Ag Against The Scottish Ministers For Judicial Review Of A Decision Of The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2017] CSOH 10 |
| Docket Number | P266/15 |
| Date | 24 January 2017 |
| Court | Court of Session |
| Published date | 24 January 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 10
P266/15
OPINION OF LORD BANNATYNE
In the cause
AG
Petitioner
against
THE SCOTTISH MINISTERS
Respondents
for
Judicial Review of a decision of the Scottish Ministers
Pursuer: D Maclean; Balfour + Manson LLP
Defender: Martin-Brown; Scottish Government Legal Directorate
24 January 2017
Introduction
[1] The petitioner seeks judicial review in respect of an alleged failure of the Scottish Ministers (“the respondents”) to provide him with a reasonable opportunity to rehabilitate himself while serving an indeterminate sentence based on an Order for Lifelong Restriction imposed in 2008. The punishment part was 4 years 3 months and obviously it has now expired. The petitioner remains in prison because of decisions taken by the Parole Board that, for reasons of protection of the public, he cannot yet be released.
The Issues and Agreed Legal Framework
[2] It is argued that the failure to provide the petitioner with opportunities for rehabilitation constituted a breach by the respondent of the ancillary public law duty arising from Article 5 ECHR owed to him as identified by the Supreme Court in R (Kaiyam) v Secretary of State for Justice 2015 2 WLR 76 and a breach of the public law duty as described by the House of Lords in R (James) v Secretary of State for Justice (Parole Board intervening) 2010 1 AC 553.
[3] It was not argued on behalf of the petitioner that there was a systemic breach of the above duties. In Kaiyam the content of the ancillary duty is set out in the joint Judgment of Lord Mance and Lord Hughes at paragraph 41:
“On that basis the question arises in what precise terms and in particular at what precise level the duty should be put. As a matter of domestic public law, complaint may be made in respect of any systemic failure, any failure to make reasonable provision for an individual prisoner so egregious as to satisfy the Wednesbury standard of unreasonableness or any failure to apply established policy. The question is whether liability for breach of article 5 is similarly limited. In our opinion, it is not. The express rights conferred by article 5 are individual rights. The ancillary right which we identify as existing under article 5 is also a right in favour of each individual prisoner and its satisfaction or otherwise depends upon the particular circumstances of the individual case. Although the ECtHR was concerned in James v UK with circumstances in which there had been systemic failures in the United Kingdom, (its) decision was based on a careful individual analysis of each applicant’s prison history ...”
[4] It is to be noted that the ancillary duty is not restricted by reference to Wednesbury principles of irrationality and unreasonableness. Further, the court observed at paragraphs 42 and 43, by reference to the European Court of Human Rights decisions in Hall v United Kingdom and Black v United Kingdom (both unreported), that what was required was not a standard of perfection, and that each case is highly fact sensitive. Finally, some further assistance as to the content of the duty is to be found at first, paragraph 48 where this is said: the ancillary duty
“is geared towards the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period.”
[5] Thereafter at paragraph 60 the following is stated:
“It requires that an opportunity must be afforded to the prisoner which is reasonable in all the circumstances, taking into account, among all those circumstances, his history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use which has been made of such rehabilitative opportunity as there has been.”
[6] The content of the public law duty is as set out by Lord Hope of Craighead in James at paragraph 3:
“There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection (‘IPPs’) by section 225 of the Criminal Justice Act 2003. He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention. The Divisional Court ... granted a declaration to that effect on 31 July 2007 .. Its decision was affirmed on 1 February 2008 by the Court of Appeal ... The Secretary of State has not appealed against that declaration. Very properly, he accepts that it was implicit in the statutory scheme of sections 224 and 225 of the 2003 Act that he would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released. As Miss Lieven QC for the Secretary of State put it, the scheme was such that it was not rational for him to fail to do so.”
The Submissions on Behalf of the Petitioner
[7] Counsel opened by advising that the focus of his submission would relate to a breach of the ancillary duty. However, he did not abandon his case in terms of the breach of the public duty.
[8] The petitioner’s complaint can be summarised as follows: The essence of the petitioner’s complaint is that, more or less from the outset, it has been recognised that his cognitive functioning operates at a low level, with consequential implications for his rehabilitation and his ability to undertake group programmes and the like. It also creates a need for more professional staff intensive work, sometimes described as 2 to 1. The respondents, against that background, had failed to provide him with adequate opportunities to rehabilitate himself.
[9] In development of that argument counsel sought to draw attention to a number of matters in the joint chronology of events which had been produced to the court by parties.
[10] What counsel sought to emphasise within the chronology was this: it was his position that the breach of the duty commenced as at November/December 2012. However, because of the nature of the test, it was necessary to take into account how knowledge about the petitioner had built up on the part of the respondents over his period of incarceration from 2008 onwards.
[11] The starting point was the report of Steven Evans, a Chartered Forensic Psychologist and Risk Assessor accredited by the Risk Management Authority who provided the risk assessment relative to the petitioner. He observed this in his report:
“(The) assessment has highlighted (the) presence of cognitive impairment in (the petitioner) and points towards a diagnosis of a learning difficulty. This is not pertinent to assessment of his risk but highlights that treatment and supervision will need to be modified to take account of his suspected disability.”
[12] He also observed:
“(The petitioner) needs to be afforded the opportunity to undertake a structured treatment programme to address his deviant sexual attitudes and behaviour. The format of this treatment programme needs to take account of cognitive impairments and literacy difficulties that will impair his ability to take on the information and change his behaviour.”
The next matter in the chronology to which counsel drew my attention was at June 2009 at which time the petitioner was assessed by a team supervised by Rachel Roper, Chartered Forensic Psychologist, in relation to the possible diagnosis of learning disability referred to in the above report. The petitioner’s cognitive ability was assessed as being:
“within the lower part of the extremely low range of intellectual functioning. That is to say approximately 99.7% of his peers would perform better than him on this assessment.”
The report further said:
“(The petitioner) finds himself at the very bottom of the population. This raises concern that a possible diagnosis of cognitive deficits cannot be put aside lightly”.
So far as the issue of recommendations was concerned, the report concluded:
“Based on the findings of this assessment, it is believed that (the petitioner’s) level of functioning is so low that he will need a specialised environment in order to get the necessary support. A highly structured environment will help him to be orientated and as a prison environment is such a structured environment, it can be expected that he will cope reasonably well within it. However, he also needs exposure to pro-social modelling, an errorless learning approach, a high level of attention and patience from the same people who work with him, environmental management, adapted group work and adapted language. Further assessment is recommended to determine if (the petitioner) meets the criteria to receive a diagnosis of learning disability and whether prison is the best environment for him.”
[13] In light of the above in March and April 2010 the petitioner was assessed by Dr Lesley Malone in relation to his adaptive and social functioning in order to establish whether he meets the criteria for diagnosis of a learning disability. Dr Malone noted that the petitioner’s intellectual functioning had previously been assessed as being in the lower part of the extremely low range. She concluded that the petitioner had deficits in key areas of his adaptive functioning. Counsel submitted, crucially, she noted that the petitioner’s difficulties commenced before the age of 18. That being so, Dr Malone concluded that “this indicates that he met the criteria for the diagnosis of learning disability”. Dr Malone did not provide any guidance to the SPS regarding the petitioner’s ongoing treatment. Counsel submitted that the foregoing report and its conclusions were of some significance as a diagnosis of learning disability had been made.
[14] In July 2010 further assessment was carried out. The conclusion...
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