Prisons

Summary

Mr C, who is a prisoner, complained that the prison did not properly test a powder found in his cell for the presence of drugs. Mr C said the powder was protein powder that he purchased through the prison. He asked for another sample of the protein powder to be tested, and for a sample of the powder that tested positive for drugs to be provided to his lawyer so that it could be tested independently.

In responding to our investigation, the prison advised us that they tested the powder found in Mr C's cell in line with the Scottish Prison Service's drug testing policy. However, the policy says that the prison is required to complete appropriate paperwork, and in Mr C's case, the prison did not do that. We also found that they failed to action Mr C's request that the positive powder be retained for his lawyer, and misled him by indicating that a sample of the protein powder provided by him had been sent away for testing, when it had not. Because of this, we were unable to determine with certainty whether the powder found in Mr C's cell had been tested properly by the prison and so we upheld his complaint.

Recommendations

We recommended that the Scottish Prison Service:

• in light of the failings identified, review the circumstances of Mr C's case with a view to determining whether appropriate corrective action should be taken;
• consider enhancing the presumptive drug testing policy by considering whether it would be appropriate for a prisoner to be present when the substance found in their possession is being tested for the presence of drugs; and
• issue a reminder to all prison establishments advising them of the obligation to adhere to the requirements of the presumptive drug testing policy.

Summary

Mr C, who is a prisoner, complained that there was an unreasonable delay in the prison referring him for a generic assessment (which identifies whether or not a prisoner should participate in offending behaviour programmes). In Mr C's case, in January 2012 the risk management team (RMT) considered whether he was suitable for progression to less secure prison conditions. They decided that he was not but said that he would be considered again at a later date. In November that year, another RMT considered Mr C's progression and again did not support this. However, the RMT said he should be referred for a generic assessment. Mr C complained that there was an unreasonable delay in the prison identifying him for that assessment.

The decision on whether to refer a prisoner for a generic assessment is a decision the prison is entitled to take. We cannot question a decision like that unless there is evidence of poor administration. In investigating Mr C's complaint, we found that the information available to the RMT in January was the same as that available in November. We recognised that members of both RMTs may have been different, but considered that Mr C could have been referred for a generic assessment in January. We took the view that the RMT unreasonably failed to exercise its discretion in January 2012 by not identifying Mr C for a generic assessment at that time. Because of this, we agreed that there was an unreasonable delay in referring him and upheld his complaint.

Recommendations

We recommended that the Scottish Prison Service:

• remind RMT members of the importance of identifying within a reasonable timescale the steps individual prisoners will be required to take in an effort to prepare for progression to less secure conditions.

Summary

Mr C, who is a prisoner, complained that he was unreasonably refused the opportunity to progress to less secure prison conditions. He was told that this was because he had absconded (left without permission) from custody whilst serving a previous sentence 15 years ago. Mr C said it was unfair to take account of something that happened so long ago.

Our investigation found that the policy in place that deals with prisoners' progression confirms that there is a presumption against any prisoner returning to less secure conditions where there has been a previous abscond or escape. In Mr C's case, the prison noted that he had previously absconded and had also committed offences whilst in and out of custody. Because of that, it was decided that he should not be progressed to less secure conditions at this time.

We were satisfied that the prison had taken a decision they were entitled to take, having given appropriate consideration to Mr C's history.

Summary

Mr C, who is a prisoner, applied to continue his higher education studies. The prison did not support Mr C's application and because of that, it was refused by the higher education access board. (This is the body responsible for considering applications from prisoners who want to access higher education studies.) In bringing his complaint to us, Mr C said the prison failed to follow the relevant guidance when considering his application.

Our investigation found that the prison only had resources available to support eight applications from prisoners, but had received 21. Because of that, they put in place criteria to help decide which applications to support. In particular, they decided to give priority to prisoners who had not accessed education before, and to those nearing the completion of their studies. Neither of these criteria applied in Mr C's case and, because of that, the prison did not support his application. We found that the relevant guidance gives the prison discretion to make such decisions. We were satisfied that because they received more applications than they could resource, the prison could apply their own discretionary criteria to determine which applications to support. We found their sifting criteria to be fair and reasonable and because of that, we did not uphold Mr C's complaint.

In addition, Mr C complained that there was an unreasonable delay in complaints handling. Prisoners should be able to progress their complaint through the prison complaints procedure within 25 days - Mr C's complaint took just under 50 days. We agreed that this was an unreasonably long time and because of that, we upheld this element of his complaint. However, as we were satisfied that the delay in progressing his complaint did not interfere with his appeal against the decision, which is a separate process, we made no recommendation.

Summary

Mr C, who is a prisoner, submitted a lost property claim for an item of clothing and two jewellery items. He suspected that they had been stolen by his cell mate. The prison did not uphold his claim, as they said valuable items were kept in use at his own risk and it was his responsibility to ensure they were kept in a safe. Mr C complained that he did not have access to a safe as there was only one working safe in his cell and his cell mate was using it. The prison did not uphold his complaints and repeated that items were kept in use at his own risk.

In bringing his complaint to us, Mr C explained that he was not given access to a safe, despite asking for this on numerous occasions. In responding to our enquiries, the prison confirmed that they were aware of problems with the safe in Mr C's cell but advised that he had declined offers to be moved to another cell. They also informed us that prisoners can access a safe storage facility at reception. We were, therefore, satisfied that appropriate alternative facilities were available to Mr C. We acknowledged that it would have been helpful for the prison to have referred to this when responding to Mr C's claim and subsequent complaints. However, we could not conclude that they had failed to take relevant information into account in deciding not to uphold Mr C's claim. From the information provided, we were also satisfied that the prison had taken reasonable steps at the time to investigate the alleged theft.

Summary

Mr C, who is a prisoner, complained about the Scottish Prison Service (SPS)'s decision not to release him from prison on the home detention curfew (HDC) scheme (this permits release of a prisoner with certain restrictions and with an electronic tag attached to his person for monitoring purposes). He said they had told him they could not release him on HDC because he was a recall prisoner. This meant that he had been serving a long-term sentence but had been released, with various conditions attached to the release. He had breached at least one of those conditions and had, therefore, been recalled to prison. Mr C complained that this could not be right as other recall prisoners had been released on HDC.

We advised Mr C that the circumstances of his recall meant that he was statutorily excluded from consideration for HDC and that the SPS had no discretion in this. If other recall prisoners had been released on HDC, that would be because they did not fall under any of the statutory exclusions as he did.

Summary

Mr C, who is a prisoner, was reprimanded for playing cards in a work shed and dismissed from his work party. He complained that other prisoners were also playing cards and that he was singled out by a member of staff. He saw this as a form of bullying.

In responding to his complaint, the prison interviewed the staff involved and found that Mr C was dismissed because of his attitude to work. They concluded that no bullying had occurred. When we investigated, they told us that the dismissal was due to concerns about Mr C's general work performance. They said the fact that he had been playing cards, despite being asked not to, supported these concerns. We acknowledged that the prison were entitled to act on their concerns and concluded that they had reasonably exercised their discretion in taking the decision to dismiss Mr C. We, therefore, did not uphold the complaint.

Mr C also complained about the handling of his complaint. He complained about the time taken to respond, but our investigation identified that there was apparently a delay in the prison first receiving his form. Once they received it, they responded within the relevant timescale. Mr C also raised concerns that no witnesses were called upon during the investigation. We noted that the prison had arranged for two senior managers to speak with Mr C to discuss his concerns, and that there were discussions with the relevant members of staff to obtain their version of events. We considered this reasonable and did not uphold this complaint.

Summary

When Mr C, who is a prisoner, went into custody, the prison deemed him fit to work and required him to attend a work party. Mr C complained that this was not appropriate as before he went into prison he had been considered unfit to work, and had not since been assessed otherwise by a prison doctor. He acknowledged that he saw a doctor after going into prison, but said this only concerned his prescription and did not involve an examination or discussion about work. Mr C also said that guidance on his medication advised against working with tools or operating machinery.

In responding to our investigation, the prison said that a doctor had assessed Mr C after admission and deemed him fit for work. They said that the advice from healthcare staff was that there was no reason why prisoners could not work whilst on medication such as Mr C's, as long as they were not required to drive heavy machinery. Although Mr C did not appear to be happy with the medical assessment, this was not a matter for the prison. Their role was to ensure that Mr C was assessed by a doctor after admission to custody and the evidence we saw showed that they had done so. Once healthcare staff told them that Mr C was fit to work, we then considered it reasonable for them to require him to attend a work party.

Summary

After an incident, Mr C, who is a prisoner, was placed on closed visits (where a prisoner and their visitor cannot make physical contact) for a month. Mr C complained to us that the prison did not review his closed visit status appropriately. He said the review board did not consider his closed visit status within a reasonable time and the results of the review board were not communicated to him properly.

Our investigation found that a prisoner can be placed on closed visits if they behave inappropriately. The prison's guidance says that a prisoner's closed visit status will be reviewed monthly by a review board and the prisoner will be advised of the outcome. In Mr C's case, his closed visit status was reviewed by the prison a little under seven weeks after he was placed on closed visits. In addition, the prison told us that the results were fed back to him and he received a paper copy of the decision. Mr C's evidence to us conflicted with the information provided by the prison. Because of that, we were unable to determine with certainty whether the decision had been clearly communicated to Mr C, so we upheld his complaint made recommendations to address this.

Mr C also complained to us about the internal complaints committee (ICC). He said the officer who responded to the earlier stage of his complaint was also a member of the ICC and he felt that was inappropriate. We did not uphold this complaint. We noted that the ICC is responsible for considering a prisoner's complaint at the later stage. The prison rules and complaints handling guidance state that the ICC must be made up of at least three members, two of whom must be officers or employees from the prison. There is nothing to suggest that an officer who responded to the earlier stage of the prisoner's complaint cannot also be involved in the ICC stage. The prison told us that they were satisfied there was no conflict of interest in having the same officer sit as a member of the ICC. We were satisfied that the prison appropriately exercised discretion in deciding that the officer could also sit as a member of the ICC and that they did so in line with the prison rules and guidance.

Recommendations

We recommended that the Scottish Prison Service:

• ensure the prison reviews the wording of the closed visit protocol to ensure that the timescale for review is clear; and
• take steps to ensure that a prisoner confirms he has received a copy of the written decision of the review board by signing for receipt of the document.

Summary

Mr C, who is a prisoner, complained that prisoners in his part of the prison were treated less favourably than those in another part and that a lack of certain facilities in his part was hindering his progression to less secure prison conditions.

Our investigation found that both parts of the prison were treated in the same way, that the facilities provided were in line with the prison rules and therefore, appropriate, and that what was holding Mr C back from progression was not a lack of facilities but his own ineligibility for it. For example, he had not participated in various necessary courses in prison. We found that the prison acted appropriately in respect of the issues about which Mr C complained.