still be considered at the earliest opportunity after force has been deployed. In all cases where force has been used, a Use of Force Report is required to be completed and submitted. Records are monitored by managers and are audited and examined by HMIPS.
An accredited Control and Restraint course is undertaken by all new prison officers during their initial training. Thereafter, staff are required to demonstrate competence on the use of restraint through a mandatory annual refresher course. Following the approval of the outcomes of Phase 1 of the Control and Restraint Review in September 2020, the SPS implemented a revised Use of Force Policy and a new Control and Restraint Manual which continues to promote de-escalation methods at the earliest opportunity. Significant work has been carried out by the SPS to prepare training products for delivery, although the implementation of new products was delayed due to the COVID pandemic.
Early 2021 saw the launch of Phase 2 of the Control and Restraint Review, which aims to focus more on acknowledging the impact of trauma on distressed behaviour, further the focus on restraint reduction, and explore alternative ways of managing people who may display distressed behaviours. The SPS is currently working towards the implementation of a new physical interventions curriculum, replacing current techniques with a curriculum built on the use of non pain-inducing restraints. This work includes the development of a restraint reduction framework, developed to proactively reduce the need for physical interventions. Initial implementation is anticipated for late 2022 in the form of a pilot rollout.
Y) Young People and the Criminal Justice System
i) Children of Persons in Custody
The Scottish Government provides support for families impacted by imprisonment through its grant funding of the core running costs for 12 Prison Visitor Centres operated by the third sector. Visitor Centres work with the families of those in custody, providing a range of practical and emotional help with everyday needs and signposting families to specialist services where appropriate.
Visitor Centres work hard to maintain family ties and parental bonds. They often support children’s visit sessions and create a variety of activities that maximise engagement between a child and their parent, including by marking notable calendar events such as Mother’s day or Father’s day. £800,000 has been allocated to Prison Visitor Centres in 2022-2023, with a total of £4.7 million since 2016.
ii) Youth Justice
The Scottish Government continues to support a presumption against under 18s in the criminal justice system, keeping them out of young offenders’ institutions where possible and appropriate. A new Youth Justice Vision and Action Plan were published in June 2021. While continuing to support this agenda and to promote the use of the Whole System Approach to Young Offending, the Vision also aims to meet the youth justice asks within The Promise. Some of these actions will require legislative change and the Scottish Government will bring forward a Children’s Care and Justice Bill over the course of this Parliament.
In June 2021, revised Youth Justice Standards were published which outline the minimum expectations for all strategic and operational services delivering youth justice in the community, secure care, and young offenders institutions. These revised standards are aimed at practitioners and professionals working with all children up to the age of 18 who are in conflict with the law or on the edge of such behaviour, and are intended to ensure that the rights of children are upheld and underpin justice for children in Scotland in line with international human rights standards, and in particular the UNCRC. The standards fit within the Youth Justice Vision.
It is expected that all those providing services uphold their responsibility to ensure that the children they are working with are made aware of these standards and importantly speak to the child to ensure that they understand them and know what to expect. This is important for all children but particularly those with disabilities, protected characteristics, care experience, young carers, or those with additional wellbeing needs (including speech, language and communication needs).
The Children’s Hearings (Scotland) Act 2011 (Children’s Advocacy Services) Regulations 2020 are now in effect and a national advocacy service has been established to support all children and young people who may need independent advocacy support in order to reinforce their rights should they need to be involved in a Children’s Hearing.
Children and young people are offered support to express their needs and views on decisions that affect their lives within this particular tribunal setting. Advocacy workers have access to legal advice for their advocacy partners through a legal support service operated by Clan Childlaw and funded by the Scottish Government. This dedicated helpline continuously promotes the development and sustainment of knowledge of the law around children’s hearings for independent advocacy workers.
Through the implementation groups set up to take forward the priorities of the Vision for Justice in Scotland, work is underway to look at the current legal provision available to children, particularly those in locked settings such as police cells, secure care and young offender institutes, to ensure that it is fit for purpose and to understand what a child-friendly service would look like.
iii) Minimum Age of Criminal Responsibility
The Age of Criminal Responsibility (Scotland) Act 2019 increased the age of criminal responsibility in Scotland from 8 to 12 years, the highest age of criminal responsibility within the four nations of the UK. The Act was commenced in phases, with priority given to provisions that had the most material impact on children. Since November 2019, children under 12 years cannot accrue convictions or criminal records. The Act was commenced in full in December 2021.
The Act removed the ability to refer a child to a children’s hearing on offence grounds. It is only possible for a child under 12 to be referred to a children’s hearing on welfare and protection grounds. The Act also provides specific investigatory powers for the police, to enable incidents of seriously harmful behaviour by children under 12 to be investigated, and changes the disclosure regime such that any behaviour by a child under 12 cannot automatically be disclosed by the State in later life.
Scottish Ministers have a duty to review the operation of the Act within 3 years of the commencement of Section 1 of the Act, with a view to considering a future age of criminal responsibility. An Advisory Group comprising a range of different stakeholders has been established to support Ministers with the review.
iv) Secure Care
Placement in secure accommodation is designed to rehabilitate the child and, where necessary, to protect the public, and can only take place when:
- the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is likely that the child’s physical, mental, or moral welfare would be at risk;
- the child is likely to engage in self-harming conduct; or
- the child is likely to cause injury to another person.
The Secure Care Pathway and Standards Scotland were launched in October 2020. These national standards set out what support children should expect from professionals when in the community or secure care. They will ensure support is provided before, during, and after care, and that the rights of children and young people facing extreme vulnerability and risks in their lives are respected.
Segregation is never used as punishment and should only be used as a last resort. Young people in secure care will only be physically restrained by trained care staff when:
- they are behaving in an unsafe or dangerous way;
- there is a serious risk of harm to themselves or another person; or
- there is no other effective way of keeping the young person or others safe.
Mechanical restraints or spit hoods are not used in secure accommodation services in Scotland. If it is necessary to physically restrain a young person they will only be restrained for the shortest time possible, using as little force as necessary.
The Care Inspectorate is responsible for the regulation of secure care services for children and young people in Scotland. It ensures children and young people in these services are kept safe and that their rights to privacy, choice and dignity are promoted.
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