The Prisons and Young Offenders Institutions (Scotland) Rules 2011

Made: 12th September 2011

Laid before the Scottish Parliament: 14th September 2011

Coming into force: 1st November 2011

The Scottish Ministers make the following Rules in exercise of the powers conferred by section 52 of the Courts-Martial (Appeals) Act 1968 , sections 3A, 8, 11, 12, 14, 33A and 39 of the Prisons (Scotland) Act 1989 and sections 104(6) and 114(3) of, and paragraph 3(2)(b) of Schedule 6 to, the Criminal Justice and Public Order Act 1994 and all other powers enabling them to do so.

PART 1 — GENERAL

Citation and commencement

1

These Rules may be cited as the Prisons and Young Offenders Institutions (Scotland) Rules 2011 and come into force on 1st November 2011.

Interpretation

2

• (1) In these Rules—

• “the Act” means the Prisons (Scotland) Act 1989 ;

• “the 1993 Act” means the Prisoners and Criminal Proceedings (Scotland) Act 1993 ;

• “the 1994 Act” means the Criminal Justice and Public Order Act 1994;

• “the 2006 Rules” means the Prisons and Young Offenders Institutions (Scotland) Rules 2006 ;

• “accommodation” means the cells or rooms used to accommodate prisoners for living and sleeping purposes;

• “appellant” means, subject to rule 2(3), a prisoner—who appeals under section 106 or 175 of the 1995 Act against his or her conviction or sentence, or against both conviction and sentence;whose case has been referred to the High Court of Justiciary by the Scottish Criminal Cases Review Commission pursuant to section 194B(1) of the 1995 Act ;who appeals by way of bill of suspension against his or her conviction or sentence, or both conviction and sentence, in summary proceedings;who appeals under section 8 of the Court Martial Appeals Act 1968 against his or her conviction or sentence, or both conviction and sentence, or who appeals under section 39(1) of that Act from any decision of the Court Martial Appeal Court on an appeal under section 8 of that Act; orwho is returned to prison under section 18(2) of the 1993 Act and who appeals under section 19 of that Act;

• “appropriate member”, in relation to a member of the chaplaincy team, means a member who represents the religious denomination concerned or who has pastoral care of the prisoner concerned;

• “authorised personal communication device” means a personal communication device the possession and use of which have been authorised under section 41ZB(8) of the Act;

• “biometric data” means fingerprints and any other data specified by direction made by the Scottish Ministers;

• “chaplain” means the person who is appointed pursuant to section 3(2) of the Act as the chaplain to a prison;

• “chaplaincy team” consists of the chaplain and any prison minister and any visiting minister;

• “civil prisoner” means a person who is committed to prison—by virtue of non compliance with an order under section 45 of the Court of Session Act 1988 ;under section 4 or 6 of the Civil Imprisonment (Scotland) Act 1882 ;by virtue of a warrant granted under section 1(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 ;for contempt of court or for non payment of a fine imposed for contempt of court; orfor breach of interdict;

• “clothing” includes footwear, jewellery and other objects worn for personal adornment;

• “communal telephone” means a landline telephone provided in a communal area of the prison for use by any prisoner and does not include an authorised personal communication device;

• “constable” has the same meaning as in section 99(1) of the Police and Fire Reform (Scotland) Act 2012;

• “contracted out prison” means a prison or part of a prison the running of which a contract under section 106 of the 1994 Act is for the time being in force;

• “contracted out services” means services to a prison (other than a contracted out prison) or to staff or prisoners therein, provided other than by officers or employees;

• “controlled drug” means any drug which is a controlled drug for the purposes of the Misuse of Drugs Act 1971 ;

• “coronavirus” has the same meaning as in section 1 of the Coronavirus (Scotland) Act 2020;

• “Deputy Governor” means any officer who is appointed to act in place of the Governor in Charge during any period when the Governor in Charge is temporarily absent from the prison;

• “employee” means an employee (not being an officer of a prison) appointed by the Scottish Ministers under section 51 of the Scotland Act 1998 ;

• “film” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 ;

• “for the duration of a coronavirus outbreak” means the time period beginning from the commencement of the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 and lasting until 30 September 2022;

• “Governor” means—in this rule, rules 5A, 90(1), 93, 94 and any rule in Part 12 (other than rule 120(3)), the Governor in Charge;in rules 6, 7, 14, 35 and 81 and in any rule in Parts 3, 8, 10 (other than rules 90(1), 93 and 94), 11 and 14 to 17 and, unless otherwise expressly provided for, in directions made under rules 19(2)(g), 21(1)(b)(iii), 22, 26, 55(7), 62(10), 62A(11), 77(3), 78A(10) and 86, any of the following—the Governor in Charge;the Deputy Governor;any authorised Unit Manager; andwhere there is no officer as mentioned in paragraphs (i) to (iii) present for the time being in the prison, the most senior officer who is present in prison at that time; andin any other provision in these Rules, any officer;

• “Governor in Charge” means the officer who is appointed as the Governor in overall charge of the prison or, in the case of legalised police cells, the constable who is in charge of the cells;

• “healthcare professional” has the same meaning as in section 17CA of the National Health Service (Scotland) Act 1978 ;

• “in-cell telephone” means a landline telephone provided in a prisoner’s cell or room for the use of any prisoner for the time being accommodated in that cell or room, and does not include an authorised personal communication device;

• “independent prison monitor” means an independent prison monitor appointed under section 7B(2)(a) of the Act;

• “legal adviser” means a person who is entitled to practise—as a solicitor, an advocate or a barrister in any part of the United Kingdom; oras a member of the corresponding profession of solicitor, advocate or barrister in any Member State of the European Union, and, except for the purposes of rule 113(9), includes the authorised clerk or employee of such a person;

• “legal custody” is to be interpreted in accordance with section 13 of the Act and section 295 of the 1995 Act ;

• “letter” includes any communication in written form which—is directed to a specific person or address; andrelates to the personal, private or business affairs of, or the business affairs of the employer of, either correspondent, and includes an envelope containing any such communication;

• “life prisoner” means a person serving a sentence of imprisonment for life;

• “long-term prisoner” means a person serving a sentence of imprisonment for a term of four years or more which was imposed on or after 1st October 1993 and includes any person who is treated as such a prisoner for the purposes of any provision of Part I of the 1993 Act;

• “media representative” means—a photographer, cameraman, researcher or producer for, or of, any television, radio or other programme intended for broadcast or transmission by any form of electronic medium; ora journalist or author;

• “medical facility” includes any hospital and any other premises at which any form of services for the care of a person’s health is provided;

• “nicotine vapour product” has the meaning given by section 35A of the Tobacco and Primary Medical Services (Scotland) Act 2010;

• “officer” means an officer of the prison appointed by the Scottish Ministers and includes the Governor but—for the purposes of searching a prisoner under rule 92(2)(a) and for the purposes of rule 99, includes a prisoner custody officer who is authorised to perform escort functions in accordance with section 114 of the 1994 Act ; andin the case of a legalised police cell, means any constable;

• “personal communication device” has the same meaning as in section 41(9B) of the 1989 Act ;

• “photograph” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 ;

• “police member of the Scottish Crime and Drug Enforcement Agency” means a police member appointed in accordance with paragraph 7 of schedule 2 to the Police, Public Order and Criminal Justice (Scotland) Act 2006 ;

• “prison minister” means a person who is appointed by the Scottish Ministers pursuant to section 9(1) of the Act as a minister to a prison;

• “prohibited article” means—any drug which is a controlled drug within the meaning given by section 2 of the Misuse of Drugs Act 1971;any firearm, or any ammunition, within the meaning given by section 57 of the Firearms Act 1968;any offensive weapon within the meaning given by section 47(4) of the Criminal Law (Consolidation) (Scotland) Act 1995;any article to which section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 applies;alcohol, within the meaning given by section 2 of the Licensing (Scotland) Act 2005;any personal communication device other than an authorised personal communication device; ...tobacco or any tobacco product; or, any substance which is a psychoactive substance within the meaning given by section 2 of the Psychoactive Substances Act 2016.

• “reception” means, in relation to a prisoner committed to prison, the process of receiving a prisoner into prison—on his or her removal to prison from court, or any other place, in implementation of the warrant, order or direction ordering or authorising his or her detention in custody; oron his or her transfer to any prison from any other prison, or from any remand centre, young offenders institution or other place where he or she was liable to be detained in custody, and cognate expressions shall be construed accordingly;

• “refugee” means—a person who is recognised by Her Majesty's Government as a refugee within the meaning of the UN Convention relating to the Status of Refugees done at Geneva on 28th July 1951 as extended by the Protocol thereto which entered into force on 4th October 1987 or, as the case may be, the Protocol relating to the status of refugees done at New York on 31st January 1967 ; ora person who enjoys asylum in the United Kingdom in pursuance of a decision of Her Majesty's Government though not yet recognised;

• “residential first line manager” means an officer who is required by the Governor to manage areas of living accommodation for prisoners;

• “short term prisoner” means a person serving a sentence of imprisonment for a term of less than four years which was imposed on or after 1st October 1993 and includes any person who is treated as such a prisoner for the purposes of any provision of Part I of the 1993 Act;

• ...

• “sound recording” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 ;

• “special cell” means a cell or room which is adapted for the temporary accommodation of refractory or violent prisoners and whose features may include special sound-proofing, strengthened fixtures and fittings or the absence of any window;

• “stateless person” has the meaning assigned to it in article 1 of the Convention relating to the Status of Stateless Persons 1954 ;

• “supervision level” means a supervision level which may be assigned to a prisoner in accordance with Part 3 of these Rules;

• “temporary release” means any of the forms of temporary release defined in rule 136;

• “tobacco product” has the meaning given by section 35 of the Tobacco and Primary Medical Services (Scotland) Act 2010;

• “unauthorised property” means any property which the prisoner has not been authorised by any officer or by virtue of these Rules to possess within the prison or within a particular part of the prison.

• “Unit Manager” means an officer who is appointed to manage a function or group of functions within the prison;

• “untried prisoner” means a person who is committed to prison—for examination or trial on any criminal charge;by virtue of remand in custody under the Extradition Act 2003 ; orby virtue of detention under Schedule 2 or 3 to the Immigration Act 1971 ;following conviction but awaiting sentence, but does not include any such person who is for the time being serving a sentence of imprisonment;

• “visiting minister” means a minister who is allowed to visit prisoners of his or her religious denomination in terms of section 9(3) of the Act;

• “young offender” means an offender who—has attained 18 years of age but has not yet attained 21 years of age;is being detained in a prison or young offenders institution; andhas been sentenced to a period of detention.

• (2) Except where the context otherwise requires, for the purposes of any reference, however expressed, in these Rules to—

• (a) the term of imprisonment or other detention to which a person has been sentenced; or

• (b) the term of imprisonment or other detention which a person, having been sentenced, has served in whole or in part,

consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term.

• (3) For the purposes of the definition of “appellant” in paragraph (1), a prisoner is deemed to be an appellant—

• (a) in the case of an appeal as mentioned in sub-paragraph (a) of that definition in solemn proceedings, from the time the prisoner lodges an intimation of intention to appeal in terms of section 109(1) of the 1995 Act or, in the case of an appeal against sentence only, a note of appeal in terms of section 110(1) of that Act ;

• (b) in the case of an appeal as mentioned in sub-paragraph (a) of that definition in summary proceedings, from the time the prisoner lodges an application for a stated case under section 176(1) of the 1995 Act or, in the case of an appeal against sentence only, a note of appeal under section 186(1) of that Act ;

• (c) in the case of a reference as mentioned in sub-paragraph (b) of that definition, from the time the Scottish Criminal Cases Review Commission refer the case to the High Court of Justiciary;

• (d) in the case of an appeal as mentioned in sub-paragraph (c) of that definition, from the time the prisoner lodges the bill of suspension;

• (e) in the case of an appeal as mentioned in sub-paragraph (d) of that definition, from the time the prisoner lodges the appeal;

• (f) in the case of an appeal as mentioned in sub-paragraph (e) of that definition, from the time the prisoner lodges a note of appeal, until the appeal, or, as the case may be, the reference is finally disposed of or abandoned in its entirety.

• (4) Subject to any exception or modification specified in any provision of these Rules or where the context otherwise requires—

• (a) any reference in these Rules to a prison is to be construed as including a young offenders institution;

• (b) any reference in these Rules to a prisoner, imprisonment or a sentence of imprisonment is to be construed respectively as including a young offender, detention or a sentence of detention in a young offenders institution;

• (c) any reference in these Rules to a prisoner, imprisonment or a sentence of imprisonment is to be construed respectively as including any person mentioned in rule 3(2)or any detention or sentence of detention imposed on such a person under any the provisions mentioned in rule 3(2);

• (d) any reference in these Rules to a prisoner, imprisonment or a sentence of imprisonment is to be construed respectively as including any person mentioned in rule 3(3) or any imprisonment or detention or period of imprisonment or detention imposed on such a person under any of the provisions mentioned in rule 3(3); and

• (e) any reference in these Rules to a visitor is to be interpreted in accordance with rule 105(9).

Application of Rules

3

• (1) Subject to paragraphs (2) to (4), these Rules apply to prisons and young offenders institutions and to any person who is required to be detained in any such prison or institution.

• (2) Subject to any exception or modification specified in any provision of these Rules or where the context otherwise requires, these Rules apply to—

• (a) a person sentenced under section 205 of the 1995 Act to be detained without limit of time or for life and who is directed or sentenced to be detained in a prison or a young offenders institution;

• (b) persons on whom detention in a young offenders institution has been imposed under section 207(2) of the 1995 Act ; and

• (c) a person sentenced to be detained under section 208 of the 1995 Act and who is directed to be detained in a prison or a young offenders institution,

as they apply to prisoners who are serving sentences of imprisonment.

• (3) Subject to any exception or modification specified in any provision of these Rules or where the context otherwise requires, these Rules apply to any other person on whom imprisonment, or as the case may be detention in a young offenders institution, has been imposed or who is committed to prison, including persons who are imprisoned or detained—

• (a) under section 219 of the 1995 Act (imprisonment for non payment of fine) or, by virtue of that section, under section 207 of that Act (detention of young offenders) ;

• (b) for examination or trial on any criminal charge;

• (c) by virtue of remand in custody under the Extradition Act 2003 ;

• (d) by virtue of detention under Schedule 2 or 3 to the Immigration Act 1971 ;

• (e) by virtue of non compliance with an order under section 45 of the Court of Session Act 1988 ;

• (f) under section 4 or 6 of the Civil Imprisonment (Scotland) Act 1882 ;

• (g) by virtue of a warrant granted under section 1(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 ;

• (h) for contempt of court or for non payment of a fine for contempt of court;

• (i) for breach of interdict; and