Focus: How to punish, if prison's a break?

Other inmates tell the same story. For a first-time, middle-class offender the prospect of a jail term may be terrifying but, for hardened serial criminals, prisons are often more a place to be pampered, not punished.

Prison is supposed to serve the dual functions of making society feel safe while at the same time punishing those who have transgressed the rules. An ancillary benefit is the rehabilitation of offenders, which prison systems take seriously to varying degrees. Recent evidence suggests ours is failing on all three counts.

Last week Andrew McLellan, the outgoing HM Inspector of Prisons for Scotland, stated publicly what everyone already knew - that the punishment element is largely absent from the prison experience in this country and anyone who thinks differently is deluding themselves.

In recent months there has been a growing body of evidence to support his thesis. Questions have been raised about the severity of sentences - those under six months will soon disappear altogether - while a spate of high profile escapes has undermined confidence that the system is capable of holding onto those it locks up.

So, what is the truth? We have a justice minister who talks tough on crime but admits that serving time in a Scottish jail is a "skoosh". At the same time prisons are at bursting point such is the number of custodial sentences handed down by courts, but if the denial of liberty is not the deterrent it should be, then what is the point?

Paul McBride, a leading QC and adviser to the Scottish Conservatives on criminal justice, believes MacAskill's quaint use of vernacular to depict prisons as a cushy number is a smokescreen. The justice minister, he says, was simply attempting to deflect attention from his decision to scrap sentences of less than six months as a means of emptying overcrowded jails.

Current guidelines say offenders are eligible for parole after serving half of their sentence, but McBride says few serve any more than a quarter of their allotted term. "Some of it is breathtaking. Sentences imposed by the courts bear no relation to what people serve as a result of government policy. The first thing the victim knows about it is when he sees the accused in the street a few weeks later.

"If a client of mine gets five years I could probably see that person in a year and a bit. If they get just under four years for slashing someone's face it is automatically halved then effectively administratively halved again when they are given a tag - and before that they will get home leave weekends."

Around 83% of custodial sentences are for terms of up to six months, which places pressure on prisons and, MacAskill believes, offers little prospect of rehabilitation. Yet his rejection of the efficacy of prison raises questions about the value of longer terms imposed on serious and violent offenders.

Aside from the barred windows and nightly lockdowns, jail, for thousands of offenders, is little different to being at home on the dole. The majority while away the daylight hours in single rooms, watching television or playing video games. They can smoke, play pool and table tennis and make cups of tea.

Many inmates even have their own cell keys, allowing them to come and go as they please within the walls of the prison. Last week inmates at Addiewell, who already enjoy flat screen TVs and en-suite showers, were given electric fans after complaining they were too hot.

Prisoners can be considered for transfer to open prisons, where rules are significantly more relaxed, after serving six months in an ordinary jail and passing risk assessments. The only exceptions are lifers, who must remain in high security prisons until two years before their parole date.

However, lax procedures have allowed violent and sexual offenders to be transferred to open prisons. The six-month rule was introduced after Robert Foye, 26, raped a teenager while on day release from Castle Huntly in 2007. Prior to that, prisoners could be sent to an open jail directly after sentencing. But the reforms, it seems, didn't go far enough.

Last month Brian Martin, a violent offender, escaped from the same prison. Martin, nicknamed the "Hawk" because of his distinctive nose, was jailed for ten years in May 2006 over a shotgun attack on a man who sold him a stolen car. He had been released early from prison before carrying out the crime.

Professor Alec Spencer, the former prison governor appointed by the Scottish government to investigate the escape, has caused controversy by suggesting prisons should look softer and more like people's homes.

He has advised ministers of the "need to design in softness, open spaces, light, calm and colour" and pleasant architecture to help the behaviour of criminals behind bars. Prisons should be "like a village behind walls" with access to shopping, a health centre and education, he says.

The outgoing prisons inspector himself has even suggested warders knock before entering cells, address prisoners by first names and give them daily fruit and vegetables.

Yet those who disagree, seeking to make prison life tougher and more unpleasant on inmates, must first navigate a welter of legislation protecting prisoners' rights.

When Robert Napier, a former inmate at Glasgow's Barlinnie Prison won £2,450 after having to use a bucket as a toilet in his cell, thousands of inmates filed similar claims running into tens of millions of pounds.

It's one mess the Scottish Prison Service is still trying to clean up - more than £11m has been paid in compensation and legal fees to 3,700 prisoners, with thousands more cases waiting to be heard.

In 2005, Andrew Halliday, 51, a petty crook, won £1,500 from jail bosses for slicing his thumb in a prison workshop. Halliday, of Ayr, who is blind in one eye, then sued Kilmarnock prison after he fell out of his bunk bed.

John Callison, 67, a convicted rapist released from Peterhead prison last year is suing jail chiefs for £20,000 claiming life behind bars was too boring.

The spectre of legal action against the prison estate and its staff is such that terms like "daftie", "dumb" and "nutter" have been banned to avoid upsetting prisoners. Using them could lead to disciplinary action against staff and loss of privileges for lags. The implications of human rights legislation is also blamed for a rise in early releases as judges now have to give inmates a minimum punishment period before they can apply for parole.

Over the past decade, the average length of life sentences fell from about 15 years to 13 years, compared with 18 years before.

The number of dangerous inmates paroled, including killers and rapists, has risen by 1,200%. In the same period, 27 prisoners, including 23 murderers, were freed after serving fewer than nine years. They included 11 who walked free after less than eight years, while five prisoners served less than seven years.

Things could be about to get worse following a ruling by the European Court of Human Rights which could lead to Scottish criminal prosecutions for rape, domestic abuse and other offences being overturned.

In Scotland, an accused person has no legal right for a lawyer to be present when questioned by the police, unlike the position in England. But the court has ruled that this breaches a person's right to fair trial, leading to challenges from defence lawyers.

If jails really are such an easy ride, is it worth building more? Can they reform criminals and are they in any way a deterrent for would-be offenders?

MacAskill believes that, while serious offenders should still be jailed, for many other criminals the answer is no, and with the prison population at an all-time high of almost 8,500, some penal experts agree.

Better, they argue, to replace the games consoles and pool tables with manual labour, allowing prison staff to focus on rehabilitation and training of serious, long-term inmates.

"Tough community sentences, where offenders repay their debt to society with real, meaningful work, are often more appropriate than short-term prison sentences, which do little to turn offenders away from a life of crime," said a spokesman for MacAskill.

But critics say the alternative to custody is utterly discredited and that ministers would be better making prison regimes less attractive rather than emptying them into community service schemes.

"The concept of community service in this country is a joke," says McBride. "More often than not it involves people being sent to their local social work office where they are told to sit in the corner with a cup of tea because there's nothing for them to do."

Bill Aitken, the justice spokesman for the Scottish Conservatives, says community service is itself a "skoosh". "Just 58% of Community Service Orders (CSOs) and 57% of Supervised Attendance Orders are successfully completed. Over a third - 35% - of all CSOs result in a breach. How on earth can anyone call that a success?

"And in a bizarre twist, the one community scheme which showed promise - the fast-track community courts - was ditched. We are sinking deeper into the mire of soft-touch Scotland under the SNP."

Instead of sending muggers and robbers back on to the streets earlier to strike, Aitken says ministers must create tougher prison regimes.

Tom Fox, a spokesman for the Scottish Prison Service, rejects the criticism, insisting prisons are already a place where "you would not want to spend any time".

He added: "Sending people to prison is punishment but prison itself is not just a place of punishment, it's an opportunity for us to change lives and to do that we believe we have to treat people with humanity and respect.

"How can you expect people to treat others with humanity and respect if you don't show it to them?"

But Stuart's experiences at Saughton have led him to disagree, saying it is time to focus less on prisoners' human rights and more on punishment and deterrence.

He adds: "Punishment is non-existent in Scottish prisons. Offenders clearly understand their behaviour is morally wrong, but there appears to be no solid approach to how this behaviour should be tackled with an effective punishment period.

"If prison was perceived as a place of punishment then deterrence would have an influence on the offender and his behaviour.

"Prison is meant to be a place of punishment, not a place of recreational comforts."

Killers, rapists and thugs who cry foul and go to court over conditions in jail

William Beggs, who dumped the limbs of his dismembered victim into Loch Lomond, has made more than 20 applications for civil legal aid at a cost of more than £100,000 over alleged abuses of his human rights. From his cell in Peterhead prison, where he is studying law, he has launched legal bids against the conditions in his cell, the quality of food as well as access to books, exercise and visits from his lawyers.

John Callison, a convicted child rapist, sued prison bosses claiming that life behind bars was "stressful" and that the work he has been given was "monotonous". The former Edinburgh zoo worker, cited European human rights legislation in his bid to win £20,000 in compensation for the "embarrassment, humiliation and mental anguish" he allegedly endured.

Adam Shannon, sentenced to five years for stabbing and hitting his victim with a metal bar, sued ministers for £350 because his Sega Dreamcast games console was not working properly.

Spencer Mellors, a rapist nicknamed Hannibal the Cannibal after he bit one of his victims, was awarded £4,000 after judges ruled that court delays had infringed his human rights.