William Craig For Judicial Review Of A Decision Of The Parole Board For Scotland Dated 4 December 2012 To Reuse To Hold An Oral Hearing
| Jurisdiction | Scotland |
| Judge | Lord Pentland |
| Neutral Citation | [2013] CSOH 110 |
| Year | 2013 |
| Published date | 05 July 2013 |
| Date | 05 July 2013 |
| Court | Court of Session |
| Docket Number | P468/13 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 110 | |
| P468/13 | OPINION OF LORD PENTLAND in the Petition by WILLIAM CRAIG Petitioner; For Judicial Review of a decision of the Parole Board for Scotland dated 4 December 2012 to refuse to hold an oral hearing ________________ |
Petitioner: Leighton; Drummond Miller LLP
Respondent: Dunlop QC; Anderson Strathern LLP
5 July 2013
Introduction
[1] The petitioner is a convicted prisoner currently detained in Glenochil Prison. The respondent is the Parole Board for Scotland. The petitioner challenges the respondent's refusal to hold an oral hearing to consider whether he should be re-released following his recall to prison for breaching the terms of his licence. The petition came before me for a first hearing. In the course of the hearing counsel for the petitioner restricted the challenge to one based on alleged breach of the respondent's common law duty to act in a procedurally fair manner. The petitioner had originally sought to challenge the decision on the further ground that it contravened his rights under article 5(4) of the European Convention on Human Rights. I was, however, told that judgment is awaited from the Supreme Court in two appeals where the issue concerns the circumstances in which a prisoner is entitled under article 5(4) to an oral hearing when the Parole Board is reviewing his case (Osborn & Booth v Parole Board [2010] EWCA 1409 and Reilly v Parole Board [2011] NICA 6). In view of this senior counsel for the respondent gave a written undertaking so as to avoid what was described as a sterile argument on article 5(4) in the present case. The undertaking was that in the event of the Supreme Court's decision in Osborn & Booth and Reilly being such that a prisoner in the circumstances of the petitioner is entitled to an oral hearing, the respondent would mark consent to an application for reduction of the decision complained of in the present petition. The undertaking is recorded in the minute of proceedings. The upshot of this undertaking is that I need only consider in the present opinion the challenge brought by the petitioner under the common law.
The relevant facts
[2] The facts of the present case may be summarised as follows. On 23 January 2008 the petitioner, on the basis of evidence which the trial judge said he regarded as overwhelming, was convicted after trial in Glasgow High Court of an offence of assault and robbery committed on 23 June 2007. At the time of the offence the petitioner was on bail. The offence was constituted by the petitioner entering a restaurant with his face masked and presenting a knife at two employees, demanding that they get down on the floor, holding knives at their heads, demanding that they open tills, demanding to know the whereabouts of the safe and robbing them of an unspecified sum of money.
[3] The petitioner had a very bad record of previous criminal convictions. Of particular note was a conviction in the High Court for assault and robbery on 10 March 2004; this resulted in his imprisonment for a period of 42 months and the imposition of a supervised release order for a period of 6 months.
[4] Even after that conviction, the petitioner had been convicted on indictment in Glasgow Sheriff Court on 9 January 2007 for two charges of breach of the peace and a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, the offensive weapon being a knife. The section 47 charge resulted in imprisonment for a period of 8 months.
[5] On 15 January 2007 the petitioner was convicted at sheriff summary level under the Forgery and Counterfeiting Act 1981, section 15(1)(a) and was sentenced to 2 months' imprisonment on 6 February 2007.
[6] On 1 May 2007 at Glasgow District Court, the petitioner was imprisoned for 3 months for a contravention of section 57(1) of the Civic Government (Scotland) Act 1982.
[7] In his report to the respondent the trial judge, Lord Matthews, noted also that the petitioner's previous record had included over 20 convictions for offences of dishonesty at summary level.
[8] In these circumstances, it is hardly surprising that the trial judge decided to impose an extended sentence on the petitioner. The extended sentence was for a period of 10 years. This consisted of a custodial term of 7 years and 6 months (of which 6 months was attributable to the fact that the petitioner had been on bail) to run from 25 June 2007 when he first appeared on petition. The extension period was set at 2 years and 6 months.
[9] The trial judge's report records the petitioner's acceptance that the motivation for his sustained record of offending lay in persistent alcohol and drug abuse. The petitioner was a heroin addict. He was assessed as being at a very high risk of re‑offending.
[10] On 22 June 2012 the petitioner was released on non-parole licence, having reached the two-thirds stage of the custodial part of the extended sentence. Condition 6 of his licence was that he should be of good behaviour and keep the peace.
[11] On 19 July 2012, less than one month after being released on licence, the petitioner, who was in possession of controlled drugs, intentionally obstructed police officers attempting to carry out a drugs search, in contravention of section 23(4)(a) of the Misuse of Drugs Act 1971. He was in due course convicted of this offence and, on 20 August 2012, sentenced to a further period of imprisonment of 7 months, backdated to 20 July 2012. He was acquitted of a charge of breach of the peace.
[12] As a result of his latest offending, the Scottish Ministers revoked the petitioner's licence and referred his case to the respondent under and in terms of section 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"). At a meeting held on 11 September 2012 a panel of the respondent's members unanimously agreed that the petitioner should be recalled to custody. The respondent then notified the petitioner that he had a period of 4 weeks in which to make representations as to whether he should be released. A meeting to consider that question was fixed for 4 December 2012.
[13] For the purposes of considering the question of recall the respondents had the benefit of a Throughcare Licence Breach Report prepared by social workers from Glasgow City Council; one of the authors was the petitioner's supervising officer. In the report the petitioner was assessed as presenting a high risk of re‑offending and a high risk of causing further harm should he re‑offend. His criminogenic needs were stated to be: negative peer influence, alcohol misuse, drug misuse, employment history and anti-social attitudes to the law and law enforcement. The report recorded that the petitioner admitted spending time with men who would appear to be involved in some measure of violence either against themselves or others. He also admitted having taken medication from his sister to help him withdraw from Methadone without consulting his general medical practitioner.
[14] The petitioner's dossier also contains a summary of the evidence in his most recent case. This states that on 19 July 2012 police officers observed the petitioner at a location known to be a hotspot for drug activity. They saw him walking towards a person, who appeared to be waiting for no apparent reason and who seemed to be under the influence of drugs. The police officers suspected that a drugs transaction was about to take place. They saw the petitioner call the other person over towards him. According to the summary, the petitioner appeared to notice the police officers' ear pieces; he looked startled and immediately began walking hurriedly in the opposite direction. The police officers ran towards him and, as they did so, they saw that the petitioner was holding something in his hand. They also observed brown resin stains on his fingers, a common finding in the case of persons who burn cannabis resin and use their thumb and forefinger to crumple the cannabis into a reefer cigarette. There was a smell of cannabis emanating from the petitioner.
[15] The summary then continues by explaining that when one of the officers identified himself and informed the petitioner that he was being detained for a drugs search, the petitioner placed one hand to his mouth and put a small bag with brown powder inside his mouth. He then swallowed it.
[16] The petitioner submitted a number of "self-representations" in September and October 2012 for the purposes of the hearing on 4 December 2012. He explained that the circumstances of his latest offence arose when he had been waiting outside his doctor's surgery. He had intended to ask for medical advice about his anxiety state. According to the petitioner, a friend had given him a small piece of cannabis and advised the petitioner to sprinkle this in a cup of herbal tea; this would help his anxiety. The petitioner claimed that he panicked and swallowed the cannabis when he saw the police officers. His intention had been to ask his doctor whether the solution suggested by his friend would work.
[17] A firm of solicitors instructed by the petitioner also submitted a set of representations dated 29 November 2012. These representations contained the following short passage:
"I would however ask that the Parole Board for Scotland to (sic) consider that it might be appropriate in the circumstances of my case to hold a tribunal. If there is anything the Parole Board for Scotland is concerned about or wishes further information about this could be dealt with by way of a Tribunal."
[18] The respondent treated this request as an application by the petitioner that they should hold an oral hearing before determining whether he should be released from custody.
The respondent's decisions
[19] The petitioner's case came before the respondent on 4 December 2012 to consider whether he should be re-released. The respondent noted that the petitioner had requested an...
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