Public Audit Committee [Draft]

Meeting date: Thursday, March 14, 2024

Official Report 658KB pdf

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Section 22 Report: “The 2022/23 audit of the Scottish Prison Service”

Agenda item 2 is consideration of the section 22 report, “The 2022/23 audit of the Scottish Prison Service”, and I am delighted to welcome to the meeting Wendy Sinclair-Gieben, His Majesty’s chief inspector of prisons for Scotland.

We have some questions that we would like to put to you, Wendy. However, before we get to them, I invite you to make a short opening statement.

It will be short, I promise.

We have four key areas of concern in relation to the Prison Service, the first of which is the performance of the prison transport provider. The second area is the prison population, particularly overcrowding and remand figures, and the third is that, with that, comes an estate that is not fit for purpose. Lastly, there is the issue of mental health and how it is handled in Scotland, with the prisons picking up what is, to be frank, a vast number of people who are mentally unwell.

Starting with the performance of the prisoner transport provider, I have to say that over my tenure—that is, since 2018—there have been fluctuations in that respect, with what are, in my opinion, unacceptable drops in performance leading to human rights breaches. I have repeatedly raised the issue with the Scottish Prison Service and, at times, the Cabinet Secretary for Justice, and every time, I have been given a comprehensive response.

In March 2020, I raised our concerns formally, particularly with regard to the issue of critical non-court appointments. The very impressive response that I received included phrases such as ensuring

“that work on improving systems and processes continues during the disrupted period.”

Moving on to 2021, I recognise that that was an extremely challenging time for everybody, as there was a global pandemic.

In 2022, I wrote again with concerns about enduring issues of cancellations of non-court appearances and, in particular, critical healthcare appointments. For example, there were people with stage 4 cancer who had had three critical care appointments cancelled. I was deeply concerned; although the first quarter of 2022 saw a slight improvement, things dropped again.

In 2023, I raised the issue twice. I have never seen such poor performance as I had by the end of 2023; it was truly shocking, with appointments in some prisons more routinely cancelled than they were met. We had real problems.

Now that we are in 2024, I have again escalated my concerns. I am aware that significant efforts have been made by the justice partners to try to mitigate and address the issues, and I am aware that the picture is, again, improving, as was the case in 2023, 2022, 2021, 2020 and 2019. We have always seen a drop in performance, followed by an improving picture.

However, this is a significant challenge to human rights as well as a financial risk, and I worry that it might be another slopping-out case. Given the history, it does not give me, as chief inspector, any confidence at all in continued and sustained improvement. I have to say that I was pleased to see a considerable degree of what I have been talking about echoed in the section 22 report.

I do not know whether you want me to stop there, convener, or whether I should go on to remand and overcrowding.

We have some questions on each of the areas that you have outlined, chief inspector, so if you are agreed, I will turn to the deputy convener to get the ball rolling. You will obviously have an opportunity to give extensive answers to our questions, which I hope will reflect the other things that you might have wanted to say in your opening statement.

Good morning. I think that other members will probably want to talk about the prison transport issue later in the session, but I want to kick off this morning by looking at the bigger picture with regard to the prison population, capacity within the prison estate, and the state of the estate itself.

The forecast for March 2024 was that the prison population would rise to more than 8,000. I presume that that has occurred. It is my understanding that, even running at maximum capacity and at so-called extended operating capacity, we can accommodate no more than about 8,500 prisoners across the entire estate, so we are getting to a crunch point. Given your overarching brief, what is your view of the situation at the moment? How perilous is it?

The estate is already overcrowded. In 2019-20, I reiterated a statement that the choice is stark: we either build more prison spaces or reduce the population going in—those are our only two choices. We have an ageing population, so the demographic is very different from what it was 20 years ago. When I was the governor of Kilmarnock prison in 2006, it was unknown to have wheelchairs—if there were any, they were rare—but now, you need only visit HM Prison Edinburgh to see wheelchairs, crutches and all sorts of things. There is an ageing population and a very different demographic, as well as a great deal more serious and organised crime. We need to accept that that is the case and either build or manage an estate that is fit for purpose or reduce our population by looking at community alternatives.

As I have said, the estate is already overcrowded. I accept that there are areas of the Prison Service that are underutilised. By keeping children in custody, we are using 42 cells for two, three or four people. We have an area in HMP Grampian that is empty because the service cannot get staff to go there, although I know that that is being addressed. However, those are minimal spaces. HMP Barlinnie is overcrowded and is at risk of catastrophic failure, and frankly, HMP Greenock should be bulldozed.

What does it mean when we say that the estate is already overcrowded? It is easy to look at prisoners and say, “Well, they did the crime, so they have to do the time.” I think that we all understand that attitude. However, the reality is that their access to rehabilitative activities and to essential and crucial relationships with the staff that can turn around criminogenic behaviour is reduced, and therefore the risk to society and further victims is increased. For me, the Parliament needs to address the issue, and address it fast.

My goodness, that sounds like a grim situation.

I think so.

I have heard you give evidence in previous years, and some of your warnings on the ever-increasing numbers have been borne out. However, I guess that the numbers do not paint the entire picture. Is the issue simply that the nature of the prisoners has changed over the years? We have heard anecdotal evidence that increases in serious organised crime, which you mentioned, serious sexual offences and serious violent behaviours have led to higher prisoner numbers. Of course, we also have a substantial remand population, many of whom have been there way beyond the statutory limits, because we voted to get rid of those limits in many cases.

Is there proportionality in the system? Are too many people being put in prison for the wrong reasons, or is the issue simply that the nature of crime and its prosecution are changing and therefore people have to be in prison, but we just do not have enough spaces for them?

We must give praise where praise is due: our police force does an excellent job of providing evidence and catching people, and our courts do an excellent job of convicting them. There is definitely an increase in serious offending, and the number of legacy sex offenders is, inevitably, increasing, too. Because of that, we also have an increase in the lengths of sentences. If you look carefully at life sentences 20 or 30 years ago compared to life sentences now, you will see a distinct increase. Not many of the public would disagree with that. We are holding people for more serious offences and for longer periods, which leads to an increased population.

Because of that, we also have an ageing population, but the fact is that prisons are primarily built for fit young men. I will leave the women’s estate out of this, because, frankly, the Scottish Prison Service and Scotland should be proud of what they have done in that respect. However, the reality is that an ancient Victorian prison that is crumbling at the seams and which requires millions to keep the plumbing going is not designed for an elderly population, and that is what we now have. We have a considerable proportion of people who are disabled, people who are physically aged, people who struggle, people who need adapted cells and so on. That makes it very difficult to manage. That is where we are, and the Prison Service deserves praise for the fact that it does manage the situation.

Violence has gone up, as has the number of deaths in custody. I gave due warning of that. We have not had anything like the levels of insurrection that could have been predicted, and that is down to relationships between staff and prisoners.

It is important that we put on record our thanks to those on the front line who deal with and manage this. It sounds like a real balancing act in some of those institutions.

That said, we have made legislative changes over the past decade. The presumption against short sentences of incarceration means that, by the very nature of our system, those who get sent to prison have been convicted of quite serious crimes. How can we achieve that balance? Do we reduce the prison population, as has been suggested, or is the answer to simply build more estate? We have not been building or replacing those antiquated buildings in a timeous fashion, and any attempts to do so have, as we know, gone massively over budget and been hugely delayed.

I recognise that.

What is the answer? Should we be building more prisons or putting fewer people in jail—or both?

Personally, I think that we should be doing both. When I looked last September, the number of people in prison on sentences of under 12 months was something like 750. Those figures can be more accurately received from elsewhere—you could certainly look at them now.

I would highlight the number of very mentally ill people in prison; at least a third of all segregation units have very mentally ill people in them, and we need to look at that. I would also look at the very short terms that people are in prison for. Moreover, the number of women and young people—that is, those under 25—who are on remand and then released from court raises the question of why we continue to use remand in that way.

If you think about it, the statutory presumption against short-term sentences was approved precisely because it was not felt to have the necessary effect—it did not prevent reoffending and it was less effective. Having long-term remands arguably has the same outcome—that is, you are more likely to develop escalating criminogenic behaviour than you are to deal with it.

Scotland has a cultural issue with remand, in that we do not think it as important to develop the interventions in relation to criminogenic behaviour for people on remand, as we do for those who have been convicted. The Prison Service is funded to provide employment in relation only to convicted prisoners, but many prisons still make a point of ensuring that remand is there.

As for health inequalities, you can be in remand for two years and yet you would not be entitled to any dental treatment other than emergency dental treatment. The issue with remands is that, if they were genuinely short term, they would be in some way justifiable, but longer-term remands are certainly not. Given that up to 30 per cent of the prison is population on remand, I would argue that that is actually breaching human rights.

That is interesting. Other pieces of legislation going through other committees are looking at the remand issue. Certainly, in any interactions that I have had with the judiciary, there is very much a feeling that remand is used as a last resort, with the presumption against releasing people when they are charged and go back to court.

Yes, there are no alternatives for the judiciary.

May I ask about the situation with HMP Greenock? It is an area of local interest for me, but you mentioned it in your opening statement, too, stating that the prison should be bulldozed. It is currently inhabited by a substantial number of prisoners—both those on remand and those being held for longer terms—and has a substantial number of staff. We would have nowhere to put those people if we did bulldoze it, so they are stuck there, presumably, with no plans for replacement. What should happen there?

It is unfortunate. Greenock is one of the best prisons that I have inspected. The staff-prisoner relationships are superb, the community relationships are superb and health is good. I think that there are many aspects of Greenock prison that are wonderful.

I would have loved the space at Inverclyde, which costs the Scottish Prison Service in the region of £40,000 a year to maintain, to have been built on. All the good things about Greenock prison could be moved there. I recognise that there is a funding crisis and that we are unlikely to achieve that, but I would love to see another prison built that is fit for purpose, because Greenock prison is not. It costs a fortune to maintain and it has water ingress. It has real issues.

09:15  

Do you have any powers to direct it to be closed if you are unhappy with the conditions?

No, not at all.

Would you recommend that if that were the case?

I could recommend a full health and safety check. However, I am reluctant to do so, because the prisoners and the staff really like being there, and the Prison Service does its level best to maintain it and keep it going.

Right. So we will leave it as is and hope and pray that there is a replacement—

—and hope that funding will be found to build that replacement.

We will have more questions about the estate later.

I want to pick up on something that feels almost counterintuitive to me and which we have, I think, previously taken evidence on. If a person is on remand, they are more likely to be locked up for longer. That is still the case, is it not?

That is correct. The conditions are worse for someone on remand than they are for someone who is convicted.

What is the rationale behind that?

I am afraid that you would have to direct that question elsewhere.

Do you think that that is an operational matter? Is it not a human rights matter?

It is based on the prison rules. It is a legislative requirement. Remand prisoners are not required to work. There is funding for convicted prisoners, who are required to work, provided that they are not, say, old or ill. However, that funding is not there for remand prisoners. Many prisons overcome that as much as they can.

I will move on, but I will come back in later. I now invite Colin Beattie to put some questions to you.

I would like to explore double-cell occupancy and its consequences.

Oh, please do.

In March 2023, 31.5 per cent of prisoners occupied double cells across the prison estate. In the Public Audit and Post-legislative Scrutiny Committee’s 2020 report, in session 5, entitled “The 2018/19 audit of the Scottish Prison Service”, that committee described the solution of addressing capacity issues by doubling up prisoners as

“a step backwards rather than forwards.”

In response to that report by our predecessor committee, the Scottish Government said that the doubling-up of prisoners in cells was not its “preferred approach”. It further stated that the SPS was

“actively working to provide single cell accommodation”

to all prisoners.

Do you know whether there has been a significant increase in the use of double cells? Has the SPS improved the situation?

By no means. There are a number of cells. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has guidance on what sizes cells should be. There are numerous cells in Perth and Barlinnie prisons that are too small for two people. They are fine for one person, but they are too small for two people. Those prisons are forced to use them because of the size of the prison population.

The previous reports that we have looked at have said that 31.5 per cent of prisoners were in double cells. Is the figure still about the same?

I could not quote the statistics, but that feels about right.

I am trying to figure out whether things are getting worse or whether they have stabilised.

Things had to get worse as the prison population went up. For instance, an extra 100 beds were put into single-cell rooms in HMP Low Moss. We managed to get the double bunks taken out of Greenock prison but, because of the size of the prison population, the SPS might be forced to look at other areas that have relatively large single rooms. It cannot take beds out of Perth, Barlinnie and Low Moss prisons because they are forced to use them because of the size of the prison population.

It is simply the sheer volume of prisoners that is driving that.

Yes.

Is there an alternative?

There should always be some double cells. Some people benefit from being in a double cell, but they should be rare.

Yes, there are alternatives but, unfortunately, they are expensive. You can convert three cells into two and put a bathroom or something else in the middle, but, as I have said, that is expensive, and the reality is that prison numbers at the moment are such that the SPS is forced to use double cells. The idea of sharing a cell for 23 hours a day with a total stranger who might not have the same hygiene standards as me fills me with horror. I do not even park on double yellow lines.

I guess that a spin-off from that is concern about prisoners’ mental and physical health and the impact on rehabilitation. Do you know of any assessments of the impact of overcrowding and restricted regimes on the mental and physical health of prisoners?

I cannot point to any accurate research, but I know that a lot of that work is going on at the moment. The National Preventive Mechanism, which I chair, is looking at two or three areas, one of which is the delay in getting people who are in hospital into the in-patient care for which they have been designated for mental health reasons. There is no question but that there has been a rise in mental health issues; that has been evidenced across the country, and it is also true in prisons. The mechanism is also looking at the impact of segregation on mental health.

Some work is going on, but I have not seen any major recent research on the impact of overcrowding on mental health.

You previously mentioned that a large number of prisoners have mental health problems when they enter the prison estate. Is there any way of determining the extent to which the Prison Service’s restricted regime, double bunking and so on are impacting on those people?

That would require a thematic review, which I think would be very worth while.

Particular reference has been made in the past to Barlinnie, as well as to the wider prison estate, of course. However, the difficulty there is that, in the words of the chief inspector of prisons, a restricted regime is in place to keep prisoners “safe and controlled”. Just a few minutes ago, you talked about prisoners being in their cells for 23 hours a day. How is that possible? In prisons in rather more brutal regimes, prisoners are in their cells for 23 hours a day, but we are doing the same here.

I cannot argue with that. I think that it is fundamentally wrong. That does not mean that I think that cells should just be open for a free-for-all, but we need to provide purposeful rehabilitative activity.

On a practical basis, if prisoners are in their cells for 23 hours a day, does that mean that their food is served there, too? Do they not get out to mix with other prisoners?

That was certainly the case during Covid. They do get out for food—that is why it is only 23 hours a day. They come out three times a day for food.

I had assumed that the one hour was for exercise or whatever.

There is also an hour for exercise, so they are in their cells for 22 hours a day.

Thank you.

Willie Coffey has some questions on Barlinnie and the estate.

Good morning, chief inspector. So far, we have heard some sobering comments, one of which came from the conversation that we have just had about prisoners in the estate. When the question “What’s the solution to this?” was asked, the answer was, “There are too many prisoners—either reduce that population or build more prisons.”

I want to ask what might be a very difficult question for the public to hear the answer to. Are there people in prisons with mental health conditions who, quite frankly, should not be there any more and should be elsewhere?

Yes.

Are you prepared to put a number to that? I think that you said that about a third of the prison population have mental health and wellbeing issues. Is that what you said?

No. I said that, when we carried out the segregation review, we found a third of the people in segregation to be clearly mentally unwell, but they did not necessarily reach the threshold at which in-patient care was required.

As I said, it is a difficult question for the public to even think about. To your knowledge, has anyone considered this? You learned from your experience in Kilmarnock that, in 2006, there were no wheelchairs there, but now the prison has them. The prison population is getting older and more infirm. It is a difficult question for society in general, isn’t it? Should we be thinking about that aspect of the prison population and about whether those people should be properly retained in prison?

We do need to think about that. We have always operated on the basis that prisons should be at the highest security level, but perhaps the time has come to rethink the estate. Do we need an old people’s home with a secure wall round the outside? They are not going to escape, but we do not want people getting to them, either. We need to be secure, and victims need to know that they are held securely, but we need to rethink our penal estate.

Clearly, the public need to be assured about the risk or lack of risk to society at large, and that would have to be part of any such consideration.

Absolutely.

By and large, would you say that there are people in prison at the moment who are no risk to society because of their deteriorating age or mental health?

There are some people who I would not consider to be a risk to society—some of the very elderly disabled prisoners, for instance. However, that does not alter the fact that they will require care wherever they are, whether in the community or in prison. It is questionable whether very expensive and very secure buildings are the right places to hold them. That is a difficult issue.

I firmly believe that giving more options to sheriffs and the police—by having more community interventions that deal with poverty and deprivation and that tackle crime at the very earliest stage—is, in fact, the way forward in reducing the prison population. However, that is not a short-term solution.

Thank you for answering that question. I had not intended to ask it, but we were led in that direction from the earlier conversation, and it is quite important.

Let us turn to Barlinnie, which the 2018-19 audit identified as presenting the

“biggest risk of failure in the prison system”.

In the inspection report that we are discussing today, you talk about “surge capacity” and so on. For the benefit of committee members and, perhaps, the public, will you briefly explain what we mean by surge capacity and why Barlinnie is in the frame when we talk about that?

Sure. Surge capacity refers to the prison that can expand the most readily to cope with any sudden surge in the prison population. Barlinnie is the prison that is designated as providing surge capacity, because it is the biggest and because it is in the central belt and therefore readily available from the majority of the courts. It also has a considerable degree of double bunking, and it has big wings, so you can separate the different cohorts of prisoners. Therefore, understandably, Barlinnie has been chosen for surge capacity.

In reality, when prisoner numbers are this high in Scotland, we also have two private prisons that have the capacity to take more prisoners.

In essence, there is no other—

Oh, sorry—I said that there are two private prisons, but, actually, one is going into the public sector this weekend.

Yes, I know it well. I am very familiar with it.

There is really no option; if we have such a situation, it has to be Barlinnie that takes on the extra demand, because of its size and design, presumably. It has the space, but it is perhaps in the poorest condition of all our prisons.

I think that Greenock is in a poorer condition or—put it this way—a similar condition.

The size of Barlinnie is the problem. Were you to lose Barlinnie, there would be nowhere else to put its prisoners—that is the issue. If you were to lose Greenock, you could overcrowd some of the other prisons but you would manage, because there is such a small number in Greenock. I would be sorry to lose Greenock, though; it is a good prison.

You mentioned that the regime at Greenock is really well thought of among the staff and the prisoners. Do they try to share that practice with the rest of the prisons?

They do. The small prisons—Greenock, Dumfries and Inverness—all have an almost familial feel to them, because they are very small and the staff get to know all the prisoners really well. It is rather nice.

I also get that impression when I visit Kilmarnock prison. There are 500 or so prisoners there, but I get the sense from working closely with the director and the staff that there is a good regime. The prison is well managed and there are good relationships.

It is a good well-run prison. I have to say that Barlinnie is, too.

09:30  

In 2020, the Government told our predecessor committee that the Prison Service has

“robust contingency plans in place”

to deal with

“a loss of critical infrastructure or ... an incident”.

Are those robust contingency plans still in place and, if so, are they fit for purpose?

Given the cost of maintaining and staffing these old buildings, there comes a stage when you need to invest to save; it is just that it is a very long-term saving. I think that the service is doing its best—it really is. Members of the estates team do their best to maintain and keep these old buildings going, and the governors do their best to make sure that the prisons are decent and humane, that people care and that there is compassion. In the Barlinnie recovery cafe, which deals with substance abuse, there is a day care centre for the elderly population, and there is the community hub and the wellbeing hub. The service is being as innovative as it can and is trying to do more with less, and it deserves praise for that.

In 2019, you told our predecessor committee—it was probably in answer to a question from me—that it would take five or six years before Barlinnie would be replaced, but we are still not there.

I am ever hopeful.

You said that, during that time, the infrastructure would “continue to be fragile” and would probably diminish. Five years on, what is your assessment of the condition of Barlinnie? Is it significantly worse?

It is more or less the same. You just need to visit to see that. If you have not visited, it is worth doing so, and likewise with Greenock. When you see big buckets full of water in Greenock, you know that there is a slight problem with the roofs. I will never forget my first inspection at Barlinnie. I remember walking along to the chaplaincy with plaster dust landing on my head. I was walking around in the early evening and a little family of rats came with me. It was pouring with rain and, when the water table comes up, the rats come up, although the governor keeps the place immaculately clean, and there is no waste lying around to encourage the rats. The units are narrow and tight, and you cannot actually manage a regime in the prison. The cells are small, narrow and high, with a window.

It is not exactly modern penology. For me, prisons’ role is to do their level best to reduce the risk when prisoners leave. That should be the primary consideration rather than having to warehouse people, as I would put it, because there are so many people and so much turnover.

The purpose of prisons when Barlinnie was built was nothing like the purpose that you describe now.

No.

It must be hugely expensive to try to continue to keep Barlinnie in reasonable condition.

Very much so. The Prison Service can answer on that point, but the maintenance costs for Barlinnie are dramatically different from those for the more modern big prisons such as Low Moss and Grampian.

Convener, did we agree that you would ask about the demographics? I could do that, if you want.

If you want to do that, that would be helpful.

We have touched on changing demographics in the prison population. Will you tell us a little more about the impacts that that is having? You said that there are more elderly people with more health conditions and so on. Is the situation accelerating at a pace that is becoming difficult to manage?

I would love to say that it is difficult to manage but prisons do an amazing job of managing it. Against that, the reality is that the estate does not have the level of cells that we need. For instance, HMP Stirling, which is a brand new prison—by the way, it is fantastic so, if you get the chance, go and have a look—does not have a room that is big enough for a bariatric prisoner. She has a bariatric wheelchair that cannot get through the door, so staff have to put a smaller wheelchair inside and help her through the doorway. We are not thinking about how the population has changed, even with a brand new prison. It may still not have been thought through.

If we are dealing with significant mental health issues, which I think we are, we should perhaps think, when we build, about having jointly run units. Victoria in Australia has a prison called Ravenhall, one unit of which has flexible walls, as they are referred to. The facility caters for very mentally unwell people, and it is managed by both the forensic healthcare service and the prison service. We should be looking at such examples and asking whether they would suit Scotland. When we are building anyway, do we need to build in future proofing? Do we need to build in aged care?

When a person gets sentenced to be imprisoned, does the system look at that person’s needs initially before it is decided where they should go, if they have particular health requirements and so on?

Yes. They are screened when they come into prison.

Is an attempt made to put the person close to where their family live?

Yes.

Would you say that the person’s needs are being met, by and large, where they have been placed to carry out their sentence?

By and large, yes.

The whole estate cannot possibly offer all of the range of supports that you describe. Would you say that, even with the best will to deliver that right across the estate, it is beyond us to meet the needs of that ageing population, which is growing and changing?

Staff do their best with inadequate resources. There are insufficient rooms that are adaptable for people with mobility needs. There is insufficient mental health support. However, there is no alternative. There are the units and the segregation unit, but there is no third option. Perhaps there needs to be.

Have we assessed any of that across the estate? Have we looked at that and recognised that specifically?

Yes. The new women’s prison has certainly looked at that.

Thanks so much for your responses to those questions.

One of the themes in the Audit Scotland report is the importance of collaborative working. A lot of the challenges that have been described by you this morning are amplified in the Audit Scotland report. The risks that are faced by the prison system will only be solved, in the view of the Auditor General, by better collaborative working between the Scottish Prison Service, justice partners, the Scottish Government and so on. Do you have a view about how you think that collaborative working relationship should be?

I absolutely agree with the Auditor General. However, I have seen an improvement of late. I am thinking here of the criminal justice board, which is chaired by the Scottish Government. The police, the courts and so on came together in that to consider, for example, prisoner transport, the increased use of virtual custody courts, the use of the police to manage the violent person process, and so on. There has been a distinct coming together and an approach of, “Let’s solve this together.” That has been very reassuring and has very much been welcomed. It is a problem that the interoperability is not quite there, however.

As you mentioned earlier, you spent time as the governor of Kilmarnock prison. From that perspective, do you have a view about how things could work better collaboratively between the Prison Service—or the private sector, as was then the case—and central Government departments?

When I first came before the committee in 2018, I said that, at the end of my tenure, I would be delighted to do a review of information flows among the justice partners. When somebody tangles with the police, do people have knowledge of them from social work or from health, so that they can choose how to deal with them? When someone goes to the Crown Office and Procurator Fiscal Service, does it take an informed decision? How does the information flow happen? If people need to work with justice partners—if, for instance, the courts need to know that the sheriffs have a wider choice of alternative disposals—how is that managed? Are the courts alerting the prisons as to who is going to come and who is not going to come in enough time so that the court transport does not take 14 people to court who are not required to be there?

I felt that information was siloed and that information flow and informed decision making were not being achieved. Therefore, yes—there is room for improvement, but I have welcomed the obvious signs of the Prison Service and central Government departments working together recently.

Good.

Can I turn now to the vexed subject of the Scottish courts custody prisoner escorting services contract—SCCPES—which goes beyond simply escorting people backwards and forwards to court, does it not? It goes into health appointments and so on, which again you have alluded to.

When I was preparing for today, I read your annual report as a reference point. It came out in September 2023, and in it you covered some of your concerns about that. You said that there have been some “serious issues” with prison transport, which “remains a key concern.” It feels as though you have gone a bit further this morning, chief inspector; you said that it is truly shocking.

It is, yes. I am sorry, but it is. We have a thematic lead in our team—it is a very small team—who is doing a transport review at the moment for that precise reason. That review includes user voice, case studies and listening to the difficulties that the provider has and that the Scottish Prison Service has. The first draft is due at the end of April, and we will probably publish it in June, although there are no guarantees, because it depends on how long the editing process takes.

Do you have a view about the model of outsourcing that function of the prison service?

I have a personal view and I have a chief inspector’s view, but I will stick with the chief inspector’s view, which is that—

We might prefer the former rather than the latter, but anyway.

Well, the former would be much more interesting, but the chief inspector’s view is that the contract has not worked since its inception. It has not provided the service to the court and non-court appointments that we would expect. Therefore, there must be a flaw in the commissioning of the contract, in the contract itself or in the management of the contract—there just must be—because, otherwise, the issues would have been resolved and it would have worked.

I also think that the Parliament has a manifesto that says that services should be trauma informed. The Prison Service’s strategic plan also says that services have to be trauma informed, and I would argue that things such as funeral escorts and hospital escorts would be more trauma informed if they were managed by the Prison Service staff, because the prisoners know those staff and may have a relationship with them. There are options and alternatives.

I also looked at the performance of the transport providers in other jurisdictions. The same transport provider is doing very well in other jurisdictions, but it is operating there under a very different contract. The contract is due to expire, or reach the end of its first stage, in 2027. We now need to consider what sort of contract or what sort of delivery Scotland needs.

Are you talking specifically about the situation in England? Audit Scotland’s representative told us that it is a much tighter contract there; it only involves transporting people backwards and forwards to court and is not about taking people to family funerals or NHS appointments.

Yes.

Will that be part of the consideration of your thematic review of prisoner transport?

No, my thematic review will be more tightly focused than that. It will be on the impact of the SCCPES in Scotland. We will not be looking at the contractual issues.

If we had more time, I would also like to consider the hidden cost. For example, what is the cost of every hospital appointment that is cancelled? What is the hidden cost of every court case that does not happen? Goodness knows what the cost is of that, because of all the lawyers that are involved, and so on. What is the cost of having a contract that requires significant financial input? There are hidden costs in the SCCPES—or whatever it is called—that have not been examined.

09:45  

But, again, we took evidence from the Auditor General that, as the report says,

“62 per cent of prisoners due in court arrived on time”.

That means that 38 per cent did not.

That is correct.

I also note that

“65 per cent of non-court”

transport was on time, meaning that 35 per cent was not. That is the transport to the health appointments that you talked about in quite dramatic terms at the start of this morning’s session. We have also taken evidence about the vacancy rate in GEOAmey, and we have had discussions about salary levels and whether the reason for that high vacancy rate is the remuneration package that people get. Do you have a view on that?

Certainly all these issues I have raised with the SPS, and the comprehensive response that I got and which I am happy to share with the committee shows an improved position. Staffing levels are almost at those set out in the target operating model, and it has had considerably better results this month than it had previously. Certainly, 2023 was one of the worst years that I have seen.

My concern is that that has required considerable effort from the justice partners and further input of cash and, given the history, I have absolutely no confidence that it is sustainable. The staffing position has been poor, and the staff are paid slightly less than you would get paid at B&Q. Inevitably, when the police and the Prison Service recruit, they get wonderful staff who are well used to handling difficult and challenging people who come to them. Therefore, I am not sure that the position is sustainable, and I think that an alternative needs to be considered. You need to examine the contract.

Finally, and before I bring in the deputy convener, who I think has another couple of questions, do you think that this is a failure of GEOAmey, which is going to be sitting where you are sitting in a few weeks’ time? Is it a failure on its part, or is it a systemic failure? Is it a model that simply cannot work, no matter whether it is run by GEOAmey, Serco or whoever?

You have to be aware that Serco and G4S withdrew from the bidding, because they felt that the model would not work.

Okay. So, that is a yes, then. The market speaks, perhaps.

I now invite the deputy convener to wrap up the session.

I just want to direct the conversation back to where we started—that is, the situation going forward. As you will be aware, the head of the Scottish Prison Service, Teresa Medhurst, was on television recently, and, referring to prisoners, she was quoted as saying:

“enough is enough ... We cannot take any more.”

Given that we are, as I think it is widely acknowledged, already over capacity, if the trend continues and prisoner numbers rise, the big question is what happens then. I guess that my question, therefore, is this: what do we do when there is simply no more space?

Presumably there are three things that we can do. First, we direct the judiciary not to send people to prison; secondly, we release people who are currently in prison early; and thirdly—and this is something that I suspect is being actively considered—we house the additional influx of people in temporary accommodation. Given your lengthy and wide-ranging experience of prisons, what would be the best option for policy makers?

A combination of all three is needed—it really is. We need to look at the estate very carefully and see where we can expand. The two private prisons can expand; it will mean doubling people up in cells, but they can do it. We also need to look at where units have been closed and open them again.

Moreover, we need to take children out of prison custody. There is no argument in favour of keeping three or four children in 40 cells—I just cannot see any argument for it. We can manage that legally; there is a way around that. We should also ask the judiciary whether the presumption against sentences of under 12 months could be extended to a mandatory policy of not giving sentences of under 12 months.

We need to work very closely with Community Justice Scotland and the Convention of Scottish Local Authorities on seeing whether we can open further rehabilitative residential units and look at secure bail hostels. Are there any units around the place—for instance, the closed secure unit in Edinburgh—that could be used for alternatives such as aged care?

There are opportunities, and it needs considerable planning, because we are not going to reduce the prison population in a hurry. I just cannot see that happening. The backlog in the courts means that many of the people who are currently on remand will be convicted. Certainly, in the High Court, the number of serious cases of fairly heinous crimes argues that they will be convicted and in prison for lengthy periods.

A number of tweaks could be made around the edges. We need to review and revise the home detention curfew. We used to have 300 people out on that and there are now approximately 50 or 60. We need to look at whether we can use GPS monitoring and allow people to leave prison early but still be monitored. In Western Australia, for example, dangerous and serious sex offenders are released on a GPS monitoring tag, so that is tested in the community with some degree of comfort.

There are options and alternatives that can be tweaked but, in the long term, we will need a strategy for either building capacity or reducing the population.

It seems that we in Scotland have been rather slow to deal with the evolution of criminology in things such as sobriety tagging and GPS technology. Do you understand that an element of society, including some of the victims organisations that often deal with legislators, feels some unease at some of those suggestions? For example, there is unease about emergency legislation that releases people from prison early, because it feels as though justice has not been served. There is also unease about directing the judiciary as to what it should and should not do and who can and cannot go to prison. How should legislators balance that unease among victims and the wider public, who might fear for their safety, with the perilous situation in prisons? Is it at tipping point?

It is at tipping point—well, I think that it is at tipping point. We need to get everyone around a table to agree on a way forward.

For me, the victims are the primary concern. How do they feel? What would they feel? If we release somebody early who is going to be out in a month anyway, I would want to know that they have housing and support, that they are being monitored, and that they are unlikely to go back into the same crime that led them to going to prison in the first place. As a victim, I would want to know that. I would not like to think they are just going to be released on to the street. Consultation and joint thinking on that have to happen.

I also think that we need to look at how Scotland’s estate can be expanded in the short term and what can be done for it to cope with the fact that, if a sheriff needs to send someone to prison, they need to send someone to prison. I do not doubt their judgment.

Indeed. I am sure that we could have a whole session on whether public services are fit for purpose once people are released, and another one on rehabilitation and what we are doing right or not doing right in Scotland.

My final point is a grave one: deaths in custody. Across prisons and other forms of custody, it is estimated that there are around four deaths per week. Those are not solely in prisons, of course, but a worryingly large number of people are dying in the different levels of the prison estate. Is that part of your watching brief? Do you have any views on that, or have you performed any analysis of why those numbers are so high? Have you made any recommendations to the Prison Service or to ministers on how that number can be reduced?

Yes. We wrote the deaths in custody review, which contains a significant number of recommendations, one of which is on the prevention of deaths in custody. I felt that it was important that there was a group that looked at why deaths happened and that it involved the families.

Throughout the deaths in custody review, family voices were extraordinarily powerful, and given the level of distress that they felt, I was stunned at their compassion and understanding, especially for the staff who have to deal with it. If you are a member of a family of somebody who goes into prison, you think that they will be safe, and when they are not safe and they die in prison, it is huge. One of the worst things that can happen is that someone dies when they are in the care of the state.

We are not talking about 95-year-olds slowly dying of old age. I am talking about people who take their own life and so on. The concern on the part of families was that they had a lot of information that they could have given, which might have prevented those deaths but which was not recognised or understood. That prevention group was one of the major tenets of the review.

There were three things for me. One was the delays in the fatal accident inquiry. The review found that—it was not just me. The review was done by the Scottish Human Rights Commission, Families Outside and HMIPS. The key recommendation was that there should be an independent inquiry that would inform the FAI. There were huge delays in the FAI and families felt that the FAI was adversarial and did not necessarily come to the truth. Vast numbers of FAIs do not make any recommendations, and families felt that there should be recommendations. The delays made it very difficult.

My feeling was that the other UK jurisdictions all have an independent inquiry and that, although they have not reduced the number of deaths in custody, as Philippa Tomczak’s report confirms, they have given closure to families. I felt that that was a system that we could adopt in Scotland that would not interfere with or prejudice police inquiries or prejudice a fatal accident inquiry but would bring closure to families. It would also allow for transparency, because this independent body would then produce a report that would show you any systemic issues, what recommendations had been made and progressed and what has occurred. That does not happen at the moment. We have no idea.

I was pleased to see that the Scottish Prison Service is now publishing numbers not only of deaths in custody but of incidents of self-harm and attempted suicides. When you look at those numbers, you can see that it is really quite impressive what the staff manage—it really is. Therefore, that was one recommendation.

Another recommendation related to the fact that, when they go to an FAI, families are largely unrepresented. The Scottish Prison Service and the national health service have expensive lawyers. We felt that there should be automatic legal aid for families. We felt that there should be a deaths in custody prevention group with family involvement that looks not only at people who take their own lives but at people who take drug overdoses and people who feel that they do not have access to healthcare in the same way that they would in the community.

There was one woman whose family member had died and, when the nurses had arrived, the cardiopulmonary resuscitation equipment did not work. She wanted to know how often that is checked, who maintains it and what happens to it. None of those questions was answered in the FAI, but they would have been answered in an independent inquiry.

Let us take the Allan Marshall case. Once there was no determination of criminal intent, we could have done the inquiry. All the changes that the Scottish Prison Service has made with regard to reviewing its use of force could have been in place by the time that you got to the FAI. There are advantages to doing an independent inquiry in the middle.

I am quite passionate about deaths in custody—

I can tell.

I am sorry—I went on and on. I do not mean to.

No, I commend you for the work that you have done. However, clearly, all that work will be made more difficult with an increasing population, an antiquated estate and the lack of resource and assistance.

I talk about the antiquated estate, but I really must mention the new women’s estate. The Scottish Prison Service and Scotland are leading the world on that. Having just done the inspections in all three places, I have to say that it is fantastic. It is such a therapeutic environment. Well done.

We also have to mention that, since the case of Allan Marshall, Scotland is introducing pain-free restraint. It has not been rolled out in every prison, but it has been rolled out in the juvenile estate and for women, and it is now being rolled out in one of the big adult prisons. No other jurisdiction that I know of does that. They do it with the juvenile estate in England and in Northern Ireland but not the whole estate. It is simply impressive.

You touched on the Allan Marshall case a couple of times. I do not know whether you have any reflections on this, but one of the things that struck me was that some of the recommendations of the fatal accident inquiry into Allan Marshall’s death were not implemented. Therefore, the fact that recommendations arise from an FAI does not necessarily mean that those will be agreed to in all cases by the Scottish Prison Service—and that is what happened in that case, was it not?

Yes.

And that remains the situation.

Yes. They are recommendations.

I want to place on record our thanks for your forthright evidence this morning, chief inspector. That has been very helpful to the committee in our consideration of the Audit Scotland report.

You mentioned correspondence that you had about the GEOAmey contract and some information that might be more up to date. If you are able to share that with us, that would also be extremely helpful.

Yes, I can leave you a copy here and I can also send it electronically.

That is great. Thank you very much indeed for your time and your evidence.

I will suspend the meeting to allow for a change of witnesses.

10:00 Meeting suspended.  

10:03 On resuming—