Petition Of S M (ap) For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2013] CSOH 112 |
| Year | 2013 |
| Published date | 09 July 2013 |
| Date | 09 July 2013 |
| Court | Court of Session |
| Docket Number | P309/13 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 112 | |
| P309/13 | OPINION OF LORD BANNTYNE in the Petition SM (A.P.) Petitioner; For Judicial Review of failure by the Scottish Ministers to provide sufficient opportunities for the petitioner's rehabilitation ________________ |
Petitioner: Leighton; Drummond Miller LLP
Respondent: Ross; Scottish Government Legal Directorate
9 July 2013
Introduction
[1] This matter came before me for a first hearing in a judicial review. The petitioner is a convicted prisoner detained within Her Majesty's Prison Greenock. He was represented by Mr Leighton, advocate. The respondents are the Scottish Ministers, who act in part through their executive agency the Scottish Prison Service. Through the Scottish Prison Service, the respondents are responsible for the detention of the petitioner and the management of his imprisonment. The respondents were represented by Mr Ross, advocate.
[2] Reading short the petitioner's basis for challenging the actings of the respondents was this: the respondents had failed to provide him with a reasonable opportunity for rehabilitation.
Definitions
[3] It is perhaps convenient, before turning to the factual background of the case, to define certain terminology which featured prominently in the course of the discussion:
(a) National Top End Conditions: are conditions within the prison estate of reduced security, prisoners have keys to their cells and enjoy reasonable freedom in cell blocks and can go on escorted leave and work placements. It is available in HM Prisons Greenock and Barlinnie and there is a combined capacity of 124 places. A spell in National Top End Conditions often forms part of a long term prisoner's progress towards release and it is an intermediate stage between mainstream and open conditions.
(b) Open Conditions/Open Estate: this is the lowest level of security within the prison system and the difference between National Top End and Open Conditions is that in the latter there is no secure perimeter and prisoners may be allowed to leave the prison to go on home leave. The open estate consists of HM Prison Castle Huntly and there are a total of 285 places. As at the date of the first hearing there were 242 prisoners within the open estate.
(c) First Grant of Temporary Release: the question of eligibility of prisoners for temporary release is dealt with by the Prison and Young Offenders Institutions (Scotland) Rules 2006, rule 145 and reading short the said rule is to the following effect: that a prisoner is only eligible for temporary release if he is assigned a low supervision level and in the case of a life prisoner cannot be granted temporary release unless the governor has obtained the prior consent of the Scottish Ministers.
The legislative framework
[4] Section 2 of The Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the Act") governs the duty to release discretionary life prisoners. A discretionary life prisoner includes in terms of subsection (1)(a):
"a person - (a) sentenced to life imprisonment for an offence for which...such a sentence is not the sentence fixed by law; ...and in respect of whom the court which sentenced him for that offence made the order mentioned in subsection (2)...
(2) The order referred to in subsection (1)... is an order that subsections (4) and (6)...shall apply to the life prisoner as soon as he has served such part of his sentence ('[the punishment part']..."
[5] Subsection 4 thereof provides:
"Where this subsection applies, the Secretary of State shall, if directed to do so by the Parole Board, release a life prisoner on licence."
Subsection 5 sets out the circumstances in which the Board shall give a direction in terms of subsection 4:
"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."
Subsection 5(A) directs what the Board shall do if it declines to direct the prisoner's release:
"Where on the disposal of any reference of a life prisoner's case under section 28(4) of the 1989 Act, under subsection (5)(a) above, subsection (5C) or (6) below or section 17(3) of this Act or under paragraph 34, 38 or 42 of the Schedule to the Convention Rights (Compliance) (Scotland) Act 2001, the Parole Board declines to direct that the prisoner be released on licence, it shall -
(a) give the prisoner reasons in writing for the decision not to direct his release on licence; and
(b) fix the date when it will next consider the prisoner's case under this section, being ... a date not later than two years after the date of its decision to decline to direct the release of the prisoner."
The remedies sought by the petitioner
[6] As a result of the Scottish Ministers said alleged failure the petitioner sought the following remedies:
"declarator that the Scottish Ministers have acted unlawfully by failing to accommodate the petitioner in open conditions in order that he can, or otherwise to provide the petitioner with opportunities 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;
declarator that the Scottish Ministers have breached the petitioners (sic) article 5 rights;
reduction of the decision of the risk management team of 31 October 2012 insofar as it delays transfer of the petitioner to open conditions;
an order ordaining the Scottish Ministers to transfer the petitioner to open conditions within the Scottish Prison Service estate;"
[7] Apart from the foregoing the petitioner sought a fifth remedy which was damages. However, it was agreed by parties that argument regarding this remedy should be reserved to await the outcome of my decision regarding the other remedies sought.
The factual background to the challenge
[8] The petitioner is presently a prisoner in HM Prison Greenock. He is a discretionary life sentence prisoner. He is subject to a sentence running from May 1999 for life with a punishment part of 4 years. He is accordingly a "post-tariff" life prisoner, having served his punishment part. On 19 August 1999 the petitioner was convicted of the indecent assault of a 10 year old girl.
[9] There have been various hearings of the Parole Board for Scotland, Life Prisoners' Tribunal ("the Tribunal") that dealt with the petitioner's case from May 2003 onwards. That up to 2004 the petitioner had completed a large number of special escorted leaves without incident.
[10] In July 2008 the petitioner was transferred to HM Prison Peterhead. Prior to his transfer he had been on a community work placement. The community work placement was discontinued in 2008 after alleged displays of inappropriate behaviour by the petitioner. His supervision level which at that time was low was raised to medium and his First Grant of Temporary Release status was removed.
[11] The petitioner since being downgraded has attended at three Tribunal hearings, namely: in 2009, 2011 and 2012.
[12] The tribunal in 2009 was initially set to take place in July, however, it was adjourned until November. The Tribunal's decision and reasons are set out in their letter to the petitioner dated 24 November 2009.
[13] The petitioner made progress following the review in 2009.
[14] The tribunal considered the petitioner's case again in May 2011. The Tribunal's decision and their reasons are set out in their letter to the petitioner dated 20 May 2011.
[15] The petitioner is presently not in open conditions. He was moved to HM Prison Greenock in January 2012.
[16] There was a further hearing of the Tribunal in August 2012. The Tribunal's decision and their reasons are set out in their letter to the petitioner dated 22 August 2012.
[17] The petitioner has throughout his sentence undertaken coursework that has been suggested to him. Throughout his sentence he has tested negative for drugs.
The submissions on behalf of the petitioner
[18] Mr Leighton opened his submissions by examining in some detail the decision letters of the Tribunal following the hearings in 2009, 2011 and 2012.
[19] In their decision letter of 24 November 2009 the Tribunal did not direct the petitioner's release, as it was not satisfied that it was no longer necessary for the protection of the public that he should be confined. The petitioner's next review was set for 12 May 2011.
[20] In relation to this decision letter Mr Leighton in particular directed my attention to the "Reasons for Decision" section and to the following specific section thereof:
"All the Tribunals that have considered your case concluded that you should spend time in open conditions, and this Tribunal also considered that this would be appropriate, both to allow ongoing assessment of your conduct and the risk you pose and to assist in preparing you for a successful release. The Tribunal noted that you spent approximately 34 months on community placement and that overall the reports of your conduct were positive. Concerns arose about the attitude you demonstrated towards children on the minibus from prison to your community placement and concerns were also raised about some aspects of your conduct in placement and other conduct. Some of the concerns raised are at best questionable, for example the suggestion that you 'groomed' an adult woman or that it was your responsibility to inform Scottish Prison Service staff that schoolgirls had been at your placement, when the placement had been approved by two prisons, and it must always have been foreseeable that there would be children present at the placement at times due to the nature of the establishment where you were working. It appears that some of the concerns raised in mid 2008 related to historic matters of which professionals were already aware, and which would have been taken into account when earlier...
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