Petition By Stuart Quinn Against The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord McGhie,Lord Malcolm,Lady Clark Of Calton |
| Neutral Citation | [2017] CSIH 53 |
| Date | 02 August 2017 |
| Docket Number | P625/14 |
| Court | Court of Session |
| Published date | 02 August 2017 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 53
P625/14
Lady Clark of Calton
Lord Malcolm
Lord McGhie
OPINION OF THE COURT
delivered by LORD MALCOLM
in the Petition
by
STUART QUINN
Petitioner and Reclaimer
against
THE SCOTTISH MINISTERS
Respondents
Petitioner and Reclaimer: Leighton; Drummond Miller LLP
Respondents: D Ross, QC; Scottish Government Legal Directorate
2 August 2017
Introduction
[1] Stuart Quinn (the petitioner) is serving a sentence of life imprisonment for murder. The punishment part – or tariff – of his sentence is 18 years, running from May 2001. He will become eligible to apply to the parole board for release on licence from May 2019. In this petition he seeks various declarators and other orders in relation to the alleged failure of the Scottish Ministers (the respondents) to provide him with a reasonable opportunity to demonstrate in or about May 2019 that he no longer presents an unacceptable risk to the public. The essence of his complaint is that his commencement on the necessary coursework, programmes, and preparation for release phase has been delayed to such an extent that it is clear that the state is in breach of an obligation which is implicit in article 5.1 ECHR. The Lord Ordinary (Lord Glennie) refused the petition, and the matter comes before this court on appeal from that decision. At the outset, counsel for the petitioner indicated that, if successful, the petitioner seeks damages in the sum of £500.
The Decision in R (Haney) v Secretary of State for Justice
[2] In May 2014 the UK Supreme Court held that the purpose of a sentence of life imprisonment includes rehabilitation. It ruled that it is implicit in the scheme of article 5 of ECHR:
“that the state is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public” – R (Haney) v Secretary of State for Justice [2015] AC 1344 at paragraph 36.
Breach of the duty does not render continuing detention unlawful, but sounds in modest damages in respect of any legitimate frustration and anxiety on the part of the prisoner. Article 5 confers individual rights, which are not dependent upon proof of a systemic failure or egregious unreasonableness (paragraph 41). Whether there has or has not been a breach of the duty will depend upon the particular facts of the case. Perfection in the provision of rehabilitative programmes and the like is not required given the numbers involved and the limited courses, facilities and resources available for the purpose. It may well be necessary to accept some delays, for example in respect of participation in a specialist and highly intensive course or in a transfer to open prison conditions.
[3] In the circumstances of the present case it is helpful to have regard to how the UK Supreme Court dealt with Mr Haney’s case. (The decision is sometimes designed under reference to the name of one of Mr Haney’s co‑appellants, Mr Kaiyam.) Mr Haney was sentenced to life imprisonment for committing serious offences involving a grave risk to the public of death or serious injury. His progress in prison was better than might have been expected. He was moved to HM Prison, Blundeston, which has a therapeutic community designed to facilitate rehabilitation. Reports on him were favourable. In March 2010 a sentence plan foresaw the prospect of transfer to an open prison as an essential stage in assessing whether he could be released on licence. In June 2011 the Secretary of State wrote to him approving such a transfer. In the summer of 2011 he was accepted in principle by a suitable open establishment. However, because of pressure on the system, the transfer did not happen until July 2012. Thus, however well he presented, he had no prospect of making a successful parole application before the expiry of his tariff in November of that year.
[4] The excess of demand over supply had caused the prison service to give priority to prisoners whose tariffs had expired, and then to those nearest to tariff expiry. (As will be seen, in Scotland a similar policy is operated.) A common law challenge to the reasonableness and lawfulness of this policy had failed, and an article 14 claim was rejected by the Supreme Court. However it held (paragraph 48) that there was a breach of an ancillary duty under article 5, which was “geared towards the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period”. A failure could occur before expiry if the prisoner was deprived of such an opportunity. Emphasis was placed on the terms of the Secretary of State’s letter. It set out what, as at its date, amounted to a reasonable opportunity to demonstrate Mr Haney’s fitness for release. The uncertainty as to whether he would or would not be able to so demonstrate did not take away from the deprivation of that opportunity. The delay in transfer was for about one year, which was sufficient to justify an award of £500.
The Decision in James v UK
[5] While in Haney the justices did not follow the ultimate outcome in James v UK (2013) 56 EHRR 12, that decision nonetheless provided the platform for construction of the ancillary duty. During the progress of James and related cases through the courts, in the Court of Appeal Lord Phillips of Worth Matravers CJ noted that it had been the policy of the Secretary of State to provide the courses necessary for lifers to show that they were no longer dangerous, and that within a timescale aimed at such demonstration by the completion of the tariff period, or reasonably soon thereafter. Laws LJ observed that there had been a settled understanding:
”shared by government, relevant agencies and professionals that… courses in prison would be available to maximise the opportunity for lifers to demonstrate that they were no longer a danger to the public by the time their tariff expired, or as soon as possible thereafter, so as to allow the prisoner’s release once that was shown.”
This understanding was “inherent” in the way the relevant legislation was intended to work in practice. However, in all the cases before the Court of Appeal, the Convention claims were rejected.
[6] In the House of Lords the view was taken that detention beyond tariff expiry in the cases of prisoners sentenced to indeterminate sentences for public protection (IPP) was justified on the basis of the original indeterminate sentence. Lord Judge said that the opportunity or lack of opportunity for rehabilitation is dependent on the structures provided by the Secretary of State, as is the ultimate decision of the parole board. Lord Hope of Craighead commented that the Secretary of State had failed “deplorably” in the public law duty which he accepted when introducing IPP sentences, in that he failed to provide the system and resources necessary for such prisoners to demonstrate by the time of the expiry of their tariff periods, or reasonably soon thereafter, that they need no longer remain in detention. It was implicit in the state scheme that the Secretary of State “would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the parole board that they should be released” (paragraphs 104). However their Lordships rejected the prisoners’ claims of a breach of article 5. Lord Hope concluded that continued detention was not arbitrary, or otherwise unlawful, until the parole board determined that it was no longer necessary. Detention would only become arbitrary if there was a complete breakdown in the system.
[7] The claims of Mr James and his co‑applicants came before the European Court of Human Rights. The court reviewed the policy on treatment and management of life sentence prisoners, including Prison Service Order 4770, which stated that, “lifers must be given every opportunity to demonstrate their safety for release at tariff expiry” (paragraph 4.13.2). The court noted that changes were made in 2010 to give heightened priority to short tariff prisoners so that they could address their risk factors in time for their parole board review. The court made reference to international materials. A common theme was that an objective of a life sentence is to provide an individual plan for each prisoner to progress through the prison system, participate in work, education and training, and complete programmes designed to address risks and needs, all with the view to maximising the chance of successful reformation, social rehabilitation and resettlement in society. A UN report was quoted:
“International Instruments on imprisonment and human rights suggest that the deprivation of liberty may only be justified if accompanied by review and assessment procedures that operate within commonly accepted judicial standards. Indeterminate life sentencing cannot be allowed to open the door for arbitrary detention. Fair, unprejudiced assessment programmes offer possible checks against this”.
[8] In explaining its decision, the court began by stressing some general principles, not least “the fundamental importance of the guarantees contained in article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities”. It accepted that, given the need for efficient management of public funds, “a reasonable balance must be struck between the competing interests involved”, but with “particular weight” given to the applicants’ right to liberty. The court was satisfied that the applicants’ continued detention was linked to their perceived dangerousness, however that was not sufficient to resolve the issue of arbitrariness. The purpose of detention was not limited to protection of the public, but extended to giving lifers “every opportunity to demonstrate their safety for release at tariff expiry” (paragraph...
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