The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 1999

Explanatory Note

(This note is not part of the Rules)

These Rules further amend the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (“the principal Rules”).

In addition to minor and drafting amendments the Rules make the following substantive changes.

For clarification, revised provision is made with respect to the application of the principal Rules to make express provision in relation to categories of persons to whom the principal Rules apply other than those sentenced to imprisonment for a criminal offence or serving sentences of detention in a young offenders institution (rule 2).

New provision is made to apply the principal Rules, with modifications, to contracted out prisons. Sections 106 to 111 and 114, 115 and 117 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) make provision in respect of contracted out prisons. The Secretary of State can enter into a contract under section 106(1) of the 1994 Act and a contracted out prison is a prison or part of a prison for the running of which such a contract is in force. By virtue of section 106(2) the principal Rules apply to a contracted out prison. Section 107 of the 1994 Act provides that a contracted out prison will have a director and a controller instead of a governor. The director is a prisoner custody officer appointed by the contractor and approved by the Secretary of State. The controller is a Crown Servant appointed by the Secretary of State.

By virtue of section 107 of the 1994 Act the director has the same functions as the governor under the principal Rules subject to the following exceptions. The director shall not have any function conferred on the controller by prison rules. In particular he shall not inquire into a discipline charge and, except in a case of urgency, shall not remove a prisoner from association or order a prisoner to be confined, restrained or subjected to special control. The main purpose of the modifications to the principal Rules is to split the functions of the governor between the director and controller in accordance with the provisions of the 1994 Act.

Other modifications are made to the principal Rules so as to ensure their proper application in respect of contracted out prisons. Modifications are made to the definitions of “officer” and “employee” in relation to contracted out prisons. Rules 86A(8), 111, 129(b) and (c) are disapplied in relation to contracted out prisons. Rule 86A(8) refers to the search of a visitor under section 41(2A) of the 1989 Act. This section of the 1989 Act does not apply to a contracted out prison. Rule 111 relates to appeals in disciplinary proceedings where an officer, other than the Governor, adjudicates a charge of breach of discipline. In contracted out prisons, rule 111 is not relevant because the controller will adjudicate all charges. Rule 129(b) and (c) provides that no officer or employee shall have any interest in a contract or receive any consideration from a contractor. These provisions are not appropriate in relation to a contracted out prison. Rule 95(2) is modified to provide that the controller can remove a prisoner from association where he has reasonable grounds for suspecting that a prisoner has committed a breach of discipline. Rule 108 is modified to provide that where a prisoner wishes to make a complaint concerning a confidential matter in relation to the controller that complaint shall be dealt with by the Secretary of State. Rule 127(b) is modified so as to place a duty on officers and employees to obey any lawful instruction of the controller in addition to the director and Secretary of State (rule 2A).

New provision is made for the circumstances in which a prison custody officers certificate may be suspended by the controller or prison escort monitor, in terms of paragraph 3(2)(b) of Schedule 6 to the 1994. New rule 2B prescribes those circumstances.

An amendment is made to rule 49 of the principal Rules (opening and reading correspondence from and to courts) to include for the purposes of this rule correspondence to the Principal Reporter (rule 15).

An amendment is made to rule 62 of the principal Rules (special visits to certain prisoners) to allow such visits only where the Governor considers they are in the interest of justice (rule 19).

New provision is made, by inserting new rule 62E, with regard to visits to prisoners by potential witnesses in disciplinary proceedings (rule 20).

Minor amendment is made to rule 73 of the principal Rules (counselling) to include group work activity (rule 22).

Revised provision is made to rule 86 of the principal Rules (admitting and searching of visitors) in relation to the basis on which an officer may refuse a visitor admission and remove that visitor from prison (rule 24).

The provisions of rule 86A of the principal Rules (searching of visitors) are revised in relation to a visitor aged under 16 to allow an accompanying adult to be present where a search is carried out under section 41(2A) of the Prisons (Scotland) Act 1989 (rule 25).

New provision is made in relation to the searching of persons providing contracted out services (rule 27).

An amendment is made to Schedule 3 of the principal Rules (breaches of discipline) making it a breach of discipline to disobey or fail to comply with any direction (rule 33).

An amendment is made to Schedule 4 of the principal Rules (constitution of visiting committees) to include Kilmarnock (rule 34).