Official Report

  • Scottish Parliament Wednesday 27 May 2009
    • [The Presiding Officer opened the meeting at 14:30]

    • Time for Reflection
    • Business Motion
    • Open Prisons
      • The Presiding Officer (Alex Fergusson): The next item of business is a statement by Kenny MacAskill on open prisons. The cabinet secretary will take questions at the end of his statement, which will last for 10 minutes, so there should be no interventions or interruptions during it.

      • The Cabinet Secretary for Justice (Kenny MacAskill): I would like to take this opportunity to address Parliament on a matter that I know is a cause of considerable public concern, namely the abscond of Brian Martin from Castle Huntly open prison on 18 May 2009. I am pleased to confirm to Parliament that Mr Martin has been returned to custody and that he appeared in court at Perth yesterday to face charges of being unlawfully at large. He received an additional four-month sentence.

        Mr Martin absconded from Castle Huntly open prison on Monday 18 May 2009. He had been transferred to the open estate on 27 April and his community access had not yet been approved. Martin is serving a sentence of 10 years and qualifies for parole in September 2010. Prior to being transferred to the open estate, he was located in Her Majesty's Prison Shotts.

        Last year, I confirmed to Parliament that I had instructed the Scottish Prison Service that when an individual absconded from open conditions there would be a presumption against that individual returning to open prison, and that any decision to the contrary would have to be authorised directly by a senior member of staff in SPS headquarters within the prisons directorate. Those changes and tighter criteria have resulted in a significant—indeed, a record—decline in absconds. The final decision on and responsibility for the transfer to open conditions rests with the prison governor. However, as I have said, when there is a history of previous absconding, that decision should be referred to SPS headquarters.

        As a result of Brian Martin's absconding, I wrote to the SPS on the morning of 21 May and asked it to review the circumstances surrounding his transfer to Castle Huntly. I was advised by SPS on Monday—the same day that Martin was returned to custody—that he had absconded previously, albeit 22 years ago. The SPS has apologised to me for what appears to have been a failure in its information-sharing processes.

        The SPS has already instructed a senior governor from another prison to carry out an internal review into the circumstances surrounding the transfer of Brian Martin. However, I believe that it is essential that the process that is in place is as robust as it possibly can be. With that in mind, Professor Alec Spencer, who was governor of Peterhead, Glenochil and Saughton prisons, has agreed to conduct an independent review of the circumstances surrounding the transfer. Professor Spencer has the practical experience of dealing with some of Scotland's most hardened criminals. He is also a respected academic and widely acknowledged expert on prison matters.

        As I said, tighter criteria for transfer to the open prison estate were introduced last summer. I have asked Professor Spencer to conduct an independent review of the decision to send Brian Martin to open conditions, and, in light of that review, to consider whether the new criteria for transfer to the open estate are being properly applied in all cases.

        It would appear that the process that I put in place following the Foye case last year was not, in this instance, properly followed by staff within the Scottish Prison Service. That is not a situation that I or, indeed, any of us finds acceptable. If the process had been properly followed, the likelihood is that Martin would not have been transferred to the open estate.

        Since the introduction of the new criteria post Foye, we have seen the smallest ever number of absconds from the open estate. In 1993 there were 95 absconds, in 2006-07 there were 79 absconds and in 2008-09 there were 16 absconds. I am happy to place the figures in the Scottish Parliament information centre today. As I have said before, one abscond is one too many, and I still believe that to be the case, but as long as we have an open prison estate, there will be occasions when individuals betray the trust that has been shown in them by absconding. We must ensure that the processes that we put in place are as robust as they can be.

        There is a consensus in the Parliament and beyond that the open estate plays a valuable role in preparing long-term prisoners for eventual release. Henry McLeish said in his report:

        "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."

        In January, the chief inspector of prisons, Andrew McLellan, said:

        "the criteria for admission to the Open Estate have been tightened considerably."

        It would be wrong of me or any of us to prejudge Professor Spencer's findings. Nevertheless, if he confirms that there has been a significant failure of process in this instance, I would expect the SPS to address that failure. Given that that may include disciplinary action, it is appropriate that we await Professor Spencer's findings before drawing any further conclusions on the point. I have asked Professor Spencer to submit his report to me before the summer recess. I intend to publish that report and I will meet the chief executive and senior management of the SPS to review the findings of the inquiry and to agree with them whatever actions may be necessary.

        The Government has gone further than ever before in ensuring that the most robust safeguards possible are applied when it comes to transferring prisoners to the open estate. The measures that I have outlined today will ensure that those safeguards are subject to even closer scrutiny.

      • The Presiding Officer: The cabinet secretary will now take questions on the issues that have been raised in his statement. We have around 20 minutes for such questions.

      • Richard Baker (North East Scotland) (Lab): I thank the cabinet secretary for the advance copy of his statement.

        Does the Cabinet Secretary accept that the escape of this violent offender has, once more, damaged people's confidence in the open prison estate and in his ability to provide leadership in ensuring the protection of the public in this country? Only last year, after Robert Foye's escape from Castle Huntly, the cabinet secretary said that mistakes would be learned from, so how and when was it decided that Martin was fit to be introduced to an open prison environment? Who authorised that move? In his statement last year, the cabinet secretary said that such decisions would be made at the most senior levels. Was he involved in the decision or even aware that it was being made? Is it not simply unacceptable to blame civil servants when such issues of public safety are ultimately the cabinet secretary's responsibility? If Professor Spencer's report confirms that there has been a significant failure of process in the Martin case, will the cabinet secretary seriously expect us to believe that he bears no responsibility for that?

        The issue concerns not simply the number of prisoners who abscond—one abscond is one too many—but the question of who, in the light of experience, is deemed to be fit to be placed in the open estate. If the cabinet secretary now accepts that it was wrong for that man—who had a history of violence and going on the run—to be placed in the open estate less than halfway through his sentence, is it not self-evident that only a year after he gave similar assurances to Parliament after the Foye case, that response has been found wanting? In that light, how can we now accept his assurances that the mistakes will not be repeated?

      • Kenny MacAskill: My position on the issue as cabinet secretary is the same position that was taken by the Minister for Justice during the Liberal-Labour Administration—the position has not changed. I cannot prejudge Professor Spencer's report, but I assure Mr Baker that we will take on board any issues that it raises. Any points that relate to general presumptions and criteria will be dealt with, if necessary. If, as I said, matters relating to internal discipline are raised, they will be considered.

        With regard to the decision to transfer Mr Martin to the open estate, I must say that such decisions are approved by the governor in charge or by his or her nominated representative. Following the Foye case, the initial decisions are now taken at a multidisciplinary case conference, which is attended by a range of individuals from within the establishment. The membership of that group includes prison managers, a social worker, a psychologist, a member of the health care team and a representative of the prisons security department, to ensure that the fullest possible information is available. We will deal with any matters that need to be reconsidered following an internal review and Professor Spencer's review, but that is currently how decisions are taken. We should all take on board the fact that absconds are now one fifth of what they were when Labour was last in office.

      • Bill Aitken (Glasgow) (Con): I thank the cabinet secretary for early sight of his statement.

        It is a serious matter that Mr MacAskill has to appear before members in the chamber to explain for the second time in a year how a dangerous prisoner has been able to abscond from the open estate. On the previous occasion that a prisoner absconded, there was a tragic consequence, but fortunately that did not happen in the Martin case. That would have been not only tragic but probably terminal for the cabinet secretary.

        Does the cabinet secretary agree that it is absolutely outrageous, and an affront to justice, that a man with a violent history should, under any circumstances, be transferred to the open estate only three years into a 10-year sentence? Should it not be a requirement that any prisoner who is serving a high-tariff sentence for violent or sexual crime should spend at least 80 per cent of that sentence in the closed estate?

        Mr MacAskill cannot be held responsible for the errors that might have arisen in the Martin case through lack of communication. However, does he agree that the present situation is simply unacceptable and that, instead of asking Professor Spencer to review the particular circumstances of the Martin case, it might be better to have a more general review of the policy that the SPS applies to such transfers?

        Does Mr MacAskill agree that it is high time that he exercised a much more hands-on approach to the running of prisons in general, and to the transfer of prisoners to the open estate in particular? In short, does he agree that the buck stops with him?

      • Kenny MacAskill: I have made it clear on previous occasions and again today that any abscond is a matter of concern and must be addressed and tackled. We must recognise, however, that there is still a requirement for an open estate—I take it that whatever Mr Aitken is suggesting, it is not the abolition of the open estate.

        As Mr Aitken will appreciate, the Parole Board for Scotland recommends people to be placed in the open estate. That happens so that the Parole Board can be assured that people have been tested to see whether they are suitable for parole. The very fact that someone appears before the Parole Board shows that they are there not for a parking offence but because they have committed a serious offence.

        We live not just in a world of the European convention on human rights but in a world that we inherited from the Administration of Mr Aitken's party. People are given determinate sentences, which means by definition that they will be released. If we are to release them, it is clear that the open estate can play a significant role in ensuring that they restructure their lives and have opportunities to re-engage with their families. We have an opportunity to see what can be done to ensure that they are fit to be released back into our communities, because they have to be released, just as people had to be released under the Tory Administration.

        I assure Bill Aitken that we have tightened up the criteria. Following the Robert Foye case, we introduced a presumption against abscondees returning to the open estate. Under the Liberal and Labour regime, and indeed under the Conservative Government at Westminster, there was no presumption against going back to the open estate. We have tightened things up. I assure Bill Aitken that we will learn from Professor Spencer and take his findings on board. As I said, however, the number of absconds is a fifth of what it was in the last year of the Labour Administration and an eighth of what it was in the last year of the Conservative Government.

      • Robert Brown (Glasgow) (LD): I, too, thank the Cabinet Secretary for Justice for an advance copy of his statement.

        Does the cabinet secretary accept that the first and primary role of the justice system is to ensure public safety? Will he clarify what changes he has made to the arrangements since the previous major escape, and will he place in SPICe any relevant documents that confirm the position, for the information of members and the public? As he said, the open estate exists partly to enable long-term prisoners—who have to come out of prison at some point—to be prepared for release as they near the end of their sentences. By definition, that includes some prisoners who have been a danger to the public, including some with a significant history of violence.

        Can the cabinet secretary assure the Parliament that the instructions that the Scottish Prison Service is given allow the open prison estate to fulfil its valuable and necessary function within a framework of robust and challenging risk assessments, to ensure that the wrong people are not sent to Castle Huntly? Can he assure us that Professor Spencer's remit will keep things in balance? Finally, how will prisoners who represent a higher than normal risk and perhaps have a record of absconding from the open estate be assessed with a view to the maintenance of public safety?

      • Kenny MacAskill: I confirm that public safety is paramount in all action that the Government takes on justice. We made changes following the Robert Foye case, which I remind the Parliament was investigated not only by the Scottish Prison Service but by the McLeish commission.

        The seven key recommendations that were made following the Robert Foye case have been implemented: first, that a multidisciplinary progression meeting should take place before the transfer, involving prison managers, social workers, psychologists and other professionals; secondly, that a home background report should be provided before the transfer; thirdly, that clear protocols should be established to ensure the sharing of relevant intelligence information; fourthly, that standard report formats should be introduced; fifthly, that a case management meeting should be held in the open estate as soon as possible after transfer; sixthly, that a standard abscond risk assessment should be introduced; and seventhly, that training should be increased for SPS staff who conduct risk assessments. We also made it clear that there would be a clear presumption against the SPS's returning to the open estate anybody who had absconded.

        I reassure Mr Brown that, as I said earlier, we will consider carefully Professor Spencer's conclusions. He will consider how the system has perhaps let us down. The criteria were working until the glitch, and we have to ensure that that is addressed. If there are broader lessons to be learned from Professor Spencer, we will take them on board. I accept Mr Brown's point that the open estate is necessary and that we have to check those who go to it. Ultimately, that is a judgment call for individuals, who must be as well versed and well trained as possible. That is why there is broad input and a variety of criteria.

        We must recognise that, sadly, some people will breach the trust that is placed in them. Thankfully, however, the number of absconds is at a record low, and I hope that that remains so.

      • The Presiding Officer: We move to open questions. Time is against us, so I am going to have to hold each member strictly to one question.

      • Stewart Maxwell (West of Scotland) (SNP): The cabinet secretary has described in some detail the process leading to the decision to send someone to an open prison. What procedures are followed when prisoners abscond?

      • Kenny MacAskill: I acknowledge members' great concern about what are operational matters. The SPS and the relevant police authorities have their own procedures which, in this case, are all about co-operation, synergy and integration. The SPS ensures that all its information on the abscondee is made available to the police, who are, after all, the ultimate guardians of public safety.

      • Helen Eadie (Dunfermline East) (Lab): Last Friday, at my surgeries at Ballingry and Kelty, I witnessed the fear and consternation of local people, who told me that, after hearing that Lord Wheatley had described Brian Martin as the most dangerous man in Britain in sentencing him, they were locking and bolting their doors and windows. Those people want the Parliament to ask the cabinet secretary many questions, but on their behalf I want to know whether, given the cabinet secretary's statement that Professor Spencer will submit his report before the summer recess, he will require that report to be with him a week before the recess to ensure that the Parliament can have a full debate on it in the last week.

        In addition, on 1 July last year, Henry McLeish said in his report to the Scottish Government that violent prisoners should not be placed in open prison. What does this incident say about the value judgments of the cabinet secretary and the First Minister?

      • Kenny MacAskill: I cannot prejudge any decision about the timing of parliamentary debates, because that is a matter for the Parliamentary Bureau. However, I give Mrs Eadie the same assurance that I gave in my statement: we have asked Professor Spencer to ensure that the report is available before the summer recess. If it is the Parliament's will that the report be debated, I am sure that the Parliamentary Bureau will consider and reach a conclusion on that. However, I assure Mrs Eadie that we will try to ensure that the report is available for appropriate consideration at that time.

      • John Lamont (Roxburgh and Berwickshire) (Con): The cabinet secretary has confirmed that the responsibility for the final decision on transfer to an open prison rests with the prison governor. However, given that a governor might be subject to political pressure to free up prison space, will the Government consider giving complete responsibility for such decisions to the Parole Board?

      • Kenny MacAskill: No, that would not be appropriate. The Parole Board's task is already significant. In any case, there are checks and balances. For example, the board might ask for a prisoner to be tested in the open estate, but the prison governor or those on the multidisciplinary group or at SPS headquarters who have specialist advice and know the prisoner better might conclude that such a move would be wrong.

        We must ensure that the system operates appropriately. Professor Spencer will examine whether the SPS's structures and processes are being followed properly, and we will learn any lessons that have to be learned. However, I think that it is appropriate for the Parole Board, the SPS and prison governors to continue to play their particular and separate roles. In certain instances, they will work together and conclude that it is appropriate to test someone in the open estate. However, we need the fail-safe because, as I said, the Parole Board might ask for someone to be tested but the prison governor might say, "That's not wise." Frankly, I will stick with the judgment of the governor who has the prisoner in his institution.

      • Andrew Welsh (Angus) (SNP): Will the cabinet secretary acknowledge the work, expertise and dedication of the open prison staff at Castle Huntly and agree that, although the blame rests with the prisoners who abuse their privileged prisoner status, the onus is on multidisciplinary progression management groups to adopt the precautionary principle and ensure that they take the greatest care in choosing prisoners for a privilege that has to be earned—and, indeed, has to be seen to be earned?

      • Kenny MacAskill: Absolutely. I am already on record as praising SPS staff, and I do so again. Those who work in the open estate, not just at Castle Huntly but at Noranside in my colleague John Swinney's constituency and in the independent living unit at Cornton Vale, where female prisoners are entrusted with preparing themselves for going back into their communities, do a valuable job.

        Andrew Welsh is correct. Indeed, I said in response to Mr Baker's questions that the precautionary approach must be primary. At the end of the day, the issue is the safety of our communities and the public. The criteria have been tightened up and they have been working—as I said, the number of absconds is at a record low—but we must ensure that the procedures operate appropriately. That is why I have asked Professor Spencer to conduct a review. We will learn from that and act on any advice and recommendations that he gives us.

      • Mike Pringle (Edinburgh South) (LD): People who live in the Castle Huntly area have to live with Castle Huntly prison on their doorstep. How will the cabinet secretary address public concerns and reassure people who live in that area that their safety is paramount?

      • Kenny MacAskill: I say to Mr Pringle that their safety is paramount. He makes a valid point. Those who live in the area are closest to the coalface, and we must ensure that their safety is addressed and that their worries and concerns are dealt with. From my experience of visiting Castle Huntly and meeting its staff, the visitors committee and local authority representatives from the area, I know that there is acceptance of the benefits that can be obtained from the prison, such as jobs for locals in that area.

        I return to the point that Mr Welsh, Mr Baker and others have correctly made: we must take a precautionary approach, because the safety of members of the public, especially those who are located closest to the institution, is paramount. The Scottish Prison Service, the prison's staff and I are more than happy to work with the community to allay its fears. Mr Welsh and others know about that.

      • Cathie Craigie (Cumbernauld and Kilsyth) (Lab): Less than nine months ago, following Robert Foye's brutal attack on a young girl in my constituency, the cabinet secretary said:

        "We … want our communities to be kept safe from harm and from dangerous individuals … We must learn from mistakes".—[Official Report, 26 March 2008; c 7310.]

        The cabinet secretary has told us today that the process that he put in place was not followed. It is outrageous that, again, a dangerous criminal has been let loose in our communities. Will the cabinet secretary say exactly what lessons have been learned? Did the Government learn anything from the Foye case?

      • Kenny MacAskill: It appears that there has been a process failure. That is why there is an internal review by the Scottish Prison Service—which has already brought some information to light—and why Professor Spencer will conduct an external review. Action was taken and lessons were learned post the Robert Foye case.

        I have narrated the seven criteria that were introduced and talked about the presumption against returning individuals to the open estate. We have significantly reduced the number of absconds—it has fallen to 16 from 79, which was the number in 2006-07, when we took over from the Administration of which Ms Craigie was a member. The clear lesson that we learned from the Robert Foye case is that there should be a clear presumption against returning to the open estate somebody who has absconded. That does not mean that the presumption cannot be overridden, but there must be clear evidence for doing so. Such a presumption did not exist during eight years of a Labour Administration or under a Tory Government south of the border. We acted and introduced a clear presumption, and we have delivered a reduction in the number of absconds from 79 to 16.

      • Margo MacDonald (Lothians) (Ind): The cabinet secretary has acted entirely properly in this instance, but, without compromising Professor Spencer, will he expand on his statement that

        "If the process had been properly followed, the likelihood is that Martin would not have been transferred to the open estate"?

        It seems to me that there may be room for exceptions, as indicated by the very short additional sentence that was handed down to Brian Martin afterwards.

      • Kenny MacAskill: As I have said, criteria were brought in post the Robert Foye case to tighten up a system that had existed for more than 50 years. It is clear that people can go to the open estate in the very early part of their sentence. Many members accept—indeed, I presume that members uniformly accept—that some people should be sent to the open estate relatively early.

        I do not want to prejudge the outcome of Professor Spencer's review. All we can say is that there was a process error, and whatever it was and however it came about will be brought out in Professor Spencer's report. The presumption against returning abscondees to the open estate should have applied to Mr Martin and should have resulted in his case being considered at SPS headquarters, but that did not happen. That must be examined. If broader lessons are to be learned, we will learn them, but it is fair to say that people can be sent to the open estate two years before the earliest possible consideration of their parole.

      • The Presiding Officer: I will take a little time out of the next debate to take a final question from Joe FitzPatrick.

      • Joe FitzPatrick (Dundee West) (SNP): I welcome today's statement, particularly the announcement that Professor Spencer will conduct an independent review. Although the events of 18 May were of some concern to my constituents, we have to be careful not to react without consideration. An independent review will ensure that we learn properly any lessons that can be learned.

        What would the impact be on the Parole Board if the open prison estate did not exist?

      • Kenny MacAskill: The impact would be substantial. The difficulty would be that the Parole Board would not be able to test individuals who ultimately have to be released. Mr Aitken might shake his head, but we live in a world where people are given determinate sentences that mean they can be released, either because their sentence expires or they are serving a life sentence and are subject to review under the ECHR.

        We must recognise that we can no longer transport such people to Botany Bay; we have to address their needs and wants. The importance of the Parole Board is to ensure that we test those people. As I said earlier, they are not in prison for parking offences. We have to ensure that specialists, whether in terms of security, health, knowledge of the locality or mental health, are involved in the decision. Ultimately, we have to recognise that at some stage prisoners have to return to our communities, and we have to ensure that returns are dealt with based on the precautionary principle and according to a flawless process. That is why we will have both an internal review and a review by Professor Spencer.

    • Influenza A(H1N1)
    • Business Motion
    • Parliamentary Bureau Motions
    • Decision Time
    • Sheep (Electronic Identification)