Petition Of Alexander Lewis Hutchison Reid (ap) Against The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lady Paton,Lord Malcolm |
| Judgment Date | 02 March 2017 |
| Neutral Citation | [2017] CSIH 20 |
| Court | Court of Session |
| Docket Number | P200/15 |
| Published date | 02 March 2017 |
| Date | 02 March 2017 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 20
P200/15
Lady Paton
Lord Brodie
Lord Malcolm
OPINION OF THE COURT
delivered by LADY PATON
in the petition
of
ALEXANDER LEWIS HUTCHISON REID (AP)
Petitioner and Reclaimer
against
THE SCOTTISH MINISTERS
Respondents
Petitioner: K Campbell QC, McCluskey; Drummond Miller LLP
Respondents: Ower; Scottish Government Legal Directorate
2 March 2017
The rehabilitation of a life prisoner: Article 5 of the ECHR
[1] In 1967 the petitioner (then aged 17) was convicted of a violent homicide as detailed in Reid v HM Advocate 2013 SLT 65, paragraph [2]. He was detained in Carstairs State Hospital, where he remained for about 45 years. In 2012, following upon developments in the diagnosis relating to his mental health, he was successful in an appeal to the High Court of Justiciary (Reid v HM Advocate cit sup). He was transferred from Carstairs to serve a life sentence in HM Prison, Glenochil. The punishment part of his life sentence was set at 10 years. That punishment part expired on 8 September 1977. The petitioner is accordingly a “post-tariff” prisoner, serving an indeterminate life sentence.
[2] In this judicial review, the petitioner contends that he has suffered a breach of his rights under Article 5 of the European Convention on Human Rights (ECHR), in that the Scottish Prison Service, for whom the Scottish Ministers are responsible, have failed in their duty to:
“ … provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he is no longer an unacceptable danger to the public …”
(R(Haney) and others v Secretary of State for Justice [2015] 1 AC 1344, paragraph 36 et seq). In statement 3 of the petition, the petitioner seeks:
1. Declarator that his convention rights under Article 5 of the ECHR have been breached by the respondents’ failure, in the period 27 November 2012 to date, to facilitate his progress towards release in order that he is able to demonstrate to the Parole Board for Scotland that he no longer presents an unacceptable danger to the public.
2. Damages of £5,000.
3. Such further order as the court deems just and reasonable in all the circumstances of the case.
Agreed facts: time spent in Carstairs State Hospital (1967-2012)
[3] In paragraph [6] of his opinion, the Lord Ordinary (Lord Glennie) sets out a chronology of the petitioner’s circumstances from 1967 until 2012, when the transfer to Glenochil prison took place. We gratefully adopt that summary, which is based upon the parties’ Joint Statement of Facts (“JSF”). What follows is a brief outline of events since 2012.
Time spent in Glenochil prison (2012 to date)
[4] Relevant dates for present purposes include the following:
27 November 2012 (aged 62): The petitioner was admitted to Scottish Prison Service custody at HM Prison, Glenochil. He was placed in conditions of high supervision. 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. He was not to participate in visits with children (JSF paragraph 15).
29 December 2012 (aged 62): The level of supervision was reduced to medium (JSF paragraph 15).
18 January 2013 (aged nearly 63): The petitioner attended his initial Case Management conference (JSF paragraph 16).
6 February 2013 (aged 63): The Risk Management Tribunal decided that special risk precautions were required for the petitioner. Matters were to be reassessed after 6 months (JSF paragraph 18).
15 February 2013 (aged 63): The petitioner attended a Generic Programmes Assessment (JSF paragraph 17).
8 March 2013 (aged 63): The petitioner attended a meeting of the Programme Case Management Board, who decided that he should participate in the Good Lives programme, which is directed at sexual offenders (JSF paragraph 19).
11 March 2013 (aged 63): The Parole Board decided that it could not be satisfied that the petitioner’s continued detention was no longer necessary for the protection of the public (JSF paragraph 20). The Board agreed upon a management plan which “would probably take 2 years to complete” (see letter dated 19 March 2013, noted below) with the aim of reducing or controlling the risk he presented (JSF paragraph 20 et seq).
19 March 2013 (aged 63): The Parole Board by letter advised the petitioner of the management plan, explaining inter alia that:
- He should participate in a 3-month CARE course (CARE being the acronym for Controlling Anger, Regulating Emotions).
- He should participate in the Good Lives programme (also known as “Moving Forward: Making Changes”), which would take about 8-9 months.
- Post-programme reports on the petitioner and the risk he presented would be necessary.Such reports might take several months to prepare.
- The risk which the petitioner presented would be re-assessed in around June/July 2013.
- In order to progress to Top End conditions and ultimately to the open estate, the petitioner would have to meet the relevant criteria for such progression.
- The next Parole Board review would be in two years’ time, i.e. in about March 2015.
The letter recorded the submissions made by the Life Liaison Officer on the petitioner’s behalf, and noted “The Management Plan set out … would probably take 2 years to complete and it might be that, if matters progressed in a satisfactory fashion, you would be able to transfer to Top End conditions and ultimately to the open estate. Fife Council had now agreed to assist with MAPPA supervision (MAPPA being the acronym for Multi-Agency Public Protection Arrangements).
9 January 2014 (aged 64): The petitioner began the 3-month CARE programme (JSF paragraph 23).
26 February 2014 (aged 64): The Risk Management Tribunal met, and noted that the petitioner had begun the CARE programme (JSF paragraph 25).
28 March 2014 (aged 64): After 25 sessions, the CARE programme was completed. As noted in the Joint Statement of Facts at paragraphs 23-24:
“23 … A number of key treatment needs were identified, including emotional identification, emotional management (including problem solving) and unhelpful thinking styles. The petitioner denied that he had any issue with anger, stating that previous reports of his aggressive behaviour were ‘lies’. He declined the opportunity to engage in a number of skills practices and provided little personal input into assignment work. With support, he evidenced a basic understanding of helpful and unhelpful thinking, although that understanding was not consistent … 24 … He made only limited progress [during the CARE programme] despite attending all 25 sessions. A number of factors account for that. He presents with a moderate degree of psychopathy and dissocial personality disorder. He has a lower level of cognitive functioning and intelligence and struggles to process and retain information presented to him.”
August 2014 (aged 64): The post-programme report on the petitioner’s progress was completed (JSF 26). The petitioner’s progress was described as limited, due to his low level of understanding, literacy abilities, personality traits, denial of behaviour at Carstairs, unwillingness to discuss his offending, and ambivalent motivation to change (JSF paragraph 26). It was noted that the petitioner still had a number of outstanding treatment needs.
1 September 2014 (aged 64): The Scottish Prison Service’s Offender Outcomes Unit manager wrote to the petitioner’s solicitor advising that (i) the CARE programme had been completed and the petitioner’s case returned to the Programme Case Management Board; and (ii) the petitioner had outstanding needs in relation to his sexual offending, and was awaiting consideration for a place on the “Moving Forward: Making Changes” programme. He had been placed on a national waiting list (JSF paragraph 27).
9 September 2014 (aged 64): The Programme Case Management Board met and discussed the petitioner’s limited progress in the CARE programme. The Board decided that the petitioner –
“would not benefit from participating in any further programme work at that time, but that a case management discussion should take place to discuss the petitioner’s participation in offending behaviour programmes”
The Board recommended support for the petitioner in future programme work (JSF paragraph 28).
5 December 2014 (aged 64): The Programme Case Management Board met with the petitioner and representatives from the Scottish Prison Service psychology and social work departments to discuss the petitioner’s readiness to participate in intervention work. The description of the petitioner’s responses during the discussion (paragraph 29 of the JSF) is suggestive of an inability to appreciate the work required of him, although he was keen to engage in work to assist in his transition to the community. The Board agreed to allow the petitioner time to reflect on the discussion (JSF paragraph 29).
19 December 2014 (aged 64): The petitioner attended a case conference (JSF paragraph 30).
14 January 2015 (aged nearly 65): In preparation for the petitioner’s Life Prisoner Tribunal, an overview was prepared, noting some concerns about him and recommending some further work (JSF paragraph 31).
21 January 2015 (aged 65): The Programme Case Management Board met with the petitioner, who indicated that he did not feel that he had any issues requiring to be addressed (JSF paragraph 32).
February 2015 (aged 65): The petitioner raised the current petition for judicial review, seeking declarator and damages as set out in paragraph [2] above. The petition was served on the Scottish Ministers, the Advocate General for Scotland, and the Lord Advocate.
4 March 2015 (aged 65): The Programme Case Management Board met with the petitioner. Again he indicated that he did not feel that intervention work would be beneficial, as he did not have any issues which would be addressed through programme interventions. He continued to deny that he was a sex offender. The Board...
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