Petitions Of John Mackie And Kenneth Fraser For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Clarke |
| Neutral Citation | [2016] CSOH 125 |
| Date | 23 August 2016 |
| Docket Number | P640/15 |
| Court | Court of Session |
| Published date | 23 August 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 125
P640/15
P641/15
OPINION OF LORD CLARKE
In the petitions of
JOHN MACKIE and KENNETH FRASER
Petitioners;
for
Judicial Review of a failure by the Scottish Ministers to provide the petitioner with a reasonable opportunity to rehabilitate himself
Petitioners: McLean; Balfour + Manson LLP (for Messrs Taylor & Kelly, Solicitors)
Respondents: Ross; Scottish Government
23 August 2016
[1] In these two petitions the petitioners, who are presently serving sentences of life imprisonment in Scotland, seek various orders, including three declarators and an order for payment of damages, which are in identical terms in each petition. Before me, at the first hearing of the petitions, the petitioners sought to have the court grant declarators in terms of the third declarator sought in each petition, which is in the following terms:
“Declarator that the respondents have violated, or that, in the event that the SPS gives effect to its expressed intention regard (sic) the future management of the petitioners’ imprisonment, they will violate, the petitioners’ rights under the European Convention on Human Rights by failing, in breach of their duty to do so arising by necessary implication from their express duties under article 5 of that Convention, to provide the petitioner with an opportunity, reasonable in all the circumstances, to rehabilitate himself and to demonstrate, by the time of the expiry of the punishment part of his sentence, or shortly thereafter, that he no longer represents an unacceptable danger to the public”.
[2] Counsel appearing for both petitioners, did not now seek to argue that the first and second declarators sought in the petitions should be granted. The first of these is based on an alleged systemic breach of a public law duty to provide systems and resources to prisoners such as the petitioners which are sufficient to afford them an opportunity to show that they are no longer a danger to the public. The second relates to an alleged breach of the said public law duty. The fourth order sought seeks payment of damages. It was accepted by counsel for the petitioners that the fourth order could not be dealt with until the issue of whether the third declarator sought should be granted was determined.
[3] The submissions in support for the motion to grant the third declarator, in each case, were identical, apart from reference to the different factual situations of the two petitioners to which it was contended that the law in question fell to be applied.
[4] It is convenient for me to set out the facts and circumstances averred in relation to each of the petitioners about which there was no material dispute.
John Mackie (Petitioner in case P641/15)
[5] This petitioner is currently a prisoner at HM Prison, Glenochil. He was born on 10 April 1973. He has been convicted of numerous offences since the age of 16 and has served a number of custodial sentences. On 17 August 2007 the petitioner was convicted of murder. He was sentenced to life imprisonment. The punishment part of his sentence was originally fixed at 18 years but that was reduced to 13 years on appeal. The sentence was backdated to 16 August 2006, being the date when he was initially remanded. Accordingly the punishment part of the petitioner’s sentence will expire on 15 August 2019 which will be seen is described, in the context of the present proceedings as “the critical date”.
Kenneth Fraser (Petitioner in case P640/15)
[6] This petitioner is currently a prisoner at HM Prison, Glenochil. In, or about, June 2005 he was convicted of murder, which had been committed on 19 November 2004. He was 16 years of age at the time of the offence and 17 years of age at the time of his conviction. In or about July 2005 the second named petitioner was sentenced to detention without limit of time with a punishment part of 20 years. His sentence was backdated to November 2004 and the punishment part of his sentence was reduced to 15 years on appeal. The punishment part of his sentence will accordingly expire in November 2019. The murder committed by this petitioner had a sexual element.
[7] It is common ground that in the cases of both petitioners any period of detention beyond the punishment part period is justified only insofar as it is considered necessary for the protection of the public.
[8] The petitioners aver, in some detail, what steps have so far been taken within the prison system to prepare the petitioners to be in a position to seek release after the end of the punishment part on the basis that they would not pose any risk to the public. In this connection it is averred, in similar terms in relation to both petitioners that:
“A life prisoner who has served the punishment part of his sentence will be released by the respondents if his release is recommended by the Parole Board. However, sec 2 of the 1993 Act provides that the Parole Board shall not direct the release of such a prisoner unless it is satisfied that it is no longer necessary for the protection of the public that he should be confined. In order for a prisoner to satisfy the Parole Board that his continued detention is no longer necessary for protection of the public, it is, as a matter of practical reality, usually necessary for him to undertake coursework identified as being suitable for him, and thereafter to move from the ‘closed’ system into conditions of reduced security”.
As regards the steps taken to prepare the petitioner in P641/15 for release it is averred in article 9 of his petition as follows:
“That on 21 November 2011 and 4 October 2012 Integrated Case Management (‘ICM’) Case Conferences were held in respect of the petitioner. At the ICM Case Conference on November 2011 it was noted that the petitioner’s progression date was ‘PPED minus 4 years’. That is, it was noted that the petitioner was eligible to progress to conditions of reduced security four years prior to the date on which his punishment part expired. A number of risk factors were noted, and it was concluded that it was necessary to carry out a generic assessment into which courses might be appropriate for the petitioner to undertake to address those risks. At the ICM Case Conference on 4 October 2012 it was noted that the petitioner’s progression date was ‘PQD minus 2 years’. That is, it was noted that the petitioner was eligible to progress to conditions of reduced security two years prior to his parole qualifying date (again being the date on which his punishment part expired). As with the earlier Case Conference, a number of risk factors were noted, and it was again concluded that it was necessary to await the outcome of a generic assessment into which courses might be appropriate for the petitioner”.
In Answer 9 for the respondents it is stated:
“Explained and averred that the reference to ‘PQD minus 2 years’ in the record of the ICM Case Conference held on 4 October 2012 is a clerical error. It should have read ‘PPED – 4 years’. As a life sentence prisoner, the petitioner does not have a PQD”.
In Article 10 it is further averred on behalf of this petitioner:
“That a Programme Case Management Board (‘PCMB’) Meeting took place on 23 November 2012 at which the petitioner’s case was discussed. The PCMB recorded that the petitioner was noted to have been under the influence of cocaine and heroin prior to the offence in respect of which he was sentenced to imprisonment for life. The PCMB also noted that factors which had led to his previous offending included excessive alcohol use and a failure to think of the consequences of his actions. The PCMB noted that the petitioner had completed an Alcohol Awareness course in 2008. In light of that background, the PCMB recommended that the petitioner should participate initially, in the Substance Related Offending Behaviour Programme (‘SROBP’), and then in the Violence Prevention Programme (‘VPP’)”.
In Article 11 this petitioner’s averments continue as follows:
“That a further ICM Case Conference was held in respect of the petitioner on 2 October 2013. At that ICM Case Conference it was again noted that the petitioner’s progression date was ‘PQD minus 2 years’. That is, it was noted that the petitioner was eligible to progress to conditions of reduced security 2 years prior to his parole qualifying date (being the date on which his punishment part expired). It was noted that following the PCMB meeting on 23 November 2012 the petitioner had been listed for the SROBP and VPP courses. As with the previous ICM Case Conferences, a number of risk factors were identified. The conclusions were that the petitioner was listed for the SROBP and VPP courses and that he should continue with his positive response to custody. Since the petitioner was originally listed for these courses, the VPP course has been replaced by the Self Change Programme (‘SCP’).”
Once more in Answer 11 it is explained and averred on behalf of the respondents that the reference to “PQD minus 2 years” in the minute of the ICM Case Conference held on 2 October 2013 is a clerical error and that it should have read “PPED – 4 years” since the petitioner as a life sentence prisoner does not have a PQD. In Article 12 of his petition this petitioner goes on to aver that since the ICM conferences and the PCMB meeting on 23 November 2013 he has not been able to access either of the courses identified as suitable for him. He refers to a letter dated 21 October 2013 in which the Scottish Prison Service (SPS) wrote to his then solicitors as follows:
“4492 JOHN THOMAS MACKIE
Thank you for your letter dated 19 September 2013.
I can confirm that Mr Mackie’s offending behaviour intervention needs were considered by a Programmes Case Management Board (PCMB) on 23 November 2012. The recommendation of the multi-disciplinary group was that your client participates in the Substance Related Offending Behaviour Programme (SROBP) and the Violence...
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