Brown v The Parole Board for Scotland, The Scottish Ministers and another (Scotland)
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Neuberger,Lady Hale,Lord Hodge,Lord Carloway |
| Judgment Date | 01 November 2017 |
| Neutral Citation | [2017] UKSC 69 |
| Court | Supreme Court (Scotland) |
| Date | 01 November 2017 |
[2017] UKSC 69
Lord Neuberger
Lady Hale
Lord Reed
Lord Hodge
Lord Carloway (Scotland)
Appellant
Dorothy Bain QC
David Leighton
(Instructed by McGreevy & Co)
Respondent (The Scottish Ministers)
Gerry Moynihan QC
Douglas B Ross QC
(Instructed by Scottish Government Legal Directorate)
Respondent (Advocate General for Scotland)
Lord Keen of Elie QC,
The Advocate General for Scotland
Tom Weisselberg QC
David Lowe
(Instructed by Office of The Advocate General of Scotland)
Intervener (The Parole Board for Scotland)
Roddy Dunlop QC
Jacqueline Fordyce
(Instructed by Anderson Strathern LLP)
Heard on 14 and 15 June 2017
(with whom Lord Neuberger, Lady Hale, Lord Hodge and Lord Carloway agree)
The appellant in this case was sentenced to an extended sentence of ten years' imprisonment, comprising a custodial term of seven years and an extension period of three years. He was released on licence after serving two-thirds of the custodial term, but was recalled to custody after committing a further offence. He then remained in prison until the sentence had been served in full. In these proceedings, he complains that he was not provided with appropriate rehabilitation courses following his recall to prison, contrary to article 5 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention"), as given effect in our domestic law by the Human Rights Act 1998. The principal issue arising in the appeal is whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applies to prisoners serving extended sentences. The appeal also provides an opportunity to consider the approach adopted by this court in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66; [2015] AC 1344 in the light of the more recent case law of the European Court of Human Rights.
The essential aim of article 5 is to confer protection against arbitrary or unjustified deprivation of liberty. Article 5(1) provides a list of permissible grounds for deprivation of liberty, each of which is qualified by the requirement that the detention is "lawful" and "in accordance with a procedure prescribed by law". In the present case, it is article 5(1)(a) which is relevant:
"1. 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 …"
It has long been accepted by the European court that article 5(1) requires a relationship between the detention regime and the purpose of the deprivation of liberty. As the court stated in Ashingdane v United Kingdom (1985) 7 EHRR 528, para 44:
"More generally, it follows from the very aim of article 5(1) that no detention that is arbitrary can ever be regarded as 'lawful'. The court would further accept that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention."
For example, article 5(1)(d) permits "the detention of a minor by lawful order for the purpose of educational supervision". This is understood as implying that the nature of the detention supports the objective of educational supervision. The placement of minors in penal institutions without educational facilities cannot therefore be justified under that provision, except as an interim measure: see, for example, Bouamar v Belgium (1988) 11 EHRR 1. Similarly, article 5(1)(e) permits "the lawful detention … of persons of unsound mind". The detention of a person as a mental health patient will, however, only be "lawful" for the purposes of article 5(1)(e) if effected in a hospital, clinic or other appropriate institution: see, for example, Ashingdane v United Kingdom and Brand v Netherlands (2004) 17 BHRC 398.
It is to be noted that in the Brand case, in which a violation of article 5(1) was found, the court made a modest award as just satisfaction for the feelings of frustration, uncertainty and anxiety which the applicant must have suffered while detained in a remand centre pending his admission to a custodial clinic. The award was not made on the basis that the applicant should not have been deprived of his liberty. In other words, the court did not treat its finding that the applicant's detention in the remand centre had been "unlawful" as meaning that he had a right under the Convention to immediate release from detention.
The requirement that there must be a relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention was affirmed by the Grand Chamber in Saadi v United Kingdom (2008) 47 EHRR 17. The case concerned article 5(1)(f), which permits "the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition". The Grand Chamber observed that, where the "lawfulness" of detention was in issue, compliance with national law was necessary but not sufficient: article 5(1) laid down in addition the requirement that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It was, it said, a fundamental principle that no detention which was arbitrary could be compatible with article 5(1) (para 67). Key principles had been established on a case-by-case basis as to what types of conduct on the part of national authorities might constitute arbitrariness for the purposes of article 5(1). One such principle, which the court derived from authorities including Bouamar, was that there must be a relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.
In that regard, the Grand Chamber stated:
"69. One general principle established in the case law is that detention will be 'arbitrary' where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of article 5(1). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.
70. The notion of arbitrariness in the contexts of sub-paras (b), (d) and (e) also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The principle of proportionality further dictates that where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty. The duration of the detention is a relevant factor in striking such a balance.
71. The court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under article 5(1)(a), where, in the absence of bad faith or one of the other grounds set out in para 69 above, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the court under article 5(1)." (emphasis added)
In that passage, the last sentence of para 69 made it clear that the principle, that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention, was one which applied to all the sub-paragraphs of article 5(1). Paras 70 and 71 explained that there was a difference between article 5(1)(a) and sub-paragraphs (b), (d) and (e) in relation to the application of the principle of proportionality, but the first sentence of para 71 confirmed that the general principles set out in para 69 applied to article 5(1)(a). That sentence also made it clear that the existence of a causal connection between the detention and a lawful conviction was not in itself sufficient to ensure compliance with article 5(1)(a).
James v United Kingdom
In James v United Kingdom (2013) 56 EHRR 12, the court applied the general principle established in Saadi, that article 5(1) requires the conditions of detention to be consistent with the purpose of the detention, to detention sought to be justified under article 5(1)(a). It derived from that principle the conclusion that, after the punishment part or "tariff" element of an indeterminate sentence for public protection ("IPP") has been served and the prisoner remains in detention for reasons of public protection, a real opportunity for rehabilitation should be provided.
The case came before the European court after first being considered by the House of Lords: R (Walker) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553. It concerned IPP prisoners who had been unable to access the courses recommended by the Parole Board. The argument before the House of Lords did not focus on the need for a correlation between the purpose of detention and the...
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