Publication - Publication

Universal periodic review of human rights in the United Kingdom 2017: response to recommendations

Published: 8 Dec 2017
Directorate:
Justice Directorate
Part of:
Equality and rights, Law and order
ISBN:
9781788514019

The Scottish Government response to recommendations from the third Universal Periodic Review of the UK's overall human rights record in May 2017.

158 page PDF

1.7 MB

158 page PDF

1.7 MB

Contents
Universal periodic review of human rights in the United Kingdom 2017: response to recommendations
4. Justice

158 page PDF

1.7 MB

4. Justice

“ Injustice anywhere is a threat to justice everywhere.”

Martin Luther King

4.1 Access to justice [77]

UPR recommendations [78]

  • Facilitate access to justice for minority groups.
  • Ensure accessibility of appropriate legal aid, particularly for the most marginalised groups.

Accessibility

Publicly funded legal assistance allows people to pursue or defend their rights, or pay for their defence when they could not otherwise afford to do so. It can be provided for criminal or civil matters, or in relation to children’s hearings and associated court proceedings. The eligibility criteria for those accessing legal aid are consistent and transparent. [79]

There is no requirement to be resident in Scotland when applying for legal aid in Scotland. If it is a matter of Scots Law (including UK law that applies in Scotland) and could be heard in a Scottish Court, an application can be made to SLAB.

A person looking for advice on an immigration case has open to them the full range of publicly funded legal assistance available in Scotland. The eligibility criteria has the same statutory tests and there is no residency test for accessing this funding. For those requiring representation for a case at the Immigration and Asylum Tribunal, an applicant can access Assistance by Way of Representation ( ABWOR). In most cases only a means test is applied and all of these applications will be passed on merit.

Of particular relevance to victims of domestic violence, in criminal proceedings publicly funded legal assistance in the form of ABWOR is available for complainers seeking to make representations regarding the recovery of their medical or other sensitive documents by the defence in a case. This is non-means tested.

Children

Children can access legal advice and representation on the same broad range of issues that adults can, so long as they have the capacity to instruct a solicitor. The statutory tests applied by SLAB for children’s legal aid are: whether it is reasonable in the circumstances of the case to make it available; and whether the expenses of the case could not be met without causing undue financial hardship to the applicant or their dependants. Where the applicant is a child, SLAB must also be satisfied that the grant of legal aid is in the child’s best interests. Furthermore, in appeals cases there must be substantial grounds for taking or responding to the appeal.

In certain prescribed circumstances, automatic children’s legal aid will be made available to a child. This is intended to ensure that representation can be made available in urgent cases where a child appears without having secured representation and the issues are such that it would be inappropriate for the hearing to proceed without the child being represented.

Children’s legal aid is automatically available in non-urgent cases where a deprivation of the child’s liberty is in prospect but the child has not secured representation ahead of the hearing. In those situations, SLAB will appoint a solicitor and maintains a national duty solicitor scheme to ensure that this can happen. The automatic grant of children’s legal aid is only available for the purposes of the immediate hearing.

Financial eligibility

Depending on the assistance type, either the solicitor or SLAB will assess both the applicant’s disposable income and disposable capital to determine whether a grant can be made and, if so, whether the applicant must pay a contribution toward the cost of their legal advice and representation.

If an applicant is in receipt of certain means tested benefits, such as income support or job seekers allowance, legal assistance will automatically be granted. As an interim measure, Universal Credit is treated in this way, to make sure that those receiving it are not disadvantaged. Certain other benefits, such as Personal Independence Payment or war pensions, are disregarded when an applicant’s disposable income is calculated.

Undue hardship

As with the financial eligibility test, the applicant’s disposable income and disposable capital are assessed for the undue hardship test. Again, if an applicant is in receipt of certain means tested benefits, legal assistance will automatically be granted, and certain other benefits are disregarded when calculating disposable income.

Unlike the financial eligibility test, however, the financial circumstances of the applicant are considered more widely to determine whether the expenses of the case can be met without undue hardship to the applicant or to their dependants. This means that, while the resources to be considered available to an applicant to pay their expenses are set out in regulations, there is discretion to award legal assistance to which this test applies in any case where the expenses cannot be met without undue hardship.

The Scottish Government announced a comprehensive, independent review of legal aid on 1 February 2017 to fulfil the commitment to maintaining access to public funding for legal advice and representation in both civil and criminal cases alongside measures to expand access to alternative methods of resolving disputes. [80] The review is expected to last 12 months. With legislation in Scotland dating back nearly 30 years, the review will explore how best the legal aid system can contribute to improving people’s lives now and in the future. It will ensure that Scotland has a flexible and progressive system which is sustainable and cost effective.

Provisions in the Criminal Justice (Scotland) Act 2016 [81] will ensure that every person detained at a police station has the right to a private consultation with a lawyer and to have a lawyer present during interview, and this applies also to those attending voluntarily for interview, where they are suspected of committing an offence. The requirement for legal aid contributions for advice and assistance given in a police station was removed on 1 April 2016 and it is now free for every person detained at a police station to have access to a lawyer.

4.2 Criminal justice system [82]

The Scottish Parliament passed the Criminal Justice (Scotland) Act 2016 and the Scottish Government, with justice agencies in Scotland, is now implementing it. This legislation enacted a range of recommendations by Lord Carloway, who is now Lord President (Scotland’s senior judge), which were drawn up explicitly with the rights of victims and suspects in view. The Act makes a number of changes to address delays in the legal system, but it addresses in particular the investigation phase, setting out clearly the rights of suspects and the powers and duties of the police. Another important feature of the Act is support for vulnerable persons.

The Scottish Government intends to carry out a major programme of research to understand better how juries operate, as an important part of considering justice reform in the round. It believes this research is required to make informed decisions on reforming the system: any future reforms to the justice system involving juries will have a clear evidence base, enabling a balanced package of proposals rather than piecemeal changes.

Concerning the use of closed material procedures in particular, consideration of “secret evidence” must be dealt with by a judicially managed process involving special counsel. This is set out in the disclosure regime established by the Criminal Justice and Licensing (Scotland) Act 2010. [83] However, there is little, if any, actual experience with special counsel in Scotland.

4.3 Victims and witnesses [84]

The Victims and Witnesses (Scotland) Act 2014 [85] introduces measures to improve support for victims and witnesses and helps meet Scotland’s obligations under European Directive 2012/29/ EU, [86] which establishes minimum standards on the rights, support and protection of victims of crime.

Children and vulnerable witnesses giving evidence

In Scotland, children are entitled to special measures to assist with giving evidence in court. This can include the court allowing pre-recorded statements to be admitted into evidence by means of a prior statement (as evidence-in-chief) or allowing evidence to be taken by a commissioner appointed by the court. Evidence by a commissioner can be used for evidence-in-chief, cross examination and re-examination, and must be visually recorded.

For child witnesses, the prior statement can take the form of a visually recorded Joint Investigative Interview ( JII), which is carried out by a police officer and a social worker who are trained and competent to conduct it. It is used to elicit the child’s account of events (if any) which require investigation, particularly where there is information indicating that a child has suffered or may be at risk of abuse or neglect. The Scottish Government published good practice guidance on JII in 2011. [87]

The Scottish Courts and Tribunals Service ( SCTS) has been leading work on the Evidence and Procedure Review, which is intended to take Scotland towards a criminal justice system at the forefront of best practice in relation to children and vulnerable witnesses. This included the publication of the 2015 Evidence and Procedure Review [88] and the 2016 Evidence and Procedure Review – Next Steps. [89]

The Review considered whether the best use is being made of pre-recorded evidence. In June 2017 the Scottish Government published a consultation to further build on improvements and seek views on legislative changes that may be required to enable a much greater use of pre-recorded evidence for children and vulnerable witnesses, so that evidence can be taken at an early stage and without them appearing in court. To facilitate these legislative changes, in September 2017 the Scottish Government announced plans to introduce a Bill on Vulnerable Witnesses and Prerecorded Evidence.

The SCTS has launched a revised High Court Practice Note, Taking of evidence of a vulnerable witness by a commissioner, [90] which came into effect on 8 May 2017. The Practice Note aims to encourage better preparation in the use of existing legislation to allow child and other vulnerable witnesses to provide pre-recorded evidence in front of a person commissioned by the court, avoiding the need to attend court to give evidence at the trial, thereby reducing the risk of future trauma to the witness.

The 2016 Next Steps report emphasised the importance of ensuring that initial interviews of child witnesses are of a consistently high standard and produce the best possible outcome in terms of both the witness’ experience and the quality of the evidence elicited. A working group was established to develop further recommendations [91] for how the current model of JIIs could be strengthened and support the wider use of audio-visual recording of evidence from children. The Scottish Government is working with partners to implement these recommendations, which will include updating and publishing statutory guidance for JIIs, and reviewing the technology, training and other facilities available to support child victims and other vulnerable witnesses to provide the best possible evidence.

Child victims of offences covered by CRC-OP-SC

Under the Scotland Act 1998, the COPFS is required, in each individual case, to consider whether prosecution is in the public interest, and in such cases may certainly be entitled to decide it is not. This would prevent inappropriate prosecutions of child victims of offences under the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. There is also a general presumption against prosecuting children under the age of 16 for all but the most serious offences, with such cases instead being referred to the Children’s Reporter.

Section 3.9 - human trafficking contains information on new provisions for a presumption against prosecution of victims of human trafficking and exploitation.

Provision of a competent and statutory guardian during the criminal justice process

Children are supported through the child protection system and eligible children are given the additional support of an independent child trafficking guardian (see section 3.9 - human trafficking).

Where a child or young person has been the subject of some form of sexual exploitation, the child or young person would enter the child protection system and a multi-agency case conference would take place to identify the most appropriate course of action for them. The National Child Protection Guidance [92] is underpinned by the Getting it right for every child principles, which aim to make support easy to access and seamless, with the child at the centre, and to ensure that everyone works together to improve outcomes for the child or young person. At the heart of the Getting it right for every child approach is a shift towards early, proactive intervention in order to create a supportive environment and identify any additional support that may be required as early as possible.

4.4 Police custody [93]

UPR recommendations [94]

  • Train public officials in human rights, in particular the police and the military, including on the excessive use of force.

Integrity, fairness and respect are central to Police Scotland’s Professional Ethics and Values.

Police Scotland training has been reviewed to ensure that human rights, organisational values and the Code of Ethics ( CE) [95] must be considered in the design specification of every course. New recruits receive training on the ethics and values, as well as on both the ECHR and the HRA. In addition, all police officers are required to make the ‘Declaration of Constable’, which includes a commitment to uphold fundamental human rights.

These principles have been incorporated into central functions, such as Standard Operating Procedures and Operational Orders, and the personal development review process has been revised to ensure that the values and CE are central tenets for development and progression.

A presentation on the CE, which includes the protection of human rights, has been delivered to senior management teams for cascading to all police officers and staff, and all staff have been sent a pocket guide on the values, CE and the National Decision-Making Model.

Children

Where a child is to be retained in custody it will normally be to a “place of safety” as defined in the Children’s Hearings (Scotland) Act 2011. [96]

Children will only be kept at a police station if there are no other options, for example if the police believe that they are a danger to themselves or to others. The police liaise with the local authority social work departments and make joint decisions regarding the appropriate place of safety. In cases where children are retained at a police station, under no circumstances will they be held in a cell with adult accused, and preference must be given to the location of the cell that protects a child from surrounding adult custodies.

A child will not be retained in a police station unless the criteria of the Lord Advocate’s Guidelines to the Chief Constable on the Reporting of Offences to the Procurator Fiscal alleged to have been committed by children are met. There are exceptional circumstances (as defined in Section 43(4) of the Criminal Procedure (Scotland) Act 1995). [97] When a decision is taken to detain a child in a place of safety or at a police station this must be endorsed by an officer of the rank of inspector or above. Police Scotland has introduced a National Custody System, which will record the number of times overnight police detention occurs.

In cases where a strip search of a child or young person is considered necessary, it must be carried out in accordance with Annex C of the Code of Practice on Stop and Search, which came into force on 11 May 2017. [98] Under the Code, a strip search of a child or young person must normally take place with a responsible adult present, unless the child has indicated in the presence of that adult that they don’t want them to be there during the search. The child’s decision not to have an adult present must be recorded and signed by the adult. If the situation is urgent and there is a risk of serious harm to the child or to others, this approach above may be departed from, but only to the extent absolutely necessary.

All strip searches (not just those of children) must be conducted “with proper regard to the sensitivity and vulnerability” of the person being searched, with every reasonable effort made to secure cooperation and minimise embarrassment. Strip searches must be carried out as quickly as possible, by a person of the same sex, and where the person being searched cannot be seen by anyone who doesn’t need to be present.

4.5 Court custody

Her Majesty’s Chief Inspector of Prisons for Scotland ( HMIPS) has published standards for inspecting court custody provision in Scotland. [99] The standards are referenced against relevant law, international and professional guidance, policy and research findings. By articulating what is expected to be found within court custody units, they are intended to assist those who are running such units, and to encourage openness and transparency in the scrutiny of places of detention. The standards have been drawn up in collaboration with the SCTS, the Scottish Prison Service ( SPS) and the current custody service provider, G4S. Each organisation is highly supportive of the work of HMIPS in this area, and are firmly of the view that the standards will contribute positively to the effective scrutiny of court custody provision in Scotland and encourage continuous improvement in the quality of care and custody of people held in court cells.

4.6 Treatment of detainees and conditions in places of detention [100]

UPR recommendations [101]

  • Continue the independent monitoring of places of detention; respect detainees’ rights and improve conditions of detention.
  • Take measures to decrease prison population, address overcrowding and improve prisoner safety including in relation to homicides, assaults, self-harm and suicides.

Monitoring

The UK National Preventive Mechanism ( NPM) was set up in 2009 to ensure regular visits to places of detention in order to prevent torture and other ill-treatment, as required by the Optional Protocol to UNCAT ( OPCAT). The NPM is made up of 21 statutory bodies, including six based in Scotland, that independently monitor places of detention. Information on the material, human and budgetary resources of these bodies can be found in their respective annual reports:

  • Her Majesty’s Inspectorate of Prisons for Scotland ( HMIPS) [102]
  • Her Majesty’s Inspectorate of Constabulary for Scotland ( HMICS) [103]
  • Scottish Human Rights Commission ( SHRC) [104]
  • Mental Welfare Commission ( MWC) for Scotland [105]
  • Care Inspectorate [106]
  • Independent Custody Visitors Scotland ( ICVS) [107]

HMCIPS continues to be responsible for ensuring that a systematic programme of inspection is carried out on individual prisons in Scotland and, in August 2015, was given a statutory role in overseeing the new arrangements for independent monitoring of prisons in Scotland. HMCIPS is accountable to the Scottish Ministers and operates independently and impartially from the SPS. He must report to Ministers on the findings of individual inspections and annually on (a) the conditions in prisons and the treatment of prisoners; and (b) the exercise of functions of independent prison monitors. Annual reports must be laid before the Scottish Parliament. HMCIPS assesses the treatment and care of prisoners across the prison estate against a pre-defined set of standards, which are set out in Standards for Inspecting and Monitoring Prisons in Scotland (March 2015). [108] The standards articulate what is expected of a well-run prison and clearly identify what will be monitored and inspected.

Under the new arrangements for monitoring prisons in Scotland, monitoring is now carried out by Independent Prison Monitors ( IPM), who are members of the public and representatives of civil society. Section 7D of the Prisons (Scotland) Act 1989 sets out the powers and duties of IPMs, including the power to visit and access any part of the prison to which they have been assigned and speak in private with any prisoner, visitor, prison officer or other person working at the prison. There is a statutory requirement that at least one independent prison monitor must visit each prison once a week.

A Prison Monitoring Advisory Group has been established by HMCIPS, in line with section 7F of the Prisons (Scotland) Act 1989, to keep the effectiveness of prison monitoring under review, contribute to the guidance published by HMCIPS and keep that guidance under review. A feature of the new arrangements is that an obligation was placed on the Scottish Ministers in terms of section 7G of the 1989 Act to make arrangements for prison visits by the Subcommittee on the Prevention of Torture established under Article 2 of OPCAT.

Prison custody

The HM Chief Inspector of Prisons Annual Report 2015-16 [109] notes that prisons in Scotland fulfil their responsibility to work with those in prison to reduce the likelihood of reoffending and to prepare them positively for returning to the community to a high degree.

Scotland’s prison population has continued to fall over the past few years. The average daily population in 2015-16 stood at 7,675, roughly 6% lower than the equivalent figure in 2011-12 (8,178).

Evidence shows that short-term imprisonment is not effective and can in fact increase long-term offending by weakening social bonds and decreasing job stability.

The Scottish Government is committed to reducing the use of short-term imprisonment and, following a public consultation, announced in the 2017-18 PfG that the presumption against short prison sentences would be extended from three months to cover sentences of 12 months or less, once the Domestic Abuse Bill is in force. The majority of all respondents (85%) to the public consultation on proposals to strengthen the presumption supported an extension and, of those who expressed a view, 84% supported an extension to cover sentences of 12 months or less.

There is also a drive to tackle tackling reoffending through the greater use of robust community sentences. Individuals released from a custodial sentence of 12 months or less are reconvicted nearly twice as often as those who are given a Community Payback Order. Community sentences have accounted for a greater proportion of all penalties handed down by Scottish Courts every year since 2011-12 and the differential between the two has increased steadily over that time. In 2015-16, community sentences accounted for 19% of all penalties; whereas custodial sentences accounted for only 14% (fines were the single most common penalty in each of those years, accounting for over 50% of all penalties). The fall in the use of custodial sentences has been most pronounced among young people - the number of custodial sentences involving 16-20 years olds (or under 21s) fell by 61% between 2006-07 (3,270) and 2015-16 (1,262).

The 2017-18 PfG also reiterated the Scottish Government’s commitment to addressing the underlying causes of offending and promoting the least intrusive intervention at the earliest possible time. There is a commitment to working with partners in Criminal Justice Social Work ( CJSW) and the COPFS to maximise the availability and appropriate use of diversion schemes across the country.

Bail support and supervision is aimed at people who would otherwise be held on remand, enabling them to be supervised in the community. This allows families to stay together and sustain employment or stable housing, both of which are proven to reduce reoffending. The Scottish Government is committed to working with CJSW teams to share good practice and revise existing guidance on bail supervision to support its continued use.

The reduction in the number of under 21s receiving custodial sentences has been driven by the adoption of the Whole System Approach ( WSA), [110] which aims to achieve positive outcomes for young people by helping various statutory and non-statutory bodies to work together to build a more consistent approach to prevent and reduce offending by children and young people through early and effective intervention.

The SPS continues to invest in the modernisation of the prison estate and implement its transformational change agenda, which has an emphasis on building a person-centred, asset-based approach in order to invest in rehabilitation and reintegration services. The reintegration of people leaving custody is a priority for the SPS, including investment in the maintenance of family relationships and contact in prison, a review of purposeful activity provision and an emphasis on respectful relationships between staff and prisoners. Purposeful activity is a major component of the SPS Integration model, which provides a pathway to desistance-focused, asset-based approaches to assisting prisoners prepare for release. Approximately 40 Throughcare Support Officers across the prison estate provide support to people to help prepare for release and work with them beyond release in the community.

Training

In Scotland all prison staff undertake human rights awareness training, which was developed by the SPS College and is delivered by trained officers. The training is undertaken by existing prison staff and new recruits to the SPS. Respecting Individuals and Recognising Rights Part 1 was introduced in 2006 and Part 2 in 2009. The last major revision to the course was undertaken in 2012 following an amendment to Prison (Scotland) Rules. The equality and diversity training course also undertaken by all staff includes specific reference to the ECHR.

Prisoner safety

The HM Chief Inspector of Prisons for Scotland: Annual Report 2015-16 states:

“We should never take for granted that Scotland’s prisons are in general well-run, ordered and stable places. It is to the credit of the men and women working in prisons that most prisoners say that they feel safe and that they are treated with dignity and respect.”

The SPS takes responsibility for prisoner safety extremely seriously. It operates a Violence Reduction Strategy whereby each prison has its own plan, which encompasses guidance on cell sharing risk assessments and anti-bullying measures. The SPS provides staff with appropriate training in order to detect, deter, de-escalate and, if necessary, protect themselves, prisoners and others from violent acts. SPS staff are required to demonstrate competence in the use of restraints on an annual basis. By training staff to the highest standard, SPS seeks to ensure that actions taken are lawful, necessary, reasonable and proportionate to the situation presented.

Healthcare services

Healthcare services in custody are provided by NHSScotland, and NHS standards for health care provision, including primary care, apply within the prison setting. The Scottish Government expects health boards to act appropriately to meet these standards.

The General Medical Council ( GMC) has statutory responsibility for ensuring proper standards in the practice of medicine and for registering all doctors who are allowed to practise in the UK, whatever their employment conditions. The GMC has powers to investigate allegations which call into question a doctor’s fitness to practice and, where allegations are proven, take appropriate action. Such action may include issuing a warning, removing the doctor from the register, or suspending or placing conditions on a doctor’s registration.

The Scottish Government has recently established a Health and Justice Collaboration Improvement Board, which will bring together senior leaders from across Health and Justice to improve outcomes for people and communities including prisons; support ambitions to reduce health inequalities and risk of offending; improve performance and achieve greater value for money across the whole system; improve collaborative working; and prioritise prevention.

Mental health services

In comparison to the general population, the prevalence of mental health problems among those in contact with the justice system is high. Mental health issues commonly co-exist with problem substance use (alcohol and drugs), chronic physical health conditions, learning difficulties, and homelessness. Relationships with families and other supports may be limited or absent. The transition from prison back to the community is a particularly high-risk period for people’s mental health, and continuity of care is important.

Partners across Health and Justice, including the SPS and NHS Boards work together to support the delivery of high quality, safe, effective and consistent services to prisoners.

Action 15 of the Mental Health Strategy commits the Scottish Government to give access to dedicated mental health professionals to all A&Es, all GP practices, every police station custody suite, and to prisons. Over the next five years, additional investment will increase to £35 million for 800 additional mental health workers in those key settings.

The SPS has a role to play in providing support and activities for prisoners with mental illness and mental health issues, and an environment that encourages prisoners with mental health issues to engage with staff and services. The SPS has funded training for Residential Officers in managing prisoners with challenging behaviours and personality disorders, and NHS Psychiatry operates an in-reach service across establishments in Scotland with a mixture of forensic psychiatrists and general adult psychiatrists in attendance. Several third sector agencies also provide additional services and support for prisoners with mental health issues.

4.7 Self-harm and deaths in custody [111]

According to its Annual Report 2015-16, [112] the PIRC investigated two deaths in police custody and 12 into deaths following police contact. As with all other deaths of which they are informed, the police are required to investigate the death and report the circumstances to the relevant Procurator Fiscal. All deaths in police custody are subject to a Fatal Accident Inquiry ( FAI).

The SPS records all deaths in custody in calendar years and publishes information for the preceding ten years. [113] The SPS is committed to the preservation of life and to ensuring that lessons are learned from previous deaths in custody through its Self-Inflicted Death in Custody Audit, Analysis and Review ( SIDCAAR) Policy. Under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, [114] all deaths in prison are subject to a FAI.

In November 2016, the SPS launched its new Suicide Prevention Strategy, Talk to Me, which replaces ACT2Care . This new strategy is intended to enable the whole prison community to work together to identify vulnerable individuals, share information and encourage those “at risk” to accept help and support. All prison staff and partners working with prisoners are provided with mandatory training on Talk to Me to ensure that they are competent to fulfil their role in the management of prisoners with suicidal ideation.

In instances of self-harm which present to the NHS, the Scottish Government expects clinicians to investigate thoroughly and to support the patient both to recover and to avoid repetition of the self-harming.

All instances of death by suicide under NHS care are subject to review by the relevant NHS Board, which will also work with Healthcare Improvement Scotland to establish what lessons can be learned to improve future safety for patients. Healthcare Improvement Scotland also coordinates a Suicide Review Community of Practice, which coordinates learning from a range of sources in order to help inform improvements in patient safety across the NHS in Scotland.

All suicides in Scotland are reported to the Scottish Fatalities Investigation Unit ( SFIU), a specialist unit within the COPFS. The SFIU reports to the Lord Advocate, who is responsible for the investigation of deaths in Scotland, and will consider whether there has been a systematic failure in care which contributed to the person taking their life, and will ordinarily request and consider the relevant NHS Board’s review reports into a significant adverse event. In addition, when investigating cases, the SFIU may consider instructing an independent expert to consider the circumstances, which may include consideration of the review report and its learning outcomes. At the conclusion of its investigation, the SFIU will consider whether there should be an FAI.

The Mental Welfare Commission ( MWC) for Scotland has clear notification criteria which apply following the death of an individual by suicide. In particular, it requires notification of suicides of people detained under the Mental Health (Care and Treatment) (Scotland) Act 2003. [115] The MWC may formally investigate circumstances of the person’s care to identify if there were any deficiencies in care or treatment and if there are any issues to inform wider learning. These investigation reports would be shared with the specific NHS Board and would be anonymised if published.

The Scottish Government is to conduct a review, under section 37 of the Mental Health (Scotland) Act 2015, into the arrangements for the investigation of deaths of certain categories of people with mental health conditions, including patients detained in mental health services.

4.8 Women prisoners [116]

Scotland has established standards for treatment of women in a custodial and non-custodial setting, which comply with the broad principles set out in the Bangkok Rules. [117]

Following a period of consultation in 2015, the Scottish Government announced the decision to build a new national prison for women on the current site of HMP and Young Offenders Institution Cornton Vale and up to five small community based custodial units across Scotland. All aspects of the custodial estate will be run and managed by the SPS but services will be delivered through multi-disciplinary teams working together to provide a consistent and holistic approach to the management of women who are held in custody and, importantly, linking them to the services they will need on their release back into the community.

The Scottish Government has also provided local justice and third sector organisations with additional funding to develop local community justice services for women. This includes funding for female mentoring services, Bail Supervision, and Early and Effective Intervention services.

See also section 4.6 - Treatment of detainees and conditions in places of detention.

4.9 Children of persons in custody [118]

Sentencing

In all cases it is for courts to decide on the most appropriate sentence, within the overall legal framework. The complete independence of the judiciary in making sentencing decisions is at the heart of the criminal justice system in Scotland and it is appropriate that sentencing decisions are entirely a matter for judges, who hear all the facts and circumstances surrounding the offence and the offender, and take into account any factors which they consider to be relevant before reaching a view on whether a custodial sentence or non-custodial sentence should be imposed.

At the point of sentencing by the court, the courts can request a CJSW Report when considering imposing a custodial sentence on a parent. As part of the reporting process, the report writer will interview the individual who is being considered for a custodial sentence and the report writer may also decide to interview other people. This could include family members, in order to take into account their views and explore the impact on the family of the offending behaviour. The report writer will also consider the potential impact of a community disposal as well as the implications of a custodial sentence for children and other family members.

The Criminal Justice (Scotland) Act 2016 introduced a provision which will require the SPS to ask prisoners whether they are a parent or guardian of a child. If this is the case, the parent must be asked for information that will help SPS identify the child’s Named Person service provider (in terms of the Children and Young People (Scotland) Act 2014). A commencement date for the Named Person provisions and the SPS provision is still to be confirmed.

Family strategy

The SPS Family Strategy 2017–22 [119] sets out how the SPS will review, develop and deliver national and local policies, and procedures relating to the care of children, young people and families who have a family member in prison.

The SPS maintains safety and security for all, however will, as far as practicable, also create a welcoming, relaxed and comfortable environment to include a child-friendly space which encourages positive relations between people in and leaving their care, and their child or children.

All establishments seek to maximise suitable visiting opportunities for families and children through regular and constructive contact. The Family Strategy sets out SPS’s key objectives:

  • facilitate children’s visits that take account of school hours and public transport in order to avoid disruption to schooling where possible
  • encourage and promote meaningful relationships by enhancing family contact where possible
  • work with establishments and partners to develop their capacity to provide facilities conducive to supporting children and families affected by imprisonment and create a welcoming environment and reception
  • provide a visiting environment that meets the needs of children and families, and create clean, comfortable and child-friendly spaces that encourage personal contact, and are conducive to play and positive relations between parents and their children
  • promote activities which encourage family interaction and learning, such as healthy eating and arts and crafts
  • provide a programme of family days and special events

Visitor centres

In 2015 the Scottish Government committed £1.8 million (over 3 years) towards Prison Visitor Centres, which focus mainly on the family rather than the prisoner. Services help families deal with the issues they face as a result of their family member’s imprisonment and allow them to access independent and impartial advice, information and support on a range of matters.

The National Performance Framework for Prison Visitors’ Centres in Scotland [120] emphasises the provision of child friendly visit facilities, which includes providing a designated space for children’s play with toys and books as essential for all visitor centres. The visitor centres also try to provide books and reading material for adults and young people, and ensure play areas are inviting, safe and offer an exciting range of toys and activities appropriate for children of all ages.

4.10 Minimum age of criminal responsibility [121]

UPR recommendations [122]

  • Review and raise the minimum age of criminal responsibility in accordance with acceptable international standards.

The current age of criminal responsibility in Scotland is 8-years old, however a child under 12 cannot be prosecuted through the courts but can be referred on an offence ground to the children’s hearing system. A Minimum Age of Criminal Responsibility Advisory Group was established to address the underlying issues of a change in the minimum age of criminal responsibility, with a view to bringing forward recommendations for public consultation in early 2016. The Advisory Group report [123] recommended that the age be raised from 8 to 12, and that the move be accompanied by a number of safeguards.

On 1 December 2016, the Scottish Government announced that it will be introducing a Bill in the current Parliamentary session, which will increase the age from which a child can be held criminally responsible from 8 to 12 years old; aligning it with the current minimum age of prosecution and reflecting Scotland’s commitment to international human rights standards.

It will ensure harmful behaviours can still be investigated and responded to, contain appropriate safeguards for the gravest cases, and retain victims’ rights to information and support.

4.11 Youth justice [124]

UPR recommendations [125]

  • Consider abolishing mandatory life imprisonment for offences committed by children when under the age of 18.
  • Adopt approaches to achieve a sustainable reduction in the number of children in detention.

In Scotland, a child would never be sentenced to life imprisonment. They would be placed in a secure unit up to the age of 17 and, if their sentence went beyond that age, they would transfer to a Young Offenders Institution ( YOI) and then to a prison on reaching 21. The Criminal Procedure (Scotland) Act 1995 indicates that a person under the age of 18 who commits murder cannot be sentenced to life imprisonment but is sentenced to be detained without limit of time and in a place as directed by the Scottish Ministers.

No child in Scotland under the age of 16 years is detained in a prison. Young people aged 16-17 who are not subject to a compulsory supervision order can be sentenced or remanded by the court to a YOI.

In terms of current operational practice, Police Scotland attempts to ensure that all children and young people are kept in custody for as short a time as possible. When very minor crimes are committed it is common for children not to be taken to a custody centre at all, but rather taken home, and, if deemed necessary, cautioned and charged in front of their parents or carers.

Section 50 and 51 of the Criminal Justice (Scotland) Act 2016 will, when implemented next year, place a duty on Police Scotland not to detain a person (which includes a child) unnecessarily in custody and to consider a child’s wellbeing as a primary consideration when making decisions in relation to a child, including a decision whether or not to hold a child in custody. Police Scotland operating procedures will be updated to reflect these provisions.

Through the WSA there is a strong focus on keeping under 18s out of the criminal justice system and statutory processes by way of early intervention, diversion and appropriate timely support.

Most current youth justice diversion schemes adopt a deferred prosecution model in that prosecution is suspended until the young person has successfully completed the diversion programme. If successful then it would not lead to criminal conviction. However, a diversion from prosecution is regarded as an alternative to prosecution in terms of the Rehabilitation of Offenders Act 1974 and, as such, would be disclosable for a period of three months, after which time it would be considered spent. For the purposes of disclosure of criminal record information, a “relevant matter” is either a conviction which is not a protected conviction or a caution which is not spent. A diversion from prosecution would not normally be disclosed after it was spent unless the police considered it to be “other relevant information”.

Secure accommodation

The majority of young people placed in secure accommodation are placed through the children’s hearings system as a result of a secure accommodation authorisation ( SAA) made in conjunction with, for example, a compulsory supervision order. A compulsory supervision order may only include an SAA if:

(a) the order contains a requirement that the child resides at a specified place,

(b) one or more of the following conditions are met:-

(i) 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
(ii) the child is likely to engage in self-harming conduct
(iii) the child is likely to cause injury to another person, and

(c) having considered other options available (including a movement restriction condition) the children’s hearing is satisfied that it is necessary to include an SAA in the order.

Responsibility for implementing an SAA rests with the chief social work officer and can only be done with the consent of the person in charge of the establishment containing the secure accommodation. In considering the possibility of placing a child in secure accommodation, a chief social work officer needs to identify the aim and objectives of such a placement in terms of the child’s assessed behaviour and needs, and the capacity of the establishment to meet those aims and objectives.

Placement in secure accommodation is designed to rehabilitate the child and, where necessary, protect the public. Secure placements, once made, are only for so long as it is in the best interests of the child. The suitability of the placement must be reviewed at intervals of not more than three months, or sooner if necessary or appropriate in light of the child’s development.

A Secure Care Strategic Board ( SCSB) is now in place and will lead the development of a strategic approach to responses to children and young people in, and on the edges of secure care in Scotland, providing a clear set of strategic proposals. The board will develop Secure Care National Standards to improve the experiences and outcomes for some of Scotland’s most vulnerable young people. The SCSB is due to report to Ministers in December 2018.

Reducing offending

The Scottish Government has identified reducing reoffending as a principle where proactive improvement could make a significant contribution to reducing crime, improving public life, and reducing the prison population.

The Scottish Government will continue to drive improvement in preventative approaches to offending involving children and young people, building on the proven success of the WSA, which has seen a marked reduction in the number of young people receiving custodial sentences. The Youth Justice Strategy, Preventing Offending: Getting it right for children and young people (2015), [126] continues to promote the use of the WSA, ensuring that young people receive appropriate interventions and services that help to address and minimise offending and improve life chances.

At HMYOI Polmont:

  • a community safety unit has been created, working with a wide range of partner organisations from the community, education sector and Scottish Government. Polmont has been designated as a ‘community’ for specific focus by the Scottish Government Community Safety Steering Group.
  • Police Scotland has committed to a ‘campus cop’ resource on site to challenge constructively attitudes to authority and support anti-violence work, both in the establishment and in the community on release. A range of interventions is being developed and deployed on site:
    • restorative practices for conflict resolution
    • anti-violence and anti-bullying workbooks
    • group work for bullying and knife crime
    • associated staff training
  • SPS is undertaking development work on issues such as domestic abuse and those types of crime which undermine equality and diversity in society, as well as creating links between the community safety and parenting teams on site to support integrated learning.
  • Research is being taken forward on a number of issues to inform understanding of the needs of young men. Many of the underlying issues which lead to violent behaviour, such as trauma, bereavement, and learning difficulty, are being addressed through education-based interventions and assessment. Speech and language therapy resources from NHS have been increased and a review of the wider regime is in progress.
  • Arrangements have been put in place to reduce the population on-site at Polmont, with a view to each young man having access, where possible, to a room of their own. This is already improving the environment and allowing more intensive staff interaction.
  • Following a curriculum review undertaken by Education Scotland, a wide range of additional activities, including those focused on relationship skills and citizenship, is being developed. These include life skills, parenting, peer support and one-to-one support for those who are most disengaged, many of whom also exhibit violent behaviour.
  • All staff at Polmont are receiving training, co-delivered with Education Scotland, which focuses on the emotional and social wellbeing of young people and their personal development.

The SPS has now adopted as policy a Vision for Young People in Custody, [127] which sets out medium and longer-term intentions for young people’s learning and development while in custody, based upon individual needs.

4.12 Removal from association and restraint [128]

Removal from association/separation

The SPS recognises that all those in its care are individuals with their own unique needs, and promotes equality by dealing sensitively and appropriately with all those in its care, including children and young people.

In accordance with Rule 95 of The Prisons and Young Offenders Institutions (Scotland) Rules 2011, removal from association is used for the purpose of:

  • maintaining good order or discipline
  • protecting the interests of any prisoners
  • ensuring the safety of other persons and only where there is a clear justifiable reason and for the minimum time necessary

Young people in secure accommodation are never held in solitary confinement. Each unit has its own written policy on the use of single separation/segregation, which is an extreme measure to be taken only when other appropriate measures have been tried and have been unsuccessful. Segregation is never used as punishment and should only be used as a last resort to:

  • prevent the young person from significantly injuring themselves or others
  • prevent the young person from absconding from the building
  • prevent significant damage to property
  • calm a potentially disruptive situation

Normally single separation should continue for no longer than three hours in any 24 hour period and for no more than two separate occasions in 24 hours. Statute requires that every use of this practice is recorded and places strict limits on its implementation. During the period of segregation the young person will be monitored at least every 15 minutes.

Restraint

The SPS is committed to providing appropriate, proportionate, effective and safe responses when managing difficult, confrontational and threatening situations. Staff will, wherever possible and practicable, use communication skills and other non-physical techniques to enlist the willing co-operation of prisoners and to seek to de-escalate any challenging situations. The use of force will only be considered when all other means have been exhausted or are deemed unlikely to succeed.

The SPS does not use spit hoods. In all cases where force has been used a ‘Use of Force Report’ is required to be completed and submitted. SPS Heads of Operations ensure that there is a robust recording process in place at each establishment in order to accurately review situations where force has been used. Where necessary, the Head of Operations will fully investigate any identified concerns.

Mechanical restraints or spit hoods are not used in secure accommodation services in Scotland. Pain compliance techniques are not part of any training programme used in residential or secure accommodation. 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, and
  • there is no other effective way of keeping the young person or others safe

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 Holding Safely guidance [129] was amended in 2012 to encourage all secure services to develop clear plans for reducing the use of physical restraint.

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. It carries out inspections of secure units, including restraint procedures; gathers information on all incidents of a child being restrained; and reviews selected cases to ensure staff carrying out the restraint are fully trained and best practice followed.

The Scottish Government has requested that the Care Inspectorate gather information regarding restraint practice in secure units during 2016-17 to inform improvement. In addition, the Inspectorate plans to review its notifications and annual returns information and consider the preparation of new notification guidance for service providers about the recording and reporting of notifications in regard to restraint incidents during 2016-17.

4.13 Mental health detention [130]

Legislative framework

In general, detention in hospital and treatment on an involuntary basis would not be lawful in Scotland, but is authorised in restricted circumstances under the Mental Health (Care and Treatment) (Scotland) Act 2003, [131] which provides the framework for detention in hospital and compulsory medical treatment for those with a medical disorder; and the Adults with Incapacity (Scotland) Act 2000, [132] which provides for medical treatment to safeguard or promote the physical or mental health of an adult who is unable to consent (see section 4.14).

The 2003 Act is underpinned by a set of principles and also contains various measures to protect the rights of those detained. The bulk of the provisions of the Mental Health (Scotland) Act 2015 [133] came into force on 30 June 2017.

A person can only be detained if strict criteria are met (including that they have a mental disorder; that the person’s decision-making ability is significantly impaired by the mental disorder; that without treatment there is a significant risk to the person or others; and that the order or certificate is necessary). Any civil order longer than 28 days must be granted by the independent Mental Health Tribunal for Scotland or the courts, and must be regularly reviewed.

Rights contained in the 2003 Act include making an advance statement, access to independent advocacy, and appointing a ‘named person’ (often a family member or carer) to represent the person’s interests. Implementation of the 2015 Act included promotion of independent advocacy and advance statements, alongside a rights-based approach in the statutory guidance on the use of mental health legislation.

Anyone carrying out functions under the 2003 Act must have regard to certain principles, including having regard to the present and past views and feelings of the patient, the importance of the patient participating as fully as possible, and carrying out functions that involve the minimum restriction on the freedom of the patient as is necessary. There are additional safeguards with regard to certain treatments and additional provisions relating to children. Treatment can only be given without consent under certain strict circumstances, with certain treatments subject to additional safeguards.

Child and adolescent mental health services ( CAMHS)

In relation to detention of children, see sections 4.4 and 4.11.

Children and young people referred to CAMHS will generally be treated in the community, however there may be times when it is necessary to admit them to hospital for specialist treatment Should this be the case they would be admitted to one of the three regional CAMHS inpatient units. For adolescent inpatient beds, the boards collaborate in three regions:

Unit

No. of beds

Area served

Royal Edinburgh Hospital

12

South East of Scotland:
Lothian, Fife and Borders

Skye House, Stobhill, Glasgow

24

West of Scotland:
Greater Glasgow and Clyde, Forth Valley, Lanarkshire, Dumfries and Galloway
Ayrshire and Arran

Dudhope House, Dundee

12 (increased from 6 in May 2015)

North of Scotland:
Tayside, Grampian, Highland, Shetland, Orkney and Western Isles

The clear expectation is that children and young people requiring psychiatric admission would be admitted to a Child and Adolescent Mental Health ( CAMH) specialist unit. However, it may be clinically judged to be more appropriate to admit young people to adult wards, or the young person and their family may have a preference for admission to a local adult ward. There would always be a specific individual reason for this, for example the immediate unavailability of a specialist CAMH bed, or a clinical decision made with the patient and appropriate family members that a local adult bed might be better in rural situations to facilitate ongoing family contact. All admissions would be discussed with patients and appropriate family members prior to admission, ensuring the child and their carer’s views form part of a broader consideration of the child or young person’s best interests. Consideration would also be given to whether the child or young person is old and mature enough to manage in an adult ward. Most such admissions will be young people aged 16 or 17. The use of adult beds for CAMHS admissions has fallen.

Monitoring

Mental health and incapacity legislation confers statutory duties on the independent MWC to fulfill its safeguarding role. Its work, which includes investigation, monitoring and visiting, is intended to ensure that care, treatment and support are lawful, respect rights and promote the welfare of individuals with mental illness, learning disability and related conditions. Service users and carers are represented on the MWC Board and also act as visitors.

4.14 Adults with incapacity

The Adults with Incapacity (Scotland) Act 2000 contains provisions covering the personal welfare and financial affairs of adults who lack capacity to make some or all decisions on their own behalf, and provides safeguards through the roles and functions of the statutory bodies involved.

The 2000 Act sets out arrangements for guardianship orders and intervention orders made by the Sheriff Court, which provide legal authority for someone to act on behalf of the person with impaired capacity, to safeguard and promote their interests. Authority to make welfare decisions can include placement in care settings if specified.

The 2000 Act allows for a person with capacity to grant a power of attorney to someone they trust in the event of loss of capacity and, if they are given health care decision-making powers, they can give consent for medical treatment. Where there is no proxy, a doctor is authorised to provide medical treatment in that specific instance, subject to certain safeguards.

Following the Scottish Law Commission’s review of the 2000 Act on compliance with Article 5 of ECHR, specifically in relation to deprivation of liberty in hospital and care home settings, the Scottish Government consulted on the Commission’s recommendations and published an analysis of the responses. Work in the longer term is being undertaken with stakeholders on these and wider issues around guardianship, and consideration of circumstances in which supported decision-making can be promoted. Further public consultation will follow in early 2018.


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