Petition Of Alexander Lewis Hutchison Reid For Judicial Review Of Decisions Of The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2015] CSOH 84 |
| Year | 2015 |
| Published date | 24 June 2015 |
| Docket Number | P200/15 |
| Court | Court of Session |
| Date | 23 June 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 84
P200/15
OPINION OF LORD GLENNIE
In the petition of
ALEXANDER LEWIS HUTCHISON REID
Petitioner;
for judicial review of decisions of the Scottish Ministers
Petitioner: Bain QC, McCluskey; Drummond Miller LLP
Respondents: Ower; Scottish Government Legal Directorate
23 June 2015
Introduction
[1] In R (Haney and others) v Secretary of State for Justice [2014] UKSC 66, [2015] 2 WLR 76 (“Haney”) the Supreme Court held that the overall scheme of article 5 ECHR gave rise to an implied duty on the Secretary of State, ancillary to article 5, to provide an opportunity reasonable in all the circumstances for a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. The respondents to this petition accept that in relation to the petitioner they were and remain under such a duty.
[2] The Supreme Court emphasised that breach of that duty would not affect the lawfulness of a prisoner’ detention but would entitle the prisoner to damages. That too is accepted by the respondents. The court went on to explain: (a) that the appropriate remedy was an award of damages for legitimate frustration and anxiety where such could properly be inferred to have been occasioned by the breach; (b) that, except in the rarest cases, it would not be possible to establish any prolongation of detention; (c) that the express rights conferred by article 5 were individual rights; and (d) that the ancillary right identified by the court was also a right in favour of each individual prisoner, the satisfaction (or otherwise) of which depended upon the circumstances of the individual case. The court emphasised that each case was highly fact sensitive.
[3] The petitioner, Mr Reid, is currently detained at HM Prison, Glenochil. The respondents, the Scottish Ministers, acting through the Scottish Prison Service (“SPS”), are responsible for his detention and the management of his imprisonment there. He has been there since 27 November 2012. Before that he received care and treatment in the State Hospital, for which the State Hospitals Board for Scotland (“SBS”) – and not the respondents – is responsible.
[4] The petitioner complains that since he moved to Glenochil and came under their responsibility, the respondents have failed to comply with their duty to provide him with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. He claims a declarator to that effect and damages.
[5] The petition came before me for a first hearing. At that hearing the petitioner moved the court for declarator that his convention rights had been breached by the respondents’ failure from 27 November 2012 to date to facilitate his progress towards release and enable him to demonstrate to the Parole Board for Scotland that he no longer presents an unacceptable danger to the public and for an award of damages. The respondents sought dismissal of the petition. Parties had helpfully agreed a Joint Statement of Facts (“JSF”). Both parties were agreed that I could (probably) dispose of the petition without resolving any other factual matters in dispute between the parties; but that I could, if necessary, appoint the case to a second hearing for evidence on such matters as were thought necessary.
Agreed facts
[6] The JSF is lengthy but it is convenient to set it out at some length, omitting the first introductory paragraphs and editing it in other places. For ease of reference I have kept the same paragraph numbering as on the JSF.
Factual background
4. In September 1967 the petitioner, then aged 17, pled guilty to culpable homicide. The charge related to the fatal stabbing of a young woman in her own home (“the index offence”). Following the entering of the plea, oral evidence was led from two consultant psychiatrists to the effect that, at the time at which the index offence was committed, the petitioner was suffering from “mental deficiency”, a mental disorder within the meaning of the Mental Health (Scotland) Act 1960 such as warranted his detention. That evidence was accepted by the court, which ordered that he be detained in a mental hospital under a hospital order without limit of time.
5. Since 1980, if not earlier, the petitioner was regarded as no longer suffering from a mental deficiency. The sole basis for his detention since then has been a diagnosis of anti-social personality, or psychopathic disorder.
6. The petitioner remained in the State Hospital for 17 years. In 1985, he was transferred to Sunnyside Hospital. But he did not spend long there. On 6 August 1986, whilst “on a pass” from Sunnyside Hospital, he entered the ladies toilet at a caravan site and abducted an eight-year-old girl. The girl screamed and struggled. The petitioner dropped her to the ground, struck her across the head, and ran off. He was arrested the same day, charged on summary complaint and convicted of attempted abduction and assault. He served a period of three months’ imprisonment and was then returned to the State Hospital, where he remained until November 2012.
7. Both the index offence and that which occurred in August 1986 are considered by the relevant authorities to have contained a sexual element. The victim of the index offence was found with her clothes in disarray, exposing her breasts and pubis. The State Hospital’s records state that the petitioner’s position in relation to the index offence was that, if the victim had not been wearing a sanitary towel, he would have raped her. The petitioner denies making that statement. His position is that all he did was loosen the victim’s shirt in order to apply CPR to her breast area, and that he pulled her waistband down in order to allow her to breathe. The petitioner denies that either the index offence or that which occurred in 1986 contained any sexual element. The petitioner does not consider that he is a sex offender.
Time spent in the State Hospital
8. During the time which the petitioner spent at the State Hospital, the State Hospital’s records state that he displayed reactive, aggressive and sexually inappropriate behaviour. The petitioner disputes that he displayed such behaviour.
9. On the information available to the petitioners, during the time which the petitioner spent at the State Hospital he was identified as suitable to participate in a number of programmes designed to assist with his rehabilitation, including Anxiety Management, Anger Management, Offending Behaviours: Problem Solving and Social Schools Training, CBT for Psychosis, Offending Behaviours: R&R and, finally, Social Problem Solving Skills (Take Control). With the exception of Anxiety Management (with which he engaged twice), the petitioner refused to participate in any of those intervention programmes.
10. The petitioner made repeated attempts to challenge his detention in hospital on the ground that his mental condition did not warrant it. Those challenges included an application to the European Court of Human Rights in 2003 (Hutchison Reid v UK 2003 37 EHRR 211). All were unsuccessful.
The petitioner’s successful appeal
11. In 2010, the Scottish Criminal Case Review Commission referred the petitioner’s case back to the Appeal Court. On 27 November 2012, the Appeal Court determined that a miscarriage of justice occurred when the hospital order and restriction order were imposed in 1967 and quashed those orders. It substituted a discretionary life sentence of imprisonment with a punishment part of 10 years. The court held:
“Accordingly, in the light of the fresh evidence, we are satisfied that a miscarriage of justice occurred when the hospital order and restriction order were imposed in 1967. To that extent, we overrule any observations or conclusions to the contrary contained in the Opinions in the earlier appeal (2008 SLT 293). Our decision does not mean that we are critical of the refusal of the earlier appeal (which was advanced on quite different grounds), or of the sentencing procedure in 1967. It is simply that, over the years, it has proved possible for professionals to assess the appellant’s condition more accurately”:
see Reid v HM Advocate [2012] HCJAC 150 at paragraph 15.
12. The effect of the appeal court’s decision is that the petitioner is now in the post-tariff stage of his detention and his continued detention is justified solely by reference to public protection. That has in fact been the position since 27 November 2012; and it is to be regarded as having been the case since 8 September 1977.
13. The respondents say that they are not responsible for the care and treatment which the petitioner received while in the State Hospital between 8 September 1977 and 27 November 2012. The petitioner disputes that.
14. The petitioner made an application to the European Court of Human Rights on 17 December 2012 seeking compensation for delay and/or deprivation of the right to apply for parole and/or for being held as a patient as opposed to a prisoner, contrary to articles 2, 5, 6, 7 and 8 ECHR. His application was declared inadmissible on 5 December 2013. No reasons were given.
Detention in HM Prison, Glenochil
15. On 27 November 2012, following the decision of the Appeal Court, the petitioner was transferred to HM Prison, Glenochil. The respondents’ position is that he was detained in conditions of high supervision. An Initial Risk Contingency Assessment was carried out and an Initial Safe Operating Protocol implemented, in terms of which no lone female was permitted to enter his cell, he was to be seen at the Health Centre by staff on a 2:1 ratio, and he was prevented from participating in visits with children. On 29 December 2012, however, the level of supervision was reduced to medium.
16. The petitioner’s initial Integrated Case Management Case Conference (“ICMC”) was held on 18 January 2013. It was attended by the petitioner. He...
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