Chapter 4 The Purpose and Use of the Open Estate
"Scotland also needs a well-run open estate because it is not in the public interest to release long-term prisoners from closed institutions without preparing them for release and training them for freedom." 8
McLeish Commission Report
The Purpose of Open Prison
4.1 In Chapter 1, I discuss why the Parole Board requires prisoners to experience open prison. All professionals that I talked to (Governors, prison managers, and social workers) were supportive of the need for an open prison. One or two suggested that the way forward was to make available 'open conditions' from a prison nearer to the prisoner's home by creating small units adjacent to prisons, but all were convinced of its need.
4.2 Open Prison provides the opportunity for transition - that is a period of adjustment from the closed institutional experience of prison to being able to cope in the 'outside world' of the community. When a prisoner arrives in Open prison he is already 'in the community'. For much of the time there are no barriers of any kind between him and the world around. It is therefore important that he is supported by staff (and other agencies) through this transitional phase, and that through rigorous assessments his needs and risks are understood, and there are appropriate management plans in place to manage, guide and support his reintegration into the community. This is no easy task. It requires resources and caring specialist staff who can focus on providing the support needed and also intervening, managing, laying down boundaries and providing control when necessary. It may be a tall order and difficult - but it is very necessary if former serious and dangerous offenders are to return back to society more able and determined to lead law abiding lives.
4.3 To provide such a service requires focus and resources. It can only be provided effectively if those in Open prison (staff and prisoners) are clear as to what the purpose of Open prison is and the prisoner's reason for being there. There always has been a second and competing use for open prison. That is - it is less restrictive and more economic. Less restrictive in the sense that prison is a traumatic and damaging experience and Open prison conditions are likely to have less negative impact than being incarcerated in a closed institution. It can also be cheaper to house prisoners in accommodation with a reduced security bill. In his report on security, Lord Mountbatten put it this way in 1966:
"Nothing which I say subsequently in my Report is intended to suggest a reversal of the trend towards treatment in open conditions. On the contrary … many more prisoners now in closed conditions could be transferred to open prisons without danger to the public and with advantage to the Exchequer, the morale of prison staffs, and the prisoners' prospects of rehabilitation." 9
4.4 However, while holding prisoners in the least restrictive prison conditions is desirable, and indeed would reflect the European Prison Rules 10, it has the effect of detracting from providing transitional support for those serving long sentences who need a period of re-adjustment and testing before release. The purpose of Open prison has been further confused by the pressure within SPS on places. The record high numbers being held in prisons has resulted in SPS trying a range of measures to reduce that pressure. Home Detention Curfew ( HDC), Extended Home Leave ( EHL) for periods of 7 days 11, and Continuous Cell Occupancy ( CCO) where the bed is vacated while a prisoner is on Extended Home Leave ( EHL) to enable an additional prisoner to be held in the Open prison have all been introduced to assist with coping with high numbers in crowded local prisons. Finally, the availability of accommodation in Open prison was increased not only by the impact of the EHL and CCO schemes but by the addition of a new accommodation wing. Castle Huntly's design capacity is now 285 and Noranside 140, a total of 425 places. Because of pressures they are allowed to hold up to 519. Nevertheless, it must be recognised that despite continuing pressure from the growing numbers, SPS has in the last year, since Foye, taken greater care on who is sent to Open Prison and fewer now go, resulting in under-usage of an increased capacity.
4.5 Since 2004 the 'driver' for filling places in the Open Estate has been the pressure of high numbers in prison, the Napier case 12 and prison conditions and not the meeting of specialised needs of a smaller number of serious long term offenders coming to the end of their sentence. Despite warnings, the continuing pressure of the increasing tide of prisoner numbers has had its effect. The Foye Report stated:
" Decisions must always be made on the basis of public safety rather than on expedience but the population management pressures on prison staff create undeniable tensions" 13.
In the recent Prison Inspectorate Report on the Open Estate, the Chief Inspector, Dr Andrew McLellan said:
"The conclusion of the McLeish Commission was "The Commission recommends that preparing for release and training for freedom be retained and reinforced as the proper purposes of the open estate - not easing overcrowding." Despite the criticisms expressed above, this report makes it clear that the SPS has learned lessons about the Open Estate in the past year and has made considerable improvements. This is a decisive moment for the future of the Open Estate. The conclusion of the McLeish Commission, reached after much study by an expert group, should not be lightly set aside. The evil of overcrowding across all Scottish prisons is very likely to reverse the progress and destroy the improvement demonstrated in this report. Since there is nowhere else to put prisoners it may be that a fence has to be put round the Open Estate and it is forced to become an ordinary prison to ease overcrowding. Who suffers most when prisoners are released from prison not prepared for safe, decent lives in the community? It will require courage to maintain open prisons which are not full in a time of unprecedented overcrowding: but it is courage which will serve the public good." 14
The McLeish Commission were invited to review the Open Estate and make comment in relation to the Foye case. They, also, in part citing Audit Scotland's Report 15, stated:
"Though there is no doubt that the Scottish Prison Service made mistakes in its management of Robert Foye. In many respects his case provides a stark and tragic example of why imprisoning too many people makes the community less safe rather than more safe. In recent years, the open estate has been used to ease overcrowding as well as to prepare long-term prisoners for release. … the prison service resources were stretched to the limit by over-crowding. To allow this situation to continue is to compel the Scottish prison Service to divert time and energy away from detaining and rehabilitating serious offenders to dealing with the troubled and the damaged. 16"
4.6 In summary, open prison is necessary for the re-integration of serious offenders. Its purpose has been widened and its effect diluted by using it as a relief for overcrowded prisons. Over recent months as the new Foye criteria have taken hold, and with access to HDC extended, numbers in the Open Estate have diminished creating unfilled places. At the beginning of June 2009, there were 306 prisoners in the Open Estate, of whom 52 were STPs. In my view there still remain some inappropriate prisoners held in open conditions, both long term and short term, and they are there too soon. I now want to consider each of these issues in turn.
Long Term Prisoners
4.7 The Prisoner Supervision System report (2000) stated:
"All LTPs are eligible for Parole. We consider that access to Open Prisons, and the opportunity to prepare for release and be tested in less restrictive conditions, should exist principally to LTPs prior to the Parole Qualification Date ( PQD). We are of the view that, in the "best" cases, the first stage of this preparation should normally commence approximately 2 years before a prisoner's PQD [through 'Top End' facilities]. … Subsequently, they should be normally eligible for progress to Open Prison no earlier than 1 year before their PQD." 17
The group considered when was the appropriate time to move a long term prisoner to Open conditions. Unfortunately, there is no research evidence on this matter to assist. Some Governors expressed the view that it might be useful to commission research on when is the most effective time to transfer prisoners to Open conditions, and also to evaluate the benefits of open conditions and access to the community. I would support that view. Little research has been undertaken on the Open Estate. A study undertaken by Reid Howie (2003) 18 examined the range of prisoner needs and what services were available in the Open Estate to meet them. It did not evaluate them. It might prove beneficial if evaluative research could be undertaken on the use of open prison 19.
Recommendation 6
I recommend research be undertaken to determine the efficacy of Open prison, its benefits and the most effective time for transfer of prisoners to open conditions.
4.8 The view of the group was that although each prisoner has individual needs, 1 year provided sufficient time for supporting the transition back to the community and to allow sufficient testing to enable the Parole Board to reach an informed view. Indeed, there are expectations and momentum created by transfer to open conditions and these can wane the longer the stay in open.
4.9 In 2004 and in 2007, SPS amended their Management Rules to enable Long Term prisoners ( LTPs) to access Open prison earlier in their sentence. The SPS Management Rule which prescribed that long term determinate and life sentence prisoners could only be eligible for Open prison 1 year before their Parole Qualification Date ( PQD) was extended to 2 years in 2004 20. The circular stated:
"It has therefore been recognised for some time that we require to review the above PSS Management Rule in order to establish what additional LTP spaces may be available to generate movement and maximise accommodation".
In 2007 there was a further extension under the Management Rules which extended the prospect of access to the Open Estate to Long Term Prisoners and Short Term Prisoners 21.
4.10 Governors have commented that staying in open conditions for too long could have adverse effects with prisoners getting bored and expectations not being realised. A few felt that this could mean 'setting him up to fail'. In my view, having too many Long Term Prisoners in open makes it harder for staff to concentrate on those who they need to get ready. Some 37 LTPs were in Open conditions with over 1 year still to serve before their PQD22. Indeed, 2 STPs also had over a year left to serve before release (unless released early on HDC). In looking through printouts of transfers I came across 4 examples of prisoners being sent even earlier than 2 years. One case was of a prisoner being sent 2 years and 4 months ahead of his PQD. This not only contravened SPS's own Management Rule, but meant he would be sitting in open prison a long time before active consideration of his case. As it happened he absconded while on home leave, still having over 2 years to run before his PQD. In fact, 3 of the 4 cases were returned to closed conditions.
4.11 I have already explained how sentences work, i.e. a long term prisoner will be released at the two-thirds stage and is eligible for parole from the half-way stage. In my view, Long Term Prisoners are able to access Open conditions too early in their sentence.
Recommendation 7
I recommend that Long Term Prisoners should not be eligible to be transferred to Open prison any earlier than 1 year before their Parole Qualification Date.
4.12 Open prison is not an automatic right - it is there for those who warrant it. Inevitably, implementation of this recommendation will mean a reduction in numbers of LTPs in Open conditions at any one point in time. However, it does not mean that there has to be any lessening of numbers going to, and benefitting from, Open conditions. What it will mean is that there will be fewer prisoners there for shorter periods and staff will be able to focus on their needs and public safety issues. Overall, the same number of LTPs should still be able to go, but their experience should be improved, focused and purposeful. This change should also benefit public confidence and restore, to a greater degree, understanding of sentencing and transparency in delivering its intention.
Short Term Prisoners
4.13 From what has been said above it is clear that the principal task of Open prison is to help prepare Long Term Prisoners for release. For many years the system has been that Longer Term Prisoners take priority but that Open prisons will take Shorter Term Prisoners if there is room. The range of STPs eligible was widened in 2007 by changes to the Management Rule. If one accepts that Open prison has benefit for those serving long sentences because it helps them get acclimatised to life in the community - this may not be necessary for someone who has been in prison for only a few months. In my view short term prisoners are a distraction from the real purpose of Open conditions. Also, they are likely to be there for an even shorter time because they are able to access Home Detention Curfew ( HDC) from Open conditions. So there is a large churn of them, which creates additional work for staff. The reason for larger numbers of STPs having been in open was not so much about meeting their needs, but in the need to create room in crowded local prisons. The answer to that problem lies elsewhere and is certainly linked to finding a solution for the growing numbers of Remand and Short Term Prisoners.
4.14 When a Short Term Prisoner is transferred to Open conditions he or she will be eligible for Extended Home Leave ( EHL) and so one week in four they will be away from prison and back home and with their mates. There is no 'tag' while they are on EHL. Then, as soon as they qualify for Home Detention Curfew ( HDC) which is after 1 month or _ of sentence (whichever is greater) and providing it is not longer than 180 days still to run they can be granted release on a curfew licence - an electronic monitoring tag. So STPs come to open prison, go on extended home leave for 1 week in 4 and then qualify for HDC. What is the purpose of all this? Except to place additional demands on staff and make room in local prisons. If Short Term Prisoners can be home 7 days every month and then released on a tag, why not just simply amend the regulations and release them earlier from the local prison instead. There are already delays in getting Home Background Reports for those going to Open conditions - why not restrict this requirement to those LTPs who are preparing for release? HDC is a better option for suitable, low risk, STPs. The Open Estate should be kept for rehabilitating LTPs.
4.15 In my view SPS should give serious consideration to restricting Open prisons for use only by Long Term Prisoners. This is particularly the case now that STPs are also eligible to access HDC. HDC is already available from closed prison, and consideration should be given to look at the policy and decide whether it should be extended to a broader range of STPs. Indeed, HDC already provides through electronic monitoring greater control over offenders than when on extended home leave. There could also be consideration of the requirement for work, training, or 'community payback' while on periods of HDC. These are not issues within my remit. However, if Open prison is to be allowed to concentrate on its important function for Long Term Prisoners nearing the end of their sentence, then there will have to be a re-think and changes to policy and the system if SPS is to cope also with the demands of overcrowding in prisons. I accept that these cannot be accomplished overnight.
Recommendation 8
I recommend that Open prison be restricted for use only by Long Term Prisoners.
4.16 There are other advantages to restricting the use of Open prison to only LTPs. Long Term Prisoners are located in specialist facilities because they have different needs from STPs. They are unsettled by the arrival and departure of other prisoners (and because changes can cause a range of problems in prisons, including issues of drugs, violence and personal safety). This is what happens in Open prison with a mix of short and long term prisoners. It is natural that wherever a prisoner settles, he would like it to feel a bit like his home, to personalise his environment. It gives him (and the prison) stability, it provides a feeling of 'ownership' and a common bond which helps with settling and becoming part of the community in prison. Both the comings and goings of short termers and the horrendous system of Continuous Cell Occupancy (which means that he packs up his belongings before he goes on home leave and comes back to a different bed on his return) destroy feelings of belonging, loyalty and relationships and can create alienation. That could add to any other reason why a prisoner might not want to return to his Open prison, i.e. abscond. Open prisons need to focus on their long term clientele.
4.17 Resources will always be tight, so limiting Open prison to those who require it 23 makes sense. Open prison staff and resources can be focused on ensuring appropriate management of the prisoner in the community, providing and supporting prisoners through placements, working in partnership with a variety of agencies, meeting the range of outstanding needs, preparation for release and return to family. Open prison staff require to keep a clear focus if they are to be able to report in an informed way to the Parole Board. Far from Open prison being an easy option, it is a challenge for the prisoner as he tries to live a law abiding life in less restrictive conditions. Having a clear focus on LTPs will help with managing and monitoring risk.
4.18 Short Term Prisoners, by the nature of their sentence are not considered dangerous or serious criminals. Yet they are released home on Home Detention Curfew with an electronic tag. The Long Term Prisoner is allowed unsupervised into the community and on home leave. It has been suggested to me, and makes sense, that LTPs should also be tagged - and for the limited number in Open prison, this should be a GPS tag. I have not studied the technology behind this proposal or its cost, but it does seem sensible to have a system which can tell where they are, or if they have tampered with the equipment. I suggest that GPS tagging be considered for Long Term Prisoners in Open conditions.
4.19 Implementing these changes will create population pressures within the system - but they will also create opportunities for rationalisation and a better focus on public safety. One such area is MAPPA. These are Multi Agency Public Protection Arrangements. Introduced under the Management of Offenders etc. (Scotland) Act 2005 24, the Act provides a duty between agencies - particularly police, social work and prisons - to co-operate with each other to assess and manage the risk posed by certain offenders in the community. These arrangements apply currently to sexual offenders who have been released or will be released under supervision or licence. Every LTP is released under these requirements. I can see little reason why prisons should wait till shortly before release to begin MAPPA arrangements with partner agencies. Instead of 3 months before release, where applicable these arrangements should be initiated prior to transfer to open prison. It may not apply to many in open conditions since MAPPA arrangements generally apply to those presenting the highest risk, but since all determinate sentenced prisoners must be released at some point, it makes better sense in terms of public safety to consider transfer to open prison as already constituting access to the community. It will also support the process of ongoing monitoring and risk management. I suggest that MAPPA arrangements are commenced before relevant offenders are transferred to open conditions.