UN Human Rights Council Universal Periodic Review - fourth cycle recommendations: Scottish Government response

10. Justice

A) Places of Detention

Recommendation(s) and Responses

Relevant section(s) of the Scottish Government’s October 2022 UPR Position Statement

• 10(J) – Inspections and Monitoring of Prisons
• 10(K) – Prison Population Size
• 10(M) – Prison Estate Modernisation
• 10(N) – Violence in Prisons
• 10(O) – Deaths in Custody
• 10(R) – Mental Health in Custody
• 10(X) – Control and Restraint in Prisons

Recent Progress and Next Steps

The Scottish Prison Services (SPS)^[193] is committed to ensuring safe and dignified conditions of detention throughout Scotland’s prison estate. Central to that ambition are strategic initiatives to reduce violence and overcrowding and to support action which acknowledges the overrepresentation of some minority groups, in line with the Scottish Government’s Race Equality Framework. The Scottish Government rejects the suggestion in recommendation 88 that prison conditions in Scottish prisons can reasonably be described as “appalling”.

HMP Stirling, the new national facility for women, opened in June 2023 and is focused on delivering world leading and trauma-informed care and management for women in custody. This provides them with the best possible chance of a successful return to their communities at the end of their sentence. The opening of HMP Stirling is a significant milestone in the response to Lady Elish Angiolini’s 2012 report^[194]. This is the third new facility built specifically for women in the past year, with the Bella and Lilias Community Custody Units opening in Dundee and Glasgow in 2022 in line with our commitment to improve conditions for women in custody.

The Bail and Release from Custody Bill^[195], passed in June 2023, intends to refocus how remand is used so that it is reserved for those who pose a risk to public and victim safety. The legislation also improves support for people leaving prison, helping them to successfully resettle in their communities and not reoffend.

A follow up report^[196] on progress of implementation of the recommendations in Independent Review of the Response to Deaths in Prison Custody^[197] was published in December 2022. The progress report recognises that we have completed some of the recommendations and are making progress on many of the other recommendations.

The Scottish Government is taking action to address the high imprisonment rate in Scotland. That includes ongoing investment in community-based interventions which have been demonstrated to be more effective at reducing reoffending than short-term imprisonment^[198]. We will provide a total of £134 million to support community justice services in 2023-24.

A programme of development of Scotland’s prison estate, including new building projects HMP Glasgow and HMP Highlands, and improvements in the availability of technology within prisons, will continue to improve conditions in Scottish Prisons over the coming years.

The safe treatment and mental health of all those in custody is a key priority for Scotland’s prisons, which care for people with higher levels of risk and vulnerability than the general population as a whole.

We are making progress with a number of the recommendations from the Independent Review of the Response to Deaths in Prison Custody^[199], including those that relate to the SPS’s internal Death in Prison Learning, Audit and Review and the key recommendation that a new independent investigation should be carried out into every death in prison custody. This should help families receive information and answers to questions they may have about the circumstances of a death sooner.

We are also working closely with Scottish Prison Service to implement a new Suicide Prevention Strategy, published in September 2022.^[200] SPS is also improving training for staff so they are better able to identify individuals who may be struggling and in need of additional support.

The National Suicide Prevention Management Group provides the governance for the review of Talk to Me^[201] ( Prevention of Suicide Strategy in Prisons) and has approved the action plan to progress this work. The working group has a range of members, including the Scottish Government, Public Health Scotland, NHS, Samaritans, Families Outside and Breathing Space.

A short-life strategic leadership group has been set up to engage the Scottish Government, NHS and the Scottish Prison Service at national level to support improvements in providing a shared approach to health and wellbeing interventions required for those in prison. A workstream has been identified to action improvements, including Health Improvement. This work will help to inform the Health & Wellbeing Framework scheduled for completion by the end of 2023. Work has already concluded on collating the recommendations from a series of needs assessments and associated reports. There are a total of 505 recommendations to consider, theme and prioritise.

The safety of those in our care is fundamental to a high quality prison system that respects, protects and fulfils human rights. SPS takes a zero tolerance approach to violence. Each month, establishments hold a Tactical Tasking and Co-Ordination Group meeting which will consider any analysed trends associated with acts of violence allowing appropriate measures to be put in place to mitigate risk.

Following acts of violence, a Violent Incident Review Strategy meeting will take place which supports managers to identify areas for improvement or good practice in the management of violent incidents. Violence reduction meetings are held regularly in line with SPS Violence Reduction Strategy and some establishments facilitate a Safer Prisons Forum which focuses on a range of issues, including violence reduction and personal safety.

All allegations of inappropriate use of force within our prisons are investigated by SPS. Where appropriate, complaints are referred to Police Scotland. Processes are in place for the timely reporting of use of force via SPS reporting procedures. Heads of Operations in local establishments review each Use of Force form as part of the assurance process that force has been used in line with Rule 91.

SPS is developing a new Family Strategy with key stakeholders that supports principles set out in the Scottish Government’s Getting It Right For Every Child policy, and in the United Nations Convention on the Rights of the Child.

Under current constitutional arrangements in the UK immigration is reserved to the UK Government. The lead UK department is the Home Office, which is responsible for the operation of immigration detention facilities. The Scottish Government supports calls for a 28 day time limit on immigration detention and for the presumption to be in favour of community-based solutions.

Relevant National Outcomes

• We live in communities that are inclusive, empowered, resilient and safe.
• We are healthy and active.
• We respect, protect and fulfil human rights and live free from discrimination.

Relevant Sustainable Development Goals

• 3 - Ensure healthy lives and promote well-being for all at all ages.
• 16 - Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

B) Law Enforcement Officials

Recommendation(s) and Responses

Relevant section(s) of the Scottish Government’s October 2022 UPR Position Statement

• 10(I) – Human Rights Training of Police Officials
• 10(W) – Human Rights Training for Prison Officials

Recent Progress and Next Steps

In relation to recommendation 94 and 97, all constables who join Police Scotland declare as part of their Oath of Office that they will “uphold fundamental human rights and accord equal respect to all people”.

HM Inspectorate of Constabulary in Scotland carries out regular inspections of police custody arrangements in Scotland in recent years to assess the care and welfare of detainees. Independent Custody Visitors monitor the welfare of people detained in police custody facilities (“PIRC”) independently investigates incidents involving the police including deaths in police custody.

In relation to recommendation 97, Police Scotland’s training curriculum is an operational matter for the Chief Constable who operates independently of the Scottish Government.

Human Rights Training of Police Officers

The Scottish Government takes seriously any concerns raised by or against police officers and are clear that when things go wrong the police are held to account, lessons learned and improvements made This includes concerns about the interpretation of permissible limits of the use of force. The Scottish Government commissioned Dame Elish Angiolini to carry out an Independent Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing,^[202] which was published in 2020. The review recognised the need to have robust, clear and transparent mechanisms in place to investigate complaints or other issues of concern.

The introduction of the Police (Ethics, Conduct and Scrutiny) (Scotland) Bill^[203] on 6 June 2023 is part of the response to the Dame Elish Angiolini Review, and delivers on the 2022-23 Programme for Government commitment to introduce legislation on this important matter. It also demonstrates the Scottish Government’s further commitment to making meaningful change to the police complaints and misconduct system through delivering major business transformation and service redesign to improve how complaints are handled, bringing greater transparency, fairness and accessibility to systems, policies and processes.

Police Scotland operates under the principle of policing by consent, where officers must act in a way that secures and maintains the respect and trust of the public and respects human rights. The Scottish Government is clear that if the conduct of officers and staff falls short of expectations, it is essential that the public has trust in the processes in place to deal with complaints and allegations of misconduct.

The Scottish Government continues to work with policing partners, including: Police Scotland; Scottish Police Authority; Police Investigations and Review Commissioner; His Majesty’s Inspectorate of Constabulary in Scotland and the Crown Office and Procurator Fiscal Service to implement the remaining recommendations from the review which do not require legislation. The latest progress report^[204] published in May 2023 is on the Scottish Government website and details the progress made.

Human Rights Training for Prison Officials

A Scottish Prison Service review group has led the re-development and implementation of a system of restraints for the management of distressed behaviour within a prison setting in Scotland. This work included the development of a physical interventions curriculum, based on international best practice, non-pain inducing restraint techniques and located within a wider framework of restraint reductions, taking account of the impact of trauma on distressed people in our care.

These new products emphasise the need to understand why people in the care of the SPS may display distressed behaviours, how best to de-escalate these proactively and how to safely manage situations in which the use of physical interventions is the last available option to keep everyone safe. It represents a shift away from more traditional control methods towards a more care-based system of managing distressed behaviours in prison settings.

The work is underpinned by the best practice principles of the Restraint Reduction Network^[205] and in line with a Human Rights approach to managing distress. In particular the United Nations Convention on the Rights of the Child was instrumental in driving this new approach; however, the new physical interventions are deemed to be appropriate for use with all people in custody, taking specific account of individual risk factors such as previous trauma, underlying health conditions, neurodiverse conditions and others. The team developed strong relationships with external partners to ensure that the approach is fully risk assessed for both physical and psychological risks.

Alongside the new techniques, the pilot includes the use of local Violence and Restraint Reduction (“VRR”) Managers on-site, who support the development of a prison-based restraint reduction strategy. This includes the debriefing of people in our care post-incident, the development of proactive strategies and working closely with partners to identify individuals at increased risk of restraint. The VRR Manager will further provide increased coaching and mentoring to officers involved in restraint, with the view of reducing future incidents by reflective learning approaches. This framework follows the model of the six core competencies for restraint reduction, putting the lived experience of staff and people in our care at the centre of development.

Relevant National Outcomes

• We live in communities that are inclusive, empowered, resilient and safe.
• We respect, protect and fulfil human rights and live free from discrimination.

Relevant Sustainable Development Goals

• 16 - Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

C) Youth Justice and Minimum Age of Criminal Responsibility

Recommendation(s) and Responses

Relevant section(s) of the Scottish Government’s October 2022 UPR Position Statement

• 10(Y)(ii) – Youth Justice
• 10(Y)(iii) – Minimum Age of Criminal Responsibility

Recent Progress and Next Steps

Youth Justice

We continue to support the delivery of a multi-agency, whole system approach to preventing offending by children and young people. This includes local delivery of early intervention approaches, initiatives to keep children out of the criminal justice system as far as possible, diversion from prosecution, support for high risk children and supporting successful transitions. For those who do end up in the criminal justice system timely and targeted support is provided by partners.

In December 2022 we introduced the Children (Care and Justice) (Scotland) Bill^[206]. The Bill completed Stage 1 in June 2023 and is currently subject to detailed committee scrutiny at Stage 2. The Bill includes measures to improve children’s experiences of Scotland care and justice system.

If passed by the Scottish Parliament it will deliver improvements to children, young people and communities and will see an end to the detention of children up to age 18 in Young Offenders Institutions. Secure accommodation will instead be used where detention in a locked facility is required.

We continue to promote the implementation of standards for those working with children in conflict with the law, as published in June 2021. This includes situations in which children require to be placed separately from others for safety reasons. Doing so is a last resort and should only be done for the shortest possible period of time.

Work being done with local authorities and partners will further enhance understanding of the support available locally, including community alternatives and best practice across Scotland.

Minimum Age of Criminal Responsibility

The Age of Criminal Responsibility (Scotland) Act 2019^[207] increased the age of criminal responsibility in Scotland from 8 years to 12 years (the highest age in any of the UK’s three legal jurisdictions).

The Act was fully commenced in December 2021 and the Scottish Ministers are required to review the operation of the Act with a view to considering whether further change to the age of criminal responsibility may be appropriate. The review must be carried out within 3 years of commencement.

The review process is now in its second year and the Age of Criminal Responsibility Advisory Group is making progress in gathering data relating to the use of police powers and the number of incidents of harmful behaviour by under 12s. The Advisory group has met twice since October 2022 and has work streams for the review on data and research, victim support, community confidence, and operational implications. The Advisory Group will provide the Scottish Ministers with recommendations in relation to the age of criminal responsibility by December 2024.

The Scottish Ministers, in turn, have a duty to report to the Scottish Parliament on the findings of the review within 12 months of the end of the review period (i.e. by December 2025).

The Promise^[208] requires Scotland to aim for the age of criminal responsibility to be brought in line with the most progressive global Governments, alongside efforts to prevent criminalisation of all children by 2030.

Relevant National Outcomes

• We grow up loved, safe and respected so that we realise our full potential.
• We live in communities that are inclusive, empowered, resilient and safe.
• We respect, protect and fulfil human rights and live free from discrimination.

Relevant Sustainable Development Goals

• 3 - Ensure healthy lives and promote well-being for all at all ages.
• 16 - Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

D) Ethnic Minority Community Experiences of the Criminal Justice System

Recommendation(s) and Responses

Relevant section(s) of the Scottish Government’s October 2022 UPR Position Statement

• 10(I) – Human Rights Training of Police Officials
• 13(C) – Stop and Search

Recent Progress and Next Steps

In relation to recommendations 78, 92, 93, and 96, all constables who join Police Scotland declare as part of their Oath of Office that they will “uphold fundamental human rights and accord equal respect to all people”.

HM Inspectorate of Constabulary in Scotland carries out regular inspections of police custody arrangements in Scotland in recent years to assess the care and welfare of detainees. Independent Custody Visitors monitor the welfare of people detained in police custody facilities (“PIRC”) independently investigates incidents involving the police including allegations of police misconduct.

In relation to recommendation 92 - the Scottish Government is unaware of specific reports of this nature being made to the UNCAT in relation to Scotland.

The Scottish Prison Service (SPS) seeks to provide a caring and compassionate service for all those in its care. The Prisons and Young Offenders Institution (Scotland) Rules 2011^[1] describe at Rule 91 when force can be used against a prisoner. Specifically, force may be used only where necessary taking account of all the circumstances of the situation, and any force used must be proportionate to the risk posed by the prisoner and no more than necessary in the circumstances.

Comprehensive control and restraint training is an essential part of the SPS Officer Foundation Programme. All operational staff must be deemed ‘competent’ in this area and are required to complete an annual refresher course, where they must demonstrate their competence to utilise approved control and restraint techniques. Understanding of Rule 91 and the circumstances in which force can be applied is a core competency assessed during this training.

All allegations of inappropriate use of force within our prisons are investigated by SPS. Where appropriate, complaints are referred to Police Scotland. Processes are in place for the timely reporting of use of force via SPS reporting procedures. Heads of Operations in local establishments review each Use of Force form as part of the assurance process that force has been used in line with Rule 91.

If there is a situation where an individual has exhausted the internal complaints procedure (complaints can be made confidentially through the internal process) and they are not satisfied with the response, they can refer their complaint to the Scottish Public Services Ombudsman (SPSO). Copies of the SPSO complaint form can be obtained from all residential areas.

Independent Prison Monitors (IPMs) are volunteers who are attached to a specific prison, and are representative of the communities that prisoners come from. Prisoners can contact them confidentially, and IPMs have the right to investigate any complaint raised by a prisoner. IPMs will also encourage prisoners to make use of the formal SPS Prisoners Complaints process or (where relevant) the NHS Complaints. IPMs may assist prisoners to prepare a SPS Prisoner Complaint in a support/advocacy role.

Relevant National Outcomes

• We live in communities that are inclusive, empowered, resilient and safe.
• We respect, protect and fulfil human rights and live free from discrimination.

Relevant Sustainable Development Goals

• 16 - Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.