Petition Of Stephen Dempsey For Judicial Review Of Decisions Of The Parole Board For Scotland
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Date | 04 November 2003 |
| Docket Number | P940/03 |
| Court | Court of Session |
| Published date | 12 November 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| P940/03
| OPINION OF LORD BRODIE in the Petition of STEPHEN DEMPSEY for Judicial Review of decisions of the Parole Board for Scotland ________________ |
Petitioner: J.J. Mitchell, Q.C.; S.P.L Wolffe, Advocate; Drummond Miller, W.S.
First Respondent: Di Rollo Q.C.; C.H.S. MacNeill, Advocate; Anderson Strathern, W.S.
Second Respondents: J.D.M.H. Mure, Advocate; Solicitor to the Scottish Executive
4 November 2003
The Application
[1]This is an application, at the instance of a long-term prisoner who was released on licence and who was then recalled to prison on revocation of that licence, for judicial review of what are claimed to be decisions of the Parole Board for Scotland, these being decisions (a) not to direct the immediate re-release of the petitioner on licence (the "decision of 4 November 2002"), and (b) to refuse to re-consider whether it should direct the petitioner's immediate release, having been requested to do so (the "decision of 16 June 2003"). The release of prisoners on licence and the revocation of such licences are matters which are governed by the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended ("the 1993 Act"). It is the petitioner's contention that, in consequence of the decisions of which he complains, he has been and continues to be deprived of his liberty in contravention of his rights as guaranteed by article 5 of the European Convention on Human Rights ("the Convention"). He avers that these decisions were accordingly unlawful in terms of section 6 of the Human Rights Act 1998. The petitioner names as first respondent, the Parole Board for Scotland, and, as second respondents, the Scottish Ministers.
Procedure
[2]The petition came before me for a first hearing on 4 July 2003. Mr Jonathan Mitchell Q.C. and Mrs Wolffe, Advocate, appeared on behalf of the petitioner. Mr Di Rollo Q.C and Mr MacNeill, Advocate, appeared on behalf of the first respondent. Mr Mure appeared on behalf of the second respondents. Answers had previously been lodged on behalf of the second respondents. Answers were lodged at the bar for the first respondent. The hearing took the form of a debate on the first respondent's first and fifth pleas-in-law and the second respondents' first plea-in-law. The motions made by counsel on behalf of the respective respondents were for dismissal of the petition. In the event that I did not dismiss the petition, Mr Mitchell's motions on behalf of the petitioner, were for declarator that the petitioner is entitled to take proceedings, compliant with article 5 (4) of the Convention, by which the lawfulness of his detention can be speedily decided, for declarator that, as yet, he has not had the benefit of that entitlement, and, pending such proceedings being taken, for interim liberation of the petitioner. As appears from the answers for the respective respondents, no question arose as to jurisdiction or competency. The hearing was not completed on 4 July 2003. It was adjourned until 9 July 2003 and heard on that and the two subsequent days. While the case was at avizandum, a judgment was pronounced by the Court of Appeal in R (Smith) v Parole Board, on 31 July 2003 and by the House of Lords in R (Giles) v Parole Board [2003] 3 WLR 736 (on appeal from the decision of the Court of Appeal reported at [2003] 2 WLR 196), also on 31 July 2003. The first respondent enrolled for a further hearing with a view to addressing the court on these additional authorities. That further hearing took place on 9 October 2003 when I heard counsel for each of the parties.
Article 5 of the Convention
[3]Article 5 of the Convention is entitled "Right to Liberty and Security". It provides:
| "(1). Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: |
| (a) the lawful detention of a person after conviction by a competent court; |
| (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; |
| (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; |
| (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; |
| (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; |
| (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. |
| (2). Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. |
| (3). Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. |
| (4). Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. |
| (5). Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation." |
The Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended
[4]The 1993 Act (as amended but without the amendment effected, as from 23 June 2003, by the Criminal Justice (Scotland) Act 2003) provides, inter alia, as follows:
"1....
(2) As soon as a long-term prisoner has served two-thirds of his sentence, the [Scottish Ministers] shall release him on licence unless he has before that time been so released, in relation to that sentence, under any provision of this Act.
(3) After a long-term prisoner has served one-half of his sentence the [Scottish Ministers] shall, if recommended to do so by the Parole Board under this section, release him on licence.
...
17. (1) Where-
(a) a long-term or life prisoner has been released on licence under this Part of this Act, the [Scottish Ministers] shall revoke that licence and recall him to prison-
(i) if recommended to do so by the Parole Board; or
(ii) if revocation and recall are, in the opinion of the [Scottish Ministers], expedient in the public interest and it is not practicable to await such recommendation;
...
(2) A person recalled under subsection (1) above shall, on his return to prison, be informed of the reasons for his recall.
(3) The [Scottish Ministers] shall refer to the Parole Board the case of a person recalled under subsection (1) above.
(4) Where on a reference under subsection (3) above the Parole Board directs a prisoner's immediate release on licence, the [Scottish Ministers] shall under this section give effect to that direction.
(4AA) Where the Parole Board directs the release of a prisoner under subsection above it may recommend that the Scottish Ministers insert, vary or cancel conditions in the prisoner's licence.
...
(5) On the revocation of the licence of any person under the foregoing provisions of this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.
...
27. (1) In this Part of this Act, except where the context otherwise requires-
...
"long-term prisoner" means a person serving a sentence of imprisonment for a term of four years or more; "
The Facts
[5]Having regard to the terms of the petition, the answers, the documentary productions, and the explanations given in the course of submissions, for the purposes of the debate, I took the relevant factual history to be as follows.
[6]The petitioner is Stephen Dempsey. His date of birth is 10 November 1961. The first respondent is the Parole Board for Scotland. The second respondents are the Scottish Ministers. The petitioner is presently detained in HM Prison Maghaberry in Northern Ireland. On 21 December 1999 the petitioner pled guilty, at a sitting of the High Court of Justiciary in Edinburgh before Lady Cosgrove, to a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. He was sentenced to five years imprisonment, back-dated to 19 November 1999, which was the date when he was first detained by the police. The petitioner is accordingly a long-term prisoner in terms of the 1993 Act. The petitioner avers that his sentence is due to expire on 18 November 2004. Two-thirds of that sentence expired on 19 March 2003. It is the practice that a judge of the High Court, having sentenced a long-term prisoner, will prepare a report for the use of the first respondent on the circumstances in which sentence was imposed. The report is thereafter available to the prisoner and his advisers. Lady Cosgrove's report on the petitioner is lodged as production 7/8.
[7]On 28 July 2000, on an application by the petitioner, the second respondents, in terms of paragraph 1(1)(b) of Schedule 1 to the Crime (Sentences) Act 1997 (the "1997 Act"), ordered the transfer of the petitioner (who was then detained in HM Prison Shotts) to HM Prison Maghaberry. That transfer was subject to the condition that the petitioner should be treated, for the purposes of the 1997 Act (as mentioned in paragraph 6(2) of Schedule 1 to the Act), as if he were still...
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