David Beattie (ap) For Judicial Review Of A Failure By The Scottish Ministers To Assess Him For Rehabilitative Course Work And Their Associated Policy
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2016] CSOH 57 |
| Date | 21 April 2016 |
| Docket Number | P500/15 |
| Court | Court of Session |
| Published date | 21 April 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 57
P500/15
OPINION OF LORD ARMSTRONG
In the petition of
DAVID BEATTIE (AP)
Petitioner
for
Judicial Review of a failure by the Scottish Ministers to assess him for rehabilitative course work and their associated policy
Petitioner: Leighton; Drummond Miller LLP
Respondents: Ross; Scottish Government Legal Directorate
21 April 2016
Introduction
[1] The petitioner is a convicted prisoner in HMP Glenochil. The respondents are the Scottish Minsters. They have responsibility for the prison service in Scotland. The petitioner has been convicted of rape three times. On the last occasion, on 11 April 2012, at Glasgow High Court, he was made the subject of an order for lifelong restriction (“OLR”), the punishment part of which is a period of imprisonment of 7 years. His punishment part expiry (“PPE”) date is 10 April 2019, which is the earliest date from which he will be eligible for release on license if the Parole Board for Scotland so directs.
[2] In that regard, in determining whether release on license is appropriate, a critical consideration for the Parole Board is whether it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (Prisoners and Criminal Proceedings (Scotland) Act 1993, section 2).
[3] The petitioner’s contentions are that by failing to assess him for rehabilitative course work and by adopting the policy which they have in prioritising assessments for such course work, the respondents are failing in their duty to provide him with an opportunity, reasonable in all the circumstances, for him to rehabilitate himself and demonstrate to the Parole Board at the point of his PPE date that he no longer represents an unacceptable danger to the public. The petitioner submits that these failings constitute breaches of the respondents’ duties at common law and of articles 5 and 14 of the European Convention on Human Rights (“ECHR”). In these circumstances, he seeks four declarators to the effect that:
(i) the respondents have acted unlawfully in failing to generically assess the petitioner for rehabilitative course work;
(ii) the petitioner’s convention rights in terms of article 5 had been breached by the failure of the respondents to generically assess the petitioner for rehabilitative course work;
(iii) the policy adopted by the respondents in relation to prioritising assessment for course work is a breach of the petitioner’s convention rights in terms of article 5, taken with article 14;
and
(iv) the policy adopted by the respondents in relation to prioritising assessments for course work is unlawful.
The factual background
[4] In general OLR prisoners, such as the petitioner, after undertaking necessary course work, may advance to conditions of reduced security in the form of National Top End (“NTE”) and may embark upon a programme of escorted leaves. Following a work placement and progression to unescorted leave, such prisoners may advance to the Open Estate in preparation for release. OLRs were introduced as a sentencing option in about June 2006. Given their relatively short history, it is as yet unclear how, in general, OLR prisoners will progress through the prison estate in practice. The sentence management of OLR prisoners is subject to the supervision of the Risk Management Authority. Sex offenders are generally treated with greater caution than other categories of offender. In these circumstances, it may be that, generally, OLR prisoners convicted of sexual crimes will progress to the Open Estate through NTE rather than to it directly. The management of a prisoner’s sentence is a dynamic and changeable process. The advancement of a prisoner’s progress through NTE and Open Estate depends on his individual circumstances, taking into account the risk which he presents, and may take more or less than 2 years. The earliest date on which an OLR prisoner can access NTE and the Open Estate is generally 2 years before his critical date, (Scottish Prison Service Governors & Managers Action Notice: Ref. Amendment 21A/13; Scottish Prison Service: Risk Management and Progression Guidance, paragraph 4.17-19). In the case of an OLR prisoner, his critical date is the PPE date.
[5] Prisoners are generally only considered for progression from closed conditions on completion of any course work that they have been assessed as requiring. Generic Progress Assessment (“GPA”) is conducted in order to determine what behaviour types a prisoner will require to address before advancing through the prison estate, and what course work the prisoner might be suitable for and ought to complete before advancing further. GPA consists of a file review and an interview. Prisoners are prioritised for GPA by reference to their critical dates. In the case of an OLR prisoner the critical date is his PPE date. In relation to the GPA of the petitioner, the file review of his case has been completed. He is awaiting interview.
The submissions
[6] Written notes of argument were provided by counsel for both parties. Although I do not repeat their content in detail, I have taken them fully into account, together with the submissions made at the bar, in what follows.
Submissions for the petitioner
[7] The basis in law for the petitioner’s case is to be found in the decision of Haney v Secretary of State for Justice [2015] AC 1344. In that case, the Supreme Court accepted as implicit in the scheme of ECHR article 5 that the state is under an ancillary duty to provide an opportunity, reasonable in all the circumstances, for a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public (paragraph 36). The court further stated that the obligation is geared towards the prisoner having such a reasonable opportunity, to establish that he is safe to release, at or within a reasonable time after the expiry of the referable tariff period and, further, that a failure before tariff expiry may constitute a breach of the duty if it remains uncorrected so that the prisoner is deprived of such reasonable opportunity as he ought to have had (paragraph 48).
(i) Assessment for course work
[8] In circumstances where the petitioner had completed more than one half of the determinate part of his sentence, with little over 3 years remaining, and given the likely time he would require to progress, from having completed course work, through NTE to the Open Estate, the failure to date of the respondents to afford him a GPA was to be characterised as a failure of the duty recognised in Haney. It was that failure to which the first and second of the declarators sought were directed. It was to be noted that they were sought in the alternative, on the basis that while the same essential argument applied to each, it was recognised that the actings of the respondents challenged by the petitioner could be unlawful in domestic law but might not involve a breach of human rights.
(a) The specific challenge
[9] In essence, this submission was that the failure on the part of the respondents to assess the petitioner was likely to result in a breach of the duty recognised in Haney because of the timescale of what would be required to follow GPA.
[10] In order to predict the likely timing of the petitioner’s progression through the prison estate, it was necessary to identify the courses for which he was likely to be assessed as suitable, and to consider their likely duration. It was accepted that what the likely progression of the petitioner might be, assessed in advance, could never be predicted with certainty. Counsel for the respondents went slightly further and described such an exercise as speculative. For the petitioner, it was submitted that the courses likely to be required in his case were: Moving Forwards Making Changes (“MFMC”) and Substance Related Offending Behaviour Programme (“SROBP”), a programme with a likely duration of 50 weeks, plus, in addition, Constructs, a course which addressed problem solving, social skills and pro‑social attitudes, with a duration of 9 weeks, and Controlling Anger Regulating Events (“CARE”), having a duration of 12½ weeks.
[11] In respect of progression through changing prison conditions, in general, life prisoners spent 2 years progressing through NTE to reach the Open Estate. It was reasonable to assume that sex offenders would be managed more conservatively than other categories of prisoner.
[12] In these circumstances, in the case of the petitioner, given what was likely to be required following GPA, in particular having regard to the duration of the course work likely to be required and the likely timescales of the his progression through NTE to the Open Estate, he would not be in a position to make his case to the Parole Board, that he no longer presented an unacceptable risk to the public, by the time of his PPE date. The respondents were accordingly in breach of the duty recognised in Haney.
(b) The general challenge
[13] This submission was directed to the general position of OLR prisoners. Given the risk criteria required to justify such a sentence, these prisoners were likely to require more positive intervention than others before being able to progress. In addition, they were likely to have shorter determinate sentences, comprising the punishment part of the order, than life prisoners, and so, in comparison, had less time in which to undertake and complete the necessary rehabilitation. Current policy was that the timing of GPA, in respect of an OLR prisoner, was referable to his critical date. There would however be a point in time by which failure to assess such a prisoner would constitute a breach of the relevant duty, by denying him a reasonable chance of demonstrating by the time of his PPE date that he met the Parole Board’s criteria for release. The question was when that critical point would be reached. The contention for the...
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