Stuart Quinn (ap) For Judicial Review Of A Failure By The Scottish Ministers To Provide Him With Rehabilitation And Their Associated Policy
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2015] CSOH 110 |
| Date | 12 August 2015 |
| Docket Number | P625/14 |
| Published date | 12 August 2015 |
| Court | Court of Session |
| Year | 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 110
P625/14
OPINION OF LORD TYRE
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
12 August 2015
Introduction
[1] The petitioner is a prisoner serving a sentence of life imprisonment for murder. The punishment part – or tariff – of his sentence is 18 years, imposed with effect from 22 May 2001. He will become eligible to apply to the Life Prisoner Tribunal of the Parole Board for Scotland for release on licence from May 2019. In this petition he seeks various declarators and other orders in relation to the respondents’ alleged failure to provide him – and other prisoners – with rehabilitation, and also their policy for prioritising prisoners for rehabilitative courses. He contends that the consequence of such failures and of the prioritisation policy is that he and others are being deprived of a reasonable opportunity to demonstrate to the Parole Board at the time of expiry of their tariff that they no longer present an unacceptable risk to the public. He submits that the respondents are in breach of their duties at common law and under articles 5 and 14 of the European Convention on Human Rights.
Rehabilitation policy and practice
The petitioner’s averments
[2] The petitioner avers that progress through the prison estate towards release of a prisoner serving life imprisonment follows a general pattern. The first requirement is the undertaking and completion of necessary rehabilitative coursework. If and only if that has been achieved, a prisoner 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. 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 Board will only consider a life prisoner for release on licence if he has spent a substantial amount of time in the Open Estate.
[3] Following amendment of his pleadings, the petitioner avers that in order to have a reasonable chance of release at his tariff expiry date, a prisoner requires to have completed his rehabilitative coursework by a date not later than three or more years before tariff expiry. Satisfactory completion of coursework is an essential condition of advancement to the NTE. Prisoners will normally then spend two years in the NTE and the Open Estate respectively, although some will spend less time in one or other or both. In the case of the petitioner, it is averred, the circumstances of his offence and the absence of a stable environment into which he could be released mean that he will require to spend at least four years in the preparation for release phase.
[4] The petitioner has been assessed as requiring coursework of various sorts. He has completed the constructs course and now requires to undertake the Self Change Programme (“SCP”). This programme may take between nine and 15 months to complete depending upon availability of the modules in which he has to participate. Thereafter he may have to undertake the Substance Related Offending Behaviour Programme (“SROBP”), which would take about three to four months. Time must also be allowed for the preparation of post-programme reports.
[5] There is a waiting list for available spaces on offending behaviour treatment programmes such as SCP. The Scottish Prison Service has issued a notice containing guidance to prison governors and managers on how to prioritise the allocation of prisoner spaces on such programmes. The current version of the notice (Amendment 21A/13) was issued on 13 May 2013. It states as follows:
“The following should be implemented:
- Once a prisoner has been deemed suitable for an offending behaviour treatment programme, then he/she is placed on a waiting list.The individual should only be placed on a waiting list if he/she is motivated and able to participate.
- Spaces are then allocated according to critical dates.
- No prisoner-type is prioritised over another.Regardless of what sentence he or she is serving (ie, short-term, long-term, Life and OLR, Recalled), the critical date (according to the table below) is listed sequentially and spaces are offered as and when they become available.
-
Critical dates are calculated based on the criteria below:
Sentence Critical date
Short-term prisoner (less than 4 years) EDL – halfway point of sentence
Long-term prisoner (four years or more) PQD – halfway point of sentence
Life & OLR prisoner Punishment Part Expiry Date
…
- In the case of long-term prisoners and Lifers, every effort will be made to offer programme spaces prior to progression dates, in order to allow prisoners the opportunity to prepare for progression, however, this cannot be guaranteed due to the length and dynamic nature of the waiting lists (for progression time frames, refer to the RMT guidelines document).”
[6] Reference is made in the petition to certain developments in recent years, notably the addition of the Order for Lifelong Restriction (“OLR”) as a sentencing option, and the introduction of wide-ranging Generic Assessment of prisoners’ need of and suitability for coursework. It is averred that although these developments will have had an impact on demand for coursework, it is believed that there has been no increase in the resources available for rehabilitative coursework.
Respondents’ averments
[7] It is admitted by the respondents that there is a four‑year management plan that forms a framework for advancement of prisoners from closed conditions through the NTE and the Open Estate. The petitioner’s description of the general procedure for progression to the Open Estate is also admitted. It is averred that the preparation for release phase commences no earlier than four years before the expiry of the punishment part of a life prisoner’s sentence. The four‑year rule is a “population management rule” designed to avoid places in conditions of low security being blocked by life sentence prisoners far ahead of the earliest date when they could be liberated. Such prisoners will not necessarily spend as long as four years in the preparation for release phase. Progress is determined on the merits of individual cases, and the ultimate decision made by the Parole Board for Scotland is based upon assessment of risk.
[8] As regards rehabilitative coursework, it is admitted that prisoners are listed for courses based upon the earliest date when they might be released. It is averred that waiting lists are subject to change, as prisoners’ needs change over time and some decline to undertake courses when places become available. Completion of coursework is relevant not only to decisions of tribunals of the Parole Board for Scotland but to reduction of the risk of re‑offending of all categories of prisoners after release. There is no statutory requirement for a life prisoner to complete coursework before progression through the prison estate. Long term and short term determinate sentence prisoners may be in as much need of offending behaviour programmes as life prisoners. A policy which placed life prisoners on waiting lists by reference to a date four years prior to their tariff expiry date would have the likely effect that some other prisoners would be released without completing rehabilitative courses that they had been assessed as requiring. As regards the introduction of OLRs and of Generic Assessment of prisoners’ needs, it is averred that neither has had an adverse impact on demand for rehabilitative coursework and that, in any event, resources for psychological programmes were increased in or about 2011.
[9] So far as the petitioner himself is concerned, it is admitted that he has been assessed as requiring to undertake the SCP and that after completion of that course he will be re‑assessed for the SROBP. It is averred that completion of the SCP takes about six months on average, and the SROBP about three to four months. Reference is made to certain factors which will be taken into account by the Parole Board for Scotland when the time comes to assess the risk of release of the petitioner, including misconduct reports of which he has been the subject during the course of his current period of imprisonment.
Orders sought by the petitioner
[10] The petitioner seeks the following orders:
(1) Declarator that the respondents have acted unlawfully by failing to provide for measures to enable prisoners serving indeterminate sentences to demonstrate to the Parole Board for Scotland by the end of their punishment part that it is no longer necessary for the protection of the public that they continue to be detained;
(2) Declarator that the respondents have acted unlawfully in failing to provide the petitioner with means to demonstrate to the Parole Board for Scotland by the end of his punishment part that it is no longer necessary for the protection of the public that he continues to be detained;
(3) Declarator that the respondents have failed and are failing to provide the petitioner with a reasonable opportunity for him to rehabilitate himself and to demonstrate to the Parole Board for Scotland that he no longer presents an unacceptable danger to the public;
(4) Declarator that the petitioner’s Convention rights have been breached by the said failure to provide him with a reasonable opportunity to rehabilitate himself and to demonstrate to the Parole Board for Scotland that he no longer presents an unacceptable danger to the public;
(5) An order that the respondents provide the petitioner...
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