More than one in four prisoners in Scottish jails are now serving time behind bars despite not yet facing a trial or sentencing.
Figures from the Scottish Prison Service (SPS) show that the number of prisoners on remand has now exceeded 2,000 for the last two weeks for the first time since records began due to the impact of covid-19 restrictions on the courts.
The figure is currently over 27 per cent of the total prison population, leading to calls for “urgent action”. Stats include those who are awaiting trial, as well as a minority who have been convicted but not yet sentenced.
The following week, ending 4 September the number of untried prisoners had risen to 1,773 with 264 still awaiting sentence – a total of 2037.
The proportion is higher still for young people with just over a half of 223 under 21s now in prison either untried or awaiting sentence. Of 315 women in Scottish jails, 37 per cent are on remand.
The figures are understood to be the highest on record due to the delay on court cases, due to the backlog that has built-up in recent months due to covid-19 restrictions.
Details are not available on how long they have spent behind bars without either conviction or sentence, but some claim they are effectively forced to carry out a short prison sentence regardless of decisions eventually made by a jury, judge or sheriff.
Last month the Scottish Parliamentary justice committee was warned that the number of jury trials at both the High Court and Sheriff Court waiting for a court date had doubled since the start of the covid-19 pandemic to an estimated 2,550. Meanwhile the number of outstanding non-jury trials in the Sheriff Court stood at 27,000.
I understand the legal due process but the adversity involved in an extended time of waiting in custody is significant. These are fellow citizens that have not been convicted. Dr Hannah Graham
Dr Hannah Graham, a senior lecturer in criminology at the University of Stirling, said every effort must be made to clear the backlog of court cases.
She added: “I understand the legal due process but the adversity involved in an extended time of waiting in custody is significant. These are fellow citizens that have not been convicted.
“Some of the people on remand may be alleged to have done something very serious and are looking at jail time if convicted, whereas others may not. Some may have been found guilty and convicted but might have already spent months in prison on remand, so could be given a community payback order or something else – the judicial decision is as yet undecided.”
She highlighted lockdown conditions faced by prisoners as of special concern for those on remand.
These included reports of people being confined to their cells for 24 hours a day, or for extended periods of time without access to showers or outdoor exercise. The SPS has denied this, claiming while access to outdoor exercise and education suites was restricted due to lockdown, floors were regarded as one household, allowing time out of cells.
The SHRC also raised concerns about the lack of contact with families and lawyers. The SPS has this week completed its roll out of in-cell phones for all prisoners in response.
But Graham claimed concern about the use of remand, relate to prison overcrowding as well as risk of deaths in custody. In Scotland, levels of suicide are higher for people on remand – 59 per cent of self-inflicted deaths in Scottish prisons between 2016-2018 were people on remand, according to research by University of Glasgow.
‘Crowded, pressured and potentially violent’
“The fact remains that we have people in crowded, pressured and potentially violent conditions who haven’t been convicted,” she added.
“Remand can be a time of mental health distress because of the waiting and uncertainty. Someone on remand could be mixed in with people who are serving a sentence for something quite serious.
“There are access to justice issues in having a significant court backlog with people waiting on remand for considerable periods. The longer a person has to wait before trial – what does that say about proportionality, rights, and procedural fairness?”
During the pandemic prison populations fell from a high of 8,094 on 13 March to 6,869 on 29 May, in part due to an early release scheme. But by last week the total population, which has been increasing every since, was at 7,463.
The SPS confirmed that while about 80 per cent of prisoners had their own cells at the height of the pandemic, that was only the case for less than half of prisoners now.
“With double cell occupancy going back up across the Scottish prison estate, anyone with a human rights perspective is going to be concerned about what impact that might have and the pressure that might add,” added Graham.
“Making every possible effort to clear the court backlog and the numbers waiting on remand is a priority in the interests of all concerned. It is difficult making complainers and witnesses wait for trial, just as it is difficult making the accused wait in custody, not to mention difficulties for their families and for prison and NHS staff managing the numbers in custody.”
Family visits went online during the pandemic restrictions earlier this year. They had restarted across the prison estate last month, but have been cancelled again at Loss Moss and Barlinnie prisons due to restrictions in Glasgow and the surrounding areas.
It’s clear that there are far too many people on remand in Scotland – people who denied liberty often without a conviction. In fact while numbers in overall custody have declined the numbers on remand have not. John Finnie, MSP
Dr Nancy Loucks, chief executive of Families Outside, said the issue was affecting many supported by the organisation.
“People in custody on remand and their families are particularly vulnerable due to the uncertain length of time in prison, uncertain outcome of a case, and current limitations on family contact and social support,” she added. “The increasing numbers of people in prison on remand is very concerning, and we urge the Cabinet Secretary to support community-based measures rather than prison as a matter of priority.”
The issue has been of political concern for a number of years, with the Scottish Parliamentary Justice Committee holding an inquiry into the use of remand in 2018. However opposition politicians claimed the pandemic had exacerbated problems.
Green justice spokesperson John Finnie MSP said: “It’s clear that there are far too many people on remand in Scotland – people who denied liberty often without a conviction. In fact while numbers in overall custody have declined the numbers on remand have not.
“We know a significant number of these people have chaotic lives which might include unemployment, addiction issues and homelessness.”
He said he was particularly concerned about the impact on the mental health of young people. Last year, a review of mental health provision following two suicides at Polmont Young Offenders’ Institution identified systemic failings and a lack of attention to those at risk.
Finnie added: “Clearly we need robust alternatives to the current system, including better use of technology such as remote monitoring and preventative measures outside the criminal justice system. It will take imaginative alternatives to keep both people in remand and the wider public safe, and I hope the government and services can explore these as a matter of urgency.”
Tom Fox, head of corporate affairs for SPS, agreed that the issue was of concern and confirmed that it was due to the backlog of court cases. He added: “The remand numbers are very high at present and that presents a significant challenge.”
However he insisted that SPS had dealt well with the covid-19 outbreak, with all prisoners now having access to phones in their cells and online, virtual visits where physical ones were not possible. He claimed that the majority of prisoners had willingly complied with restrictions.
But he questioned claims that those on remand were particularly at risk of harm. “I think anyone coming into prison has a greater risk of harm [than the general population],” he added. “It is a life changing experience.”
A Scottish Government spokesperson said it would continue to monitor the situation to assess what further action may be required to lower the prison population, including greater use of community-focused interventions.
It is aiming to introduce regulations to expand electronic monitoring, including under bail conditions.
“The main reason for the significant increase in the remand population has been the suspension of court business and the resulting backlog of cases – a decision that was not made lightly but was necessary to prioritise public safety and limit the spread of coronavirus,” they added.
“The impact of covid-19 is being felt by jurisdictions across the world and we are working jointly with a range of partners to deal with the backlog.”
Additional measures include £5.5 million funding for remote jury centres to allow High Court cases to proceed, with funding for remote jury centres in sheriff courts under consideration.
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