Angela Constance on early prison release and youth detention

Sinclair-Gieben’s  criticisms came hot on the heels of a Scottish Human Rights Commission (SHRC) report which criticised the “glacial pace of change” in tackling mental health problems, and claimed recommendations made 30 years ago had not been implemented.

The SHRC‘s report came 11 days after 17-year-old Jonathan Beadle killed himself in Polmont. Beadle’s death came six years after the suicides of Katie Allan, 21, and William Lindsay, 16, in the same young offenders’ institution, and six weeks after the Children Care and Justice (Scotland) Bill, which was supposed to see all under-18s transferred to secure units, received Royal Assent.

Jonathan’s suicide also came a month after Holyrood backed Constance’s plan to allow the emergency early release of 500 prisoners. It would, I thought, take a brave woman to defend the Scottish government’s record in the midst of all that.

But Constance is brave, so she tells me, brave enough to take tough action when required. “I think I have demonstrated that if there are difficult decisions to be made, I won’t demur,” she says.

When I ask for an example, she cites the early releases, which were always going to provoke a backlash in some quarters. “But you had no choice,” I say. “There was nowhere left to put anyone.”  With prisoners confined to their cells for most of the day and the drug SPICE running rampant, there were fears of serious disorder. 

Angela Constance talks to Dani Garavelli (Image: Newsquest)

Constance says she sought the approval of the Scottish Parliament after the Prison Governors’ Association in Scotland accused her of “waiting until something happens”. “[I knew] there was a harsh reality I needed to account for. I needed to explain to the Scottish Parliament the consequences of not acting. I wasn’t prepared to risk those consequences. I had to build a consensus.”

In mid-May, Scotland’s prison population stood at 8,438, one of the highest figures ever recorded. By the time  Holyrood backed the early releases it had dropped to 8,294;  but it was still well over the service’s target operating capacity of 8,007.

It is a perpetual source of frustration, this gap between the Scottish government’s rhetoric on imprisonment and the on-the-ground reality. Constance repeats the SNP’s long-held position that “we cannot build ourselves out of the crisis” (new jails in Glasgow and the Highlands are delayed and over-budget). Yet Scotland (along with England and Wales) jails more people per capita than anywhere else in western Europe.

In mid-May, Scotland’s prison population stood at 8,438, one of the highest figures ever recorded (Image: Nick Ponty, Herald and Times)

Why is this? “We did have a period from 2011 to 2018, where the population was beginning to decrease,” Constance says. “I know people don’t always like to hear this, but Covid was a major disrupter. [It is also down to] the success of the criminal justice system in terms of convictions for historical sex offences and to our ageing prison population.”

Scotland has a disproportionately high number of remand prisoners. According to Scottish government figures, 22% of those in Scottish jails last month were untried, while 4% were awaiting sentence. The Coronavirus (Recovery and Reform) Act extended the period of time an accused could be held without trial. Defence lawyers say it is now not uncommon for their clients to wait more than a year for their cases to be heard to the point that some are pleading guilty so they will be given a release date.

Detaining unconvicted people for long periods runs contrary to justice and has a detrimental effect on mental health. It also reduces the potential for rehabilitation and reintegration back into the community.

Before she went into politics, Constance was a prison-based social worker. “What worries me is that when people’s cases are finally dealt with or disposed of they have spent so long on remand that they have already served their time, so they are liberated from court with no planning in place,” she says.

The Justice Secretary tells me pre-Covid remand time limits are to be restored via a forthcoming “Criminal Justice Modernisation Bill” and that the Bail and Release from Custody (Scotland) Act should lead to better through-care.

She lists other measures aimed at keeping people out of jail: mentoring schemes for female offenders, and electronically-monitored bail which is now available across the country. “Technology has been pivotal in terms of increased use of Home Detention Curfews (early release from sentences with a tag), too” she says. “But I think there is still more we can do with it.” Next, the Scottish government plans to pilot Home Detention Curfew with GPS which would allow for the monitoring of offenders whose bail conditions prohibit them entering particular neighbourhoods.

Glasgow's Barlinnie jail is due to be replaced

All this sounds positive; but when I look again at the figures for July, I see that, of the 688 remand arrivals whose offences have been recorded, around 160 were being held for common assault and 40 for shoplifting. Defence lawyers say the Crown continues to oppose bail on a point of principle, and that some sheriffs are still wary about granting it. This wariness can extend to the handing out of community payback orders. Despite a statutory presumption against sentences of less than a year, hundreds of prisoners are still serving them.

Scotland’s judiciary is independent of the government. But sheriffs may be more likely to opt for non-custodial sentences if they are convinced offenders will be well-supported within the community. With this in mind, Constance is heading to Northern Ireland to investigate its piloting of Enhanced Combination Orders (ECOs).

ECOs involve not only unpaid community work, but intensive probation, restorative intervention, psychological assessment and treatment. The reoffending rate for those who serve a sentence of less than a year is more than 50%. In 2019, the reoffending rate for those on ECOs was 31.1%

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When it comes to the country’s jails, Constance says she is focused on improving health care. At least 346 people have died in Scottish prisons in the last decade, with suicide and drugs deaths on the rise. The SHRC report criticised both the failure to end the use of segregation for those struggling with their mental health, and the lack of mandatory mental health training for prison officers.

“We now have a cross-government ministerial working group looking specifically at prison healthcare,” she says. “We [want] to ensure every health board in the country has executive leads within prisons.”  She points out that, while only nine of the 14 health boards have a jail within their boundaries, “every health board will have people who return to their area from prison in need of health services”.

Katie Allan was was found dead in her cell at Polmont YOI in 2018

Attending recent Fatal Accident Inquiries, I have become aware of flaws in the Scottish Prison Service’s information-gathering and sharing protocols: the lack of compatibility between the NHS and SPS IT systems and the difficulty staff face in accessing information from GPs in the community. Constance promises there will be more investment in IT. “It is imperative to support healthcare staff in their work and [ensure] continuity of care for those coming into or leaving custody,” she says.

The SHRC report also criticised the continued lack of a specialised high secure psychiatric unit for women prisoners in Scotland, with those in need of such care being sent 300 miles away to Rampton in Nottinghamshire.

In February 2021, a Scottish government-commissioned report branded that practice “indefensible”, and called for the State Hospital at Carstairs, which is currently all-male, to set up a new wing for women within nine months.

Pushed on the lack of progress, Constance reveals planning for female provision at Carstairs is finally underway. “[Maree Todd], the Minister for Mental Wellbeing, met relevant health board chief executives in April to discuss the proposals, which are at an early stage,” she says.

Later, Hannah Graham, senior lecturer in criminology at Stirling University and associate director of the Scottish Centre for Crime and Justice Research, will tell me: “There’s only so much the SPS and mainstream NHS can do when the levels of psychiatric distress are so high. Having to travel to Nottinghamshire affects women’s human rights to a family and private life. So it’s good that this is finally underway, but it could have happened a lot sooner.”

The same is true when it comes to youth justice. Constance is proud of the reduction in the number of under-21s being detained in Polmont (from 600 plus in 2012 to 179 in July 2023).

But the Scottish government still hasn’t delivered on its promise to ensure no more under-18s will be housed there. On the day of the interview, there are six. Constance says all those who remain will be transferred to children’s secure units by the week beginning September 2. But no-one in the wider children’s justice community can understand why it hasn’t already been done. The lack of urgency seems particularly egregious given Jonathan Beadle’s suicide. Asked to explain the delay, Constance says only that “any period of transition for children needs to be planned with care and sensitivity”.

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A lot of our interview is similarly vague. Constance talks about the whole systems approach, cross-party collaboration, reviews into prisoners’ needs and the setting up of working groups, but it’s difficult to pin down concrete successes.

She also has a tendency to present the problems afflicting the criminal justice system as recent epiphanies as opposed to issues campaigners have been raising for decades.

Confronted with myriad negative reports and recommendations that have not been acted on, she says: “I’m not going to sugar coat this, but what these reports demonstrate is that actually we know what the problems are, so what about the solutions?”

When I point out none of the findings are new, she says: “There must be a willingness to follow the evidence. We are halfway there. I think there would be a parliamentary consensus on the problems, but we don’t always have a consensus on the solutions. Bear in mind two political parties [the Tories and Labour] voted against the Children (Care and Justice) Bill.”

What Constance is saying, I think, is that it is one thing to believe in a less punitive criminal justice system, and another thing to sell it to the opposition and the public. You only have to look at what has happened in England since Labour came to power to understand how challenging it can be for politicians to hold the line. One minute, Keir Starmer was appointing James Timpson, a champion of rehabilitation, as prisons minister, the next he was pledging swift sentencing and 500 extra cells for those who took part in last week’s rioting.

What Constance wants, she says, is a more mature discourse. “We need to move away from empty debates between soft touch justice or hard touch justice,” she says. “If you have a prison population of 8,000, there is nothing soft-touch about that. But it’s not smart justice either.

“We need to be braver. We need to stick with this journey and see it through because what happens in our prisons is not divorced from what happens in our communities, and we have got to get better at explaining those links.”

I take her point: politicians have to bring the electorate along with them. But Starmer is new to the job. The SNP has had 17 years to shape opinion, yet the crisis has only intensified. If Constance is to change that, it’s going to take deeds not words.