(This note is not part of the Rules)
These Rules replace the Prisons and Young Offenders Institutions (Scotland) Rules 2006 as amended. While some of the changes from the 2006 Rules have been to modernise the language of the Rules there are many changes to the substance of the Rules as well. The main substantive changes from the 2006 Rules are as follows:
Section 110 of the Criminal Justice and Licensing (Scotland) Act 2010 will remove the duty on the Scottish Ministers in section 3A of the Act to secure the provision of appropriate medical services in prisons. This duty will then fall on Health Boards under the National Health Service (Scotland) Act 1978. As a result all rules imposing obligations on medical officers have been removed from these Rules.
A new rule has been added (rule 41) which allows a Governor to order that a prisoner be accommodated in specified conditions following advice from a healthcare professional. This allows certain measures to be taken to protect the health or welfare of the prisoner or other prisoner and the measures include accommodating a prisoner in a specified part of the prison or separately from other prisoners.
The rules on storage of a prisoner's property (rules 46 to 48) have been expanded to clarify what property can be stored in a prisoner's cell and what must be stored in prison storage facilities. New rules have been added (rules 49 and 50) which set out Governors' powers to dispose of a prisoner's property in certain situations.
The rules in Part 8 relating to privileged correspondence (rules 56 to 59) have been expanded to make clear when such correspondence can be opened and, if opened, read by a prison officer. A new rule has been added (rule 60) which enables a person to request that the Governor takes steps to prevent correspondence from a prisoner.
The concept of “purposeful activities” has been introduced in Part 9 of the Rules which encompasses work, education and counselling. The Governor is now under an obligation in terms of rule 84 to provide a range of purposeful activities for prisoners.
The powers of prison officers to search prisoners (rule 92), visitors (rule 106), person providing contracted out services to the prison (rule 108), healthcare professionals (rule 108) and officers and employees (rule 142) have been amended so as that, as far as possible, they contain the same powers and restrictions on those powers.
A new rule has been added to Part 10 (rule 104) setting out the Governor's powers to seize prohibited articles and unauthorised property and what steps the Governor can take to deal with these items once seized.
The rule relating to the admission of visitors (rule 105) has been extended to allow officers to request that a visitor has their photo taken and retained on a database for the purposes of prison order an security, the prevention and detection of crime and the safety of any person within the prison.
The rule relating to disciplinary appeals has been moved into Part 11 and has been expanded to clarify to whom such an appeal should be made in certain circumstances.
The complaints procedure in Part 12 has been streamlined into a two stage process – firstly, a complaint to the residential first line manager and, secondly, a complaint to the internal complaints committee which is ultimately ruled on by the Governor. Following the transfer of prisoner complaints from the Scottish Prison Complaints Commission to the Scottish Public Services Ombudsman by the Scottish Parliamentary Commissions and Commissioners etc. Act 2010, the Governor is now under an obligation in rules 123(10) and 124(6) to inform the prisoner of the prisoner's right to refer the complaint to the SPSO and of the processes involved in such a referral.
The various forms of temporary release have been amended so that there are now five separate forms of temporary release in Part 15. These are: Home leave; Unescorted day release; Unescorted day release for compassionate reasons; Temporary release for work; and Unescorted day release for health reasons.
These Rules are drafted in gender neutral terms and the numbering of each Part reflects the numbering of the Parts of the 2006 Rules in order to ensure ease of reference for those who have worked closely with the 2006 Rules. Each Part of these Rules can be summarised as follows:
Part 1 of the Rules (rules 1 to 7) makes provision for citation, commencement, interpretation and application. It also provides for certain duties of the Governor in relation to elimination of discrimination (rule 6) and the making available of a copy of the Rules and of any directions to officers and prisoners (rule 7). Rule 3 provides that the Rules apply to young offenders institutions and to young offenders as they apply to prisons and prisoners. Rule 4 makes provision for the application of the rules to contracted out prisons.
Part 2 (rules 8 to 16) deals with matters relating to reception of prisoners, prisoner records, classification of prisoners and the location of prisoners within prisons. In relation to reception, there are provisions as to the manner in which a prisoner is to be dealt with including the information the prisoner must be given (rules 9 to 11). Rules 12 and 13 deals with registration and records of prisoners while rule 14 relates to the classification of prisoners. Rule 15 deals with the allocation of prisoners within prisons and rule 16 with the separation of different categories of prisoners.
Part 3 (rules 17 to 27) relates to procedures for assigning supervision levels to prisoners and for imposing special security measures on prisoners. Rule 17 sets out what supervision levels are for while rules 18 to 21 set out how a supervision level is to be assigned and subsequently reviewed. The imposition of special security measures is dealt with in rules 23 and 24 while the requirement to conduct a review of these measures is set out in rule 25.
Part 4 (rules 28 to 35) regulates matters affecting the physical and personal environment in which prisoners are confined. Rules 28 to 30 specify conditions relating to prisoners' cellular accommodation. Rules 31 to 33 make provision for requirements in relation to prisoners' clothing. Rules 34 and 35 set out requirements in relation to, respectively, prisoners' hygiene and the provision of food for prisoners.
Part 5 (rules 36 to 43) makes provision in relation to the health and welfare of prisoners. This Part of the rules has been reduced significantly by the omission of all obligations on medical officers due to the transfer of prison healthcare to Health Boards. The rule on smoking (rule 36) has been amended so as to provide that prisons are non-smoking but smoking is permitted in a prisoner's cell unless that cell has been designated as non-smoking by the Governor. A new rule has (rule 37) been added to oblige the Scottish Ministers to provide accommodation for the provision of healthcare services by healthcare professionals in prison. The requirement on the Governor to notify a healthcare professional of any concerns relating to a prisoner's health (rule 38) remains as does the obligation to make arrangements for a prisoner to be treated by a medical practitioner or at a medical facility outwith the prison (rule 39). The Governor remains under an obligation to give effect to the recommendations of healthcare professionals (rule 4)). The new rule on accommodation in specified conditions (rule 41) is discussed above.
Part 6 (rule 44) has been restricted to setting out the rights of prisoners to practise their religion in prison and the duties and powers of the Governor to ensure or restrict the exercise of those rights.
Part 7 (rules 45 to 52) makes provision for the system of privileges that must operate within a prison and for the regulation of prisoners' property within the prison. Rule 45 requires governors to establish a system of privileges in the prison and the direction making power has been clarified so that provision can be made in a direction for the withdrawal of privileges. The storage and disposal of prisoners' property (rules 46 to 50) is discussed above. The provisions relating a prisoner's money and the supply of reading and writing material to prisoners are found in rules 51 and 52 respectively.
Part 8 (rules 53 to 79) deals with various matters relating to arrangements enabling prisoners to communicate with persons outwith the prison. Correspondence is dealt with in rules 54 to 62. Special provisions relating to certain privileged correspondence are contained in rules 56 to 59. The entitlement of prisoners to make telephone calls from the prison is regulated by rule 62 and any direction which may be made for the purposes of that rule. Visits to prisoners are provided for in rules 63 to 78. Rule 63 specifies the minimum entitlement to visits for prisoners (rule 64 making similar provision for untried and civil prisoners). Rule 65 enables certain prisoners to carry forward their unused visiting allowance to use that allowance at another prison. Rules 66 to 76 make special provision in relation to visits by legal advisers, procurators fiscal, police constables, representatives of diplomatic services and national or international authorities or organisations, persons in connection with legal proceedings, Members of Parliament, members of the Scottish Parliament, representatives to the European Parliament, the Parliamentary Commissioner for Administration, the Parole Board for Scotland, media representatives and persons in connection with disciplinary proceedings. Rule 77 enables the Governor to terminate visits in certain circumstances and enables the Scottish Ministers to impose such conditions as may be specified in a direction on the entitlement of a prisoner to receive visits. Rule 78 provides for the use of closed visiting facilities in certain circumstances. Special arrangements for prisoners committed to prison in default of payments are set out in rule 79 to enable them to communicate with any person to arrange payment of money in order to secure their release.
Part 9 (rules 80 to 89) makes provision in relation to work, education, earnings and recreation. Other than untried and civil prisoners, all prisoners are required to work subject to certain exceptions (rule 82). Prisoners who work are entitled to receive earnings for that work in terms of rule 86. The rule on purposeful activity (rule 84), which includes the provision of work, education and counselling, is discussed above. Rules 87 and 88 make provision in relation to exercise and recreation. Prisoners are not permitted to carry on any trade, profession or vocation from the prison but are not prevented from writing articles or books (rule 89).
Part 10 (rules 90 to 109) makes provision in relation to security matters and the control of prisoners. This part is broken down into four smaller sections – supervision and control of prisoners; confinement and custody of prisoners; seizure and control of property; and supervision and control of visitors. The general duties of the Governor and prison officers are dealt with in rules 90 and 91. The power of officers to search a prisoner is set out in rule 92 while powers to test a prisoner for controlled drugs and alcohol are set out in rules 93 and 94. The rules on confinement and custody of prisoners are set out in rules 95 to 101. The power to remove a prisoner from association is set out in rule 95 and this rule now clarifies how an extension to such an order granted by Scottish Ministers should be calculated. Rule 95 also provides for representations to be made by the prisoner at certain stages of the process. The seizure and control of property is addressed in rules 102 to 104 and the new power to dispose of these items (rule 104) is discussed above. Rules 105 to 109 deal with the supervision and control of prisoners including an officer's power to refuse access to a visitor who, amongst other things, refuses to consent to being searched or who does not satisfy the officer as to their identity. Visitors can be removed from the prison under rule 107 where, amongst other things, their conduct is prejudicial to the security and order of the prison. The powers to search visitors (rule 108), those providing contracted out services and healthcare professionals (both rule 108) coincide with the power to search officers and employees albeit that the power to search prisoners, by necessity, is more extensive.
Part 11 (rules 110 to 119) makes provision in relation to the disciplinary process. The acts or omissions constituting a breach of discipline are specified in Schedule 1. Rules 111 to 113 relate to the reporting and charging of breaches of discipline and specify the procedure to be followed at disciplinary hearings. Rules 114 and 115 regulate the imposition of punishments in relation to breaches of discipline. Rules 116 and 117 make specific provision for breaches of discipline committed in another prison or involving the use of controlled drugs. The rule on disciplinary appeals (rule 118) which was contained in Part 12 of the 2006 Rules has been moved to Part 11.
Part 12 (rules 120 to 125) makes provision in relation to requests and complaints by prisoners. The main internal complaints procedures are set out in rules 122 to 124. The process involves an initial complaint to the residential first line manager which can be made orally or in writing (unless allegations are made against an officer or employee) and a second stage process where the complaint is referred to the internal complaints committee. The committee make a recommendation to the Governor who must then decide whether to endorse or reject that recommendation and provide reasons to the prisoner.
Part 13 (rules 126 to 128) makes provision in relation to female prisoners, particularly pregnant prisoners or prisoners who have babies and who are permitted to have them in prison. The Governor must take account of the interests of the baby and the ability of the prisoner to care for her baby in deciding whether to permit the prisoner to have her baby with her in prison.
Part 14 (rules 129 to 133) makes provision in relation to arrangements for prisoners who are being transferred or released; and for part payment of fines by fine defaulters.
Part 15 (rules 134 to 138) regulates the temporary release of prisoners. The eligibility criteria for temporary release are set out in rule 134 and the procedure by which temporary release can be granted is set out in rule 135. The five different forms of temporary release are defined in rule 136 and the provision by which Governors can recall prisoners to prison from temporary release is set out in rule 137.
Part 16 (rules 139 to 144) makes provision in relation to officers and employees. It prescribes general duties and obligations (rules 139 to 141) and provides power to the Governor to order the search of officers and employees in certain circumstances (rule 142). Officers or employees must not make unauthorised representations to a member of the press in terms of rule 143.
Part 17 (rules 145 to 155) makes provision in relation to visiting committees. Rule 146 sets out the requirements for the constitution of visiting committees for prisons. Rule 147 requires at least one third of the members of each visiting committee for young offenders institutions to be women. Rules 148 to 154 regulate the proceedings of the visiting committees and the duties of members. Rule 155 sets out the application of Part 17 to visiting committees for legalised police cells. Schedules 2 and 3 set out which local authorities can appoint members of visiting committees and how those appointments should be made.
Part 18 (rules 156 to 158) contains supplementary provisions in relation to various matters. Rule 156 contains supplementary provision as to the making of directions under any of the direction making powers in the Rules. Rules 157 and 158, and Schedules 4 and 5, provide for the revocation of various rules and make various savings and transitional provisions.