Scottish Prison Service (Robert Foye Case)
The next item of business is a statement by Kenny MacAskill on the Scottish Prison Service report on Robert Foye. The cabinet secretary will take questions at the end of his statement, so there should be no interventions.
I begin by talking about someone who is much more important than Robert Foye: his victim. I cannot begin to imagine the suffering that has been inflicted on her and her family. Her fortitude and resilience throughout the whole tragic process have been truly amazing, and I pay tribute to her determination in seeking to rebuild her life. I apologise unreservedly to her for the shortcomings in our prison system that have allowed that individual to put her through such pain. I will meet this brave young woman and her family soon to give her that apology in person and to pass on with it the admiration and good wishes of all members.
As members know, Robert Foye was arrested on 25 August 2007 in the Cumbernauld area, having absconded from Castle Huntly on 18 August. On 23 January this year, he pled guilty to the charge of rape while unlawfully at large. His final sentence for that matter is still pending. We must not lose sight of the full responsibility that he alone bears for that crime.
On 24 January this year, I announced to Parliament that the Scottish Prison Service would carry out an urgent internal review of the circumstances surrounding the Robert Foye case and that I would write to Henry McLeish, chair of the Scottish Prisons Commission, emphasising the importance to the Government of the commission's consideration of the use of the open estate as part of its wide-ranging work on the future of prisons in Scotland.
I have already made it clear that we have no plans to expand the current open estate, whether at Castle Huntly or Noranside. It is worth noting, too, that there is a welcome downward trend in the numbers of prisoner absconds. In 1996-97, there were 98 absconds from a much smaller prison population; in the past year, there have been 66. However, as the First Minister has said, every abscond is one too many.
As members will be aware, the SPS report was published last week. The work of the McLeish commission is on-going, and it is expected to report this summer. The SPS report contained seven recommendations, and the SPS has established a group to ensure that they are all implemented. It is possible and, indeed, likely that the McLeish commission may make further recommendations. I anticipate that those, too, will be implemented as quickly as possible to ensure that the open estate works as effectively as it can and must.
I have asked for two steps to be taken to build public confidence in addition to the implementation of the seven immediate recommendations. First, I have instructed the SPS to establish individual governors at Castle Huntly and Noranside prisons in view of the substantially increased numbers of prisoners now held in those facilities. Secondly, and more important, there will be a clear presumption against returning a prisoner to the open estate if they have previously absconded. That will send the clear message to all those trusted with a place in the open estate that if they abscond from open conditions, they can assume that they will not return to open conditions again without a compelling reason.
It is widely accepted that to return a prisoner to society straight from a closed prison does not help to reduce reoffending. Long-term prisoners require a staged return to re-establish relationships with children and families, and to help them prepare for integration with society and improve their employment prospects. I understand the concern that can arise when a prisoner who has absconded previously is returned to open conditions. However, we have to retain the possibility of returning some such offenders to the open estate if we feel that public safety could be enhanced by so doing. Moreover, a blanket ban would be subject to legal challenge.
Public safety must always be paramount. That is why the presumption will be against return unless good reason is shown. As an additional safeguard, I have insisted that approval for the return to the open estate of a prisoner who has previously absconded will now be required to be given at SPS headquarters and at a senior level. I expect such approvals to be few and, most important, justifiable.
Action is being taken already on absconders, and further action will be taken, if required, in the light of the deliberations of the McLeish commission. The open estate will continue to remain a vital part of our penal system. That is accepted by all parties and is necessary to help break the cycle of reoffending that scars Scotland.
The systems in the open estate have been in place for several years and it is right to review them, as we are doing. As the First Minister said last week:
"I think all of us want to see the open estate working at its best."
We also want our communities to be kept safe from harm and from dangerous individuals.
Previous Labour, Conservative and coalition Administrations in Scotland have seen the open estate as an integral part of managing the prison population. The open estate also gives the Parole Board for Scotland more insight, making decisions on an individual's fitness to be released on licence much easier and more accurate. We would be remiss if we lost sight of that.
In his letter of 30 October 2007 to the governor of the SPS open estate, Bill Aitken said:
"I have been at pains to underline that I am not opposed to Open Prisons per se. I have stressed this and indeed a number of newspaper articles have represented this view."
In response to a parliamentary question from Alex Neil on the purpose of open prisons, my predecessor Cathy Jamieson—the former Minister for Justice—said:
"Society benefits first from these long-term prisoners being carefully prepared, in stages, for release."—[Official Report, Written Answers, 5 December 2005; S2W-21073.]
We are well served by our prison service. Prison staff are tasked with making difficult decisions and judgments about difficult and often dangerous individuals in the interests of wider society and public safety. Prison staff do not take lightly the responsibilities that we place on them to make those decisions. We must learn from mistakes and try as best we can to prevent such incidents from happening again. It is impossible to eliminate risk, but prison staff must make judgments every day about how prisoners will behave, and we need to remember that they do so well in the vast majority of circumstances.
As Her Majesty's chief inspector of prisons, Andrew McLellan, said when publishing his follow-up inspection of the SPS open estate in February 2007:
"The Open Estate has a crucial role to play in the preparation of prisoners for release. It should make it possible for prisoners to develop their sense of personal responsibility and be reintegrated into society when they have served their sentences. Thus public safety should be improved. That is why I am pleased to see evidence of real improvement across the Open Estate in Scotland."
Nobody underestimates the gravity of the situation, the seriousness of the offence that Robert Foye committed or the hurt and upset that that offence has caused many. We must do everything in our power to ensure that the processes that we use to assess people for transfer to open prisons and to manage them while they are there are as robust and accurate as possible.
The open estate's value has been recognised by previous Administrations of all political hues, by prison inspectors—as I mentioned—and by independent experts. We have taken action. We are implementing the recommendations that are in the SPS report and we have gone further: I have asked Henry McLeish to report separately on open prisons, and we are reviewing the entire penal policy.
The Government is committed to achieving the right balance between public safety and confidence and the need to assess prisoners properly and prepare them for release. I do not believe that any of us has the luxury of a simple choice between one option or the other—not if we are serious about delivering and sustaining a safer society for all of us and our communities.
The cabinet secretary will take questions on the issues that his statement raised. I intend to allow about 20 minutes for questions, after which we will move to the next item of business.
I welcome the Cabinet Secretary for Justice's statement and the provision of an advance copy of it. I also welcome the apology that he has issued; so far, the SPS has failed to issue an apology.
The events that led to the rape of that young girl are shocking and deeply concerning. They call into question the management of the open prison estate. It is the Scottish Government's job to put things right. Hard questions need to be asked about how Robert Foye became eligible to serve his sentence in a part of the estate that seems to have little or no supervision.
Given the mistakes that were made under the current SPS system, what checks will exist in the future to ensure that prisoners are properly categorised and accurately assessed? Will the cabinet secretary give an assurance that he will consider that matter?
I fully understand why prisoners come before the Parole Board for Scotland after they enter the prison estate, but will the cabinet secretary also consider whether there might be a further check on prisoners' suitability if they are moved to the open estate after they are at least halfway through their sentence? The board could then have the chance to look more closely at their record, conduct and suitability for the open estate.
I will deal with Ms McNeill's questions in reverse order. The point about the Parole Board for Scotland is worthy of consideration, and it appears to me that we can happily factor it into our consideration.
I think that Ms McNeill has already spoken to the McLeish commission. The issue that she has raised is important and should be reflected on, and I undertake to ensure that Henry McLeish and his fellow commissioners consider it when they review the use of the open estate. All parties recognise that the open estate is necessary—that recognition has been with us not only under one or two Administrations, but for several generations. Penal experts also accept that the open estate is necessary, but it is clear that matters require to be reviewed, and I give Ms McNeill the undertaking that they will be.
The checks that will be made in the future and the criteria that will be used are referred to in the seven recommendations that are contained in the SPS report. Many of the issues in question are procedural and bureaucratic. Action is being taken and proposals are being implemented. It has been made clear that there will be a presumption against returning to the open estate people who have absconded once, and that cases will have to be considered at SPS headquarters.
I reiterate that a belt-and-braces approach is being taken. The matter is being put to the McLeish commission, and the SPS's recommendations will be reviewed by that commission. If it believes that there are issues relating to the Parole Board for Scotland or the actions—or, indeed, the inaction—of the SPS, it will pick up on those issues and make recommendations, on which, I assure members, the Government will act.
The cabinet secretary was initially reluctant to make a statement on the SPS report. I am pleased that he has done so, and I thank him for the courtesy of providing advance copies of the statement. I also associate the Conservative party with his comments on Robert Foye's victim. None of us who read the story in this week's Sunday Mail could have been other than moved by it. We all hope that his victim will in time be able to put her nightmare behind her and move on from what must have been an awful experience.
Unanswered questions remain. There is a role for open prisons, but will the cabinet secretary say what he envisages that role to be? Are open prisons for those who represent no physical threat or for those who are reaching the end of high-tariff sentences? That is my conception of what open prisons are for. They should not be for someone who is three years into a 10-year sentence for attempted murder.
Will the cabinet secretary review the policy on those with a previous episode of absconding? I heard what he said, but surely the vast majority of the public—and, I suspect, the vast majority of members—take the view that there should be no second chances. Those who abscond once should not have the opportunity to do so again.
I refer Mr MacAskill to paragraph 2 in section 9 of the SPS report, which states, inter alia:
"the purpose of the open estate is to test offenders … and to inform future judgements on suitability for release."
Does he agree with me and the vast majority of the public that prisoners are in custody for the protection of the public and not to undergo some sort of experiment or test, which Mr Foye failed with such tragic consequences?
Finally, I agree that we can all have 20/20 vision in hindsight, but does the cabinet secretary agree with me—and the vast majority of the public—that those who were prepared to consider as a suitable candidate for the open prison estate a man barely into a 10-year sentence, with a previous record of drug abuse and dependency and considered likely to abscond, were lamentably lacking in judgment? Does he agree that, in a situation that is very urgent indeed, leaving the answers to be found by Henry McLeish is not addressing the problem with the degree of urgency for which we might wish? Indeed, if he is looking for answers from Henry McLeish—the Scottish National Party's new best friend—I suggest that he is perhaps asking the wrong questions.
Notwithstanding the barb against Mr McLeish, I will pass on to the victim those good wishes and the esteem in which she is held by all members of the Parliament.
The Scottish Prison Service is dealing with matters with alacrity. As Mr Aitken will be aware, the SPS implemented immediately four of the seven recommendations—recommendations 1, 5, 6 and 7. Other aspects of recommendations 1, 3, 4, 5, and 6 will be implemented within up to three months. One aspect of recommendation 2 involves external parties, so it remains rather more problematic. However, it is clear that the recommendations are being dealt with and that action is being taken.
The purpose of the McLeish commission is to review the role of the prison estate. As Mr Aitken recognises, there is a role for the open prison estate. In my view, that role is to seek to reintegrate into society those who have been incarcerated for some period of time. That current theory behind the open prison estate is accepted across a broad range of opinion. However, I will listen with an open mind to what Mr McLeish may pick up from others. We will listen to people on that issue and take action.
I give Mr Aitken the assurance that action is being taken to deal with matters speedily and that the role of the open estate will be reviewed. Clearly, Mr McLeish's remit is predicated on the fact that we have problems within our penal system, in that far too many people seem to be in prison for relatively trivial matters. To avoid clogging up the system, we need to ensure that prison is for those who have committed serious offences and who are a danger to our communities. Clearly, judgment calls require to be made at some stage about when those who have been convicted of serious offences or are considered a danger to our communities but are due to be released—a circumstance that we cannot change—should be considered appropriate for reintegration into society. Doubtless, some prisoners will never be considered eligible for the open estate; others will be considered eligible even though they have committed serious and heinous crimes. That is the nature of a society that recognises that people can be reintegrated. One of the roles of prison, as well as seeking to punish, is to rehabilitate.
However, I assure Mr Aitken, notwithstanding his disparagement of Mr McLeish, that we will look forward with interest to the commission's conclusions. Mr Aitken can rest assured that we will act upon those.
I thank the cabinet secretary for the advance copy of his statement and I associate the Liberal Democrats with his comments about Robert Foye's victim, who has the admiration and good wishes of all in the Parliament. It is a shame that we cannot dwell more on her courage, but we obviously have to dwell on Robert Foye.
Robert Foye had been given an abscond risk assessment. Will the cabinet secretary comment on how, as a result of what happened subsequently, such risk assessments can be further improved? I think that he has said a bit about that already.
As the cabinet secretary will be aware, the rules about who should be sent to the open estate changed a few years ago when the open estate was opened up to short-term prisoners. The population of Castle Huntly prison has doubled in the past three years. Is he content that the prisoners who are being sent to the open estate are those who are most suitable and most likely to respond to the open prison regime, and that they are not being sent there by other prisons simply to deal with the wider issue of overcrowding in the prison estate as a whole?
I assure Mike Pringle that the SPS is not seeking to use the open estate as a repository for prisoners because of the current overcrowding problems that we face, and that steps are being taken to ensure that the necessary judgment calls are made. Recommendations 1, 3, 4, 5, 6 and 7 relate to how the SPS will ensure that all judgments are made on the best available evidence. Evidence can never be foolproof and, tragically, would not have sufficed in the case of Robert Foye, with all the difficulties that resulted.
The tariff for serious offences takes into account the fact that all serious offenders have a propensity to reoffend, on the basis that if someone has crossed the proverbial Rubicon it is likely that they will be prepared to do so again. Although Mr Foye probably had a propensity for reoffending, his case was assessed on the basis that he had no previous history of sexual offending. Not all the evidence on sex offenders is scientific, but it is not normal for people to start committing such dreadful, heinous acts at the age of 28, or however old Mr Foye was when he committed his offence.
There is no getting away from the fact that the judgment was wrong. It is great to have the wisdom of hindsight, but the SPS has taken action to ensure that such judgment calls—which can only ever be judgment calls, whether they are made by the SPS, by the Parole Board for Scotland or by a judge or sheriff when imposing the sentence that is thought to be best in the circumstances—are based on the best available information. Politicians make judgment calls and sometimes get them wrong. Prison services make judgment calls and, tragically, sometimes get them wrong.
We come to questions from back-bench members. We should manage to fit everyone in, if questions and answers are relatively succinct.
I echo the tribute that the cabinet secretary has paid to the victim in this case.
The cabinet secretary mentioned that in future there will be a presumption against returning to the open estate any prisoner who has previously absconded. What further action may be taken to build on the reduction in recent years in the number of prisoners absconding from the open estate and further to reduce absconding from all prisons? How does he expect that the McLeish commission will consider the matter?
It is for the McLeish commission to decide how best to consider the matter, but I assume that it will take evidence not just on what happens in the Scottish prison estate but on what happens in prison estates elsewhere. That is the direction that the commission has taken on penal policy to date, and I have faith in its ability to address the matter.
It is important that we should go back to basics and first principles to work out what we mean by the prison estate, who should be there and what the eligibility criteria should be. We should build on the current circumstances and change them if need be, enhancing and, in some instances, abandoning them, if appropriate. The Government is establishing a presumption against giving people who breach the considerable trust that has been placed in them a second opportunity to go to the open prison estate. Such prisoners have been convicted of committing offences and the decision to trust them has not been taken lightly. If that trust is breached, they should forfeit some of the rights that they accrued during their period of rehabilitation for good behaviour.
As well as establishing the presumption that I have described, we have indicated that the decision to transfer a prisoner to the open estate will now be made not by the governor of a secure prison, but at a senior level in the Scottish Prison Service. A variety of criteria will be taken into account, to ensure that there is uniformity and that all available information—not simply what is known to the prison governor—is viewed. It is not possible for us to go beyond that without getting into difficulties with the European convention on human rights or becoming involved in other court actions, but the presumption that prisoners who breach trust will not be returned to the open estate will stand. We will have the security of knowing that such prisoners will be trusted again only in the most extraordinary circumstances. After such prisoners have broken the trust that they have been given, they will have to show good reason why it is in the public interest that they should be given a second opportunity. Such instances might arise and, if appropriate, it seems to me that the opportunity should be offered, as a blanket refusal is not legally tenable.
This Government has introduced a presumption against return to the open estate, which is a change to how the prison estate has operated not simply under previous Governments since devolution, but under an 18-year Tory Government.
The cabinet secretary rightly set out the seriousness of the situation and the suffering that has been inflicted on a young woman and her family as a result of Robert Foye's actions. Lessons have to be learned, and some of them are set out in the internal review document that has been prepared by the Scottish Prison Service. I ask the cabinet secretary whether the Scottish Prison Service should be judge and jury in respect of those lessons. Would he support an external review of the Foye case that would allow for more objective scrutiny?
No, because we already have an external review in the form of the McLeish commission. Ms McNeill contributed to the commission's inquiries and I have no doubt that if Mr Martin has anything to contribute, Henry McLeish and his colleagues will be prepared to listen to him.
We have made a statement about the case today, we have made the report public and we will see what the McLeish commission finds. If Mr Martin wishes to draw to my attention particular issues, not only am I happy to ensure that Henry McLeish listens to him, but I am more than happy to meet him myself.
I welcome the cabinet secretary's statement, and my sympathies go to the individual who suffered the attack and her family.
Although I accept the recommendations in the report, does the cabinet secretary agree that there has to be more vigorous and robust scrutiny of the assessment of prisoners who are placed in the open prison estate? Does he also agree that adequate resources should be put in place to carry out home background assessments to determine a prisoner's suitability for early release?
I will follow up Mr Martin's question and ask the cabinet secretary to think carefully about and comment on whether it is adequate for the SPS to carry out its own investigations into the Foye case. Rather than referring the case to the McLeish commission, will he consider other ways that are external to the SPS in which investigations into incidents such as the Foye case can be carried out?
A variety of checks and balances exist in the prison system, including Her Majesty's chief inspector of prisons, who has reported on the open estate, as I mentioned. He has not been asked to report on the Foye case, but I have no doubt that he will make further comment on the open estate in due course. Although the inspections system was not instigated by this Government, it serves Scotland well and we support and welcome it.
Mr Wilson is right to say that we have to ensure that a robust assessment system is in place because it is a matter of fact that that dreadful incident happened, and we must learn lessons from it to minimise the likelihood of such an incident happening again. The McLeish commission offers independent scrutiny and analysis and the Government has undertaken to act on its findings.
Mr Wilson was also right to say that external factors have to be considered. Recommendation 2 deals with that point. It says that the SPS will have to interact with community-based justice and social work authorities to ensure that relevant information is available. Those external factors are as important as the behaviour of the individual in prison, and we have to ensure that there is joined-up working between the Scottish Prison Service and criminal justice and social work agencies outside the prison walls.
I associate myself with the cabinet secretary's opening remarks about the victim and her family. However, I take no comfort from his statement, just as I took no comfort from the Scottish Prison Service report.
The cabinet secretary apologised to the victim and her family and stated that Robert Foye was responsible for the attack, but who will take responsibility for the total mismanagement of that offender? How can a prisoner who tested positive for drugs on 7 July be assessed on the very same day as being fit to be out on release?
I believe that a prisoner who absconds from the open estate should not be sent back there. The cabinet secretary said that decisions on such cases will be taken at a senior level. Does that mean that they will be taken by the cabinet secretary himself or by someone associated with the Scottish Prison Service?
Notwithstanding her comments, I presume that Cathie Craigie welcomes our decision to have a presumption against giving someone who has absconded a second opportunity to do so—[Interruption.] If Mrs Craigie will listen, she will learn that that is a significant change to the policy that we inherited and which was in situ when this tragic incident took place. We have sought to act on the matter.
Instead of having a witch-hunt, we need to find out what went wrong and to ensure that we learn lessons from it. The fact is that something went wrong, but we will better serve the interests not only of the victim but of public safety—which is of paramount consideration—if we act on the lessons that we can learn instead of throwing blame around and casting aspersions.
The decision whether someone who has absconded once from the open estate should be given a second opportunity will be made not by me but by the assistant director of prisons at the SPS, who, given his very significant position, will be able to examine a range of information. That is how the matter should be dealt with.
As we are rapidly running out of time, I ask for very brief questions and answers.
Will the implementation of the SPS report's recommendations mean that certain prisoners could be reassessed and transferred back to a closed prison? How will that impact on the apparent rights of prisoners such as Robert Foye legally to challenge such a move?
I am not able to interact with people who might wish to raise actions under the ECHR—even when we as the Government are gobsmacked by certain events and find ourselves having to pick up the tab because of the actions or inaction of previous Administrations.
The fact is that people go back and forth between the secure estate and the open estate. We inherited that situation and it will continue. I have no doubt that if, in implementing its recommendations, the SPS finds it inappropriate for a particular prisoner to be in the open estate, they will be transferred. Indeed, I would expect nothing less. Equally, if people breach other significant rules—not just those relating to absconds—in a way that constitutes a breach of trust, they, too, should be transferred.
From what the SPS and I have said, the member should feel assured that we are not going through the motions with these investigations. Instead, we want to ensure that our communities are as safe as possible. If it becomes clear that an error of judgment has been made about someone who is in the open estate—and if that error is notified—we expect that person to be transferred back to the secure estate in exactly the same way that they would be transferred were they, for example, found to be in possession of drugs, mobile phones or whatever else.
Does the cabinet secretary agree that, although this tragic and abhorrent crime has brought the open prison system into disrepute, we must maintain a sense of perspective and not, as a result of the foul acts perpetrated by the few, forget the good done by open prison staff in rehabilitating the vast majority of Castle Huntly prisoners? As the real problem lies in deciding which prisoners should be allowed into Castle Huntly's supervision, will he ensure that those who take the decision to send prisoners to Castle Huntly and to grant outside access always err on the side of caution?
Absolutely. The symbolism—indeed, the fact—of our introducing a presumption against returning to the open estate prisoners who have absconded once should send the message that we are going to err on the side of caution. That is certainly the approach taken in the review.
I thank Andrew Welsh for his well-made point that, despite the disrepute that it has been brought into because of this dreadful case, the open prison system remains important and vital and commands support from all parties in the chamber.