Scottish Statutory Instruments
Prisons
Made
at 2.15 p.m. on 7th April 2020
Laid before the Scottish Parliament
at 4.00 p.m. on 7th April 2020
Coming into force in accordance with rule 1
The Scottish Ministers make the following Rules in exercise of the powers conferred by section 39 of the Prisons (Scotland) Act 1989(1) and all other powers enabling them to do so.
1. These Rules may be cited as the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 and come into force as soon as they are made.
2.—(1) The Prisons and Young Offenders Institutions (Scotland) Rules 2011(2) are amended as follows.
(2) In rule 2(1) (interpretation)—
(a)after the definition of “controlled drugs” insert—
““coronavirus” has the same meaning as in section 1 of the Coronavirus (Scotland) Act 2020(3),”,
(b)after the definition of “film” insert—
““for the duration of a coronavirus outbreak” means the time period beginning from the commencement of the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 and lasting until 30 September 2020.”.
(3) After rule 19 (Assignment of supervision levels on review) insert—
19A.—(1) For the duration of a coronavirus outbreak, rule 19 has effect subject to the following modifications.
(2) In paragraph (1) for “the supervision level” substitute, “Subject to paragraph (1A), the supervision level”.
(3) In sub-paragraph 1(a) for “72 hours” substitute “7 days”.
(4) In sub-paragraph (1)(d), after “necessary” insert “, and reasonably practicable,”.
(5) (5)After paragraph (1), insert—
“(1A) Where, as a result of the effects coronavirus is having, or is likely to have on the prison, it is not possible to comply with sub-paragraphs (a) to (c) of paragraph (1) within the time periods specified, those sub-paragraphs must be complied with as soon as is reasonably practicable.””.
(4) After rule 20 (Maintaining or lowering a supervision level on review) insert—
20A.—(1) For the duration of a coronavirus outbreak, rule 20 has effect subject to the following modifications.
(2) In paragraph (2)—
(a)after “must” insert “, but only within such time as is reasonably practicable,”;
(b)the words “in writing” are revoked.
(3) In paragraph (3) after “rule 27,” insert “and only as far as is reasonably practicable,”.”.
(5) After rule 21 (Assigning certain supervision levels on review) insert—
21A.—(1) For the duration of a coronavirus outbreak, rule 21 has effect subject to the following modification.
(2) In paragraph (2) for the words “provide the prisoner with a written notice informing” substitute “inform”.
(3) In paragraph (3) after “rule 27,” insert “and only as far as is reasonably practicable,”.”.
(6) After rule 33 (Provision of clothing to prisoners) insert—
33A.—(1) During a coronavirus outbreak, rule 33 has effect subject to the following modification.
(2) After paragraph (5), insert—
“(6) The Scottish Ministers may—
(a)on the application of the Governor made prior to the expiry of any direction made under sub-paragraph (5)(b); and
(b)where they are satisfied that it is necessary to do so due to the effects coronavirus is having, or is likely to have, on the prison,
make any number of further directions continuing the effect of a direction made under paragraph (5)(b) for successive periods of no more than one month.
(7) A direction made by the Scottish Ministers under paragraph (5)(b) or (6) may be revoked at any time, following a request by the Governor, by a further direction made by the Scottish Ministers.
(8) After the Scottish Ministers have made any direction under paragraph (5)(b), (6) or (7), the Governor must take such steps as are practicable to notify prisoners who may be affected by the direction.
(9) Any direction made by the Scottish Ministers under paragraph (5)(b), (6) or (7) must specify—
(a)the date and time when the direction is made; and
(b)(except in the case of a direction made under paragraph (7)), the date and time when the direction expires.”.”.
(7) After rule 34 (Personal hygiene) insert—
34A.—(1) For the duration of a coronavirus outbreak, rule 34 has effect subject to the following modification.
(2) For sub-paragraph (1)(b), substitute—
“(b)where adequate arrangements cannot be made under sub-paragraph (a), at least twice per week.”.”.
(8) After rule 35 (Prisoners’ food and drink) insert—
35A.—(1) For the duration of a coronavirus outbreak, rule 35 has effect subject to the following modification.
(2) After paragraph (5), insert—
“(6) The Scottish Ministers may—
(a)on the application of the Governor made prior to the expiry of any direction made under sub-paragraph (5)(b); and
(b)where they are satisfied that it is necessary to do so due to the effects coronavirus is having, or is likely to have, on the prison,
make any number of further directions continuing the effect of a direction made under paragraph (5)(b) for successive periods of no more than one month.
(7) A direction made by the Scottish Ministers under paragraph (5)(b) or (6) may be revoked at any time, following a request by the Governor, by a further direction made by the Scottish Ministers.
(8) After the Scottish Ministers have made any direction under paragraph (5)(b), (6) or (7), the Governor must take such steps as are practicable to notify prisoners who are subject to the order of the effect of the direction.
(9) Any direction made by the Scottish Ministers under paragraph (5)(b), (6) or (7) must specify—
(a)the date and time when the direction is made;
(b)(except in the case of a direction made under paragraph (7)), the date and time when the direction expires.”.”.
(9) After rule 40 insert—
40A.—(1) For the duration of a coronavirus outbreak, paragraph (2) applies where the Governor receives, a recommendation from a healthcare professional that, in response to the effects coronavirus is having, or is likely to have on or in relation to the prison, all prisoners in the prison, prisoners in a specified part of the prison or specified prisoners—
(a)should be confined to their cell until further notice, or for specified periods until further notice; or
(b)should not participate in specified activities until further notice, or for specified periods until further notice.
(2) Where this paragraph applies, the Governor must—
(a)give effect to the recommendation from the healthcare professional without delay; and
(b)notify the Scottish Ministers of the recommendation and the action being taken under sub-paragraph (a).
(3) Subject to paragraphs (5), (6), and (7) a recommendation made under paragraph (1) ceases to apply on the earlier of—
(a)the expiry of the period of 14 days after the recommendation was received by the Governor, or
(a)that date that the recommendation is withdrawn by the healthcare professional.
(4) On the expiry or withdrawal of a recommendation under paragraph (1), the Governor must cease the action taken under paragraph (2)(a) without delay.
(5) Prior to the expiry of a recommendation made under paragraph (1), the Governor may, on the advice of the healthcare professional that it is necessary in response to the effects coronavirus is having, or is likely to have on or in relation to the prison, make an application to the Scottish Minsters to extend the period specified in paragraph (3)(a) for a further period of no more than 14 days.
(6) The Scottish Minsters may, following receipt of an application made under paragraph (5), where they are satisfied that it is necessary in response to the effects coronavirus is having, or is likely to have on or in relation to the prison, extend the period specified in paragraph (3)(a) for a period of no more than 14 days.
(7) Where the period specified in sub-paragraph (3)(a) has been extended by the Scottish Ministers under paragraph (6), the period of extension is to be taken as the period specified under paragraph (3) and may be further extended by the Scottish Ministers for periods of no more than 14 days at a time on receipt of a further application by the Governor under paragraph (5).”
(10) After rule 41 (Accommodation in specified conditions) insert—
41A.—(1) For the duration of a coronavirus outbreak, rule 41 has effect subject to the following modifications.
(2) In sub-paragraph (3)(c), for “72 hours” substitute “14 days”.
(3) In sub-paragraph (12)(a), for “72 hours” substitute “14 days”.”.
(11) After rule 43 (Prisoners’ welfare) insert—
43A.—(1) For the duration of a coronavirus outbreak, rule 43 has effect subject to the following modification.
(2) For “ensure” insert “, so far as it is reasonably practicable to do so, provide”.”.
(12) After rule 52 (Supplies of books, newspapers, etc to prisoners) insert—
52A.—(1) For the duration of a coronavirus outbreak, rule 52 has effect subject to the following modification.
(2) After “Subject to rules 46 to 50,” insert, “and to such arrangements as the Governor considers safe and reasonably practicable”.”.
(13) After rule 63 insert—
63A.—(1) For the duration of a coronavirus outbreak rules 63 to 76 are subject to this rule.
(2) Where the Governor considers it necessary and proportionate in response to the effects coronavirus is having, or is likely to have on or in relation to the prison, the Governor may suspend visits.
(3) In suspending visits under paragraph (2), the Governor may make different provision for different purposes including by reference to—
(a)different types of prisoners, and
(b)different types of visits under rules 63 to 76.
(4) The Governor must regularly review any suspension of visits ordered under this rule to assess whether it remains necessary and proportionate in response to the effects coronavirus is having, or is likely to have on or in relation to the prison.”.
(14) After rule 81 (Arrangements for work, education and counselling) insert—
81A.—(1) For the duration of a coronavirus outbreak, rule 81 has effect subject to the following modifications.
(2) In paragraph (1), for “must” substitute “may”.
(3) In paragraph (2), for “must” substitute “may”.
(4) After paragraph (2) insert—
“(3) Where the Governor considers it necessary and proportionate in response to the effects coronavirus is having, or is likely to have on or in relation to the prison, the Governor may suspend programmes of work, educational activities and counselling determined under paragraph (2).
(4) The Governor must regularly review any suspension of programmes of work, educational activities or counselling ordered under paragraph (3) to assess whether it remains necessary and proportionate in response to the effects coronavirus is having, or is likely to have on or in relation to the prison.”.”.
(15) After rule 84 (Purposeful activities) insert—
84A.—(1) For the duration of a coronavirus outbreak, rule 84 has effect subject to the following modifications.
(2) In paragraph (1), for “The Governor” substitute “Subject to paragraph (5), the Governor”.
(3) After paragraph (4), insert—
“(5) Where the Governor considers it necessary and proportionate in response to the effects coronavirus is having, or is likely to have on or in relation to the prison, the Governor may—
(a)suspend all purposeful activity within the prison; or
(b)suspend some purposeful activities within the prison.
(6) The Governor must regularly review any suspension of purposeful activity ordered under paragraph (5) to assess whether it remains necessary and proportionate in response to the effects coronavirus is having, or is likely to have on or in relation to the prison.
(7) Where work has been suspended by the Governor under paragraph (5), rule 82 has no effect.”.”.
(16) After rule 88 (Recreation) insert—
88A.—(1) For the duration of a coronavirus outbreak, rule 88 has effect subject to the following modifications.
(2) In paragraph (1), for “The Governor” substitute “Subject to paragraph (4), the Governor”.
(3) After paragraph (3), insert—
“(4) Where the Governor considers it necessary and proportionate in response to the effects coronavirus is having, or is likely to have, on or in relation to the prison, the Governor may—
(a)suspend all recreational activity within the prison; or
(b)suspend some recreational activities within the prison.
(5) The Governor must regularly review any suspension of recreational activity ordered under paragraph (4) to assess whether it remains necessary and proportionate in response to the effects coronavirus is having, or is likely to have, on or in relation to the prison.”.”.
(17) After rule 111( Reporting breaches of discipline) insert—
111A.—(1) For the duration of a coronavirus outbreak, rule 111 has effect subject to the following modification.
(2) For “immediately” substitute “as soon as reasonably practicable”.”.
(18) After rule 116 (Breaches of discipline committed in another prison or during transfer) insert—
116A.—(1) For the duration of a coronavirus outbreak, rule 116 has effect subject to the following modification.
(2) In sub-paragraph (2)(a), for “3”, substitute “14”.”.
(19) After rule 118 (Disciplinary appeals) insert—
118A.—(1) For the duration of a coronavirus outbreak, rule 118 has effect subject to the following modifications.
(2) In sub-paragraph (6)(b), before “provide” insert “subject to paragraph (6A),”.
(3) After paragraph (6) insert—
“(6A) Where the Scottish Ministers are unable to provide a written decision to the prisoner within the time period specified in paragraph (6)(b), a written decision must be provided to the prisoner as soon as reasonably practicable after that period.”.”.
(20) After rule 120 (Requests to speak to certain persons) insert—
120A.—(1) For the duration of a coronavirus outbreak, rule 120 has effect subject to the following modifications.
(2) In paragraph (2), for “without delay”, substitute “as soon as reasonably practicable”.
(3) In paragraph (3)(b), for “without delay”, substitute “as soon as reasonably practicable”.”.
(21) After rule 122 (Complaints to the residential first line manager) insert—
122A.—(1) For the duration of a coronavirus outbreak, rule 122 has effect subject to the following modifications.
(2) In paragraph (3), for “within 48 hours of”, substitute “as soon as reasonably practicable after”.
(3) In sub-paragraph (5)(b), for “no later than 5 days”, substitute “as soon as reasonably practicable”.”.
(22) After rule 123 (Referral of complaints to the Internal Complaints Committee) insert—
123A.—(1) For the duration of a coronavirus outbreak, rule 123 has effect subject to the following modifications.
(2) In paragraph (9), for the words from “Within” to “must”, substitute “Subject to paragraph (9A), the Governor must, within 20 days of a complaint being referred to the ICC under paragraph (1)”.
(3) After paragraph (9), insert—
“(9A) Where the Governor is unable to inform the prisoner in accordance with paragraph (9) within 20 days, the Governor must inform the prisoner as soon as reasonably practicable after that period.”.”.
(23) After rule 131 (Healthcare assessment prior to transfer) insert—
131A.—(1) For the duration of a coronavirus outbreak, rule 131 has effect subject to the following modification.
(2) In sub-paragraph (a), before “seek” insert “where appropriate to do so in the circumstances”.”.
(24) After rule 136A (Extension of certain periods of temporary release) insert—
136B.—(1) For the duration of a coronavirus outbreak, rule 136A has effect subject to the following modifications.
(2) In paragraph (2), for “seven” substitute “14”.
(3) In paragraph (4), after “means” insert “home leave or”.”
HUMZA YOUSAF
A member of the Scottish Government
St Andrew’s House,
Edinburgh
At 2.15 p.m. on 7th April 2020
(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.
1989 c.45; section 39 was amended by the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9) (“the 1993 Act”), sections 24 and 25, schedule 5, paragraph 6(6)(b) and schedule 7, paragraph 1; the Criminal Justice and Public Order Act 1994 (c.33) (“the 1994 Act”), section 116(4); the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c.40), schedule 4, paragraph 75(4)(a); and the Crime and Disorder Act 1998 (c.37), schedule 8, paragraph 71 and schedule 10, paragraph 1. The functions of the Secretary of State, insofar as exercisable within devolved competence, were transferred to the Scottish Ministers by virtue of the Scotland Act 1998 (c.46), section 53.
S.S.I. 2011/331; as amended by S.S.I. 2011/356; S.S.I. 2012/26; S.S.I. 2014/26; S.S.I. 2016/131; S.S.I. 2017/393; and 2018/293.