Chamber and committees

I will come to both of those points. It is important that the other questions that you asked are answered, but it may be not a good idea to—[Inaudible.]—publicly. Perhaps I could pass information about some of the issues that have been raised—for example, the number of items of mail that have been intercepted—on to the committee outwith the public sphere. As Teresa Medhurst rightly pointed out, there is a battle of wits between the Prison Service and those who are trying to safeguard prisoners and stop drugs getting into prisons, and those who are trying to find new ways of doing that.

You asked about police follow-up. I mentioned that an MOU between the Prison Service and the police is being discussed to ensure that all those items are uplifted. It is my understanding that there is no recourse in relation to prisoners who, at that point, would not have received any infused materials. That is my understanding, but Teresa Medhurst will know about that better than I do. The MOU will result in all those items being uplifted by the police. How the police will prosecute that is a matter for them. Again, Teresa Medhurst may have more information, because she will be involved in the drawing up of that MOU.

That issue has been raised before; it is valid and is the subject of the discussion on an MOU between the Prison Service and the police. You will know that the Prison Service has no right or powers to confiscate those materials; it has to come down to the police. That is why the MOU, which will result in the uplifting of materials that have been infused with drugs, is being put in place.

On the previous point, which was really important, Mr Greene mentioned that family members might be sending materials. However, serious organised crime might still be behind that, and the family member could be under duress. It is a bit like human trafficking, where we do not want to punish the victims. It is a complicated matter. Mr Greene raised an interesting point about getting a better handle on what the police are able to do once they discern criminal behaviour, and we will follow that up. I am happy to write to the committee on both the matters that he raised.

Thank you, convener. I wish the committee a happy new year.

The purpose of the Scottish statutory instrument is to add psychoactive substances, as defined in section 2 of the Psychoactive Substances Act 2016, to the list of prohibited articles in the Prisons and Young Offenders Institutions (Scotland) Rules 2011, and to provide prison governors with powers that will enable them to mitigate the risk of illicit substances that are being introduced through general correspondence that is sent to prisoners via the mail system across the prison estate.

Prohibited articles are items that prisoners are not allowed to possess in prison, and currently include controlled drugs, alcohol, offensive weapons and other items. The amendments also provide prison officers and employees with powers that will allow them to photocopy a prisoner’s general correspondence, provide the prisoner with a photocopy of that correspondence and retain the original correspondence for return to the prisoner on their release. Prison staff will also be provided with the power to test general correspondence for the purposes of investigating whether it contains a prohibited article.

The use of psychoactive substances in prisons across the United Kingdom is escalating. The Scottish Prison Service has been working tirelessly to adapt security measures to prevent, detect and deter the introduction of contraband to the estate. However, the use of such substances is a complex and multifaceted problem in our society, and there is no simple answer to the issue of its impact in the criminal justice system.

During 2021, five confirmed deaths in SPS custody have been linked to suspected drug overdose involving the psychoactive substance etizolam, an illicit class C drug that can be infused into paper, card and clothing. Intelligence from the SPS also indicated that there has been an escalation in the number of emergency drug-related escorts to hospital and incidents of prisoners being suspected to be under the influence of drugs. Members will be aware of the emerging debates on the issue, and that Her Majesty’s chief inspector of prisons has been calling for the introduction of the measure that we are discussing today.

I am also aware that Families Outside, which works with children and families who are affected by imprisonment in Scotland, has written to the committee to note its support for the proposals. On the other hand, I know that concerns have been raised by stakeholders regarding prisoners’ human rights.

Many operational decisions in our prisons require a rather delicate balance to be struck to address a range of competing rights but, ultimately, the SPS must do all that it can to protect and ensure the health and safety of its staff and people in its care.

The instrument that is before you today is considered essential to mitigate the threat of significant harm to prisoners and staff that might be caused by further increases in the volumes of psychoactive substances entering the prison estate. The power that is set out in the instrument will help prison officers to prevent the entry of illicit substances into prisons and reduce the availability of those substances to prisoners. That can only help to reduce the risk that those substances present to prisons, prisoners and prison staff.

We considered options that would make the measure less intrusive, such as handing mail that had not tested positive for illicit substances to prisoners while they are in custody, but we are responding to an ever-developing threat, with new substances created that we cannot detect. Other options would not have been as effective in stopping that route into prisons for those substances. We acknowledge that there might be an impact on prisoners as a result of the instrument and its implementation, but they will continue to receive the substance of their correspondence, and they will be offered the choice of having the photocopied correspondence destroyed or retained, so that they can receive clean originals on release.

The amendments will also affect only general correspondence sent to prisoners, not confidential correspondence, such as privileged correspondence, court correspondence and medical correspondence, all of which are already protected under rule 56 of the prison rules.

The impact of not doing anything would be further disorder, illness and potential risk to life in prisons. I think that the measure strikes a fair balance between prisoners’ rights and the security and good order of prisons, which is also an essential factor in upholding prisoners’ rights in general.

The instrument has been in force since 13 December 2021, and I acknowledge the concerns that have been expressed by members of the Delegated Powers and Law Reform Committee regarding the breach of the 28-day laying period.

In normal circumstances, negative SSIs require to be laid before the Parliament for at least 28 days before they come into force. However, as outlined to the Presiding Officer by the head of the SPS, there was a concern that, in the run-up to the festive period, when the volume of mail increases, the SPS would in all probability have experienced a great escalation in the volume of psychoactive substances being sent into prisons via general correspondence with prisoners. The instrument was laid in November after careful consideration by the SPS and escalating concerns following the incidents at HMP Shotts and HMP Addiewell involving illicit substances. It was considered critical that the process be put in place quickly, and before mid-January 2022, which is when the SSI would have come into force if laid before Parliament in accordance with the 28-day rule.

The SPS will also commit to doing everything possible to mitigate any detrimental consequences that impact on the receipt of special mail such as photographs and occasion cards. Where possible, governors have been asked to give consideration in the first instance to testing all cards and photographs using the Rapiscan Itemiser drug-detection machine to allow the issuing of the original copies.

It is recognised that the maintenance of personal connections and family contact are essential to the lives of people in SPS care and, of course, their families. The SPS has implemented a number of measures to support that, including access to physical and virtual visits, access to communal and in-cell telephones and access to the Email a Prisoner and Prison Voicemail schemes.

The SSI has been in force for about four weeks, and there has been support for the change from the prison population to date. Early indications are that there has been a significant decrease in recorded drug-taking incidents and drug-related emergency escorts in the month of December 2021, compared with the previous two months. There were 248 drug-taking incidents in October, 305 in November and 131 in December; and there were 39 drug-related emergency escorts for the month of October, 37 in November and 15 in December. The SPS will continue to closely monitor the implementation of the policy across the estate.

The SPS and Police Scotland are reviewing the current memorandum of understanding concerning the management of illicit substances found in prisons, including the investigation, collection and destruction of such substances. A further meeting to discuss the MOU is planned for mid-January. In the meantime, Police Scotland has agreed to uplift all items suspected to be contaminated with illicit substances. I know that that was a concern that was raised by prison officers.

The instrument is, of course, only one of a range of measures and support that is required. There was a co-ordinated effort by the SPS, the national health service, Police Scotland and other criminal justice partners to limit the supply of drugs, including psychoactive substances inside and outside prisons, and the provision of support and treatment will be required. It is, therefore, crucial that our approach to tackling the problem concerns a balance between security and deterrence on the one hand, and also recovery and support on the other.

I am aware that there is a range of views among members on the issue, and I welcome this opportunity to answer members’ questions.

You will be aware, not least from some of the points that I made in my opening statement, that there is an on-going review on the impact of the new measure, which is looking at, for example, how the attitude of prisoners has developed. Although, initially, prisoners’ attitude was in some respects hostile, it is now much more supportive. That is explained by the fact that the bullying and the medical fallout from the prevalence of such psychoactive substances in prisons affects prisoners directly. In many cases, they are pleased that the measure in question has been taken, not least because it leaves them less vulnerable to being bullied to provide drugs for others.

We are also talking to prison officers and the trade unions; I am sure that the Prison Service will be able to say more about that. I am not aware of there being a long-stop deadline for a review to take place, but I am more than happy to continue to have a dialogue with other interested parties, including some of those that have raised objections, as the process moves on.

I would be keen to hear from Teresa Medhurst on that question.

We will commence the review of the victim notification scheme early next year, to ensure that it serves victims effectively. That was agreed by the victims task force in March, and we continue to engage with partners to develop the review. The task force’s preference is for the review to be led by an independent chairperson, supported by a working group of representatives of the organisations that operate the scheme and victims’ organisations. We intend to proceed on that basis.

The detailed approach and remit of the review are being considered. It is likely to include matters such as the possible extension to the scheme’s scope, information sharing between agencies and links with the task force’s work on developing a victim-centred approach.

On victims generally, what is really important is that we ensure that we reduce the number of victims in society. Our having far more police officers per capita than there are elsewhere in the United Kingdom, giving them a wage increase and the achievement of some of the lowest recorded levels of crime are important in reducing the number of victims.

It is also true that a number of areas to do with victims should be looked at. As Tess White said, a review has never been more appropriate, which is why we are taking forward a review that will cover all aspects of victims in the justice system.

The intention is to ensure that, right across the justice system, the approach becomes much more victim centred and trauma informed. That is a small thing to say, but it is a big goal to have in mind; it is the Scottish Government’s goal. If we achieve that, we will make more improvements, on top of the changes that we have made in recent years to improve how we treat victims in the justice system.

As I said, we intend to have a victim-centred approach. As part of that, we recognise the importance of ensuring that victims’ voices are heard, including through representation on the victims task force, the renew, recover and transform advisory group and reference groups in which victims share their experiences and expertise, to help to inform policy and practice.

We have legislated to strengthen victims’ rights and voices—from the introduction of the victims code for Scotland and the standards of service for victims and witnesses to the strengthening of the victim notification and victim statement schemes.

We recognise that more can be done. We will continue to work with partners to improve victims’ experience.

There is perhaps a misunderstanding on the part of Mr Carson as to how the fund is to work. The amount raised is entirely dependent on the number and value of fines imposed by the courts, and it was always going to take a number of years for the fund to build up. Only individuals or organisations who have been cautioned after 2019 are affected, and their cases will take time to progress through the court. Members will of course know the impact of the pandemic on the court system.

It is true to say that the collection rate for the victim surcharge in Scotland is 79 per cent, which compares favourably with the rate in England and Wales, which is 61 per cent. Notwithstanding the pandemic, we of course expect the amount that can be paid out to victims organisations to increase in future years.

It has had a substantial impact. People in prison now are generally serving longer sentences and there are far fewer people serving sentences of less than 18 months, because of legislation that was previously passed. Other interventions that have taken place under this Scottish Government have also helped to deal with the situation that the member mentions. We are very conscious that more needs to be done, not least in relation to some of the proposals in the bail and release bill. That is currently out for consultation.

The justice board, of which Community Justice Scotland is a member, undertakes a wide range of engagement activity to ensure that the views of victims and survivors are taken into account.

Justice board members are represented on the victims task force, alongside representatives of victim support organisations and a victims representative. That ensures that the task force’s work is directly informed by the experiences of victims. The task force includes Community Justice Scotland, which co-leads the trauma-informed workforce workstream.

Victims organisations are also represented on a number of justice board sub-groups, including those relating to Covid-19, the recover, renew, transform programme and the recovery of community justice and preventing offending group.

Outwith the justice board, Community Justice Scotland has a statutory duty to assess the extent to which national community justice outcomes are achieved. It recently noted that community justice partners

“are closely linked to victim support services and that supporting victims is a high priority locally.”