Justice Committee

Meeting date: Tuesday, November 20, 2018

Official Report 795KB pdf

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Management of Offenders (Scotland) Bill: Stage 1

Item 2 is an evidence-taking session on the Management of Offenders (Scotland) Bill at stage 1. I refer members to paper 3, which is a note by the clerk, and paper 4, which is a private paper.

I welcome to the meeting Gill Imery, Her Majesty’s chief inspector of constabulary in Scotland; Wendy Sinclair-Gieben, Her Majesty’s chief inspector of prisons for Scotland; Chief Superintendent Garry McEwan, divisional commander, criminal justice services division, Police Scotland; and Colin McConnell, chief executive, Scottish Prison Service. I thank everyone for their written submissions. As always, the committee has found them particularly valuable in advance of the formal evidence session.

We are not doing too badly for time, so we can allow a bit of latitude. However, I must ask everyone to be as succinct as possible. I also suggest to members that the session might be more effective if they direct questions not to the whole panel but to the person whom they want to address it, if they know exactly who that is.

Liam McArthur will start the questioning.

Good morning. As the convener has said, your written submissions were very helpful, but it might also be helpful if, for the record, I start by asking who can be released under home detention curfew and how the balance between public protection and rehabilitation is struck.

As you know, the chief inspector of prisons and the chief inspector of constabulary made a number of recommendations that were considered by the Scottish Government and out of which has developed a further set of restrictions on those in custody who can be considered for home detention curfew. I have the list right here, and I am happy to read it out.

There are statutory exclusions, which include those required to register as sex offenders, those on extended sentences, those who have a supervised release order, those serving a recall under sections 17 or 18 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, those subject to hospital direction and, of course, those awaiting deportation. Over and above that, there is a presumption against the grant of HDC for those whose index offence involved an act of violence, possession or use of an offensive weapon and possession or use of an article with a blade or sharp point and those with any links to serious and organised crime.

Currently, there is a considerable restriction of and presumption against the grant of HDC, which, since the new measures were introduced, has resulted in almost a 75 per cent reduction in the granting of HDCs. At one time, we may well have been granting somewhere between 25 and 30 HDCs per week, whereas now we are down to around seven per week.

12:00  

You have described those people who are excluded. What was the previous presumption for HDC? Would someone get to a certain point in their prison term and then automatically apply or be put forward for HDC?

There are two facets to that. First, the statutory exclusions always applied. Previously, unless there were particular factors, the expectation was that HDC would be granted—that has been completely turned around and the presumption now is that HDC will not be granted where there are any concerns at all or where there have been previous acts of violence. Secondly, although the presumption against the grant of HDC is guided towards the index offence, decision makers are encouraged to look further into someone’s background. The implication of that is that, where there is any recent indication of violence or even where there was an act of violence that is considered to be serious but was some time in the past, it would probably militate against a decision to grant HDC.

That is a fairly dramatic fall. It is entirely understandable how we have arrived at that point but, given that the purpose of HDC is to rehabilitate those who are about to leave prison and help them back into the community, that dramatic reduction in the number of people getting HDCs is going to have a knock-on impact on the rehabilitation process. If that is the case, what measures can be taken to address that, given that it is not in anyone’s interests for offenders to be released back into the community only to enter into a cycle of reoffending?

That is a valid point. At the end of the day, it is the same group of people—the nature of the people we care for in Scottish prisons means that most of their backgrounds are fairly similar. We are seeing something that will be projected in the weeks, months and years ahead. However, we cannot have it all ways. If our concern is the potential for someone to commit a further offence or a heinous act when on any form of licence and if, understandably, our tolerance of that potential is reduced, our position will be to move forward on the current basis.

I have to be clear with the committee. My instruction to governors, through the operations director, is that we should be very careful in how we arrive at the decisions to grant HDC, given what has happened and the level of public and political concern about people being released into the community. We are seeing a clear change in behaviours that will be sustained over time.

I will come to the issue of the information that informs those decisions and the training for the people making them but, first, does anyone else want to address the point about rehabilitation and any concerns that might arise from the approach that is now being taken?

I am happy to add a comment on the involvement of other agencies in the assessment of an individual’s behaviour in the community. We saw that such assessment was missing. Other than the service provider having control of the device to manage the curfew, there was no assessment of the conditions for that individual.

The three guiding principles for the Prison Service that were previously in place for home detention curfew—protecting the public, preventing reoffending, and promoting successful reintegration into the community—were sound. The problem was not the principles themselves but, as the evidence that we found in our review showed, the fact that they were not being followed.

The statutory exclusions that Mr McConnell has just talked about take the decisions that need to be taken down to a much smaller level, as well as involving others. It would be helpful to know precisely who is expected to be involved in the decision-making process. What have the training that is provided for such individuals and the information and evidence that they are able to draw on in making such decisions been like until now, and how will they change as a result of the reports that have been produced?

The SPS welcomes the reports that have been published. As the committee knows, we have accepted without limitation the recommendations for improvement that have been made.

As I expect the committee knows by now, the prison governor takes the final decision. As before, it remains the case that the eventual decision involves a multiplicity of contributions from both within and outwith the prison environment. The engagement of external contributors is now focused on in greater measure, to ensure that the bases are covered appropriately. At the end of the day, the approach is about having defensible decision making.

The key advantage that we now have in the Scottish Prison Service is that fewer people are engaged in the decision-making process. Such people are clearly identified and their roles are very specific. Having governors or, in their absence, deputy governors taking such crucial decisions is a strengthening measure, given the recommendations that were made, because they are strategic decision makers and that is all part of their experience and training as they move through the service.

That introduces an opportunity for reflective practice in the Scottish Prison Service. Every month, governors in charge meet the director of operations. Part of that process is reflective practice, through which the decision-making process is continuously reviewed and improved so that we will have the consistency across the service that the chief inspector asked for.

But, from what you were saying, such a decision will still be one for a governor or deputy governor and we are not moving to a situation in which a board of individuals would take it.

No. Previously, such decisions would have been taken at middle manager level in the service. Now, they are taken by the governor in charge of each prison. Of course, some prisoners may wish to appeal against them, and there is an appeal process. If governors in charge are not available to make such decisions, their deputies do so.

You talked about a governor or deputy governor taking on board a multiplicity of views before arriving at such a decision. If anyone were to raise serious concerns about what the governor or deputy governor intended to do, would that be overridden or construed as a potential veto? Is the idea to arrive at some unanimity across the range of stakeholders?

To be clear, governors in charge are experienced strategic decision makers—that is the nature of their job—so we trust them to act appropriately within the framework that they have been given. Also, their instructions are clear. I reiterate to the committee that, given where we are now, the presumption is against the grant of HDC. Governors will identify those who will benefit more clearly from HDC, in the absence of clear or critical concerns. As I set out with the statistics that I shared with you, a reduction of towards 75 per cent suggests that, in the short term, those critical decisions are probably being taken more appropriately, given the limitations that are now in place and the fact that governor practice is regularly reviewed.

You talked about the other individuals or stakeholders who would be involved. Will additional types of information or evidence be sought as part of the decision-making process?

That was part of the overall recommendation. Police colleagues might wish to contribute on that. A considerable amount of work is going on, particularly with Police Scotland, on information sharing and making sure that the information runs through to the decisions that are taken. There is an exchange of information every Monday morning in relation to the data bank of those who are being considered for HDC and that information is subsequently validated. With the information that is coming together from criminal justice social work and Police Scotland and from across the Prison Service, there has been a quantum leap in the data that we hold on each individual who is being considered. Having a strategic decision maker sitting on top of that gives us a far better level of assurance than we previously had.

I support everything that has been said. The purpose of home detention curfews is the reintegration of the right people back into communities and the rehabilitation of those people. When a home detention curfew is breached, the role of the police is to understand what the breach is—whether the curfew has been breached or an offence has been committed—and to incarcerate the individual, who will then be recalled to prison. I fully support the premise of HDCs.

The risk assessment and the communication between both organisations are far better than they were previously. As Colin McConnell mentioned, there are weekly discussions via conference calls at an operational level, when regular discussions are had to ensure that details of those who are being released by the Prison Service on a home detention curfew—and those who have breached their curfew or any aspect of it—are communicated to Police Scotland. We can take action very quickly at a local level, with good oversight by local commanders and local area commanders, to make sure that individuals who are unlawfully at large are brought into custody as soon as possible.

My colleagues will come on to issues to do with breaches.

I have one final point. Mr McConnell described a dramatic reduction in the use of HDCs and Mr McEwan talked about having an appropriate level of risk management. That suggests that nobody was entirely comfortable with the previous situation. We have arrived at the current position in the most tragic of circumstances, but were concerns raised previously about the extent to which HDCs were being used across the board for individuals who should not have been granted them?

I am not sure that I follow the logic, Mr McArthur. I understand that you may be juxtaposing the current position on a monochrome basis with where we were previously, but the fact is that the approach has changed. As the chief inspector reported, in the particular instance that led to the review, the SPS had complied with the instructions in the guidance as it was at the time. The guidance now is of a different order. We have moved from a presumption in favour of granting HDC to a presumption against. It should not surprise us that, with the restrictions that we have put in place and with potentially more adept decision makers taking those critical decisions, there is a sea change in the level of grant of HDC.

12:15  

I do not agree with the monochrome position that what went before was unacceptable. What went before was compliant with the rules and regulations as they were. The rules and regulations that we have now and the import of a presumption against, rather than a presumption in favour, is what leads us to the conclusions—

I do not think that I was making a monochrome characterisation. I was simply picking up on the point that you made that there has been a dramatic reduction in HDCs now that the presumption has shifted and on the suggestion that the way in which the approach now manages risk is entirely appropriate. I do not doubt that that is the case. However, the public will question why, given that HDCs were being used to the extent that they were—albeit for rehabilitative purposes and all the rest of it—concerns were not being raised at that stage as to whether that was appropriate, whether the presumption was correct and whether the statutory exclusions were as extensive as they needed to be. Those are entirely legitimate questions for the committee and the wider public to be asking.

I agree entirely. I go back to part of Mr McArthur’s earlier question, which was what, at the end of the day, HDC is for. As a society, we believe that people who have made mistakes and fallen by the wayside should be tested out in the community. We should find opportunities to retest them and give them the opportunity to survive that and not make mistakes. Fundamentally, that is what lies behind HDC and licensing more generally.

There have been a couple of horrendous experiences involving people in the community who have been on HDC or on licence, which have caused us collectively to reflect and that has led us to the current position.

Does Ms Sinclair-Gieben have anything to add?

We were pleased that all the recommendations had been accepted. However, I was particularly pleased about the speed of acceptance. The guidance document is the bible for people who are deciding on HDC and they lean on it. The new guidance document that has already been issued holds all the extra stuff that has been put in—and which, funnily enough, we did not recommend—and goes into detail. All the recommendations that we made are now in the guidance and it is a much clearer, more robust document.

The guidance also ensures more consistent documentation. One of our concerns was consistency of judgment on the day, because it comes down to a judgment that is made by one person. We asked for a second reassurance by someone more senior and that now happens. The guidance is considerably larger and provides the appropriate documentation. Given all that, we should see a consistency of approach.

The exclusions are now much greater. Listening to the debate, I feel that it is the exclusions that are causing the drop in numbers, rather than the poverty of the previous capability.

Do you have any thoughts about the impact of the more stringent restrictions on the prison population?

I do. We were speaking about that before. Before the review started, I had concerns that there might be unintended consequences of a rise in the prison population—not just as a result of HDC. One of the recommendations that I made was that there should be an official, independent evaluation of the whole of HDC in which we collect the reconviction statistics and examine whether HDC actually works for reintegration.

My concern is that, if we become risk averse in respect of HDC, we will also become risk averse on parole and moves to the open estate. That will mean that the pressure on prisons—some of which are already struggling—will become huge. I was very worried about that ahead of the review. Colin McConnell and I keep in regular touch because I want to see how the prison population is growing.

As the committee will know, another unintended consequence is that the pressure on the prison population puts pressure on the staff and various other things. For example, the levels of self-harm and violence go up.

It is a very testing time at the moment, because we have distinct evidence that such change in the HDC system has had an impact. I was interested to hear Liam McArthur ask whether that implied that we were not getting it right previously. We need a further review in three or five years’ time, which should ask whether we have now got it right and whether it is having the consequences for HDC that we wanted. We need to do a proper evaluation.

Liam Kerr has a supplementary question.

I will pick up on that point, but my question is on something that Colin McConnell spoke about in response to Liam McArthur’s questions: political and public tolerance of the risk of reoffending. What I hear from you is that, since the reviews, and since some tragic incidents have happened, such tolerance has reduced. That begs the question of who made the assessment that we could previously have a higher tolerance of risk to public health. Was it the SPS or was there an instruction about that from the Government?

That is an extraordinarily difficult question to answer. I listen to discussions in the Scottish Parliament, and I take into account discourse in the media. I also have one-to-one discussions with parliamentarians, as well as taking general counsel from other professionals across the justice system. It is not a straightforward either/or answer; it is a melange of all those factors.

As chief executive officer of the service, my role is to try to set the tone for what I think sensible decision making in an operational public service should be. At the moment, and given all the discourse that has been going on, my judgment is that there is a lower level of such tolerance, particularly in the public domain. I would be interested to hear from parliamentarians sitting around this table if they do not think that that is the case. I influence the decision makers in my organisation, and my judgment is that we need to be more cautious in our decision making—especially on allowing people access to the community when they have a prison sentence. The guidance and the restrictions that have been agreed and implemented reflect that.

Mr McConnell, what number of crimes, especially serious, violent and sexual crimes, have been committed over the past two to three years—or whichever period for which you have numbers—by people on home detention curfew?

I do not have such data immediately to hand. I had thought that the committee might be interested in that, and I asked my team for the data this morning, so we are working up those details. I can say that, other than the cases that are already in the public domain and which have influenced the review, I am not aware of high numbers for serious offending. However, a low level of offending is reflected in the numbers of prisoners whose licences or HDCs have been breached. I do not have the precise numbers, but—I am looking at the convener as I say this—I am happy to write to the committee with them if that would be helpful.

That would certainly be very helpful.

The numbers that have been intimated to me are 16 murders and dozens of serious sexual assaults. Do those numbers surprise you?

In Scotland?

That is what has been intimated to me.

I am entirely unfamiliar with those numbers.

Okay. I will await your clarification. As your previous answer suggested, the key points here are whether the tragic circumstances that brought about the reviews are isolated, and the extent to which there might be a wider problem. Do you agree?

With the convener’s indulgence, Mr Johnson, may I check that? Are you saying that your information leads you to believe that 16 murders have been committed by people who were on HDC?

That is the number that was raised directly with me by the family of Craig McClelland, who lost his life as a result of such a case.

Of course, I will check that number; I am shocked and stunned by it. I am not familiar—

Obviously, you have asked for those numbers. They are important with regard to the point that I have just raised.

I am looking at police colleagues.

I would be very surprised if, since 2006, 16 murders had been committed by people who were out on home detention curfew. I would be extremely surprised if that was accurate, and it will be interesting to get the figures.

Are you confident about the processes that are in place? You said that it is now the governor who takes the final decision. Why was the governor not taking those decisions previously? Who was taking them? Can you clarify the level of seniority or the number of years of experience of the individual who was taking those decisions? Were they finally signed off by the governor? Given the new guidelines, what will prevent that becoming just a rubber-stamp process?

As I said previously, one identified middle manager in the prison took those decisions. Now it has to be the governor in charge who signs those decisions off.

Reflecting on the data that Daniel Johnson has just shared with me, I am a bit stunned by that.

It was referred to me directly, personally and anecdotally. My primary concern is that the McClelland family has a lot of questions and that they are still very angry. I want to ask the questions that they would ask if they were here, because I think that that is important.

With regard to the previous decision-making process, the information that has already been shared with Parliament is that 80 per cent of people on HDC completed their licence without issue. There was a level beyond that where there were technical breaches, but there was a comparatively small number—I will get that data for the committee—who went on to commit further offences. However, those offences were generally low level. I am not excusing that or diminishing it—it is just a fact. We know, because it is also a fact, that in recent times, there has been one very serious issue with HDC, which we should all reflect on carefully. We hope that the measures that we have put in place are designed to make the chance of that issue happening again as unlikely as possible.

Mr Johnson and Mr McArthur raised similar questions. We have now put in place different decision-making processes because of what happened, but, given the instructions that we previously had in place, it is not right or appropriate to try and criticise those previous decision makers. As the chief inspector has said—

Mr McConnell, with all due respect, I will quote directly from the HMIPS report:

“Whilst an assessment process clearly existed, it may not be regarded by some to meet the definition of ‘robust’”—

I am skipping a sentence—

“This situation led to different criteria, interpretation or timescales being adopted in different establishments.”

Those are pretty critical comments to put in a report. Although I agree that adopting new criteria and assessment processes does not necessarily infer anything about the previous processes, those sentences in that report do, and they question the robustness of the processes.

As Gill Imery pointed out, if one of the fundamental criteria is keeping the public safe, then questioning the robustness of the processes is of serious concern. How do you respond to that?

12:30  

I am grateful for that clarification, because the chief inspector said that, in the specific case that was being referred to, the decision makers had followed the process. That is quite insightful. The chief inspector might wish to comment on this, but, in general, the rules that were in place were being followed, by and large.

We welcome the report, the recommendation and the move from a situation where the presumption was to grant HDC to one where the presumption is not to grant HDC, because, by necessity, that demands a far tighter set of requirements. We have put those in place and that is what the chief inspector is saying.

Finally, the situation regarding home detention curfew is in many ways comparable to the decision on remand and whether to grant bail that is taken at the beginning of the criminal justice process. Are the decision by a sheriff or judge whether to bail a person and any concerns that they might have had about public safety taken into consideration in the decision process for HDC now, or have they been in the past? If not, would that information be valuable as part of your considerations?

That is an interesting proposition. We do not take that into account because the person that we have before us—the person for whom we are making decisions—is someone who has been convicted and sentenced to a period of custody. That aspect of the judicial process has already been followed through and we then apply an administrative or executive process. I understand the point that you are making, Mr Johnson. I would be happy to reflect on that with my justice policy colleagues.

I have a question for Mr McConnell—I am afraid that you are getting all the questions.

Everyone accepts that public safety is paramount, so let us park that for a moment. I commend the rehabilitative work that the Scottish Prison Service does. It is absolutely vital and that is what it should all be about.

I want to ask about a particular category of prisoner. A sizeable percentage of the prison population are people with drug or alcohol addiction issues. I would not want us to be in a situation where there is no realisation that lapsing is part of those illnesses. What regard is there for those circumstances in decisions around home detention curfew?

We would hope that someone who is granted HDC would continue with any therapeutic process that they were following in custody. However, we cannot insist on that and ultimately it is a matter of choice. It is linked to the provision of other services in the community, because, in the main, HDC is only granted to people who are serving less than four years, which means that there is no statutory provision for them in the community, although there is voluntary provision, which they can decide to access or not. As we engage with people moving through the process and going through the transition back to the community, all of us—agencies based in the community as well as those of us who are based in the custodial environment—try to encourage people to engage as productively as possible with all the services that may help them to resettle appropriately.

Would it be established whether there is a service available for someone to engage with?

Most certainly.

That is reassuring.

That is one of the things that has changed in the guidance. Previously, licence conditions would be attached with no guarantee that criminal justice social work would be able to monitor or support those conditions. Now, there has to be a written acceptance and agreement in place before HDC can be granted. There is a shift in that direction.

That is reassuring.

We have touched on the presumption against release on HDC. I want to focus on the numbers in light of that. The fall in the number of HDCs that are granted is already quite dramatic—75 per cent was cited. Does the panel anticipate that the extension of presumption against release on HDC to offences involving violence, possession of a weapon or links to serious organised crime will lead to a further fall?

I was particularly interested in Wendy Sinclair-Gieben’s comment about the need for an independent evaluation, maybe three to five years down the line from the introduction of HDC. Would that focus on the quite dramatic changes that have happened? Colin McConnell said he would be particularly interested in whether they have had an impact on the prison population, but there would also presumably be interest in the outcomes for those who have been granted HDC. It would be interesting to hear more about that and, first of all, the numbers and whether there will be another drop.

That is a hard question to answer. As I have already said to the committee, the population is not going to change that much, in terms of the back stories that people bring with them. In most cases, we are seeing the outworking of the back stories of people who make their way into custody. Depending on how far back we think that it is reasonable to consider those back stories, we can say that most people who head our way will have engaged in violence in some way. Will the numbers stay the same? I think that they will stabilise over time. I doubt whether we will see them shift up the way. We have moved between a position of having somewhere between 25 and 30 grants per week to having somewhere around seven. Do I see that going up to 10, 12 or 15? Probably not. I think that it will be at the lower end, over time, because, generally speaking, the population that is in custody has a back story. For most people, that will involve some level of violence.

How much discretion will there be on whether an offence involves violence? As you said, that could cover many offenders. So that I can understand the process of the presumption against release, can you tell me whether, in the guidance, that will ultimately come down to the judgment of the governor? How clear is that guidance?

Again, that is a really important and strategic issue for the justice system. Let us be clear about this: my guidance to governors is to be cautious and to take a broad look at someone’s offending history. If there is any indication that anybody has used a weapon or an implement against another person or any indication of meaningful or serious violence, no matter how far back that was, my encouragement to governors is to be cautious. The presumption would be that I would be reluctant to grant someone with such a back story HDC, and that is the guidance that I am giving to my governors now. Over time, if we have a mature discussion about that in the light of experience, a different consideration might well emerge. However, that will be based on experience and mature discussion. It may be that my approach and SPS’s approach is viewed as being currently far too narrow and too conservative—with a small C—and that perhaps a more informed and mature view will emerge over time. However, at the moment, our approach is reasonable, and probably necessary, in order for us to establish some confidence in the HDC decision-making process.

What about the evaluation that Wendy Sinclair-Gieben suggested?

I think that there need to be two evaluations. One is required because HDC has been in place for a number of years and we now need to evaluate how effective HDC was before the changes, in order to inform our decisions as to how to move forward.

We do not even collect the reconviction rates, and we should. We also need to look at reintegration. I am not sure how we would research that, but it would be very interesting to compare how the reconviction rates stack up against those for people who have just been released from prison and people on community orders. That is an important point.

Anecdotally, many prisoners say to us that HDC was a wake-up call. They got out of prison and could rethink their lives. On HDC, they had time in which to change their lives and start again. That is anecdotal experience, and we need to back it up with proper research.

The second part is that we should have a second evaluation after the current system has been in place—how many years it should be in place is something that needs to be decided. We will have the first evaluation and the reconviction statistics, and the second evaluation will tell us whether it is being useful as a reintegration tool or whether reducing HDC has seen a rise in the reconviction rates. The two evaluations are critical before we can decide whether the previous and current systems have been good, bad or indifferent.

That is helpful.

Mr McConnell will be glad to know that my line of questioning is more on compliance than enforcement, so it is probably aimed at Garry McEwan in the first instance. What arrangements are in place for non-compliance? Can you take us through the police process when somebody breaches the curfew?

When the prison governor initially decides that a person will be released back into the community on a home detention curfew, the police are sent a notification, which now comes to a single point of contact. I call it “the single point of success”, because one of the key issues that was identified previously was that there were multiple points of failure. In the old world, notification went to a number of different email addresses, because of the previous force arrangements. Those emails sometimes reached the source and sometimes they did not.

We get the notification and the individual is then released into the community and, rightly, allowed to go about their business. The person wears a tag that is monitored by the supplier—G4S, in Scotland—which is alerted if the individual breaches the curfew. There are four key breaches: removing or tampering with the device; leaving the house during the time when the curfew states that the individual must stay indoors—for example, from 10 o’clock every night until 8 o’clock the following morning; commission of another offence; and the more general breach, which is failure to keep the peace.

When a person breaches the conditions, G4S notifies the governor of the prison from which the person was released, and the governor then decides whether to inform the police that the individual is now unlawfully at large. I sounded hesitant for a moment there, because on some occasions the governor might not do that, but might instead get back to G4S to check whether the tag is faulty or whatever.

The individual is not declared to be unlawfully at large on all occasions, but when they are we get a revocation of licence, which is formal documentation from the Scottish Prison Service. We disseminate that to the area where we believe the person resides and local police officers will attempt to arrest the person as part of the revocation of licence. He or she is then taken back to the jail at the earliest opportunity. That is the general process that is now in place between us and the Scottish Prison Service.

How quickly would you put officers out to search for an individual after getting that documentation from the SPS?

We hope that that would happen within 24 hours. We get seven days’ notice of when a person is to be released on home detention curfew, and when they breach the home detention curfew we are likely to get formal notification of that from the SPS within 24 hours.

12:45  

You touched on your role in monitoring a person’s release. I assume that it is dependent on the situation and the offences, but can you explain more about that and how often it takes place?

That is the role of G4S—it is the authority responsible for on-going monitoring. It has oversight and ownership of the devices, so G4S would probably be alerted to a breach before the police.

I am sorry. I did not make this clear: I was not referring to monitoring of the devices, but to police involvement in social work visits.

We do not have a statutory role in visits, but we might well make unannounced visits as part of our routine policing, especially if there is intelligence to suggest that the person might be getting back into bad relationships, drugs, low-level shoplifting or whatever. In such cases, it is for local officers to make efforts to contact the person and, if required, to make referrals through the vulnerable persons database—perhaps to criminal justice social work. If an individual appears to be on the brink of reoffending but has not committed an offence, we have a key role in supporting that individual or, at least, in referring them for support.

Could that role be tightened up a wee bit to make visits a requirement? That is where I was going with my question. In such situations in my previous employment, police visits were established locally, as you suggest. They work really well, but given that the local police or other agencies might be able to pick up when a breach is likely, information could be going out from you as well as coming in from the SPS to you.

The police have a role, but I caution against making that role obligatory. Such an individual has served their time: they are out and are a free citizen, albeit that they are under a home detention curfew. We therefore need to be careful about the role and responsibility of the police, and to recognise that criminal justice social work and other third party and voluntary organisations provide the support.

However, local officers are tuned into local intelligence, and local relationship building and unannounced visits happen regularly across the country, when there are opportunities for them.

Thank you. That was a useful question.

Where do home detention curfews sit in the priority list—that is maybe a crude term—compared with restriction of liberty orders and community payback orders? What priority is attached to the response when curfews are breached?

A home detention curfew breach—the person being unlawfully at large—is now considered to be in category A in policing terms; therefore, it is as high risk as current outstanding warrants. We would seek to have the individual incarcerated and brought back into custody within 21 days of their being unlawfully at large.

However, as I said at a previous Justice Committee meeting about electronic monitoring, the current guidance is very restrictive in that we do not have the power to enter and search premises. We could go and check an address for a Garry McEwan, but we have no power of entry. By contrast, when a police officer has an apprehension warrant in his or her possession, they can force entry to any house and search it for an individual. As I said at that previous meeting, there is a gap in terms of the legislation and that power.

There is another gap that I probably did not articulate in the best way, previously. I have tried to explain the process between G4S, the governor and the police. However, a police officer might come across an individual at 3 o’clock in the morning—I call it “the 3 o’clock in the morning”—when G4S is not aware that the individual has breached their curfew. In my mind, they present great risk because they have breached their curfew and are out doing whatever they are doing, but the police have no power of arrest in that situation. We can note details, but if the person is committing no other offence, we have to allow them to go on their way. That is a real vulnerability

At the previous evidence session that I attended, I mentioned that the police should be afforded the power to arrest an individual who is not officially accused; we could take the individual into custody and the governor and others would be notified very soon after that. At the moment, we note the details, allow the individual to go on their way and, as soon as possible, notify the governor that the individual has breached the curfew.

Would it be useful to include a power of arrest in the bill?

That would be very useful. I encourage the committee to support the inclusion of a power of arrest of people who are found, in real time, to have breached their home detention curfew and, in addition, the inclusion of powers of entry and search.

Thank you. For the record, convener, I would like to clarify that I was referring earlier to good answers that we have received to questions—I was not praising my own questions. Someone may have picked up on that.

One of the key issues relates to individuals who are on home detention curfews and who either reside in other jurisdictions or move abroad. If someone has an address in England, what is the procedure for ensuring that they do not breach the curfew, and what happens if they do breach it?

That is currently done through the single point of success that I referred to. The SPS notifies Police Scotland and we put the information on the police national computer and the criminal history system. Those national systems can notify officers anywhere in the country of the details of such an individual. The SPS receives a notification. The information is on those IT systems, and we notify the relevant police force in England and Wales that the individual is unlawfully at large, and pass the paperwork from the SPS to that force. It is then its responsibility to prioritise incarceration of the individual.

Would the police be relying on English law? Is it correct that being unlawfully at large is an offence in England but not in Scotland?

No. Where the custody originates in Scotland, Scottish legislation would apply.

I am not a lawyer, but I would have thought that Scottish legislation would apply.

I will ask a blunt question regarding the McClelland case. Why did it take 69 days from the point of breach and notification of it, to the point when police knocked on the door? Was it because you did not update the SPS with the current email address? That seems to be one of the implications of your previous answer.

No—that was not meant to be implied. You are talking about the tragic killing of Craig McClelland. HMICS carried out a review of the processes and found that they were followed correctly, including notification of Police Scotland by the Scottish Prison Service and updating of the national computer system. I was referring to the previous situation when I mentioned issues with emails. That did not happen in the tragic case of Craig McClelland and the release of Mr Wright. The HMICS commented that the processes were followed as they should have been.

Why did it take 69 days?

I will clarify: as far as the notification process is concerned, Chief Superintendent McEwan is correct. It was followed in that particular instance and the notification was made well within 24 hours. The HMICS review was clear, however, that what happened afterwards was not acceptable, and that there was insufficient evidence to demonstrate that a professional level of inquiry had been made in order to apprehend James Wright and return him to prison.

Would changing the category to category A be sufficient to ensure the correct level of response in the future? What would you like to happen?

It was a category A incident. The period was 14 days, under the previous standard operating procedures. There is an explanation in the report of the difference between a home detention curfew breach, a revocation licence and a warrant. Even for a high-priority warrant, the period allowed would be 21 days. Regardless, Police Scotland did not manage to meet the deadline. The deadline has not changed, and there was nothing wrong with the standard operating procedures that existed—it was just that they were not followed.

That is quite a serious allegation.

Yes.

I want to go back to the line of questioning that Fulton MacGregor pursued. Chief Superintendent McEwan—if I may, I will summarise briefly and reflect back what you said. If the police suspect a breach of home detention curfew, there is no power of arrest at that point. If the SPS revokes a licence, you can arrest the person, but you cannot enter premises to do a search. I believe that the facility exists in England and Wales to do such things. You said to Mr MacGregor that you believe that the bill should allow you to arrest the person on suspicion of a breach. Can we extrapolate from that that you believe that you need an offence of being unlawfully at large and/or the ability to enter and search premises for people who have had a licence revoked?

There are probably three aspects to that. The first is a power of forced entry and search, and I think that that would absolutely be advantageous. The second is a power of arrest in the 3 o’clock in the morning scenario, where the police are the first organisation to find the individual, before the formal process. I think that the police would benefit from a power of arrest at that point.

The third aspect is an additional charge of breaching the revocation licence. I would also support that. I am probably stepping into other territory here, but when somebody breaks out of prison, that is an offence. As things stand, when a person breaches their home detention curfew, they are simply taken back to prison, where they serve the remainder of their sentence. There is no punishment and no deterrent to discourage the individual from breaching the curfew. The curfew could be subject to review in three or five years, but its being an offence would be an additional deterrent to prevent individuals from breaching home detention curfews.

That is very helpful. Thank you.

Finally, I have a question about communication, which both inspectors have mentioned. A scenario in which there would be a legitimate reason for a breach is where the person has been rushed to hospital and is not where they are supposed to be for that reason. Is there a problem with getting that information from hospitals because of data protection legislation? When we visited the Wise Group, it suggested that that is an issue. Have you come across that? More generally, how could communication, which is a theme that runs through so many reports on the police and other organisations, be improved?

HMICS has not come across that scenario. Chief Superintendent McEwan mentioned a number of reasons why an individual might technically not be complying with their tag, but would not necessarily be in breach by committing another crime or being unlawfully at large.

More widely, communication was absolutely a feature of the review that HMICS carried out. Chief Superintendent McEwan mentioned the single point of contact that has been established. We have not had an opportunity to test that yet, but as the committee will be aware, we will revisit the home detention curfew process in six months, when we will be able to assess the difference that the single point of contact has made to the two-way communication between Police Scotland and the Scottish Prison Service.

I will also pose the question to Wendy Sinclair-Gieben, given her comments on recall and the need for more communication. I think that you have said that more communication is needed between the SPS and the police, but perhaps we should add the NHS to that.

13:00  

For me, communication is one of the key points in the report. By the way, please just call me “Sinclair”, as the second half of my name is much too difficult. [Laughter.]

We made recommendations on a number of areas of communication. One that interested me is to do with when a person has breached their licence or is expecting revocation. We do not inform them, but we should be sending them a letter. I know that a number of people have ended up breaching their licence because of a technical system failure; they are dutifully at home in bed, but there is a technical system failure. I do not have statistics on that to hand, however.

However, communication is key: one of the key points that we made is about communication—of the history of offending or intelligence that is held about serious and organised crime—between the police and the people who make the decision about whether to release. Continued communication between the police and the SPS is also key.

I also agree with the convener that the NHS should be included; there should be a way in which the NHS, when it finds that the person has a tag—they are not hard to spot—can access a single point of contact to inform the police that the person has come into hospital if, say, they are unconscious. There are numerous reasons why people end up breaching that are no fault of their own. Being in hospital is just one of them.

We would be interested to see written evidence of examples of where Police Scotland has been refused information under data protection rules. Obviously, the better we can identify legitimate reasons for breaches, the better we can target people who breach and are a danger to the public.

The SPS would provide that evidence.

Absolutely.

That concludes our questioning. I thank the panellists for a very worthwhile session.

13:02 Meeting suspended.  

13:02 On resuming—