The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules amend the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (“the Prison Rules”) in response to the coronavirus outbreak.

Rule 2(1) of the Prison Rules is amended to insert definitions of “coronavirus” and “for the duration of a coronavirus outbreak” into the Rules. These definitions support the effect of the other amendments made to the Prison Rules by these amendment rules. The amendments made by these rules will operate “for the duration of a coronavirus outbreak” which means the time period starting with the commencement of the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 and continuing until 30 September 2020.

Rule 19A provides flexibility for the duration of a coronavirus outbreak, in relation to when the supervision levels of prisoners are to be reviewed, making clear that for the duration of the outbreak, if it is not reasonably practicable to meet the time limits specified in rule 19 then the supervision level of prisoners must instead be reviewed as soon as reasonably practicable after those limits have expired, but otherwise in accordance with rule 19. The time limit within which a prisoner’s supervision level is to be reviewed after reception is extended from 72 hours to 7 days or as soon as reasonably practicable thereafter.

Rule 20A modifies rule 20(2) and (3) to provide flexibility in relation the procedure for notification of the assignment of a supervision level under rule 20 for the duration of a coronavirus outbreak. In addition, for the duration of a coronavirus outbreak, the requirement on the Governor to provide documents or a summary of information used in assigning a supervision level in accordance with rule 20(3) is modified to the effect that such information is to be provided where it is reasonably practicable to do so.

Rule 21A modifies rule 21(2) and (3) to provide flexibility in relation to the procedure for notification of assignment of a supervision level under rule 21 for the duration of a coronavirus outbreak. In addition, for the duration of a coronavirus outbreak, the requirement on the Governor to provide documents or a summary of information used in assigning a supervision level in accordance with rule 21(3) is modified to the effect that such information is to be provided where it is reasonably practicable.

Rule 33A modifies rule 33 for the duration of a coronavirus outbreak and has the effect of extending the period of time for which a direction may remain in force as provided for by rule 33(5). The effect of rule 33(6) is to allow further successive periods of 1 month during which the Scottish Ministers may by direction provide that rule 33(3) (provision of clothing to prisoners) applies, subject to restrictions as considered appropriate by the Scottish Ministers, in relation to prisoners (or categories of prisoner) in a prison. Where a direction is made under rule 33(5)(b) or (6), it may be revoked at any time by the Scottish Ministers at the request of the Governor. Rule 33(8) sets out that after such a direction is made, the Governor must take such steps as are reasonably practicable to notify prisoners who will be affected by the order of the effect of the order. When making a direction under this rule, the Scottish Ministers must set out the reasons for doing so together with the date and time that it comes into force and the date and time that it will expire.

Rule 34A modifies rule 34(1)(b) to the effect that for the duration of a coronavirus outbreak, where adequate arrangements cannot reasonably be made for prisoners to bathe or shower every day in terms of rule 34(1)(a), then prisoners must be provided with facilities to bathe or shower at least twice per week.

Rule 35A modifies rule 35 for the duration of a coronavirus outbreak and has the effect of extending the period of time for which a direction may remain in force as provided for by rule 35(5). The effect of rule 35(6) is to allow further successive periods of 1 month during which the Scottish Ministers may by direction provide that rule 35(1) and (3) (prisoners’ food and drink) applies subject to restrictions as considered appropriate by the Scottish Ministers, in relation to prisoners (or categories of prisoner) in a prison. Where a direction is made under rule 35(5)(b) or (6), it may be revoked at any time by the Scottish Ministers at the request of the Governor. Rule 35(8) sets out that after a direction is made, the Governor must, take such steps as are reasonably practicable to notify prisoners who will be affected by the order of the effect of the order. When making a direction under this rule, the Scottish Ministers must set out the reasons for doing so together with the date and time that it comes into force and the date and time that it will expire.

Rule 40A provides for prisoners in general, categories of prisoner or particular prisoners to be confined to their cells or prohibited from participating in specified activities, on the recommendation of a healthcare professional, in response to the effects coronavirus is having, or is likely to have on, or in relation to the prison. A recommendation can only last for 14 days unless it is withdrawn by a healthcare professional prior to that. Where a recommendation expires or is withdrawn then the Governor must cease to continue to confine prisoners to their cells or prohibit them from participating in specified activities. Rule 40A(5) to (7) include provision for extension of orders made under this rule by the Scottish Ministers for periods of up to 14 days at a time on the advice of a healthcare professional.

Rule 41A modifies rule 41(3) for the duration of a coronavirus outbreak, to provide that the period of time that the duration of an order of the Governor, that a prisoner be accommodated in specified conditions, is extended from 72 hours to 14 days. Further it modifies rule 41(12), to provide that during a coronavirus outbreak, where there is an extension under rule 41(10) or (11) then the period of the extension shall run until no later than 23:59 hours on the day falling 1 month from the expiry of the 14 day period, or any previous extension of that period granted under rule 41(10) or (11).

Rule 43A modifies rule 43 to the effect that for the duration of a coronavirus outbreak, the governor must, as far as it is reasonably practicable, provide reasonable assistance and facilities to every prisoner to maintain and develop relationships with family and friends and other persons and agencies under that rule.

Rule 52A modifies rule 52 to the effect that a prisoner’s entitlement to supplies of books, newspapers etc. under that rule is subject to such arrangements as the Governor considers safe and reasonably practicable for the duration of a coronavirus outbreak.

Rule 63A applies in relation to the effect of rules 63 to 76 and provides that the Governor may suspend prison visits where it is considered necessary and proportionate in response to the effects coronavirus is having or is likely to have on or in relation to a prison. Rule 63A(3) provides that in suspending visits, the Governor may make different provision for different purposes, including by reference to different types of prisoner and different types of visit. Rule 63A(4) provides that where a Governor has suspended visits under this rule, he or she must regularly review the suspension to assess whether it remains necessary and proportionate.

Rules 81A and 84A modify rules 81 and 84 respectively and provide that the Governor may suspend some or all work, educational activities, counselling and purposeful activities where it is considered necessary and proportionate to do so in response to the effects coronavirus is having, or is likely to have on or in relation to the prison. Where any such activities provided for by rules 81 and 84 are suspended by the Governor, then rules 81(4) and 84(5) provide respectively that the suspension must be reviewed regularly to assess whether it remains necessary and proportionate.

Rule 88A modifies rule 88 to the effect that the Governor may suspend some or all recreational activity in the prison where it is necessary and proportionate in response to the effects coronavirus is having, or is likely to have on or in relation to the prison. Rule 88(5) provides that any suspension under this rule is reviewed regularly to assess whether it remains necessary and proportionate.

Rules 111A modifies rule 111 for the duration of a coronavirus outbreak to the effect that a breach of discipline must be reported to the Governor in writing as soon as reasonably practicable.

Rule 116A modifies rule 116(2)(a) for the duration of a coronavirus outbreak by extending the period within which a prisoner may be charged for an alleged breach of discipline committed in another prison or during transfer from 3 days to 14 days, excluding Sundays and public holidays.

Rule 118A modifies rule 118(6)(b) and provides flexibility in relation to the deadline for providing a written decision in relation to disciplinary appeals for the duration of a coronavirus outbreak. Rule 118(6A)has effect so that if a written decision cannot be provided to a prisoner within 20 days of the appeal being made, as specified by rule 118(6)(b), it must be provided to the prisoner as soon as reasonably practicable after that.

Rule 120A modifies rule 120(2) and provides flexibility, for the duration of a coronavirus outbreak, in relation to when an officer must record a request for a prisoner to speak to certain persons and arrange for the request to be brought to the attention of certain persons where a request is made under rule 120(1). Rule 120A(3) in addition, provides flexibility in relation to when a Governor must ensure a letter is posted or delivered to an independent prison monitor for the duration of a coronavirus outbreak.

Rule 122A modifies rule 122(3) and (5) for the duration of a coronavirus outbreak. Rule 122A(2) has the effect of extending the time limit in rule 122(3) for a Residential First Line Manager to allow a prisoner to discuss a complaint with him so that this must be done as soon as reasonably practicable. Rule 122A(3) has the effect of extending the time limit for a written response from a Residential First Line Manager, where there are exceptional circumstances. This means that a written response under rule 122(5)(b) is to be provided as soon as reasonably practicable for the duration of a coronavirus outbreak.

Rule 123A modifies rule 123(9) and extends the time limits, for the duration of a coronavirus outbreak, in relation to informing a prisoner of the decision of the prison’s Internal Complaints Committee and matters related to that as set out in rule 123(9), where it is not reasonably practicable for the Governor to do so within 20 days.

Rule 131A modifies rule 131(1)(a), to the effect that the Governor is given discretion as to when he or she must seek advice from a healthcare professional where the Governor proposes to transfer a prisoner to another prison for the duration of a coronavirus outbreak. Rule 131A(2) provides that that this is to be done where it is appropriate in the circumstances.

Rule 136B modifies rule 136A(2)(b), and allows for a period of “relevant temporary release” to be extended by the Scottish Ministers by a period of no more than 14 days for the duration of a coronavirus outbreak, in place of the normal limit of 7 days. Rule 136B(3) extends the definition of relevant temporary release to include “home leave” as defined in rule 136, for the duration of a coronavirus outbreak.