Chamber and committees

Thank you for the opportunity to be here today to answer questions regarding the management of transgender prisoners and the recommendations of the urgent case review. There have, of course, been concerns expressed about the issue. It is important to provide assurance around the safety of all people in the care of the SPS.

In a democracy, it is perfectly legitimate to raise questions and seek assurance. However, the wider discussion around gender identity has risked stigmatising transgender people, which will have a real and direct impact on both transgender people and the broader community of which they are part. As MSPs, it falls on us to provide responsible, rational and compassionate leadership. I hope that the committee would agree that it would be abhorrent if any legitimate scrutiny of the matter was allowed to fuel the view that trans women somehow pose an inherent risk to women. That is clearly not the case, and I remain concerned that that view is even further marginalising trans individuals.

As in any discussion involving the criminal justice system, we must also never forget that the victims who will be affected by these instances are also affected by the things that we say. That is true of the specific case to which the lessons learned review relates, and I pay tribute to those women for their bravery.

As I said in Parliament, I am keen that the discussions around the issues and the lessons learned review are calm and founded on fact. I am confident that, approached in that way, you will be reassured around both the lessons learned and the wider management of individuals in the care of the Scottish Prison Service.

I commend the SPS’s expertise—you have just heard some of the bona fides of the people involved in that process—and their track record of managing the risk posed by individuals in their care.

A number of high-profile individuals have been discussed in the media and mentioned in Parliament. I am also aware that there are other transgender individuals in the prison estate who have been living in their allocated establishment for lengthy periods of time without any issue or concern.

It remains a long-standing principle of the Scottish Government and the SPS that we do not comment on individual cases, and although that approach has been particularly challenging in this instance, I do not consider it appropriate to forensically examine the details of every individual case in a public forum.

The current SPS policy around the management of transgender individuals has been in place from 2014. On 29 January this year, as a result of the specific circumstances of the case that has been mentioned, I announced that a number of interim measures had been decided by the SPS. First, no transgender person with a history of violence against women, which includes sexual offences against women, who was already in custody would be moved from the male to the female estate. In addition, no newly convicted or remanded transgender prisoner with any history of violence against women would be placed in the female estate. Any case that required such a move would be in exceptional circumstances and would require to be approved by ministers.

A lessons learned review into the circumstances of the Isla Bryson case was also conducted by the SPS, and I am very grateful to the Prison Service for doing that work and for its conclusions and recommendations. Although the full report will not be published due to the significant amount of personal data relating to both the individual and SPS staff, I wrote to the committee on 9 February in that regard and I published a letter and key recommendations from the SPS. It might be helpful to mention briefly some of the key points in it.

As we have heard, Teresa Medhurst confirmed that SPS policy was followed during each decision-making process and risk assessment. Most significant, she has also confirmed that at no time during that period were any women in SPS care at risk of harm as a consequence of the management of the individual. I am mindful that that assurance points to the effective operation of SPS practice and the existing policy.

Teresa Medhurst has also confirmed that, after the initial risk assessment procedure and multidisciplinary case conference that were undertaken in terms of that policy, the individual concerned was transferred to and remains in the male estate. As additional assurance, I advise that full multidisciplinary reviews are also currently under way for each transgender person who is in custody.

The Scottish Prison Service indicated that the protective measures that were originally put in place would be amended to take account of the lessons learned review and developing operational experience. Critically, it remains the case that any transgender person who is currently in custody and who has any history of violence against women, including sexual offences, will not be relocated from the male to the female estate. However, the SPS has decided that any newly convicted or remanded transgender prisoner, not just those with a history of violence against women, will initially be placed in an establishment that is commensurate with their birth gender. That wider measure reflects operational practicalities, which I am sure that Teresa will be able to talk to if you require. In the light of the lessons learned review highlighting the lack of available information sharing at the pre-custody and post-admission stage, that is a precautionary approach that I commend. Again, in exceptional circumstances in which a move contrary to those measures is required, ministerial approval will be required and sought.

A key area for improvement from the lessons learned review is for improved information sharing and communication between justice partners and the SPS to allow for advanced alerts to ensure that there is a clearer approach to the transfer of transgender individuals from the court to SPS custody.

The review also supported the current approach to individualised risk assessments and the balancing of rights, but it highlighted the need to consider improvements to the admissions process, particularly around the weight attached to an individual’s offending history.

Teresa has indicated that she has accepted those recommendations and that the SPS has started work to action them. The SPS has confirmed that the lessons that have been learned will also feed into its on-going review of its policy on the management of transgender prisoners.

As we have heard, the management of any group of prisoners involves an element of risk; clearly, that is not unique to prisoners who are transgender. The approach that the SPS takes must be based on its legal obligations and on the human rights and trauma-informed approach that it takes to all those in its care. Crucially, it must protect the safety of all prisoners and staff.

Along with the chief executive, I am happy to answer any questions that the committee has on these issues.

I found out when it became evident from the media. I am not normally uniformly told of every prisoner who is sent to prison.

I have just answered that question.

The policy was designed in 2014. It remained relatively uncontentious for most of the period up until now. As I have said, I have confidence in the system that is there, notwithstanding the changes that I announced. I think that those changes in policy were pretty consistent with what the Prison Service does already. Therefore, I do have confidence—

I was trying to answer, but you would not allow me to answer. That was the point that I was trying to make. Can I try to answer now?

At the time, I said to the Parliament that I had faith in the basis on which the Scottish Prison Service deals with prisoners who are transgender. It has an extremely strong track record on that. It has managed to protect women, other prisoners and staff. I expressed that support for the Prison Service at the time, and I am happy to express it again now.

As you have mentioned, there was a substantial degree of publicity around that. Obviously, ministers have discussions with officials and the agencies for which they have responsibility.

As I say, the process that was followed in this case is the process that is always followed, and I have faith in that process. There is very little evidence to suggest that how this individual prisoner was dealt with would have been different in any other circumstances.

I repeat the point: I have faith in the Scottish Prison Service’s ability to deal with the issue. Changes, which I mentioned in my opening statement, have been announced to provide further reassurance, and I think that that was the right thing to do.

Thank you for giving me the chance to make a contribution in support of the Parole Board (Scotland) Rules 2022 and to debate the motion that Jamie Greene has just moved.

I understand that the committee had some concerns—Jamie Greene said this—about the amount of time that it has had to consider the rules. It is important to make it clear that, as SSI 2022/385 was laid in December and will come into force in April, the full 40 days that are required by Parliament for parliamentary consideration to take place have been provided. The issue of whether the committee wanted to consider the matter prior to that is not one that I have a say on.

I am sure that the committee will appreciate the need to provide the new rules and procedures for the Parole Board. The previous rules date from 2001, so they are more than 20 years old. In that time, they have undergone multiple amendments, which has led to them becoming more complex and inaccessible. They are in need of change. Making them as clear and understandable as they can be seems a sensible thing to do.

The new rules bring a new and simplified structure to the Parole Board’s rules and align some common processes. For example, all oral hearings on parole cases will now follow the same procedure. The new rules also introduce procedures to clarify existing practice and improve processes. They aim to provide the Parole Board with effective and transparent procedures that help with the smooth running of Parole Board business.

If we were to annul the rules, as Jamie Greene proposes, that would mean that we would lose all the benefits that they would bring, such as avoiding retraumatising victims. For example, new rule 9(2) allows a victim statement to be withheld from the dossier that is given to the prisoner, if they should wish their views to remain private and the Parole Board considers that it should be treated as non-disclosure. That would be lost if the instrument were to be annulled. The rules will also ensure that victims will be given only the information that they signed up to receive when they registered with the victim notification scheme, which is a point that Mr Greene addressed.

The new rules will improve the process for prisoners by ensuring that they are better prepared for a hearing. They provide for a new procedure to allow the Parole Board to appoint a representative for prisoners if they lack the capacity to appoint one themselves.

It is important to note that the rules have been developed with the Parole Board to ensure that they are workable and fit for purpose. They build on consultation with the public that was carried out last year, and they reflect our engagement with other stakeholders, including, importantly, Victim Support Scotland, the Risk Management Authority and the Law Society of Scotland.

I will cover a couple of Mr Greene’s points. He spoke about the whereabouts of the body of a murder victim not being revealed and asked whether we have any proposals to change the law in that regard. Importantly, criminal law already permits failure to disclose a body to be taken into account when sentencing. It also contains an offence of defeating the ends of justice and that can and has been used in cases in which a murderer has failed to disclose the location of their victim, as it was in the Suzanne Pilley case when sentencing David Gilroy.

The court can take into account all charges when sentencing to ensure that a suitable sentence is imposed to account for all criminal conduct. The role of the Parole Board is to assess when a prisoner, having served the sentence that was handed down by the court, might be released without posing a risk to the community. I think it right that decisions on risk and release are made on a case-by-case basis by the independent Parole Board, which can take into account all relevant information.

Denying parole to someone solely on the grounds of their not revealing the location of a victim’s body might also—Jamie Greene mentioned this—create ECHR issues. For example, a proposal that required a prisoner to be held indefinitely until they provided certain information—if we leave aside the fact that they might not know or remember the information in question—might not be compatible with article 3 ECHR rights, which prohibits inhuman or degrading treatment. Therefore, life sentences require to include safeguards against indefinite detention without possibility of release.

The proposal also appears to be inconsistent with existing safeguards for human rights that form part of sentencing and parole processes. It suggests that prisoners would be detained for longer than the punishment part that the court imposes, with no possibility of parole due to lack of co-operation. That might cause issues of arbitrary detention contrary to article 5 of the ECHR and might interfere with the right to silence, which article 6 protects. Therefore, the proposal touches on fundamental human rights.

To answer Jamie Greene’s question directly, the Government has no plans to change legislation in the way that he has suggested.

Jamie Greene also mentioned his proposed member’s bill. As I have said before, I am more than happy to discuss this and other issues as part of that process.

I covered the issues in relation to victim notification earlier in the statement. However, the Parole Board has indicated that it will prepare guidance for its members on the new rules before they come into force on 1 April 2023, unless, of course, Parliament votes to annul the rules.

For the reasons that I have mentioned, and for a number of other reasons that time prevents me from mentioning, I think it important that the rules are passed. I urge Mr Greene to withdraw his motion to annul. If that does not happen, I urge committee members to oppose the motion.

I am happy to answer any questions that the committee might have.

Let me finish my point. You have asked a question.

If you have other questions, you can ask them after I have finished my answer, please.