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Chapter 3 DECISION MAKING PROCESS LEADING TO THE TRANSFER OF BRIAN MARTIN TO OPEN PRISON

3.1 Brian Martin's History: Brian Martin is now 51 years old. He has an extensive criminal record going back to 1976. His relevant offending history is as follows:

[* Because his sentence was backdated to 4 September 2005, the date on which he was taken into custody, the latest date that Martin would have been due for release on non-parole licence was 4 May 2012 (two-thirds of 10 years). His parole qualification date ( PQD) - the first point at which suitability for release on licence would have been considered by the Parole Board would have been 3 September 2010 (50% of sentence).]

Brian Martin's Progress at HMP Shotts

3.2.1 Martin was housed in the National Induction Centre at Shotts for just over 2 years. During this time he underwent his Initial 6 month Assessment/Case Conference (20 November 2006) and subsequent annual review (09 November 2007). He then moved to another Hall in Shotts and was reviewed again on 13 November 2008. These reviews were done under the Integrated Case Management ( ICM) system. The ICM brings together details such as personal information on an offender, home background, offending and assessments on risks and needs and a proposed action plan on how to meet some of the identified needs. The offender sees this information. The process was applied in Martin's case.

3.2.2 In Martin's case, the front page of each review highlighted some of his previous convictions and included references to " Prisonbreaking (Escape from lawful custody)".

3.2.3 At this point in his sentence, Martin appears to have been doing well, attending required programmes and staff considered him a changed person.

3.2.4 On this basis, the case management meeting on 13 November 2008 agreed to expedite his move to the 'Top End' Hall (Kerr House). Martin moved there on 18 November 2008.

3.2.5 'Top End' facilities, such as Kerr House, provide opportunities for prisoners to have greater responsibility and some testing in the community. From there Martin was able to have Special Escorted Leaves ( SELs) and he was escorted by Escort staff for a family visit and shopping trip. These were uneventful. [ SELs are provided from Closed Prisons and enable a prisoner to begin the process of testing and re-familiarisation while still under the control of staff. Consideration of risk to the public remains the first priority.]

Decision to Move Martin to Open Conditions

3.3 When a prisoner is being considered for transfer to Open Prison (or to a Top End facility for unsupervised access to the community e.g. a work placement) a Prisoner Progression Assessment ( PPA) must be completed by a group called the Multi-Disciplinary Progression Management Group ( MDPMG).

3.4 The Multi-Disciplinary Progression Management Group is a professional and competent group of specialists. They come together to consider how a prisoner should "progress" along his/her sentence and all contribute their relevant expertise to the meeting. In turn they talk about the prisoner - whether he/she has outstanding needs and if these have been met by interventions. Healthcare, psychology, programmes and social work staff contribute to questions on need, risk and public safety, health and addictions. There are also inputs on the prisoner's general performance (such as work and education) and behaviour within prison, response to trust placed in him/her (by staff and on SELs) and intelligence reports from prison and police authorities.

3.5 What happens is that the Group all contribute what they know of the prisoner 'here and now'. It is about current progress; how well the prisoner has responded to participation in programmes; behaviour in prison and/or responses to escorted leaves, assessments as to risks of re-offending and potential for harm; and any concerns the Group may have. Public safety is a consideration. Members of the group can access the computer records system and look up information - though this will tend to be current assessments or test results. If the group is unanimous in its support of a transfer to Open prison, this will be recorded as the decision.

3.6 The Prisoner Progression Assessment ( PPA) is a multi-disciplinary assessment which is intended to draw on all the information available and should also make use of the ICM process information as well. In fact the PPA form includes this advice in its heading " The Integrated Case Management process will be crucial in informing the decision as to whether a prisoner is suitable for progression."

3.7 The Shotts Multi-Disciplinary Progression Group ( MDPG) that considered Martin's case met on 3 March 2009. It comprised 9 members. It was chaired by the Unit Manager responsible for the Top End facility (Kerr House), the psychology team leader, a Health Care manager, a Senior Social Worker, the ICM co-ordinator, the Kerr House manager, a Security Manager, a Programme Manager (responsible for delivering programmes for offenders) and a Residential Manager.

3.8 Prior to the MDPG meeting, the Residential Manager requested a Home Background Report ( HBR) from the local authority social work department in the area where Martin intended to live on release - in this case in Fife. On 25 February 2009, the Residential Manager sent an External Enquiry ( EEF) Form to Fife Police requesting any relevant intelligence ahead of considering Martin's transfer to open conditions.

3.9 In compliance with the Scottish Ministers' instruction following the Foye case , the SPS introduced a revised PPA form on 27 November 2008 (31A/08). This new version makes clearer the requirement for prisoners with a history of previous absconding to be processed through a different route. The new form additionally says:

"Such cases [absconds] must be referred to ECMDP."

The Executive Committee for Management of Difficult Prisoners ( ECMDP) is a Committee chaired by the Assistant Director of Prisons with prison management representation which decides on the management of difficult cases. Its remit also includes deciding on whether previous absconders should be transferred to Open Prison.

3.10 The MDPG at Shotts that considered Martin's case for transfer to the Open Estate did not use the new PPA form. The Group used the "old" PPA form. This version contains a number of boxes which require to be ticked. On the front page are the 'Standard Criteria'. These include one which states:

It is possible that this wording could have been slightly ambiguous in that it could have been interpreted to mean it was acceptable to tick the box if 12 months had elapsed since any previous abscond without having to consider the matter further - something which the new form addressed. However, in Martin's case, inserting "N/A" (Not Applicable) was not a valid option.

3.11 Although Shotts MDPG was using an out of date form, nevertheless that form still contained another box which states:

This box was left empty and, since Shotts MDPG failed to identify Martin as an absconder or escaper, they also did not ask for the Open Estate's view of a proposed transfer by a former absconder/escaper.

3.12 The PPA form (in all versions) also makes provision for intelligence information to be included in the consideration of a case. The form that the MDPG at Shotts who considered Martin's case used has on the second page a box which states:

This box is provided as part of the check list to ensure attention is paid to intelligence information and any previous history of escapes and absconds. Intelligence comes primarily from two sources - internal SPS intelligence and intelligence provided by the police. Prison intelligence usually relates to current activities and information. Older intelligence is often considered less relevant. The other source is from the Police who will provide relevant intelligence which can include information on outstanding charges and warrants, information about continuing criminal activities, history of escapes, and where there is concern about danger to individuals or the public.

3.13 Shotts were in possession of intelligence from the police dated 12 August 2008 (which did not refer to 'escaper'). However, as reported above, an External Enquiry Form ( EEF) was sent to Fife Police on 25 February 2009 advising that Martin was being considered for Open conditions and would thus have access to the community through work placements and home visits. The enquiry asked for relevant " information to ensure that all risks are assessed in order to protect the public, prevent/minimise the risk of abscond and the prevention of crime." As shown above, the PPA form was ticked to show that police and prison intelligence had been taken into account at (or prior to) the meeting of 3 March 2009. Those completing the PPA may have been relying on the earlier intelligence. The response to the request of 25 February 2005 had not yet been received.

3.14 Fife Constabulary responded by email on 4 March 2009. Included in a very short response was the following "However there are markers on the Scottish Criminal History System for Firearms and Escaper." (Fife's use of bold text). I am advised by the Shotts Security Unit that this advice was passed directly to the Residential Manager who had requested the information. However no action followed.

3.15 Therefore when the Shotts MDPG met on 3 March 2009 to consider Martin's case (and others), it did not have a response from Fife Constabulary to the EEF sent on 25 February or the Home Background Report ( HBR) from the home area social worker. Nevertheless, the MDPG took a provisional decision at the meeting on 3 March to transfer Martin to Open conditions. Following receipt of the HBR an updated Prisoner Progression Assessment was produced on 2 April with some conditions added in relation to Martin's access to the community and reporting to his Supervising Officer. No mention was made in the revised PPA of the police intelligence received on 4 March 2009. Although this intelligence was available to security and residential staff, there is no evidence to suggest that it was brought to the attention of the MDPG or the Chair.

FOR ACTION

No mention was made, nor apparently cognisance taken, of the police intelligence. This information was available to security and residential staff and was not brought to the attention of the MDPG or its Chairman at HMP Shotts. It will be for SPS to consider what course of action is required over this matter.

3.16 In two other major prisons I visited (Glenochil and Perth) which also hold many long term prisoners I was told that they would not proceed to discuss a prisoner until they had received the Police Report, and Perth also waited for the Home Background Report.

Martin transferred to the Open Estate on 27 April 2009 and absconded on 18 May 2009.

Conclusion

3.17 It appears that 9 members of the Shotts Multi-Disciplinary Progression Group ( MDPG) overlooked the fact that Martin had previously absconded. However, the offence of " Prisonbreaking (Escape from lawful custody)" was written on the front page of each of his initial and two annual Integrated Case Management ( ICM) reviews. Police intelligence (received after the provisional decision to transfer was taken at the 3 March meeting) also indicated Martin as an "Escaper". This information appears not to have been brought to the MDPG's attention and was not taken into account when the final decision to transfer Martin to open conditions was taken. Indeed, it is not clear when or whether a final decision was made. The decision on 3 March had been provisional, and after the HBR was received the PPA was amended to reflect the conditions imposed. I was told by the members of the MDPG that they did not reconsider the case.

Analysis and Recommendations

The MDPG and the use of Information

3.18 In the Martin case, the MDPG appears to have overlooked or ignored the references/information in the ICM reports to prisonbreaking, escaping or absconding. In addition I understand that there was also reference to this among earlier papers in an extensive Social Work file.

3.19 The courts can sentence to 'prisonbreaking', 'attempting to defeat the ends of justice', or it might not even be the subject of proceedings. It is thus important to have a single point of reference which indicates whether the individual has escaped or absconded in the past. Indeed, on examining the files provided to me by SPS I discovered a second episode of escaping which occurred in 1989. This is reported at 3.1 above.

Recommendation 1

I recommend that a 'Flag' is placed on the Prisons Records 2 computer system for 'Absconder/Escaper' and that whenever relevant information is identified or received or an event occurs the 'Flag' is activated.

3.20 A similar system already exists for a number of other factors - one of these is for a 'sex offender'. Once it is known, for example because of a conviction, the 'flag' is activated. The next time the individual is in prison, even for a non-sexual offence, staff are aware of the background and would make decisions accordingly. The same is required for escapers and absconders.

3.21 While the MDPMG is a multi-disciplinary group, my view is that individual members generally only concern themselves with their own specialism and the result is agreement on a series of separate contributions. In my opinion what is missing is that there is no-one who steps back and reviews the case as a whole. In discussing this process with a number of Governors and Managers I have concluded that no-one examines the prisoner's paper file (which often is not present at the case conference) and tries to get a feel for the whole person. The file is not scanned for previous convictions, press cuttings, trial judge's report and any other pieces of information. The information provided at the meeting though thorough is not complete. Further, the information is contained in a number of separate sources, the ICM file, the warrant file, intelligence and on the computer record system.

3.22 In my view it is necessary that someone reviews the whole prisoner file to ensure that a complete picture has been obtained. No-one can ever guarantee that a prisoner will not abscond or that they will not re-offend. But after the risks have been assessed and a positive recommendation made, the file should be reviewed. As someone put it to me "the prisoner might tick all the boxes but it might still not be appropriate to allow him in to the community".

Recommendation 2

I recommend that before the final decision is made to transfer to Open conditions the prisoner record file(s) are reviewed by the Governor or Deputy Governor.

3.23 I was also concerned at the level of decision making. Prisons have Risk Management Groups ( RMG) which consider the management of life sentence prisoners and other prisoners who are assessed at being at high or very high risk. These are usually chaired by the Deputy Governor. In some prisons, the Multi-Disciplinary Progression Management Group ( MDPMG) (the prescribed name for the MDPG) which makes decisions on transfer to Open prison is chaired by the Deputy Governor, in others by a Unit Manager. In one prison the RMG approves the 'high risk' cases progressing on to their PRMG (Progression Risk Management Group), while 'ordinary' long term prisoners cases go directly to their PRMG. In Shotts, a Unit Manager chaired the meeting and agreed the decision in the Martin case. I understand this Manager has chaired the Group for the last year or so. As can be seen from the chart below, the 'F' Band Unit manager is a middle manager and 3 grades/bands below the Governor, 2 below the Deputy Governor.

3.24 The decision to transfer a prisoner to Open conditions is a most important one and can have grave repercussions. That is why a system exists to progress prisoners. The Court imposes a prison sentence in the expectation that a proportion of that sentence will be custodial and that stringent checks are made before security is lessened. Moving a prisoner to the increased freedoms of the Open estate is a significant decision for prison management. I did not feel that all staff fully understood this implication.

3.25 It appeared to me that the pressures to progress prisoners through the system and the processes involved seemed to outweigh the significance. I was told that the decision is a group one. Whatever remorse a group might feel if something goes wrong, it is difficult to hold them accountable. Who has made the decision? Well, all have. In my view the decision to move a prisoner to the Open Estate should only be made by the Governor or Deputy Governor. The Governor is the person appointed as being accountable and should be. This view was also endorsed in the report by the Security Category Working group which established the current Prisoner Supervision System ⁶.

Recommendation 3

I recommend that where the Governor or Deputy Governor does not chair the MDPMG, the agreement for transfer to Open conditions becomes a recommendation which goes to the Governor or Deputy Governor for approval and signing. This is not a decision that can be delegated further down. In relation to Recommendation (2) above it is also my view that the Governor or Deputy Governor when being asked to confirm a transfer to Open conditions additionally reviews the case file to assure themselves that the prisoner is appropriate for transfer to Open conditions and there is nothing known about him or her which would preclude their access to the community.

The Use of Intelligence

3.26 The passing of intelligence between agencies depends on protocols, but more importantly on trust and professional respect for each other. From my discussion with staff at Shotts and in other prisons I formed the view that there is not a full understanding of the respective positions and responsibilities of both agencies. The intelligence SPS received was often of a brief, bland or headline nature, which gave little information as to what it was about, how current it might be and so on. Without knowing what lies behind the information, or why detailed intelligence might be withheld, and therefore because the specifics are not known or understood by decision makers in SPS, the information may be sometimes discounted as too vague. On the other hand it is, by its very nature, understandable that police are reluctant to share more detailed intelligence with others. However, when making important decisions about the possibility of transfer to open conditions as much information as possible is required, and the decision is unlikely to be a sound one if all the information is not available.

3.27 It goes without saying that many of the long term prisoners held by SPS are of continuing interest to the police. In terms of crime prevention and public safety it is necessary to have good working relationships between both services. Neither is served when there is poor or limited information or poor communications. One of the ways to improve this situation is to have a Police Liaison Officer present at MDPMG meetings. When a brief intelligence report is provided, those present could seek clarification as to what was behind it - its strength, currency and relevance. Clarification would reduce doubt and make for better informed decisions. The Presence of a Police Liaison Officer would also encourage better understanding of the relevant tasks of each agency and improve trust and professional respect. I understand that there are Police Liaison Officers attached to 4 prisons (Aberdeen, Peterhead, Edinburgh and Addiewell) and to SPS headquarters ⁷. This is a welcome development, although I do not know whether they are full-time posts or if they attend MDPMG meetings.

Recommendation 4

I recommend that a Police Liaison Officer attends the MDPMG meeting and provides the police intelligence input to decision making. Indeed, there may be good arguments to support the creation of full-time Police Liaison Officer posts in, at least, the larger prisons in Scotland.

3.28 There is a subsidiary matter which will be for the police. When the prison contacts the 'home area' police force for intelligence, it is provided by that force. The understanding within SPS is that each of the 8 Scottish Police Forces keeps its own separate intelligence base - and that when a prison applies to the police force of the prisoner's 'home area' they may not have intelligence held by other forces. Additionally information is held by the Scottish Intelligence Database ( SID), Violent and Sex Offender Register ( ViSOR) and by the Scottish Crime and Drug Enforcement Agency ( SCDEA). It is to be hoped that a Police Liaison Officer would be appraised of relevant available intelligence, not just that held locally. In any case, unless there was a single data base, the Liaison Officer would need to contact a number of forces, since prisons tend to hold prisoners from all across Scotland and further afield. Consideration of these issues are likely to contribute to crime prevention and enhanced public safety.

3.29 What is evident from the Martin case is that the decision to transfer directly to Open prison could not have been made if the meeting had before it the External Enquiry Form and the Home Background Report. Had they recognised Martin as an absconder/escaper and still recommended transfer to Open conditions his case would have be sent to the ECMDP for consideration (2.5, 3.9 and 3.11 above). In the absence of a Police Liaison Officer or the local Criminal Justice Social Worker who could provide clear information to the MDPMG which would be taken into account in decision making, both the EEF and the HBR should be available to the meeting. A MDPMG should not convene without them. Otherwise important external information, crucial to the consideration of risk and management of the prisoner in the community, will be missing and any decision made would be based on incomplete information.

Recommendation 5

I therefore recommend that input either in person (by the police and/or the relevant criminal justice social worker) or by tabling of the External Enquiry Form and Home Background Report be made mandatory before a case considering transfer to Open conditions can be discussed.

3.30 Trial Judge's Report: I have recommended that a review of the prisoner's records should be undertaken before final 'sign off' by the Governor or Deputy Governor. This requires the records to be complete. I was advised that the Trial Judge's Report is not available in all cases. It is important that where the Trial Judge's Report exists it is made available to the prison. Without it, there is no definitive version of the crime, the events leading up to it and the judge's view. The prison authorities might be left with a conviction 'index offence' stating what the offence was ( e.g. assault). They might have to rely heavily on the prisoner's own version of the incident. This is not acceptable, and the absence of the Report could mean missing important details or aspects of the case ( e.g. its severity or whether the assault was as a result of provocation or not?). It is important that SPS's records are as comprehensive as possible and that they include the Trial Judge's Report where available.

3.31 A Suggestion: In my visits to 5 prisons I encountered the use of at least 3 different names for the Multi-Disciplinary Progression Management Group ( MDPMG). I am not aware any called it as prescribed in Circular 8A/08 on Progression Casework. Shotts called it their Multi-Disciplinary Progression Group, another prison called it Progression Risk Management Group and yet another called it a Multi-Disciplinary Management Group. All of them also had a Risk Management Group. I would suggest to SPS some simplification and standardisation.

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