In Reclaiming Motion By Billy John Brown (ap) Against (first) The Parole Board For Scotland And (second) The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord McGhie,Lord Menzies,Lady Clark Of Calton |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] CSIH 59 |
| Date | 31 July 2015 |
| Published date | 31 July 2015 |
| Court | Court of Session |
| Docket Number | P326/13 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 59
P326/13
Lord Menzies
Lady Clark of Calton
Lord McGhie
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in the Reclaiming Motion
by
BILLY JOHN BROWN (AP)
Petitioner and Reclaimer;
against
(FIRST) THE PAROLE BOARD FOR SCOTLAND and (SECOND) THE SCOTTISH MINISTERS
Respondents:
Petitioner: Bain, QC, Leighton; Drummond Miller LLP
First Respondents: No appearance
Second Respondents: D Ross; Scottish Government Legal Directorate
31 July 2015
Summary of the legal issues
[1] The scope of this appeal relates to the impact of article 5 of the European Convention on Human Rights (“ECHR”) in circumstances where the petitioner and reclaimer (“the reclaimer”) is serving an extended sentence under and in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. The reclaimer contends that he has not been given certain courses in prison recommended by the first respondents. The main disputed issues are (1) whether in the circumstances of this case there is a breach of article 5; and (2) if there is a breach what is the remedy in damages afforded in just satisfaction.
History of legal proceedings
[2] The reclaimer was convicted of culpable homicide in January 2006. A dispute arose between a male and the reclaimer who was armed with a flick knife. The male left and returned with a metal pole with which he struck the reclaimer. The reclaimer stabbed the male victim in the chest penetrating his heart and killed him. The reclaimer had previous convictions for carrying knives and other offensive weapons. He was given an extended sentence of 10 years by the trial judge in terms of section 210A of the Criminal Procedure (Scotland) Act 1995 backdated to 3 August 2005. Said sentence comprised a custodial term of 7 years and an extension period of 3 years.
[3] In 2013, the reclaimer raised an action of judicial review directed against the decision of the first respondents who refused to order the reclaimer’s release. By amendment of the pleadings, the reclaimer introduced averments and pleas in law in relation to the second respondents. Various orders were sought by the reclaimer including an order to release the reclaimer from custody.
[4] At a hearing on 6 September 2013, the Lord Ordinary heard submissions from counsel for all parties relevant to all the issues in the judicial review then disputed by the parties. The Lord Ordinary refused the prayer of the petition, and accordingly all the orders sought were refused. The opinion of the Lord Ordinary is reported at [2013] CSOH 200. The task of the Lord Ordinary was made more difficult in that there was conflicting reasoning and decision-making reflected in the decision of the European Court of Human Rights in the case of James Wells and Lee v United Kingdom (2013) 56 EHRR 12 and the earlier decision of the House of Lords in the same case reported as James Wells and Lee v Secretary of State for Justice (2010) 1 AC 553. These cases related to consideration of article 5 ECHR in relation to the new statutory regime of sentences of imprisonment for public protection (IPP sentences) which was introduced in England and Wales in 2005. Such sentences were of indeterminate length and required a direction from the Parole Board for the prisoner to be released. The sentencing judge fixed a minimum term which had to be served before the prisoner could be considered for release by the Parole Board.
[5] During the procedural stages of the reclaiming proceedings, counsel for the parties were aware that the law relating to the main issues disputed by the parties was to be considered by the Supreme Court in a case which is now reported as R (On the application of Haney & Others) v Secretary of State for Justice 2015 2 WLR 76. Counsel for the reclaimer and the second respondents (“the respondents”) properly focused the issues in dispute in the reclaiming motion to take account of the decision and reasoning of the Supreme Court in Haney. This resulted in a narrowing and reformulating of the issues between the reclaimer and the respondents taking into account the decision in Haney and focused on the issue whether declarator should be granted that the reclaimer’s Convention rights under article 5 ECHR were breached, and whether an award of damages should be pronounced to afford the reclaimer just satisfaction in respect of said breach. The alleged breach was based on averments alleging failure and delay by the respondents in the provision of courses recommended by the first respondents as relevant to the progress of the reclaimer towards release. The first respondents took no part in the hearing of the reclaiming motion.
The post-conviction history of the reclaimer
[6] The reclaimer was detained initially at HM Young Offenders Institution, Polmont (“Polmont”). He completed the Anger Management programme in June 2006 and the Constructs programme in August 2007. He was transferred to National Top End conditions at HMP Friarton in September 2008. His case was considered by the first respondents on 9 December 2008. Their decision was that he was not a suitable candidate for release. In January 2009, the reclaimer was downgraded and returned to Polmont. He reached his parole qualifying date in February 2009. This is the date at which the reclaimer became eligible for discretionary release. He completed an Alcohol Awareness course and a First Steps Drugs Awareness course in September 2009. In October 2009, he was transferred to HMP Edinburgh (“Edinburgh”).
[7] On 1 April 2010 the reclaimer was released on licence, having reached the two-thirds stage of the custodial part of the sentence, in terms of s.1(2) read in light of s.26A(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (“the 1993 Act”). In terms of said statutory provisions release on licence is mandatory. Such release is not dependent on the first respondents or any other body concluding that it was no longer necessary for the protection of the public from serious harm that the prisoner be confined. The mandatory release on parole was automatic on the date when the reclaimer had served two-thirds of the seven year custody period of the extended sentence imposed on him by the court.
[8] On 18 August 2010, the reclaimer, while under the influence of alcohol and acting along with another, stole a motor vehicle. On 28 September 2010 he was recalled to prison in terms of s.17(1) of the 1993 Act. On 30 September 2010 at Livingston Sheriff Court he was convicted and sentenced to 40 days’ imprisonment in respect of that offence, to run concurrently with the extended sentence in respect of which he had been recalled to prison. The reclaimer was returned to the High Court in terms of s.16 of the 1993 Act and the sentencing judge made no further order.
[9] On 12 November 2010 a Case Conference was held. The Conference recommended that the reclaimer be referred for a Violence Prevention Programme (“VPP”) assessment.
[10] The reclaimer as a recalled extended sentence prisoner was subject to regular review by the Extended Sentence Prisoner Tribunal (“ESPT”) of the first respondents. In terms of s.3A(4) of the 1993 Act, the ESPT “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”. On 8 December 2010 there was an ESPT hearing at Edinburgh. The Tribunal decided not to direct the reclaimer’s release and gave reasons.
[11] The reclaimer was transferred from Edinburgh to HMP Addiewell (“Addiewell”) on 30 June 2011. The VPP is not available at Addiewell. Between August and September 2011 the reclaimer completed the alcohol awareness course.
[12] On 6 December 2011 the ESPT again considered the reclaimer’s case. The Tribunal decided not to direct the reclaimer’s release and gave reasons. On 6 December 2012 the ESPT again considered the reclaimer’s case. The Tribunal decided not to direct the reclaimer’s release and gave reasons. The reclaimer completed the Constructs programme between 21 January and 9 April 2013. The reclaimer completed the CARE programme between May and September 2013. In December 2013 the reclaimer was transferred to the Open Estate at HMP Castle Huntly (“Castle Huntly”). On 9 December 2013, the ESPT again considered the reclaimer’s case. The Tribunal decided not to direct the reclaimer’s release and gave reasons. The reclaimer was downgraded and returned to closed conditions at Addiewell on 24 February 2014. On 14 August 2014 the ESPT considered the reclaimer’s case. The reclaimer returned to the Open Estate at Castle Huntly on 18 August 2014. On 22 August 2014 the reclaimer was downgraded from the Open Estate, having presented on 21 August 2014 as being under the influence of an unknown substance. On 26 September 2014 the ESPT again considered the reclaimer’s case. The Tribunal decided not to direct the reclaimer’s release. The reclaimer has incurred a significant number of Governor’s reports during the period of his imprisonment.
[13] The reclaimer will be released at his extended sentence expiry date on 2 August 2015.
The legal framework
Article 5 of the European Convention on Human Rights
[14] Article 5(1) states:-
“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 the procedure prescribed by law:
(a) the lawful detention of a person after conviction by competent court;
….
4. 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.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation”.
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