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Chapter 2 THE FOYE CASE (2008) AND SUBSEQUENT CHANGES TO PROCEDURES

2.1 On 18 August 2007 Robert Foye absconded from Dundee while on licence, for the second time, from Castle Huntly to attend an Alcoholics Anonymous meeting. He was apprehended 7 days later having in the meantime raped a 16 year old schoolgirl. Foye had originally been serving a 9_ year sentence from 17 June 2002 for attempted murder, and in September 2005, some 3_ years later, he was transferred to Castle Huntly. Within a fortnight he had escaped and was unlawfully at large for 52 days. He received a further 4 months sentence at Perth Sheriff Court for Prison breaking on 12 January 2006. He was thus serving a cumulative sentence of 9 years and 10 months, and his date of release was also extended by the time at large. His revised Parole Qualification Date ( PQD) was 7 August 2007 with a revised release date of 7 April 2009. Following his conviction for rape, Foye was given an Order for Lifelong Restriction, a life sentence with a minimum period of 9 years to be served.

2.2 Foye's case raised important issues. How was a prisoner who had escaped from Castle Huntly (smashing through a fire escape door) allowed back there 20 months later? Did he actually meet the criteria for Open prison? Was a further escape or abscond predictable? And if so, was it likely that he would offend, or in the horrendous way that he did?

2.3 The Foye Review ⁴ was an internal SPS review and it concerned itself primarily with the facts of the case and processes. Within this limited scope it found (at 9.1) that Foye had met all of the essential criteria required for transfer at the time and (9.2.) although an abscond was always a possibility, he was risk assessed and support was to be offered. In terms of language used I am concerned that this first escape from Castle Huntly was consistently referred to as an 'abscond'. Breaking out through a physical barrier is an 'escape'. In relation to the questions posed about re-offending it was noted (9.3) that Foye had been " assessed as 'high risk of re-offending' so a further offence was always a possibility." Finally, because his previous convictions mainly related to car crime and dishonesty and there were no known risks in relation to sexual offences it was not considered as a risk factor (9.3 & 9.4).

2.4 The Foye Review made 7 recommendations (summarised):

1. A multi-disciplinary 'progression meeting' be held ensuring all relevant materials are brought together and discussed in the context of access to less secure conditions and focused on risk management.

2. Suitable information, including home circumstances, be available prior to transfer and considered during the 'progression meeting'.

3. Clear protocols to ensure sharing of relevant intelligence information for risk purposes are required.

4. Introduction of standardised report formats on the Prisoner Records 2 system.

5. A Case Management Board be held at the Open prison as soon as possible to a) check the risk assessment information provided by the sending establishment and b) develop a comprehensive community risk management plan - with community licence access arrangements.

6. Adverse circumstances or events should trigger standardised abscond risk assessments and critical incident reviews.

7. Staff training on Integrated Case Management and risk assessment mandatory for relevant staff, with emphasis on record keeping.

These recommendations dealt with the processes. They would tighten up and create a better rigour in decision making, but no changes were suggested to the criteria to be used, or any other issues about the use of the Open Estate. It was limited in that it did not consider wider issues about who should be in open prison or at what stage of sentence. SPS subsequently produced an internal Assurance Review ⁵ on the Foye Review and Operational Matters (which is also a very good background document on the Open prison system at sections 5 - 7). This is also available on the SPS web-site.

2.5 It was the Cabinet Secretary who further instructed that there should be a presumption that if a prisoner has escaped or absconded from Open conditions he should not return. This does not mean that prisoners cannot return to open conditions. Since the presumption against non-return to open prison cannot be a blanket ban, as it would contravene ECHR and be open to legal challenge, there must be a route for decision making in these more difficult cases often involving life sentence prisoners. There was already an existing committee: The Executive Committee for Management of Difficult Prisoners ( ECMDP). This is a group run by SPS Headquarters. It is chaired by the Assistant Director of Prisons with membership also drawn from prison management and its function is to consider the management of difficult prisoners and their location. It was considered appropriate that ECMDP should be additionally tasked in deciding cases where there had been previous escape or absconding and there was a subsequent recommendation from the prison to transfer to open conditions.

2.6 The recommendations of the review were implemented to greater or lesser effect. Multi-Disciplinary meetings are held to consider progression to open prison. Although Recommendation 2 stated that suitable information should be available for discussion at the meeting this has not always been the case in relation to Home Background Reports, and as we shall see later, also the Police Intelligence Report in the case of Martin. Use of computerised standard report formats has advantages, but, as we shall see, computers only display that which is asked. Recommendation 5 is curious: (a) that the open prison should undertake primary assurance on the risk assessment information provided by closed establishments. First, it is too late once a prisoner has moved to check on whether this is correct. Second, it can only be secondary assurance at this stage. The primary assurance and checking should be undertaken by the sending closed prison. (b) it proposed that the open prison develops a comprehensive community risk management plan, and that community access would be authorised by the open prison. Again this fails to understand two issues: first that when in an open prison the prisoner is already in the community, and second that the community risk management plan should have been started in the closed prison as part of the process of transfer and assessment of risk. Finally, I cannot comment on whether mandatory training was given to those involved with Integrated Case Management ( ICM) and risk assessment as I did not enquire into this area.

2.7 On the positive side, since Foye, there has been a greater awareness of issues concerning community risk, and transfer to the Open Estate is given greater consideration. For example at Shotts, of the 211 cases considered by their Mutli-Disciplinary Progression Group ( MDPG) since Foye, 105 cases were approved but 106 rejected. For a variety of reasons a further 29 prisoners did not transfer, with only 76 ending up in the Open Estate. This improved focus has resulted in a reduction of absconds from the open estate from 2008:

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