Reference By The Parole Board For Scotland Of The Devolution Issue Raised By D.p.
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord President,Lord Brodie |
| Judgment Date | 05 April 2013 |
| Neutral Citation | [2013] CSIH 26 |
| Published date | 05 April 2013 |
| Docket Number | XA121/12 |
| Court | Court of Session |
| Date | 05 April 2013 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Clarke Lord Brodie | [2013] CSIH 26 XA121/12 OPINION OF THE COURT delivered by Lord Brodie in the reference by THE PAROLE BOARD FOR SCOTLAND of the devolution issue raised by DP Minuter: _______________ |
Alt: Sheldon; Scottish Government Legal Directorate
5 April 2013
Introduction
The reference
[1] This is a reference of a devolution issue, directly to the Inner House of the Court of Session, purportedly made in terms of paragraph 8 of Schedule 6 to the Scotland Act 1998. The reference was made by the Parole Board for Scotland. The devolution issue was raised before the Board by way of minute by a serving prisoner whose case it is due to consider. It is the minuter's contention that his right to the presumption of innocence, as guaranteed by article 6 (2) of the European Convention on Human Rights, would be contravened by the Board considering certain material which refers to alleged offences in respect of which he has been acquitted.
The minuter
[2] The minuter is currently serving an extended sentence comprising a custodial period of 10 years with an extension period of 8 years. The sentence was imposed on 31 January 2000. It will expire on 7 October 2017. As a prisoner made subject to an extended sentence, the minuter's early release from custody on licence is subject to the provisions of section 26A of the Prisoners and Criminal Proceedings (Scotland) Act 1993.
[3] The minuter's conviction was in respect of two charges, one of assault with intent to rape, the other of rape. On that occasion pleas of not guilty to five other charges which had appeared on the same indictment were accepted by the Crown (these being three charges of breach of the peace, a charge of assault with intent to rape, and a charge of assault). The minuter was accordingly acquitted of these five charges.
[4] The minuter has previously been released on licence but he was recalled to custody on revocation of his licence by the Scottish Ministers, in terms of section 17 of the 1993 Act, on 23 May 2008. The provisions of section 3A of the 1993 Act apply to his re-release. In terms of section 3A (2), a prisoner to whom section 3A applies may require the Scottish Ministers to refer his case to the Parole Board, initially at any time following his recall and thereafter annually during the currency of the recall.
The Parole Board for Scotland
[5] The Parole Board for Scotland is constituted by section 20 of and Schedule 2 to the 1993 Act. It has the functions conferred on it by, or by virtue of, the 1993 Act.
[6] Section 20 (2) of the 1993 Act provides that it is the duty of the Board to advise the Scottish Ministers with respect to any matter referred to it by them which is connected with the early release or recall of prisoners, but on repeal of section 20 (3) of the 1993 Act by section 28 (4) of the Criminal Justice (Scotland) Act 2003, the Scottish Ministers lost their former power not to accept the Board's recommendations in certain circumstances. As a result, the Board's powers in respect of the release of prisoners it considers to present an acceptable risk are mandatory in effect: where it recommends release on parole, the Scottish Ministers must grant such release.
[7] In the case of a prisoner to whom section 3A of the 1993 Act applies, such as the minuter, whose case is referred by the Scottish Ministers, the question for the Board is whether the need to protect the public from serious harm still necessitates his imprisonment. 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), [the Board shall] direct that he should be released": section 3A (4). In the event of the Board giving such a direction the Scottish Ministers shall release the prisoner on licence: section 3A (5).
[8] Scottish Ministers may by rules make provision with respect to the proceedings of the Board. These rules include the Parole Board (Scotland) Rules 2001 SSI 2001/315, as amended by the Parole Board (Scotland) Amendment Rules 2011 SSI 2011/133 and the Parole Board (Scotland) Amendment Rules 2012 SSI 2012/167. Making a distinction not found in the primary legislation, the 2001 Rules provide for "non-tribunal cases", to which Part III of the Rules applies, and "tribunal cases", to which Part IV of the Rules (rules 17 to 28) applies.
[9] In relation to tribunal cases, rule 18 (1) of the 2001 Rules provides that three members of the Board who are appointed by the chairman of the Board to form a tribunal, may deal with any case in whole. The chairman of a tribunal must be a person who holds or who has held judicial office or who is a solicitor or advocate of not less than 10 years standing. The prisoner and the Scottish Ministers are parties to a tribunal case. There shall be an oral hearing of the prisoner's case in a tribunal case unless both parties and the tribunal otherwise agree: rule 20. Each party may be represented at the hearing by any person whom he has authorised for that purpose: rule 22. Witnesses may be led to give evidence. Rule 24 confers power to the chairman to cite witnesses to attend to give evidence or produce documents by applying section 210 (4) and (5) of the Local Government (Scotland) Act 1973 as if the hearing was a local inquiry.
The devolution issue
[10] The minuter avers that the Board will consider his position (in relation to re-release on licence as provided for by section 3A of the 1993 Act) on 9 March 2013. As a reference under section 3A (2) the minuter's case is a tribunal case: rule 17 (1). The question for the tribunal, acting for the Board, will be whether or not it is necessary for the protection of the public from serious harm that the minuter should remain in custody. Determining that question will require the tribunal to make an assessment, on the basis of the information available to it, of the risk that the minuter presents to the public.
[11] The 2001 Rules require the Scottish Ministers to provide the Board, and therefore in a tribunal case, the tribunal, with information. Rule 5 (1) provides:
"...not later than 2 weeks after the date of the reference of the case to the Board, the Scottish Ministers shall send to the Board and to the person concerned a dossier containing any information in writing or documents which they consider relevant to the case including, wherever practicable, the information and documents specified in the Schedule to these Rules."
The information and documents specified in the Schedule to the Rules are as follows:
"1. A note of the full name and the date of birth of the prisoner.
2. A note of the place in which the prisoner is detained and other places in which the prisoner has been detained.
3. A note of the prisoner's current sentence or sentences and an indication of the circumstances of the offence or offences for which that sentence or those sentences were imposed.
4. A record of any other offences of which a court has found the prisoner guilty together with a note of the sentence or other disposal ordered on such findings.
5. In a Part IV case-
(a) a copy of the judgement of the High Court in any appeal by the prisoner against his current sentence or the conviction on which that sentence was imposed; and
(b) a copy of any dossier sent to the Board under rule 5 of these Rules, rule 5 of the 1993 Rules, or rule 5 of the 1995 Rules, in connection with any previous referral of the prisoner's case to the Board which occurred on or after 4th August 1995.
6. A copy of any report on the prisoner made while he was subject to a transfer direction under section 71 of the Mental Health Act 1984.
7. Up to date reports by those involved in supervising, caring for, or counselling the prisoner on the prisoner's circumstances (including home background) and behaviour and on his or her suitability for release or, as the case may be, re-release on licence."
[12] A tribunal hearing of the minuter's case was fixed for 9 March 2012. In terms of their obligation under rule 5 (1) of the 2001 Rules the Scottish Ministers sent a dossier to the Board prior to that hearing date. The dossier was copied to the minuter.
[13] Prior to the tribunal having convened for the hearing fixed for 9 March 2012, the minuter lodged with the Board a devolution issue minute intimating the minuter's intention to raise as a devolution issue his objection to the tribunal considering any material which includes references to "alleged criminal conduct on his part in respect of which he has not been convicted, and in particular of which he has been acquitted." In the minute the minuter identifies pages RRG 36, 50, 76 et seq (a Forensic Psychological Assessment extending from page RRG 76 to RRG 188), 141, 144 and 146 in the dossier sent by the Scottish Ministers as containing information about alleged offences of which the minuter has been acquitted. He contends that for the Board to consider the challenged material would be "incompatible with the presumption of innocence enshrined in article 6 (2) ECHR". He further contends that, having regard to section 57 (2) of the Scotland Act 1998, the Scottish Ministers do not have power to send to the Board a Scottish Ministers' dossier containing information on allegations of criminal conduct in respect of which the minuter was not convicted.
Referring the devolution issue
[14] On the lodging of the devolution issue minute, the hearing fixed for 9 March 2012 was adjourned and the Board resolved to hear submissions at a hearing of parties before a legally qualified member of the Board sitting alone. In a note dated 21 May 2012, the legally qualified member records that at that hearing two concessions were made on behalf of the Scottish Ministers: first, that it was competent to lodge a devolution issue minute in proceedings of the Board; and...
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