Ministers rushed jail reforms despite being warned of safety risk

The move was then presented to the public as an “enhancement”.

Newly released files from the National Records of Scotland show the extent of concern at the highest levels within the Scottish Executive over the so-called Napier ruling of 2004.

In April that year, Lord Bonomy awarded former Barlinnie prisoner Robert Napier £2450 plus interest in damages over the conditions he faced.

These included the “degrading” practice of slopping out, using a shared chamber pot in an over-crowded cell, which breached his human rights.

With around a quarter of prisoners in Scotland’s over-crowded jails also slopping out at the time, and 600 more compensation cases in the courts, the Scottish Prison Service feared the total compensation bill could top £500m.

With new prisons taking years to deliver and overcrowding set to get worse, officials began looking at ways to reduce the prison population by letting inmates out to ease pressure and limit further compensation claims.

An April 30 report sent to then Labour justice minister Cathy Jamieson suggested increasing home leave for prisoners from three to seven days to free up 100 spaces.

But it also warned: “Increased use of home leave would increase capacity quickly and at no cost but with some risk to public safety”.

It added: “There would inevitably be some increase in absconding and/or offences while on home leave.”

In response, Ms Jamieson’s officials said the reference to public safety being at risk should be watered down.

They told the report’s authors: “The minister asks that the claim that the increased use of home leave would involve some risk to public safety be amended or at least qualified.”

On May 10, Ms Jamieson, the Lord Advocate Colin Boyd, prison service and justice department officials discussed the situation and the proposals they would recommend to the cabinet two days later.

The minutes of the meeting show a senior official described the Napier ruling as posing “a threat to a large portion of the existing prison estate”.

He went on: “The policy options available were to find other alternatives to custody and to consider steps for the early release of prisoners”.

Two extreme options floated included changing the definition of short-term prisoner and making automatic early release more lenient.

Instead of “short-term” being defined as a prisoner sentenced to four years or less, the meaning would be changed to five years or less.

In addition, instead of short-term prisoners being automatically released after half their sentence, they could be released after a third.

Both changes were “not regarded as acceptable” in the current climate.

“The handling of Justice issues by the Executive was currently not held in high regard by Parliament or the media,” the minute explained.

However the change to home leave was approved, as was more electronic tagging at home, and Ms Jamieson presented her plan to the cabinet of 12 May 2004.

It also included the creation of 200 new places “through quick build units” and longer-term investment in new, more modern facilities.

Ministers agreed to the package of measures, but also to appeal Lord Bonomy’s judgment.

In discussion, ministers said they “had always made it clear that slopping out was unacceptable in principle”, despite allowing it to happen in practice.

“The Executive’s response would require careful handling in order to avoid any suggestion that an appeal meant that Ministers regarded slopping out as defensible”.

Ms Jamieson also presented the cabinet with an “aide memoire” on the Napier case and its implications.

It warned that unless conditions were improved, prisoners might have to be let out of crumbling jails.

“We will remain exposed [financially and legally] for as long as prisoners can claim to have been subjected to inadequate conditions, particularly slopping out or over-crowding in a cell intended for one person.

“Our exposure may be realised as compensation payments to prisoners or ultimately we may no longer lawfully be able to hold prisoners in unmodernised conditions,” she said.

The aide memoire admitted the changes to home leave “will increase the risk of absconds, which the Scottish Prison Service will seek to manage, but is justified in policy terms”.

However it made no reference to public safety being jeopardised and downplayed the risk of criminality.

It said: “As with existing home leaves, gradually reintroducing prisoners to the community towards the end of their sentences inevitably involves some risk that they will not return or will commit a crime when out but it is a valuable part of the rehabilitation process”.

When the change was announced in parliament the same day, further spin had been added and all mention of downsides removed.

Ms Jamieson told MSPs: “We will enhance the arrangements for home leave for long-term prisoners at the end of their sentences to reintegrate them better into society.”

Remarkably, the Scottish Executive missed the deadline to lodge its appeal after an administrative blunder, only to secure a hearing and then lose.