Prison emergency early release: veto guidance for governors

Purpose and background

Purpose

This guidance is intended to support Governors in Charge (GICs) in their application of the Governor’s veto, in the event of an emergency release process being conducted – as provided for at section 3C(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (as inserted by section 11 of the Bail and Release from Custody (Scotland) Act 2023). This guidance has been developed under section 3C(7) of the 1993 Act.

As provided for at section 3C(9) of the 1993 Act, GICs ‘must have regard to’ this guidance in considering the application of the Governor’s veto.

This guidance should be read in conjunction with the current Scottish Prison Service (SPS) operational guidance: emergency release.

Background: legislative position and context

Section 11 of the Bail and Release from Custody (Scotland) Act 2023 inserted section 3C into the 1993 Act. That provision gives the Scottish Ministers the power to instruct the early release of groups of prisoners, where they consider it necessary and proportionate to do so in response to an emergency situation, in order to support the safe operations of prisons, and protect the health, safety and welfare of prisoners and prison staff.

Section 3C(5) of the 1993 Act also provides for a Governor’s veto which could be applied in any early release process operated under this power. This veto allows the GIC of the prison where an eligible prisoner is located to veto their early release if they consider that “the person would, if released, pose an immediate risk of harm (i) to an identified person, or (ii) to an identified group of people.”

A definition of harm and examples of identified individuals and identified groups are provided to aid this process.

The application of a Governor’s veto is also important to support the protection of a number of rights under the European Convention on Human Rights. Articles 2, 3 and 8 together protect individuals’ right to life and their physical integrity. The use of the Governor’s veto helps to ensure that where the GIC is aware that a prisoner eligible for the emergency release presents an immediate risk of such harm to an identified individual or group of individuals (including the prisoner themselves), that those rights can be protected.