Last week, SR raised serious questions about the death in custody of a young student, Katie Allan, of previously unimpeachable character, who had received a 16-month sentence for motoring offences. Her friends claim that Ms Allan was 'bullied to death' in Polmont prison – an allegation that will not be judicially examined for many months, if not years, such are the intolerable delays in calling fatal accident inquiries.
Meanwhile, however, we have obtained proof that the Scottish government, despite frequent assurances that it maintains a zero tolerance approach to bullying, takes a disturbingly light view of bullying in prison. It comes in the form of a recent – and highly incriminating – Court of Session judgement from Scotland's most senior judge. We summarise the case here, before drawing our own inescapable conclusions.
In the gym at Craiginches prison, Aberdeen, a remand prisoner, Daniel
Kaizer, was approached by two men who demanded access to the machine
that Kaizer was using. Kaizer offered to hand it over in two or three minutes, but this failed to satisfy them. One of the men, Keith Porter, swore at Kaizer and said that he would 'smash your fucking Polish face in,' addressing him as a 'Polish bastard.'
Kaizer went to the prison officer on duty in the adjoining office, Gary Lumsden, and told him 'exactly' what had been said. Lumsden replied that he would 'sort it out,' but, beyond asking Kaizer's Polish friend, LR, to look after him, did nothing.
Shortly afterwards Porter was transferred to Barlinnie prison in Glasgow to await an appearance at the High Court, where he pleaded guilty to the attempted murder of another Polish national (in an unrelated case) and was sentenced to 15 years' imprisonment. He was promptly returned to Craiginches.
The day after his arrival back in Aberdeen, it was possible for Porter once more to be in the gym at the same time as Kaizer. LR was also there and exchanged words with a co-accused of Porter. Three men then assaulted LR. At about the same time, Porter attacked Kaizer with a steel barbell, 'smashing me like he promised' according to Kaizer, who received extensive head injuries as a result.
A prison officer, Kenneth Murray, who was on duty in the gym, had gone to the office to answer the phone. From a window, he witnessed the start of the incident and returned at once to the weights room, where Porter was standing with a barbell above his head. Murray shouted at Porter, who stepped back and put the bar down – but the damage had been done. Murray told the court that when he first saw Porter after the assault Porter was 'glazed over' – but then seemed to ‘refocus’.
Daniel Kaizer raised a legal action against the Scottish ministers, suing for the injury that he sustained in the attack. When the case came to court, Kenneth Murray testified that it was part of his job to escort prisoners for gym sessions. If there had been an altercation between prisoners involving threats or bullying, there should have been an intelligence report and he would not have expected the prisoners involved to be allowed in the gym together later. He had, however, known nothing of the initial threat.
Two expert witnesses – one for each of the parties – agreed that this threat should have been reported by Gary Lumsden. One of them, John McCaig, emphasised the importance of keeping bullies and victims apart. The risk would always be there, but the prison’s responsibility was to minimise it.
The judge, Lord Ericht, concluded:
Mr Porter made a specific threat to smash the prisoner’s face in. The pursuer [Kaizer] informed Mr Lumsden of the threat. Mr Lumsden should have reported the threat, but he failed to do so. Mr Lumsden did not take reasonable care to prevent the implementation of the threat by reporting it. It was reasonably foreseeable that the pursuer was likely to sustain damage to his person if such reasonable care was not taken. Had Mr Lumsden reported the threat, on the balance of probabilities the attempted murder would not have taken place.
The judge found that the Scottish ministers had failed in their duty of care to Kaizer and that they were liable to make reparation.
On any reasonable view of the case, that should have been the end of it. Instead the Scottish ministers, far from holding their hands up, insisted on mounting an appeal. They suggested as part of its basis that, even if Kenneth Murray had known of the threat, he might not have 'organised matters any differently' – a bizarre deduction from a conscientious officer's own testimony.
The appeal by the Scottish ministers came before Lord Carloway (Lord
President) and his judicial colleagues Lords Brodie and Drummond Young in the Court of Session. They listened – perhaps with a growing sense of disbelief – to a feeble defence by the legal representatives of Scotland's government, including this expression of extreme complacency:
Many threats are made in prisons by persons with violent records. Yet they do not carry out these threats, nor are they separated from the general prison population. Mr Porter had no record of violence in prison.
Lord Carloway's written judgement, issued a few weeks ago, was about as withering as it gets judicially:
The defenders' [the Scottish ministers'] position, stripped to its essentials, is that notwithstanding the fact that a prisoner in their custody was exposed to the risk of injury as a result of the failure to report a threat of serious violence with racist overtones, nothing effective would have been done about this by the prison authorities and thus the attack would have happened in any event. The court is unable to accept this unattractive proposition.
The appeal was thrown out and the case has been referred back to Lord
Ericht, who will decide what compensation Daniel Kaizer should receive.
The Scottish ministers have consistently maintained a zero tolerance approach to bullying. Judging by the number of times she alludes to the subject, it appears to be part of the first minister's political and ethical credo. Yet clearly there are limits. When the bullying spills over into explicit threat, violence and attempted murder, the principle of zero tolerance somehow breaks down.
The case of Daniel Kaizer, which saw Ms Sturgeon's government pursue a risible defence, suggests that, inside the gates of Scottish prisons, zero tolerance counts for little in the collective mind of the ministers. They were prepared to argue publicly that it is acceptable for prisoners who utter threats against other prisoners not to be separated, apparently on the grounds that in most cases such threats are not carried out. They were then prepared to go on propagating this deeply irresponsible message at substantial public expense – until Scotland's most senior judge finally exposed their folly.
What the Kaizer case tells us about the mindset of the Scottish ministers, and the sham of their zero tolerance policy on bullying, should inform a proper investigation into the treatment of Katie Allan – 'bullied to death' at the age of 21.
A memorial service for Katie was held on Thursday 14 June at Glasgow University, where she was a student