Billy John Brown For Judicial Review Of A Decision Of The Parole Board For Scotland And Others
| Jurisdiction | Scotland |
| Judge | Lady Wise |
| Neutral Citation | [2013] CSOH 200 |
| Date | 31 December 2013 |
| Docket Number | P326/13 |
| Court | Court of Session |
| Published date | 31 December 2013 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 200 | |
| P326/13 | OPINION OF LADY WISE in the Petition of BILLY JOHN BROWN Petitioner; for Judicial Review of a decision of the Parole Board for Scotland and Others Respondents; ________________ |
Petitioner: Bain, Q.C. & Leighton; Drummond Miller LLP
First Respondent: Dunlop, Q.C.; Anderson Strathern LLP
Second Respondents: D Ross, Advocate; Scottish Government Legal Directorate
31 December 2013
Background
[1] The petitioner was convicted of culpable homicide in January 2006 and given an extended sentence of ten years, comprising a custodial term of 7 years and an extension period of 3 years. The index offence involved him approaching his victim, with whom he had previously had a minor dispute, armed with a flick-knife. When the victim left but returned armed with a metal pole with which he struck the petitioner, the petitioner reacted by stabbing him in the chest, penetrating his heart. While the petitioner had been charged with murder, a plea of culpable homicide was accepted by the Crown on the second day of the trial. The petitioner had previous convictions for carrying knives and other offensive weapons. On 1 April 2010, he was released on licence. A few months later, on 18 August 2010, he stole a motor vehicle whilst intoxicated. That led to him being recalled to custody on 28 September 2010 and his licence being revoked. He was subsequently sentenced to 40 days imprisonment in respect of the new offence to be served concurrently with the sentence for the index offence.
[2] This petition seeks review of a decision of the first respondent, the Parole Board for Scotland, to refuse to order the petitioner's release on 6 December 2012. That was the third occasion on which the Board had considered the question of his re-release, the previous hearings having been on 8 December 2010 and 6 December 2011. While initially only the Parole Board was called to respond to the petition, by minute of amendment the petitioner introduced a case against the Scottish Ministers. Ultimately, that case was restricted to declarator that the petitioner's convention rights have been breached by the second respondents' failure to provide certain necessary courses for the petitioner's benefit whilst in prison, for damages and for a declarator of incompatibility.
Relevant statutory provisions and ECHR
[3] The extended sentence imposed on the petitioner was passed under and in terms of section 210A of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). Such a sentence is available to a sentencing judge where he or she considers that the period in respect of which the offender would be subject to licence would not be adequate for the purpose of protecting the public from serious harm from the offender. In the case of a violent offence, the statutory provision provides that the extension period shall not exceed a period of 10 years.
[4] The petitioner's current incarceration and the test for re-release are governed by the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"). Section 26A of the 1993 Act provides, inter alia, as follows:
"(2) Subject to the provisions of this section, this Part of this Act, except section 1A, shall apply in relation to extended sentences as if any reference to a sentence or term of imprisonment was a reference to the custodial term of an extended sentence.
(3) Where a prisoner subject to an extended sentence is released on licence under this Part the licence shall, subject to any revocation under section 17 of this Act, remain in force until the end of the extension period.
(7) For the purposes of sections 12(3) and 17(1) of this Act, and subject to subsection (8) below, the question whether a prisoner is a long-term or short-term prisoner shall be determined by reference to the extended sentence."
[5] In terms of section 27 of the 1993 Act, the petitioner was a long-term prisoner, being a person serving a sentence of imprisonment for a term of 4 years or more. Section 1(2) of the 1993 Act provides that as soon as a long-term prisoner has served two thirds of his sentence, the Secretary of State shall release him on licence. Where a licence is revoked under section 17(1) of the 1993 Act, the case is referred to the Parole Board by the Scottish Ministers - section 17(3). Further, section 17(5) provides that:
"On the revocation of the licence of any person under the foregoing provisions of this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."
The question of a prisoner's re‑release is governed by section 3A of the 1993 Act. The test, contained in section 3A(4) is in the following terms:
"...the Board shall, if it is satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined (but not otherwise), direct that he should be released."
Section 3A(2) of the 1993 Act empowers a prisoner to insist upon a consideration of the issue of his release by the Parole Board once per annum.
[6] Article 5(1) of the European Convention on Human Rights ("ECHR") begins:
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
.........."
Article 5(4) provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
The decision letter
[7] The decision letter complained of in the petition is produced as number 6/4 of process. It is dated 18 December 2012 and addressed direct to the petitioner. It sets out the decision made, preliminary matters and the general background. The letter goes on to summarise the submissions made on the petitioner's behalf to the Board. The passages of the letter scrutinized in the arguments before me are contained at pages 3 and 4 of the letter and are in the following terms:
"Reasons for decision
The Tribunal considered that it is necessary for the protection of the public from serious harm that you should continue to be confined. In reaching its decision the Tribunal took into account the index offence; your recall to custody after a short period on licence for new offending in which alcohol abuse and your choice of associates were factors; the assessments that you pose a high risk of re-offending and causing serious harm; and the outstanding offence-focused work.
You breached your licence conditions and re-offended within about four months of release from a significant period in custody, which raised concerns about your commitment to comply with supervision measures designed to manage your risk in the community. You accepted that the behaviour associated with the recall offence had displayed poor decision-making and choice of associates, and involved the abuse of alcohol. You admitted that you had been drunk on four occasions while on licence and minimised the potential risk of your excessive alcohol use by stating that you had only got into trouble once.
The Tribunal accepted that your behaviour has improved and the number of misconduct reports has decreased. However, you incurred five reports in an eight-month period, including one for assault. You have developed some coping strategies, which have helped you to moderate and control your behaviour. However, you admitted the assault in January 2012 happened as you gave into impulsivity and anger. The Tribunal concluded that you should complete the identified offence-focused work as this should reinforce the skills you have and may provide new strategies to mitigate the high risks you pose.
The Tribunal determined that you should remain in custody and progress in terms of the management plan. It accepted that similar plans were presented in 2010 and 2011 and little progress has been made, partly as you have been unable to access the programme work. The Tribunal expects that in the next 12 months you will be given the opportunities, detailed by the ERLO, to complete the identified programmes. However, the Tribunal also noted that you have incurred five misconduct reports in 2012 which would have been taken into account in consideration of a decision about your suitability to progress. The responsibility for these Governor's reports lies with you. Indeed, you accepted that it is only you who can use the strategies to manage your impulsivity and improve your decision-making. The Tribunal would encourage you to engage with the management plan and to demonstrate and maintain good behaviour, without adverse reports, for a sustained period so that you may be able to offer evidence to a future Tribunal that your risk is manageable in the community.
Basis of decision
The Tribunal considered all the information in the dossier, including the late papers, the evidence provided by the ERLO and the case presented on your behalf, including the answers you gave to questions. Before reaching a decision, the Tribunal considered the preliminary motion that it might adjourn to allow the suggested accommodation at Crane Services to be investigated. However, it concluded that it had sufficient evidence before it to make a decision."
Submissions for the petitioner
[8] Senior counsel for the petitioner submitted that, given the stage that had been reached in the sentence imposed upon the petitioner by the court, his continued detention was being determined by the Parole Board and was accordingly subject to a lawfulness challenge in terms of article 5(4) ECHR. Reference was made in this context to R (Black) v Secretary of State for Justice [2009] 1 AC 949 at paras 42-50; R (Giles) v Parole Board & Another [2004] 1 AC 1 and Van...
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