Petition Of Stuart Quinn (ap) For Judicial Review Of A Failure By The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2016] CSOH 67 |
| Published date | 19 May 2016 |
| Date | 19 May 2016 |
| Court | Court of Session |
| Docket Number | P625/14 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 67
P625/14
OPINION OF LORD GLENNIE
In the Petition of
STUART QUINN (AP)
Petitioner;
for
Judicial Review of a failure by the Scottish Ministers to provide him with rehabilitation and their associated policy
Petitioner: Leighton; Drummond Miller LLP
Respondents: D Ross; Scottish Government Legal Directorate
19 May 2016
Introduction
[1] The petitioner is serving a sentence of life imprisonment for murder. The punishment part of his sentence (or “tariff”) is 18 years, imposed with effect from 22 May 2001. He will therefore become eligible to apply to the Life Prisoner Tribunal (“LPT”) of the Parole Board for Scotland for release on licence from 22 May 2019.
[2] In this petition, lodged in June 2014, he complains that the respondents, the Scottish Ministers acting through the Scottish Prison Service (“SPS”), have failed to provide him with a reasonable opportunity to rehabilitate himself and to demonstrate to the Parole Board at or about the time his tariff expires that he no longer presents an unacceptable risk to the public: c.f. R (Haney and others) v Secretary of State for Justice [2015] 1 AC 1344 (“Haney”). That is now the only live issue in this case.
[3] In addition, there is a complaint in the petition of a “systemic failure” in the provision of measures to enable life prisoners to demonstrate at their tariff expiry date that they might safely be released; and, separately, a complaint about the policy which the SPS applies in deciding how to prioritise prisoners for rehabilitation courses (the “prioritisation policy”). These complaints have been dismissed as irrelevant, and are not now live, at least before me. However, it is important to understand their scope and the reasons for their rejection, since the rejection of these complaints helps define the limits of the outstanding live issue and provides the context for its resolution.
The first hearing
[4] The matter came before Lord Tyre at a first hearing in May 2015. In his Opinion ([2015] CSOH 110) issued in August 2015, as noted above, he dismissed as irrelevant the petitioner’s complaint of systemic failure and his challenge to the respondents’ prioritisation policy. He indicated that, subject to further amendment of the petition, he was minded to allow a proof before answer on the petitioner’s complaint that the Scottish Ministers had failed to provide him with a reasonable opportunity to rehabilitate himself and to demonstrate to the Parole Board at or about the time his tariff expires that he no longer presents an unacceptable risk to the public. The issue of the Opinion was followed by sundry amendment procedure, after which an interlocutor of 21 October 2015 “[allowed] to parties a second hearing on the averments of the parties in the petition and answers”. Despite the unqualified terms of the interlocutor, it is clear that the ambit of the second hearing was not to include the petitioner’s complaints about systemic failure or the prioritisation policy. At the hearing before me it was accepted that neither of these matters was live.
The second hearing – scope and procedure
[5] The second (evidential) hearing came before me in January 2016. In accordance with the interlocutor of October 2015, evidence in chief was given largely by signed witness statements and/or affidavits. Parties required some but not all of the witnesses to attend for cross-examination. In the event I heard oral evidence only from three witnesses, namely: Douglas Thomson, a solicitor advocate with great experience of the prison regime who served as a legal member of the Parole Board from October 2001 until the end of December 2007; Owen McDade, who is employed by the SPS at HMP Greenock, managing the National Top End (“NTE”) facility there, compiling management plans for life sentence prisoners, participating in Risk Management Team (“RMT”) meetings, and also acting as the Lifer Liaison Officer (“LLO”), providing reports and presentations to the Parole Board and representing the SPS at Tribunals; and Stuart Logan, who is employed by the SPS as the Case Management Unit Manager at HMP Glenochil. Witness statements from the petitioner himself, from Stephan McAlpine (a Principle Psychologist at the SPS) and from Jacqueline Clinton (who is employed by the SPS as Governor of Castle Huntly Open Prison and before that was Deputy Governor at HMP Perth) were accepted as evidence without the need for the witnesses to appear.
[6] Since the decision of the Supreme Court in Haney, a number of petitions for judicial review raising similar questions have come before the courts in Scotland for a first hearing. However, as far as I am aware, none have so far progressed to a second hearing. This is the first time that the courts in Scotland have heard evidence on these matters. In those circumstances I shall set out in more detail than I might otherwise have done the evidence relating to the management of life prisoners in the Scottish prison regime.
[7] Before doing so, however, I should summarise the petitioner’s case as set out in the petition so as to provide a context in which such evidence should be examined.
The petitioner’s case in outline
[8] I take the following summary of the petitioner’s case from the petition and from the Opinion of Lord Tyre, as amplified by the petitioner’s affidavit evidence.
[9] The petitioner avers that progress through the prison estate towards release of a prisoner serving a sentence of life imprisonment follows a general pattern. First, the prisoner must undertake and complete necessary rehabilitative coursework. If and only if he achieves that, he may advance to the National Top End (“NTE”), where he will embark upon a programme of escorted leave before applying for a first grant of temporary release (“FGTR”). He will then obtain a work placement and progress to unescorted leave. From the NTE he will advance to the Open Estate. This procedure takes a number of years. In making its assessment of the risk of releasing a prisoner on licence, the Parole Board will have regard to his successful progression through the prison estate. In general the Parole Board will only consider a life prisoner for release on licence if he has spent a substantial amount of time in the Open Estate.
[10] The petitioner avers that in order to have a reasonable chance of release at his tariff expiry date, he requires to have completed his rehabilitative coursework by a date not later than three or (more realistically in his case) four years before tariff expiry. This is because, as already noted, the rehabilitative coursework has to be completed satisfactorily before he can advance to the NTE. Thereafter, prisoners will normally spend two years in the NTE and a further two years in the Open Estate, although some will spend less time in one or other or both. In the petitioner’s case, the circumstances of his offence and the absence of a stable environment into which he could be released mean that he will have to spend at least four years in the preparation for release phase. Accordingly, if he is to have completed four years on the NTE and Open Estate in time for his progress to be assessed and laid before the LPT, as a means of demonstrating to the Parole Board at or about the time his tariff expires in May 2019 that he no longer presents an unacceptable risk to the public, he ought to have completed his coursework and moved into the NTE by at latest about May 2015.
[11] This has not happened. He has been assessed as requiring coursework of various sorts. In the petition it is said that he completed the Constructs Course. That is not in fact correct; in his affidavit sworn on 2 October 2015 he says that he was assessed as requiring to complete the Constructs Course but was subsequently re-assessed and does not now require to complete it, an account which is consistent with the minute of the meeting of the Self Change Programme (“SCP”) Selection Board in September 2014. The next step is to undertake the SCP. That may take between nine and 15 months to complete depending upon availability of the modules in which he has to participate. Thereafter a report will have to be prepared. Depending upon how he performs, as evidenced by that report, the Programmes Case Management Board (“PCMB”) may require him to participate in the Substance Related Offending Behaviour Programme (“SROBP”). That programme would take about three to four months. Time will be required for the preparation of a post-programme report before decisions can be made by the PCMB as to what, if any, further courses are required. Finally, he will require to be presented to the Risk Management Team (“RMT”) for a decision as to whether he can move into the NTE, with a view to eventual progress to the Open Estate.
[12] So there is a lot still to happen even before he can be considered eligible to progress to the NTE. Putting together all these various stages and the likely time required for each, the petitioner’s case adds up to this: allowing some nine to 15 months for the SCP, a further three or four months for the SROBP (if he is required to participate in it), and, say, three months after each course for preparation of reports and the making of decisions as to how to progress, it will be a minimum of one year (nine months SCP plus three months for report and decision) and possibly more than two years (25 months, comprising 15 months for SCP, three months for report and decision, four months for SROBP and a further three months for report and decision) before he will be considered eligible to progress to the NTE, always assuming he is not assessed as requiring to complete some further programme before that. Taking that as being the position as at mid to late January 2016, when the second hearing took place before me, that means, on the petitioner’s case, that he will not be eligible to move to the NTE until at earliest January 2017 and possibly not...
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