Kenneth Dutch (ap) V. The Parole Board For Scotland+the Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Burns |
| Neutral Citation | [2013] CSOH 172 |
| Court | Court of Session |
| Published date | 07 November 2013 |
| Year | 2013 |
| Docket Number | P603/13 |
| Date | 07 November 2013 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 172 | |
| P603/13 | OPINION OF LORD BURNS in the petition of KENNETH DUTCH (ASSISTED PERSON), presently a prisoner with HMP Edinburgh, 22 Stenhouse Road, Edinburgh Petitioner; against (FIRST) THE PAROLE BOARD FOR SCOTLAND; and (SECOND) THE SCOTTISH MINISTERS Respondents: ________________ |
Petitioner: Leighton, advocate; Drummond Miller LLP
First Respondent: Dunlop QC; Anderson Strathern Solicitors
Second Respondent: Ross, advocate; Scottish Government Legal Directorate
7 November 2013
[1] A first hearing in this petition called before me on 27 September 2013 when Mr Leighton appeared for the petitioner, Mr Dunlop QC for the first respondents (the Parole Board for Scotland) and Mr Ross for the second respondents (the Scottish Ministers). The petitioner seeks judicial review of a failure by the Parole Board to release him and by the Scottish Ministers to provide sufficient opportunities for the petitioner's rehabilitation. I was informed at the outset of the hearing that, as a result of agreement between the parties, discreet issues relating only to the Parole Board had been identified which could be canvassed at this one day hearing. Notice of such a proposal had been given in a note of argument submitted to the court on behalf of the Parole Board which outlines those issues. I acceded to the motion to deal with those issues at this hearing and to reserve the other issues raised by the petitioner relating to the Scottish Ministers to a further hearing.
Background
[2] The petitioner was born on 17 July 1962. On 25 May 1979, when 16 years of age, he was convicted of the murder of a lady by kicking her repeatedly on the head and body, stamping on her head and body, dragging her along the ground and kicking her in the private parts. There were indications of nine separate impacts with the sole and heel of shoes. There was a penetrating injury to the deceased's private parts. On 23 October 1997 in terms of section 16 of the Crime and Punishment (Scotland) Act 1997, the Lord Justice General certified that nine years would have been the period of the punishment part of the life sentence of imprisonment under section 2 of the Prisoners and Criminal Proceedings Scotland Act 1993.
[3] The petition is directed at the Scottish Ministers and seeks a number of declarators and orders in relation to an alleged failure to provide the petitioner with "appropriate opportunities to reduce the risk of offending that he poses and to demonstrate to the Parole Board for Scotland that it is no longer necessary for the protection of the public for him to be confined". Declarators are also sought that the petitioner's convention rights have been breached by the Scottish Ministers' failure to provide him with a real opportunity at (sic) rehabilitation. The petitioner seeks an order ordaining the Scottish Ministers to release him in terms of their powers under section 3 of the 1993 Act.
[4] In so far as the Parole Board is concerned, the petitioner seeks a declarator that his convention rights have been breached by the Parole Board's failure to direct his release, reduction of the decision of 21 February 2013 refusing to direct his release and an order ordaining the Parole Board to direct his release.
The Submissions of the Parole Board for Scotland
[5] Mr Dunlop, on behalf of the Parole Board, asked me to sustain his first plea in law which was directed to the relevancy and specification of the petitioner's averments and calls for the petition to be dismissed. He outlined the history of the petitioner's incarceration since 1979. He accepted that the petitioner's averments relating to the Parole Board's consideration of the petitioner's case were accurate. In brief summary, the Parole Board has met to consider the petitioner's case on at least 13 occasions since 1998. It has not directed his release. The pleadings do not challenge the Parole Board's assessment that the statutory conditions for his release are not, and never have been, met in the petitioner's case and specifically accept that the petitioner has failed to progress "through the prison estate", principally because he is unable to interact suitably with women, lacks social skills, does not know how to behave appropriately in the presence of women and has serious and ongoing difficulties in these respects. However, it is contended on his behalf that the failure of the Scottish Ministers to provide treatment and rehabilitation for him has resulted in his continuing confinement being arbitrary and unlawful. Accordingly, the decisions of the Parole Board to refuse to direct his release are also unlawful.
[6] Mr Dunlop emphasised that the Parole Board has no role in the conditions under which the petitioner has been confined since 1979 and, in particular, has no responsibility for any failure which might have occurred in the petitioner's progression through the prison estate. That lack of progression is said to be due to the failure of the Scottish Ministers to provide a real opportunity for rehabilitation. The Parole Board's duties for present purposes are set out in section 2(4) and (5) of the 1993 Prisoners and Criminal Proceedings Act 1993 (the 1993 Act). So far as material those provisions relate to the duty to release not only discretionary but also mandatory life prisoners such as the petitioner who was sentenced to life imprisonment for murder. The subsections provide as follows:
"2(4) Where this subsection applies, the Secretary of State shall, if directed to do so by the Parole Board, release a life prisoner on licence.
2(5) The Parole Board shall not give a direction under subsection 4 above unless - (a) the Secretary of State has referred the prisoner's case to the board and (b) the board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
[7] I was referred to the terms of the Human Rights Act 1998 (the 1998 Act). It was accepted that the Parole Board is a public authority in terms of section 6 and that it is unlawful for it to act in any way incompatible with a convention right. Section 6(2) of the 1998 Act provides as follows:
"(2) Subsection (1) does not apply to an act if - (a) as a result of one or more provisions of primary legislation, the authority could not have acted differently."
[8] In considering the interpretation of the above quoted provisions of the 1993 Act it was necessary for the court also to have in mind section 3 of the 1998 Act which provides:
"3(1) so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights."
[9] Turning to the petition, Mr Dunlop directed my attention to paragraph 38 which is in these terms:
"That the first respondents (the Parole Board) have acted unlawfully in refusing to release the petitioner. Continued detention is a continuing breach of the petitioner's convention rights. The decision made by the first respondents continued the petitioner's detention and so continued the breach of his convention rights. A direction to release him would have remedied the breach. The decision of the first respondent is accordingly unlawful in terms of the Human Rights Act. The 1993 Act should be read to permit release if continued detention would be a breach of the prisoner's convention rights."
[10] In the following paragraph the petition proceeds upon the assumption that the 1993 Act requires the Parole Board to make the decision they did and contends that such an Act is incompatible with a petitioner's convention rights and that a declaration of incompatibility should be pronounced.
[11] Accordingly, submitted Mr Dunlop, it is apparent that the petitioner's case, as directed against the Parole Board, is predicated on the premise that the court should "read down" section 2(5) of the 1993 Act in some unspecified way, so as to permit the Parole Board to release the petitioner notwithstanding the unchallenged assessment that the petitioner's continuing confinement remains necessary for the protection of the public. Mr Dunlop did not know in what way the petitioner was suggesting the section 2(5) of the 1993 Act ought to be read.
[12] Mr Dunlop argued that, even having full regard to the wide‑ranging powers available to this court by virtue of section 3 of the 1998 Act, it was simply not possible to read section 2(5)(b) of the 1993 Act in such a way as to allow the Parole Board to direct the Secretary of State to release the petitioner without placing a reading on that provision which would run directly counter to its plain and obvious purpose.
[13] In R v Lambert 2002 2 AC 545 at page 584 Lord Hope of Craighead explained how this important and far reaching new approach to the construction of statutes contained in section 3(1) of the 1998 Act should be employed. At paragraph 79 his Lordship pointed out that although the obligation was a powerful one, it was not to be performed without regard to its limitations. He went on:
"Resort to it will not be possible if the legislation contains provisions, either in the words or phrases which are under scrutiny or elsewhere, which expressly contradict the meaning which the enactment would have to be given to make it compatible. The same consequence will follow if legislation contains provisions which have this effect by necessary implication."
[14] His Lordship emphasised that the obligation was one which applied to the interpretation of legislation and such a function belonged to judges. But it was not for judges to legislate and section 3(1) preserved the sovereignty of Parliament. In particular his Lordship said at paragraph 79:
"It does not give power to the judges to overrule decisions which the language of the statute shows have been taken on the very point at issue by the legislator."
[15] The point at issue in section 2(5) of the 1993 Act...
To continue reading
Request your trial