Criminal Justice Committee
Prisons and Prison Policy Roundtable Follow-up
Letter from the Children and Young People's Commissioner Scotland to the Convener, Criminal Justice Committee, 13 October 2021
Thank you for the opportunity to participate in the Committee’s roundtable session on 15 September 2021. I was particularly pleased to be able to contribute as my office is acutely aware that all too often children who find themselves in conflict with the law are not included in discussions about the adult criminal justice, and penal systems in Scotland.
This is despite the fact that, as Claire Lightowler highlights in her Rights Respecting report, some 37% of children aged 12-17 who were charged with criminal offences were prosecuted in the adult courts in 2017/18. The figure for 16 and 17 year rises to 83% (Legal Research: Older children in conflict with the law. Whiting, K. (2020) CYPCS).
Everyone under 18 who is accused of criminal behaviour is entitled to the same special safeguards under international law as other children. They are children in need of care, protection, and therapeutic support to recover from trauma and adversity. Their needs and behaviour must be addressed in a child-friendly justice system where their rights, welfare and best interests are respected, protected and fulfilled. The adult justice system does not meet these requirements. The United Nations Committee on the Rights of the Child has repeatedly raised concerns about children in the adult justice system and has set out clearly the obligations on states in relation to children’s rights in the child justice system in General Comment No. 24 (2019).
Our failure to properly respect, protect and full children’s rights is continuing to have a devastating impact on children’s lives. It is now three years since my office took part in the 2018 inspection of Polmont YOI shortly after the death of 16 year old William Lindsay. The findings set out by HMIPS in the Expert Review of Mental Health Provision in HMP YOI Polmont4 were a chilling reminder of the increased risk of detaining children in prisons:
“What has become clear… is that being traumatised, being young, being held on remand and being in the first three months of custody increases the risk of suicide.”
While I recognise the compassion, professionalism, and commitment of prison staff, this has been an area of huge concern for a number of years. Tragically in Scotland in the 10 years since 2009 two children under the age of 18 have taken their own lives whilst in a Young Offenders Institution (YOI); Raygen Malcolm Josep Merchant in 2014 (aged 17) and William Lindsey (also known as William Brown) in 2018 (aged 16. The significant numbers of young people, most of whom are care experienced, who have died in YOIs, or having previously been in YOIs or secure is hugely concerning. The issues raised by Claire Lightowler in her report have been exacerbated by the current pandemic.
At the roundtable I called for immediate steps to be taken to amend law and policy to ensure that no child under 18 can be deprived of their liberty in the prison estate. Similar calls have been made by HM Chief Inspector of Prisons, Community Justice Scotland, and the Children and Young People’s Centre for Justice (CYCJ).
I note that the Scottish Government has made commitments to prevent children being detained in prison in accordance with its international human rights obligations. However, this has not yet happened. I welcome the growing recognition that the current situation is one of critical and urgent importance. Practice in Scotland has been repeatedly condemned by the United Nations and the impact of the pandemic on conditions of detention remains severe.
The Government proposes to implement the findings and recommendations of the Independent Care Review (the Promise) on this subject by 2024. This will include consulting on possible new legislation next year. This delay means that children’s rights will continue to be breached, putting them at risk of long-long harm. The provision of appropriate care and support for children and their removal from the prison estate must be undertaken immediately.
The urgency is intensified in the current situation as children in detention are being subjected to a restricted regime under the Prisons and Young Offenders’ Institutions (Scotland) Amendment Rules 2020 (the 2020 Rules), which were passed in response to COVID-19, and remain in force. As we noted in our June 2020 letter to the previous Justice Committee, the conditions in prisons during the pandemic have been singled out as a significant risk for children and other vulnerable prisoners by a wide range of international experts. I understand that there has been no public consultation by the Scottish Government on whether these provisions should be extended. Rather SPS itself undertook a limited consultation over the summer with selected bodies. My office received notification of this consultation but with a short timeframe that limited our ability to consult children and young people or respond in detail.
The SPS proposal to extend the 2020 Rules clearly indicates that the pandemic continues to impact significantly on children’s rights in the prison estate. My office has been involved alongside CYCJ in the HMIPS Year of Childhood pre-inspection health and wellbeing survey during recent months. I remain concerned in relation to rights to education, the highest attainable standard of health, particularly mental health, and access to socialisation.
For example, there are ongoing concerns about children’s Iimited access to mental health and other therapeutic supports; children spending 23 hours a day in their cells; routine strip- searching; authorisation of pain-inducing restraint; lack of purposeful activities including access to work, leisure, libraries and education; lack of family contact; and lack of access to telephones.
This raises serious questions as to compatibility with the UNCRC, and with other human rights protections set out in the European Convention on Human Rights the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and other international obligations.
There is a stark comparison between the day-to-day lives of children in prison, and those deprived of their liberty in secure care, where the focus is on meeting a vulnerable child’s needs and offering care, protection and recovery rather than punishment and containment. While I recognise the need for SPS to be able to manage the prison estate safely in the context of the pandemic, it is clear that any extension of the 2020 Rules will further interfere with children’s rights to liberty, family life and contact, education, play leisure, adequate health, protection from harm, family support, and rehabilitation for their development and recovery from trauma.
Furthermore, we are aware of a number of children identified as potential victims of trafficking who have been prosecuted in the adult criminal justice system and detained on remand in Polmont YOI. Scotland is obliged under international law to respect the non-punishment principle which, as the UN Special Rapporteur on Trafficking in Persons Especially Women and Children has made clear, requires that:
“Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.”
We share the concerns articulated by a number of NGOs, including JustRight Scotland, the Scottish Refugee Council, and the Scottish Guardianship Service that this situation raises serious questions about the adequacy and effectiveness of existing legal and policy protections for trafficked children that are intended to divert them from the traumatic consequences of contact with the justice system. We are awaiting the outcome of a review by the Scottish Government, COPFS, and Police Scotland of the cases that we and partners have identified. This may require changes to legislation, policy and/or practice.
In light of these concerns, I seek the Committee’s support for our call for the Scottish Government to urgently amend the bail and remand provisions to ensure a presumption of community-based alternatives to custody or secure accommodation other than in the most exceptional circumstances. Scotland must ensure that it has enough places of safety for children when they need them, but these should not be within the prison estate. It may require a reallocation of budget to support an expansion of secure and community-based provision.
I recognise that this may take time and we are therefore also calling for the introduction of further Early Release emergency Coronavirus Regulations to ensure that children currently detained are considered for release on human rights-based criteria, taking account of the conditions of detention caused by the pandemic. As we explained in our letter of June 2020, the Scottish Government failed to meet its international legal obligations in relation to the first set of Early Release Regulations. It should ensure it does not fail a second time.
In addition to the calls set out above, I also very much welcome the forthcoming publication of HMIPS’ Independent Review into the Handling of Deaths in Prison Custody and would expect its recommendations to be considered in terms of the wider human rights situation for children in places of detention and actioned as a matter of urgency.
A final point I would like to follow up from the Committee session is my ongoing concern about the age of criminal responsibility in Scotland and the impact that has of putting children into the adult justice system. The Committee is aware of my position and the unequivocal view of the Council of Europe and the United Nations that an age of below 14 is incompatible with international obligations and that a higher age of criminal responsibility ensures better outcomes.
While the Scottish Parliament has now legislated to raise the age to 12, two years below the international minimum, this has still not been fully brought into force, and our age remains 8. There is also a risk that other provisions within the ACR Act 2019 could dilute the positive impacts of raising the age of criminal responsibility. The Act creates issues around disclosure of information for children below the age of criminal responsibility and introduces a number of additional police powers, on searching children, the use of force, the taking of prints and samples, to be taken to a ‘ place of safety’ and interviewing children. These apply to all children under the age of criminal responsibility. These ‘civil’ law powers will have unintended consequences of stigmatising very young children and interfering in their human rights.
I would welcome further consideration by the Committee of these issues, and in particular I would encourage the Committee to hear directly from children and young people affected by these issues. My office would be happy to assist in any way possible.
Children and Young People’s Commissioner Scotland