GUIDANCE FOR THE INSPECTION OF PENAL ESTABLISHMENTS IN SCOTLAND
Introduction
1. The purpose of this Guidance is to set out the principles and processes for the inspection of prison establishments and legalised police cells in Scotland. It outlines the responsibilities of the Scottish Executive and the Scottish Prison Service in facilitating the inspection process and in responding to reports produced by HMCIP. This Guidance supersedes SHHD Circular No. 21/1981.
Status, Role and Functions of HM Inspectorate of Prisons
2. Section 7 of the Prisons (Scotland) Act 1989 (as amended by the Scotland Act 1998) provides the statutory basis for Her Majesty's Inspectorate of Prisons in Scotland. HMIP operates independently and impartially from the Scottish Prison Service. HM Chief Inspector of Prisons is responsible for ensuring that a systematic programme of inspection is carried out and that findings are reported to the Minister for Justice. The Chief Inspector shall in particular report on the treatment of prisoners and conditions in prisons. The Chief Inspector is directly accountable to the Scottish Ministers, which guarantees independence of inspection, review and reporting.
3. HM Inspectorate of Prisons is required to undertake the following functions:
Inspection of all prison establishments in Scotland;
Inspection of legalised police cells;
Inspection of escorts;
Thematic inspections and reviews as necessary;
Report on any matter connected with Scottish prisons as directed by the Minister for Justice;
Production of an Annual Report.
Terms of Reference
4. HM Chief Inspector is a member of the Scottish Executive Justice Department and as such operates within the Scottish Executive's Aim, Vision, and Values. HMCIP reports to the Minister for Justice.
5. HM Chief Inspector will conduct regular inspections of individual prison establishments and legalised police cells in Scotland. The scope, focus and content of any inspection will be decided by HMCIP, taking into consideration the particular circumstances relating to any given establishment at the time of inspection. It is expected that any inspection and subsequent report will cover:
Physical conditions prevailing in an establishment;
Treatment of prisoners;
Facilities, services and opportunities available to address offending behaviour and the accessibility of these;
Preparations in place for returning prisoners to the community;
Any other relevant matter as the Minister for Justice may direct or HMCIP may choose.
6. HMCIP will submit an Annual Report to the Minister for Justice which will be laid before Parliament and published. There will be no requirement for a Ministerial foreword. Reports on individual establishments will also be published without Ministerial forewords, as will thematic reports when these arise.
Inspection of Establishments
7. The principal concern of the Chief Inspector is the regular and rigorous inspection of individual establishments within the Scottish penal estate. While HMCIP sets his own agenda for any inspection, it is expected that this will reflect the prisoner population, operational practice and regime in the establishment concerned, as well as reflecting Service-wide initiatives. Wherever possible HMCIP should draw upon and use standardised indicators and management information measures available from individual prisons and from SPS Headquarters, while retaining the right to have access to any ad hoc data as may be necessary to complete an inspection.
8. The general principles of inspection may be summarised as follows:
In carrying out inspections and in preparing reports, HMCIP will be independent of political influence, the Scottish Executive Justice Department, the Scottish Prison Service and Governors-in-Charge of establishments;
Inspections and the reports resulting from them will be balanced, fair and open;
In inspecting and reporting upon the treatment of prisoners and the conditions within prisons, inspections will make assessments against standards which have been clearly defined;
Strategic and relevant documentation will be provided by Governor-in-Charge and SPS Headquarters to HMCIP on request;
Confidential information supplied will be treated as such;
Each inspection should be responsive to an establishment's individual circumstances;
HMCIP will attempt to keep disruption to normal regime activities to a minimum;
The inspection team will give clear oral feedback to senior management;
A report to the Minister for Justice will be produced which will identify main points for action by the individual establishment and/or SPS, and highlight areas of good practice.
9. The Chief Inspector will be responsible for the inspection of legalised police cells and will apply the same considerations to these inspections as to penal establishments. Arrangements for conducting inspections of legalised police cells will be made directly with the appropriate Chief Constable.
The Inspection Programme
10. HMCIP will be responsible for drawing up his own inspection programme which will be consistent with the wishes of the Minister for Justice. He may also wish to take into account any expressions of topical interest or any contemporary indication of public concern on penal matters when framing the inspection programme.
11. While the independence of HM Inspectorate of Prisons ensures the freedom to inspect establishments, advice should be taken from SPS Senior Management when setting the agenda regarding any prevailing operational circumstances (e.g. incidents, public health issues etc.)
The Conduct of Inspections
12. The method of conducting inspections will be a matter for the Chief Inspector. HMCIP is entitled to delegate the conduct of a particular inspection (or if appropriate, investigation of an incident) or part of an inspection to the Deputy Chief Inspector or to another member of the inspection team.
13. Prior to an Inspection, HMCIP or a member of the inspection team should make contact with the Governor-in-Charge of the establishment to be inspected and with SPS Headquarters regarding the range and content of pre-inspection data. Other types of preliminary briefing and specialised information which is non-routine and requires bespoke preparation ought to be outlined at the same time.
14. The Chief Inspector and members of the inspection team are entitled to access any part of an establishment, to see any relevant papers or records held in the establishment or at SPS Headquarters and to speak to any staff member or prisoner privately and in confidence.
15. Statements made by prisoners to Inspectorate staff will be treated anonymously and in confidence except when there are disclosures relating to potential self-harm or to the potential harm of others. Prisoners should be advised that if such disclosures were made, these would be brought to the attention of the appropriate authorities and welfare services.
Thematic Inspections
16. Thematic Inspections have been carried out periodically since 1986 and have covered a range of substantive topics. It will be at the discretion of HMCIP to assess whether there is an identifiable need or reason to conduct a Thematic Inspection at any given time. The arrangements for the publication of Thematic Inspections will be the same as those for Reports on individual Establishments.
Investigation of Incidents
17. There are well established procedures within SPS for the internal investigation of major incidents in establishments. Where there is evidence that a criminal offence has been committed during the course of an incident, the matter would also be referred to the police for further investigation and for onward referral to the Procurator Fiscal if appropriate. If the incident has been of sufficient seriousness, the decision as to whether an independent investigation by HMCIP is required will be one for the Minister for Justice to take in light of the circumstances prevailing at the time.
The Inspection Team
18. HMCIP receives professional support from two senior SPS governors seconded to HMIP and an official from the Scottish Executive. Secretarial and administrative support is also provided by the Scottish Executive to facilitate the inspection programme. In addition to the staff, HMCIP can recruit relevant personnel, particularly those who have recognised specialist skills which would benefit the inspection process. Personnel recruited by HMCIP to assist with one or more inspection will have the status of Associate Inspector and will require, if not already security cleared, to be checked and passed by Disclosure Scotland at Basic Level. HMCIP may recruit specialist inspection advice from other sources including SPS, other Prison Services, other Inspectorates, and specialist organisations in the fields of criminal justice, health, education and social work.
19. From time to time, HMCIP may wish at his discretion to invite others to attend and observe, but not to participate in, the inspection process. Such personnel will be considered guest observers and will require appropriate security clearance. They will also comply with all Health and Safety regulations applying to penal establishments. Guest observers will be required to hold what is witnessed in confidence until such times as HMCIP's report on the establishment is published.
Consideration and Publication of Reports
Annual Reports
20. There is a statutory obligation for HMCIP to produce an Annual Report which is laid before the Scottish Parliament by the Minister for Justice and published. HMCIP determines the form and content of the Annual Report. There will be no requirement for a Ministerial foreword to be included in the Annual Report.
21. The Scottish Prison Service and the Minister for Justice will be given advance sight of the Annual Report in order that responses can be prepared regarding any formal recommendations or suggestions emanating from it. A minimum of 25 working days in advance of publication would allow a considered response from SPS to be collated and a Ministerial response (if required) to be prepared and cleared.
22. The SPS response and Ministerial response (if required) may be published at the same time as, but separate from, HMCIP's Annual Report.
Reports on Individual Establishments
23. Reports on individual establishments will be published. HMCIP will determine the form and content of Reports. Such Reports will not contain a Ministerial foreword. The consideration of, and response to (if necessary), HMCIP reports on individual establishments by SPS and the Minister for Justice, will be as described above.
Thematic Inspection Reports
24. The publication of, and response to, reports on Thematic Inspections will be as above.
Reports on Investigations of Serious Incidents at the request of the Minister for Justice
25. The presumption will be in favour of full publication of any report by HMCIP on a Serious Incident in prison requested by the Minister for Justice. However, if material facts emerge in the course of an investigation, the publication of which would a) prejudice any pending or continuing criminal investigations or court proceedings; or b) compromise SPS operational security in any way, then these findings may be submitted to the Minister for Justice by means of a confidential annex or separate private letter.
News Releases and Press Conferences
26. HMCIP will advise the Minister for Justice on a case by case basis as to whether the publication of any Inspectorate Report is to be accompanied by a News Release (released through SE Press Office), or a Press Conference, or nothing. Although the decision regarding Press involvement is formally one for the Minister for Justice to take, the presumption is that such requests will normally be approved. The Minister, however, will retain control over the timing.
27. The Scottish Prison Service should have reasonable notice of any News Release or Press Conference in order to prepare any Agency or Ministerial response required.
Post-Inspection Feedback and Dissemination to Establishments
28. HMCIP will offer summary oral feedback to GICs and Senior Management in establishments within a reasonable time period following the completion of the inspection process, outlining the critical findings and key points for action. Such feedback will allow management teams to begin to address timeously areas identified as being in need of improvement.
Correspondence with Prisoners and Prisoners' Complaints
29. HM Inspectorate of Prisons does not deal with the investigation or pursuit of individual prisoners' grievances. A prisoner who writes to HMCIP, or speaks to a member of the Inspectorate during the course of an inspection on such a matter, should be advised of the normal channels through which grievances can be pursued. Prisoners should be referred to SPS's own Grievance Procedures as well as the Office of the Scottish Prisons Complaints Commissioner. Letters written to HMCIP from outwith prison on matters relating to the circumstances of an individual prisoner's case should be referred to the Scottish Prison Service.
30. There is, of course, nothing to prevent HMCIP or any member of the inspection team from gathering oral evidence from prisoners during a normal inspection or special investigation or from prisoners freely volunteering such points of view, provided the caveat expressed above is observed.
Correspondence with Members of Parliament (Scottish, UK and European), Members of the Public and External Organisations
31. HMCIP will normally refer to SPS any correspondence which deals with prison service administration. Correspondence on issues surrounding individual cases will be dealt with by the Scottish Prison Complaints Commissioner. When HMCIP does engage in correspondence in relation to prison conditions or the treatment of prisoners he will do so on the basis of judgements reached after inspection.
32. Any correspondence from MSPs, MPs or MEPs will be answered by Ministers in the usual way.
Criticism of Staff
33. HMCIP may from time to time find it necessary to comment critically on the running of an establishment or on the handling of an incident. The process by which the Chief Inspector reaches such a conclusion will be a matter for his own judgement.
Right of Reply
34. Personal criticism of named individuals should not normally appear in a published report. However, criticism of an establishment or of a service within an establishment may sometimes be taken personally and it will usually be clear to those who know the establishment that a particular individual has some responsibility for the shortcomings criticised. The individual concerned will normally have had an opportunity to discuss and refute any unfair criticism, but nevertheless the individual may want to justify or defend a position after the report has been published. It would be open to the individual to express views orally or in writing to the Chief Executive of the Scottish Prison Service and/or HMCIP and it would also be open to the appropriate staff association to make a public statement on behalf of the individual.
Liaison with Scottish Prison Service
35. SPS will supply information as asked by HMCIP unless there are security reasons for withholding it. The Inspectorate will keep abreast of developments in SPS policy and stay informed of current issues affecting the Service. SPS Annual Reports, Business Plans, Occasional Paper Research Series Reports, policy statements and relevant communications issued to establishments will be forwarded to HMCIP as a matter of routine.
36. Regular formal contact should be maintained between HMCIP and SPS. In addition to this contact, SPS will nominate a dedicated liaison officer at Senior Management level who will act as a focal point and co-ordinating link for dialogue between the two agencies.
Utilisation of Research Evidence
37. SPS Research has a Service Level Agreement with HMCIP for the delivery of research based evidence which can inform the inspection process. Successive annual Prison Survey results will be made available to HMCIP to enable the inspection team to focus on particular issues of interest or concern raised in a given establishment at the time of survey. Specific substantive research reports published as part of the SPS Occasional Paper Research Series will also be forwarded to HMCIP for information.
38. To support the inspection process SPS Research will also provide, as resources permit, an ad hoc service to supply and/or analyse further existing survey data as required.
39. Should HMCIP wish to initiate primary pre-inspection surveys, a member of the Inspectorate should notify in advance SPS Research regarding the content and timing of its conduct. This is to avoid duplication of effort and research overload, since both original research projects and routine data gathering for research and policy purposes are widespread across the estate.
Review of the Guidance
40. This Guidance should be reviewed every five years or as necessary.
14 July 2004