William Varey v Scottish Ministers
| Jurisdiction | Scotland |
| Judgment Date | 11 August 2000 |
| Docket Number | No 7 |
| Date | 11 August 2000 |
| Court | Court of Session (Outer House) |
Court:Outer House, Court of Session
Lady Paton
Appearances:JJ Mitchell QC and S Collins (instructed by Drummond Miller WS) for V; G Moynihan QC and Mr Dewar (instructed by the Solicitor to the Scottish Executive) for the Ministers.
Whether the revocation by the Scottish Ministers of the licence of a determinate sentence prisoner released on parole licence breached Art 5 European Convention.
In 1997, the Parole Board recommended that V be released on parole licence from a 29 year prison sentence for offences including armed robbery; this was accepted by the Secretary of State and he was released in May 1998. The licence included a condition, condition 6, that he be of good behaviour and keep the peace. He obtained a flat and began a decorating business. In December 1998, an acquaintance was charged with being concerned in supplying cannabis resin. In July 1999, V was charged with the same offence and remanded in custody by the criminal courts. On 7 July 1999, the day before a High Court bail application, V's licence was revoked by the Scottish Ministers and he was recalled to prison. This was done without prior consultation with the Parole Board. The statute allows this if it is "expedient in the public interest to recall that person" before consultation with the Parole Board is practicable. The reasons given were that he had breached licence condition 6 as he had been charged with 2 drugs offences, being concerned in the supply of cannabis resin and possession with intent to supply, and so was a serious risk to the public.
V made representations about his recall, including through an interview with a member of the parole board, which has the power to order the release of a recalled prisoner. He emphasised the lack of any evidence of his involvement in crime. At the end of August 1999, the Parole Board declined to order his release, stating that he had been charged with 2 offences and this suggested he presented a serious risk to the public. The criminal charges were not proceeded with.
V alleged that the recall decision of the Scottish Ministers was ultra vires because there was no causal nexus between the original sentence and the reasons for recall and so it was not detention "after" conviction by a court, as required by Art 5(1)(a) European Convention (which required a causal link), and it was a disproportionate step. Further, it was argued that the requirement of court review of detention in Art 5(4) was breached. Under the Scotland Act 1998, the Scottish Ministers may not breach the Convention; the Parole Board was not so constrained until the Human Rights Act 1998came into force.
The Ministers argued that (i) the decision of the Parole Board to retain V in custody was the operative decision. (ii) When looked at as a whole, the recall by the Ministers when combined with the reconsideration by the Parole Board, which had the power to order release, was compliant with the Convention. (iii) They further argued that a determinate sentence, being entirely aimed at punishment, was analogous to a mandatory life sentence (which was a punitive sentence for the offence of murder) and so in contrast to a discretionary life sentence (which had elements of punishment and protection of the public); in the latter case, once the punitive tariff element had been served, any further detention had to be a matter for a court, whereas recall to an any entirely punitive sentence did not involve such a requirement.
Judicial review of Scottish Ministers' decision to revoke licence
1. In terms of s. 53 of the Scotland Act 1998, the Scottish Ministers inherited from the Secretary of State for Scotland certain functions and responsibilities relating to prisons in Scotland. In the present case the petitioner, a prisoner in HMP Shotts, seeks judicial review of the Scottish Ministers' decision to revoke his licence and to recall him to prison. The petitioner founds on s. 57(2) of the Scotland Act 1998 and Art 5 of the European Convention on Human Rights. At the judicial review hearing, both counsel stated that few facts were in dispute. They requested that the issues be determined on the basis of argument alone, without a proof or other inquiry into the facts. Parties were agreed that (1) as a result of the transitional provisions in the Prisoners and Criminal Proceedings (Scotland) Act 1993, the Prisons (Scotland) Act 1989 continued to apply to any prisoner whose sentence had begun before 1993, including the petitioner; and (2) despite the terms of para 7 of the petition,sections 22(1A) and 28(1A) of the Prisons (Scotland) Act 1989 were not relevant to the present case.
2. The petitioner was present in court throughout the hearing.
Prison sentence, release on licence, and recall into custody after revocation of licence
3.1 In 1997 the petitioner (date of birth 1.4.49) was serving a sentence of 29 years' imprisonment, representing consecutive sentences of 14 years, 6 years, and 9 years, together with concurrent sentences of 7 years and 4 years from May 1984, having been convicted of assault and robbery, attempted prison breaking, a contravention of s. 1(3) of the Firearms Act 1968, assault, and prison breaking. During 1997, the Parole Board noted in their Minutes that:
" … [n]otwithstanding his atrocious history of previous offending and the pattern of his behaviour during his early years in custody, members found that Mr Varey had reached a turning point in 1990 when he had embarked on a new chapter of his life having turned to Christianity. … Members felt that the psychiatric report prepared for his previous review provided a good summing up of Mr Varey and noted that prison chaplains were of the opinion that his conversion and commitment to religion was completely genuine and long-lasting. … Given the background to this case and comparing it to a life sentence prisoner, the Board unanimously agreed to recommend to the Secretary of State that Mr Varey be granted a forward release date of 28 November 1997, by which time he would have completed 13 years in custody."
3.2 The Parole Board thereafter recommended an early release date for the petitioner. The Secretary of State declined to follow their recommendation until 1998, when he accepted the recommendation and as a result the petitioner was on 29 May 1998 released on licence in terms of s. 22(1) of the Prisons (Scotland) Act 1989.
4. Section 22 of the Prisons (Scotland) Act 1989provides:
"(1) The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person who is serving a sentence of imprisonment, other than imprisonment for life … after he has served not less than one third of his sentence …
(6) A person subject to a licence under this section shall comply with such conditions, if any, as may for the time being be specified in the licence …
(8) A licence granted to any person under this section shall, unless previously revoked under s. 62 of the Criminal Justice Act 1967or s. 28 of this Act, remain in force until a date specified in the licence, being the date on which he could have been discharged from prison on remission of part of his sentence under rules made under s. 39 of this Act if, after the date of his release on licence, he had not forfeited remission of any part of the sentence under the rules."
5. The release licence provided inter alia:
"You are required to comply with the following conditions (which may be added to, varied or cancelled at any time before the expiry of the licence): ..
6. You shall be of good behaviour and shall keep the peace.
Failure to comply with these conditions may result in the revocation of your licence and your recall to custody.
This licence expires on 01/10/2003 unless previously revoked."
6. On his release, the petitioner obtained a flat in Glasgow. He set up a self-employed decorating business, Kensington Restorations.
7.1 In December 1998, 6 months after the petitioner's release, an acquaintance of the petitioner was arrested and charged with being concerned in the supplying of a substantial quantity of cannabis resin. After a further six months, in July 1999, the petitioner was arrested and appeared on a petition warrant at Paisley Sheriff Court charged that:
"on 15 December 1998 at Thornhill, Johnstone, [he] was concerned in the supplying of a controlled drug, namely cannabis resin, a Class B drug specified in Part II of Sched 2 to the Misuse of Drugs Act 1971to another in contravention of s. 4(1) of the aftermentioned Act, contrary to the Misuse of Drugs Act 1971 s. 4(3)(b)".
7.2 The petitioner was fully committed on 2 July 1999 and was refused bail. He appealed against the refusal of bail. His appeal was to come before the High Court of Justiciary on 8 July 1999. On 6 July 1999, the Scottish Ministers were made aware that the petitioner had been placed on petition, and were advised of the nature of the alleged offence with which he was charged. On 7 July 1999, the day before the hearing of the petitioner's bail appeal, the Scottish Ministers revoked his licence and recalled him to custody in terms of s. 28(2) of the Prisons (Scotland) Act 1989, without having consulted the Parole Board. The petitioner seeks reduction of that decision as being contrary to s. 57(2) of the Scotland Act 1998 and Art 5 of theEuropean Convention on Human Rights.
Decision letter
8.1 The decision letter dated 7 July 1999 which accompanied the formal Recall Order was in the following terms:
"Dear Mr Varey,
Recall to custody
The Scottish Ministers have today considered your case and decided that your licence should be revoked and that you should be recalled to custody to serve your sentence.
I enclose a statement of the Scottish Ministers' reasons for revoking your licence and recalling you to custody. I also enclose a form on which you may make representations to the Scottish Ministers against your recall …
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