Chamber and committees

I certainly agree that shifting the balance between custody and justice in the community must be one of our key priorities. To do so, we must ensure that the relevant community justice services are available, consistent and of high quality. That reflects a discussion that I had with the Criminal Justice Committee this morning.

Although funding for community justice services is constrained by the current economic circumstances, we have continued to protect the community justice budget. Additional funding of £11.8 million was provided in 2021-22 to bolster capacity and support recovery from the pandemic. This year, that figure has increased to £15 million, which includes specific investment of £3.2 million to support bail assessment and supervision services. We are directly supporting an increase in the provision of bail supervision. Such services are now running in 30 local authority areas.

In total, we invest around £134 million in community justice services. That will be maintained next year as well.

Absolutely—I am happy to give that assurance. In any event, even if we had wanted a different option, we have no option but to do that. It is the right thing to do.

I am also happy to provide the assurance that the SPS is undertaking rigorous human rights impact assessments as part of its wider policy. Whether it is the change that the United Kingdom Government announced last week or what we are talking about, the same regard for human rights has been incorporated in the statements. I am sure that that will also be the case going forward.

On the last point, I have tried to describe how we can try to keep prisoners safe. Of course, as Maggie Chapman will understand, there is, among staff in our prisons, a heightened sense that we should do that .

I agree—I have commented on it—about the position of trans women. As I have said, perhaps the best way to provide reassurance is to discuss matters in a calm way that takes into account and starts from the question of how we keep everybody safe. It is perfectly legitimate for people to question whether we are doing that effectively—I think that we are—but we can do that in a way that recognises that the primary concern of us all is the safety of all prisoners and staff. We can have a debate that should not give rise unnecessarily to what Maggie Chapman rightly drew attention to, which is the increasing number of hate crimes, or hate incidents, against trans people. There has been a very substantial increase, and we should always be mindful of that.

First, I agree that that is a sensible suggestion. If Jamie Greene will forgive me, I will have further discussions—one of which I am due to have tomorrow with the Criminal Justice Committee. I will see how the committee would best like that suggestion to be taken forward. However, I have no objection in principle to the point that has been made.

Given the public interest in the matter, it is as well that as many people as possible are aware of all facts. There are unfounded statements circulating—for example, on social media—so I mention again the idea of further reporting. I have mentioned the extent to which I am trying to keep the committee involved. I have written to it today and will write to it again next week. The commitment is that we will go back to the committee after the review, so the letter next week will be about the short-term review that will report this week and—of course—the wider review.

On the delay to the wider review, the review was hugely impacted by Covid. It is being taken very seriously, so, as I have mentioned, as well as analysis and consultation, we are now in discussion with the trade unions and legal services to ensure that everything is absolutely as it should be. I agree that it would have been more useful for us to have had the review now, but the pandemic cannot be wished away and it is what caused the delay.

On the last point that Katy Clark raises, it is not for me to schedule the business of this Parliament. Members are, of course, able to ask for that debate if that is what the Parliament wishes to have.

In relation to the very legitimate point about ensuring that the policy takes account of the interests of women and, in this case, women prisoners in particular, I can say that there has already been that consultation. I think that I confirmed that last week as well. I am also aware of the responses to that consultation—both the concerns that have been raised and other aspects of that response.

If it is possible for me to not breach any confidentiality in providing that information, which is quite granular information about the cases raised, I will certainly do that.

However, I am happy to give Katy Clark an assurance that the scheduled review, which has been impacted by the pandemic, is now at the stage of being considered by legal services—to make sure that it fits into the legal framework—and discussed with the trade unions that are involved. The member may have heard today from the general secretary of the Prison Officers Association Scotland on the issue.

Those are the two remaining parts to that review. They will be carried out and we will bring the review forward in due course. It will then, of course, be open to Parliament, if it wishes, to decide to debate those findings.

I am convinced that those people are far more expert in relation to making that judgment than I would be—or, indeed, than Pam Gosal would be. That is where the threat and risk should be properly assessed.

Of course, as I have said, we should continue to review and improve the situation as much as we can. That is the purpose of the wider review.

SPS processes take that eventuality into account. As well as the risk assessments that I have discussed so far in relation to trans women, in this case risk assessments are day and daily, part of the business of the SPS. On the day when the story broke last week, I was visiting the SPS to see a presentation on how it manages the various serious organised crime groups in prisons, which is a huge task that is now much bigger than it has been in the past. We now have serious organised criminals in every single prison in Scotland.

Whether the risk assessment is of a trans woman who is in the male estate or the female estate or of a trans man or other individual, the risk assessment is carried out in consideration of the risks that that individual might pose, and they are placed accordingly.

I am happy to provide Mr Bibby with information about training in relation to the other issue that he mentioned, but I assure him that a risk assessment is undertaken for everybody who enters the prison system.

The public should be reassured about the processes that are currently in place. The track record of the Prison Service demonstrates exactly how effective they are. To refer once again to those who have to work on the front line, their trade union representatives say that they have been used to doing this over many years and do it very successfully. It is, of course, one of the many challenges that they face.

On Gillian Martin’s question about whether the review will take into account the assessment process, the wider review will look at the management of transgender prisoners as a whole. It will take in every element of that. In order that the Parliament can have its say, we will update the relevant committee once that work has been finalised.

On the last point, I can make sure that we can discuss these things in a civilised way, with reference to the facts. I recognise that that will be very important in taking some of the heat out of the situation.

I also recognise what Alex Cole-Hamilton says about the position of the Liberal Democrats on the safety of women in prisons. He cited, I think Scottish Women’s Aid and Rape Crisis Scotland, and the latter organisation was until very recently being demonised—wrongly, in my view.

These are perfectly legitimate concerns, which is why we took forward the initiatives. I believe that trust in the Prison Service is well placed, but, of course, it is right that we should continually monitor such processes, especially when they are so sensitive. That is exactly what is happening with the policy review, so I hope that it will provide further reassurance to the public—and the organisations that Alex Cole-Hamilton rightly cites—about the effectiveness of the processes that we have in our prisons.

There has been significant attention on the management of transgender prisoners over the course of the past week, and I take this opportunity to update the Parliament on what we have done and what we will do.

Before doing so, I acknowledge the victims in these cases. We should never forget the victims of crime; I am sure that everybody in the chamber agrees on that. In that regard, I was impressed by the comments that were made by our contributor at time for reflection, who said that we should focus on what really matters and recognise the unique worth of each individual.

I am very conscious of the importance of maintaining public confidence in the justice system, and, for that reason, I am keen that discussion around the issue is as calm and founded on fact as possible. The things that we say in the Parliament have an impact on people, and, in the context of the criminal justice system, they are often very vulnerable people. We must not allow the legitimate questions that are being asked to fuel the view that trans women somehow pose an inherent threat to women, when that is not the case. What is important is the crime that they have committed and the risk that they pose to other prisoners, staff and, indeed, themselves.

We have said this before, but I will say it again: we are talking about a very small number of people. Transgender people in the prison estate account for roughly 0.27 per cent of the entire prison population, which equates to around 20 people out of 7,367 prisoners. The number changes regularly but, as of today, we have around 17 trans women prisoners, the majority of whom are kept in the male estate. On Sunday, it was announced by the Scottish Prison Service that it is doing a further deep dive into those circumstances.

By its very nature, the prison population as a whole has a significant number of people of all genders who represent a risk to others. We must recognise and commend the professionalism and great expertise of the prison service in managing those complex, high-profile and challenging individuals who are in its care and in keeping others safe.

The existing SPS process applies equally to the arrangements within which the SPS makes decisions about transgender prisoners. The SPS gender identity and gender reassignment policy was adopted in 2014 in dialogue with relevant stakeholders, including criminal justice and equalities organisations. As a general rule, the policy envisaged individuals being admitted to prisons that accord to their gender identity, subject to an individualised risk assessment. That has not changed recently, nor has it been impacted by the recent Gender Recognition Reform (Scotland) Bill, which was passed by this Parliament. I repeat: that has not changed recently, nor has it been impacted by the recent Gender Recognition Reform (Scotland) Bill, which was passed by this Parliament.

There is no automatic right or policy in Scotland for trans women to serve a sentence in a female prison, nor for a trans man to be in the male estate. The Prison Service retains the ability to place people in a prison that may not correspond to their identified gender, and it makes those decisions on the basis of a rigorous and robust individualised risk assessment and by taking account of all relevant factors, including the safety of the individual, of other prisoners and of staff. No transgender prisoner will be placed in the general population–either male or female–without that risk assessment.

It is the long-standing position of the Scottish Government and the SPS that we do not comment on individual cases. However, that is challenging to sustain when there is substantial public debate and concern about a particular case. With that in mind, and in the context of everything that has already been said about two cases that were reported in the media last week, I make the following points.

At the times when those cases were brought to public attention, the SPS had not taken decisions about the future placement of the individuals concerned; the process of considering those cases was still under way. I offer a reassurance that, during the period of risk assessment of the prisoner who had been convicted of rape and admitted to HMP Cornton Vale, the individual was segregated from the rest of the prison community, in accordance with the Prison Service’s established policy and practice. While that assessment was in progress, a decision was taken by the SPS that the individual should be transferred to the male estate. The SPS was, of course, aware of ministers’ views—it would be, frankly, bizarre if the SPS had not been aware of ministers’ views—but it remained an operational decision for the SPS, based on the available information.

I also make it clear, given that the issue has been raised, that the decision to accommodate that prisoner in HMP Cornton Vale while the risk assessment was done was made without ministerial involvement or awareness and was in line with existing procedures. The other individual identified in the media was in, and remains in, the male estate.

Neither of the cases that have been highlighted arose from any change to Scottish Government legislation or policy or from any change to the risk assessment procedure operated by the SPS in recent years. Each case arose from specific circumstances. We have fully acknowledged the concerns that have been raised in respect of those cases and have responded swiftly. Given the public concern about those cases, it is right that the SPS has acted to bring absolute clarity to the position.

On Sunday, I released a statement confirming measures that will be taken pending the outcomes of two reviews. The first of those is the SPS’s review of its current policy on the management of trans prisoners, which is being undertaken in dialogue with the Scottish Government and other stakeholders. During 2022, a consultation exercise was undertaken with interested parties, including women and other prisoners and staff. The draft revised policy will be independently assessed by experts in women affected by trauma and violence. We expect the review to be completed in the coming months, and we will ensure that Parliament is kept informed, given the strong interest in the issue.

The SPS is also now undertaking an urgent lessons learned review in relation to the case of Isla Bryson, with any learning to be applied immediately to existing cases of transgender people in the prison estate and to any cases of those coming into custody. That review will report to the SPS chief executive at the end of this week, and I will write to update the Criminal Justice Committee next week on the outcome of that review. The timescale for any subsequent action will depend on the review’s findings.

Until those reviews are complete, no transgender person who is already in custody with any history of violence against women, including those with any history of sexual offences against women, will 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 will be placed in the female estate. For clarity, that definition includes any history of violence, including sexual offences.

If, following thorough and robust risk assessments and taking account of all relevant factors, it is felt that there are exceptional circumstances in a particular case, the approval of ministers will be sought. That is not dissimilar to the situation that was announced last week in England and Wales. That the Scottish Prison Service will seek ministerial approval for those particular cases will not change the general position that decisions on the management and accommodation of prisoners within the prison estate have been and will continue to be operational matters for the Scottish Prison Service. That is in keeping with the delegated authority under which the Scottish Prison Service operates and it is in line with the public interest in the matter. Those arrangements will allow for exceptional circumstances to be considered and agreed while the reviews are in progress.

It is right that the actions that we have taken will continue to ensure that we respect and protect the rights of trans individuals, wherever they are in society, including in our prisons, and that we continue to consider and protect the safety of all prisoners and staff.

The actions that I have announced and that the SPS is progressing aim to provide immediate assurance in the context of the public concern raised by the two recent cases. The outcome of the reviews that are being progressed will ensure that any immediate lessons are learned from the issues that have been identified by those cases and that the wider review of the Prison Service’s current policy on the management of trans prisoners and the subsequent application of that policy take account of relevant factors including input from experts in women affected by trauma and violence.

Ultimately, it is vital that future decisions about the location and management of prisoners continue to be based on thorough risk assessment, drawing on the expertise and input of relevant professionals, with the priority of ensuring that all individuals who work in our prisons and people who are in the care of our prison staff are kept safe. That has always been and will always be the absolute focus of the Scottish Prison Service.