Probe that led to sacking of three prison guards ‘fundamentally flawed’

Three prison staff were unfairly dismissed from HMP Edinburgh after a “fundamentally flawed” investigation into allegations they attacked an inmate, an employment tribunal has ruled.

Compensation has been ordered for the three men who were physical training instructors at the Saughton prison.

They were dismissed after an incident at the prison in September 2022.

The tribunal found that allegations by the prisoner were “never subject to any scrutiny”.

The panel of employment judges ruled: “Tribunal concluded that the dismissal of all claimants was unfair.

“The investigation which was carried out was fundamentally flawed and not a reasonable investigation in the circumstances of the particular case and the respondent’s policy was not adhered to in a material respect.”

The incident took place on level two of Hermiston Hall, an area where most prisoners are on remand or have been sentenced for sexual offences.

An alarm was sounded and prison officers found two prisoners fighting.

They were subdued and all prisoners were required to return to their cells.

The tribunal heard that the other prisoners were generally unhappy at being sent back to their cells, and one, listed only as B, swore at one of the guards, making a racist comment about his South African heritage.

B was not involved in the initial incident.

The prison officer challenged B and went to his cell, where he stayed with fellow prisoner C, who was removed from the cell while officers dealt with the incident.

B continued to behave aggressively towards the South African guard, and nothing was seen on CCTV to suggest any of the guards assaulted him.

His cellmate was later returned to the cell, and all inmates were let out around nine minutes later.

B was seen with a mark on his left temple, to which the South African guard initially said he may have caused after B allegedly put his hand on the officer, who said he turned around and shook him off.

B later told a manager he had been assaulted by six officers, naming some of them, but said he did not recognise all of them.

B’s sister later contacted police on 101 and the tribunal noted he must have told her with a mobile phone smuggled into the prison, though this was not investigated at the time.

The following morning, B told a trainee psychologist that one of the prison guards called him a “beast” and that two officers pinned him down while the other two punched him in the face and began to choke him, before throwing him on to a chair in his cell.

The three officers were suspended on September 12 2022, having been sent letters informing them of accusations of gross misconduct.

Part of the letter read: “It is alleged that on Tuesday 6th September at approximately 2.25pm whilst on duty in Hermiston Hall Level 2, HMP Edinburgh, you used inappropriate force against Prisoner B. It is also alleged you did not report the use of force.

“It is further alleged this matter is being reported to Police Scotland as alleged assault.

“If proven, this could be considered to be a breach of the Scottish Prison Service (SPS) Code of Conduct Police and SPS Professional Charter.”

The officers were later sacked, but the tribunal found their employers had been hasty and inaccurate in their decision-making, with some bosses having acknowledged their failure to properly investigate the alleged beating sustained by B, who was found to have lied.

The tribunal also heard that while the three former officers were able to secure employment elsewhere, they have suffered financial strain due to now being on lower salaries than at the prison.

An excerpt from the tribunal ruling says: “The allegation made by B was never subject to any scrutiny, in that there was no consideration of whether there might be a motive for him to make allegations against officers.

“While the tribunal is not at all suggesting that just because an allegation is made by a prisoner, it should not be believed, it appeared to the tribunal that this allegation was taken at face value and B was never asked to explain the inconsistencies in the accounts he had given, or the allegation made by C that he had injured himself.

“There was no investigation into whether B had made other allegations or why he was in prison in the first place. There was no explanation as to why his evidence was favoured over that of seven prisoner officers.”

The SPS has been approached for comment.