Scottish Court of Session Decisions

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Cite as: [2000] ScotCS 225

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OUTER HOUSE, COURT OF SESSION

OPINION OF LADY PATON

in the Petition of

WILLIAM VAREY

for judicial review of a decision of the Scottish Ministers to revoke his licence and recall him to prison

________________

Petitioner: J.J. Mitchell, Q.C.; S. Collins, Advocate; Drummond Miller W.S.

Respondent: G. Moynihan Q.C.; Dewar, Advocate; Solicitor to the Scottish Executive

11 August 2000

Judicial review of Scottish Ministers' decision to revoke licence

[1] In terms of section 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 H.M. Prison, Shotts, seeks judicial review of the Scottish Ministers' decision to revoke his licence and to recall him to prison. The petitioner founds on section 57(2) of the Scotland Act 1998 and Article 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 paragraph 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] 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 section 1(3) of the Firearms Act 1968, assault, and prison breaking. During 1997, the Parole Board noted in their Minutes no.6/1 of process 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 131/2 years in custody."

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 section 22(1) of the Prisons (Scotland) Act 1989.

[4] Section 22 of the Prisons (Scotland) Act 1989 provides:

"(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 section 62 of the Criminal Justice Act 1967 or section 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 section 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 number 6/2 of process 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] In December 1998, six 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 (number 6/3 of process) 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 Schedule 2 to the Misuse of Drugs Act 1971 to another in contravention of section 4(1) of the aftermentioned Act, contrary to the Misuse of Drugs Act 1971 section 4(3)(b)".

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 section 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 section 57(2) of the Scotland Act 1998 and Article 5 of the European Convention on Human Rights.

Decision letter

[8] The decision letter dated 7 July 1999 (number 6/4 of process) 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 ...

Should you make representations, your case would be referred to the Parole Board to consider whether or not to order your immediate re-release. On such a reference you would have the benefit of various rights under the Parole Board (Scotland) Rules, 1995, including the right to make representations to the Parole Board and to request an interview with a Parole Board member. ..."

The accompanying Statement of Facts (number 6/4 of process) gave, as the reasons for recall:

"Breach of licence condition 6. You have been charged with 2 offences under the Misuse of Drugs Act 1971 which suggests you present a serious risk to the public if you were at liberty."

The Summary of Criminal Charges (number 6/5 of process) stated:

"Charge 1 - Contravention of the Misuse of Drugs Act 1971, section 4(3)(b): On 15 December 1998 at Thornhill, Johnstone, near to Beith Road, William Varey was concerned in the unlawful supply of a controlled drug, namely cannabis resin to another.

Charge 2 - Contravention of the Misuse of Drugs Act 1971, section 5(3): On 15 December 1998 at Thornhill, Johnstone, near to Beith Road, William Varey did have in his possession a controlled drug with intent to unlawfully supply it to another. For the purposes of penalty cannabis resin is a Class B controlled drug.

Description of Events.

On 14 December 1998, police officers received information to the effect that William Varey had access to large amounts of controlled drugs and was actively involved in supplying them to other persons.

On 15 December 1998, police seized a quantity of cannabis resin which had previously been in the possession of William Varey. The total value of the drugs seized is in the region of £26,000 to £28,000."

[9] Counsel for the petitioner pointed out that the Statement of Facts and the Summary of Criminal Charges were inaccurate. The petitioner had never been found in possession of drugs. When he was put on petition on 2 July 1999, the only charge against him was that of being concerned in the supplying of drugs. It was misleading for the Parole Board to be presented with statements and summaries which seemed to indicate that the petitioner had actually been found in possession of cannabis resin, when he had not. Further, there been an inexplicable delay of some six months between the alleged criminal incident in mid-December 1998 and putting the petitioner on petition in mid-July 1999.

Representations to Scottish Ministers and interview with Parole Board member

[10] Following upon the revocation of his licence, the petitioner made written representations to the Scottish Ministers dated 7 and 14 July 1999. In his representations he emphasised that there was no substance in the charges. He had not been involved in any offence. He had no previous convictions for contraventions of the Misuse of Drugs Act 1971. He had been living a quiet life. His supervising officer had no concerns. The seizure of drugs in mid-December 1998 had not involved him. The police had not interviewed him. There had been no investigation involving him. Months had passed. Only on 2 July 1999 had action been taken by the prosecuting authorities. In his view it was doubtful whether the case would ever come to court, due to lack of evidence. His loss of liberty was highly prejudicial to his new life. He was unable to make mortgage payments, or to run his decorating business, or to deal with every-day matters such as insurance and an MOT for his vehicle. He was likely to lose his home. He requested an oral interview with a member of the Parole Board.

[11] As a result of his request, the petitioner was granted an interview with Dr. Greenwood, a member of the Parole Board. Dr. Greenwood prepared a report dated 5 August 1999 (number 6/7 of process) which stated inter alia:

"... Negative MDTs [Mandatory Drugs Tests] (from last sentence) on 13.3.97 & 21.4.97. In hall since 13.7.99.

...[After some detail concerning the limited contact which the petitioner had had with the acquaintance, who had (unknown to the petitioner) been found in possession of cannabis resin] ... He wants the Parole Board to know that he has never been involved in drugs. He was a retired bank robber and had been trying to go straight since his release. He had never had a positive MDT at any time in prison and had never used drugs outside either.

He believes the police had put 2 and 2 together and had come up with the wrong assumptions about him. ...

He feels strongly that he should not have been recalled for this. At best, he should have been put in the untried hall in custody for 110 days rather than as a fully committed prisoner where it is a year and a day before proceedings must be brought about.

He believes the police wanted him off the streets. It is his past that is haunting him. He has not been concerned with any of this, but because his friends were at it, he has been penalised too.

He was just getting on his feet. He had bought a flat ... but it is in danger of being repossessed if he is kept in prison for any length of time. He wants to get to court as soon as possible. He knows he has done nothing wrong and they know it too.

If he was guilty, he wouldn't have been at the Parole Board interview wasting everyone's time ..."

[12] Counsel for the petitioner pointed out that the 80-day rule (i.e. that any indictment should be served upon the petitioner within 80 days of his being committed until liberated in due course of law) and the 110-day rule (i.e. that any trial should be commenced within 110 days of such committal) did not apply to the petitioner, as his being in custody was attributable to the revocation of his release licence and not to the drugs charge per se. Little had happened since the recall of the petitioner into custody. He was unable to accelerate the trial diet, with the result that he had to date been unable to prove his innocence and to regain his freedom on licence.

Refusal of bail appeal, and reconsideration of petitioner's case by Parole Board

[13] On 8 July 1999, the day after the Scottish Ministers' decision to revoke the petitioner's licence, the bail appeals judge refused the petitioner's bail appeal. On 31 August 1999, the petitioner's case came before the Parole Board in terms of section 28 of the Prisons (Scotland) Act 1989.

[14] Section 28 provides inter alia:

"(1) Where the Parole Board recommends the recall of any person who is subject to a licence under section 22 or 26 of this Act, the [Scottish Ministers] may revoke that person's licence and recall him to prison.

(2) The [Scottish Ministers] may revoke the licence of any such person and recall him as aforesaid without consulting the Board, where it appears to [them] that it is expedient in the public interest to recall that person before such consultation is practicable.

(3) A person recalled to prison under the foregoing provisions of this section may make representations in writing with respect to his recall and shall on his return to prison be informed of the reasons for his recall and of his right to make such representations.

(4) The [Scottish Ministers] shall refer to the Parole Board the case of a person recalled under subsection (1) above who makes representations under the last foregoing subsection and shall in any event so refer the case of a person returned to prison after being recalled under subsection (2) above.

(5) Where the Board recommends the immediate release on licence of a person whose case is referred to under this section, the [Scottish Ministers] shall give effect to the recommendation, and where it is necessary for that purpose to release that person under subsection (1) of section 26 of this Act, the [Scottish Ministers] shall do so without the consultation required by that subsection. ..."

[15] Thus where the Scottish Ministers revoke a licence and recall someone to custody in terms of section 28(2), as occurred in the present case, it is mandatory that the prisoner's case be referred to the Parole Board. If the Parole Board recommend the prisoner's re-release on licence, the Ministers have no choice but to give effect to that recommendation by releasing the person on licence immediately in terms of section 28(5).

[16] A full set of papers was supplied to the Parole Board, including the petitioner's written representations dated 7 and 14 July 1999 and Dr. Greenwood's report. After consideration of the petitioner's case, the Parole Board did not recommend his re-release on licence, as they were entitled to do in terms of section 28(2) and (5). Their decision was taken on the basis of the information before them, including information that the petitioner was facing charges relating to "offences" in the plural, namely actual possession of cannabis resin in addition to being concerned in the supplying of cannabis resin (whereas he was in fact facing only one charge, namely being concerned in the supplying of cannabis resin). The Board gave the following reason for their decision (number 6/1 of process):

"[The petitioner] has been charged with 2 offences under the Misuse of Drugs Act which suggests that he presents a serious risk to the public if he were to be set at liberty."

Further criminal proceedings in relation to alleged drugs offence

[17] It was not until some time in 2000 that the petitioner was served with an indictment charging him with being concerned in the supplying of cannabis resin. While the present judicial review was at avizandum, the petitioner's trial diet called in the High Court in Glasgow. The Crown sought an extension of the twelve-month period, which was refused. Ultimately the Crown did not proceed to trial. The twelve-month period expired on 2 July 2000, with the result that the petitioner cannot now be tried in respect of the alleged drugs offence which caused his licence to be revoked. That alleged drugs offence could not therefore be the basis of a recall order in terms of section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Further, were the Scottish Ministers' decision of 7 July 1999 to be quashed, the petitioner would presumably be eligible for release as he could no longer be kept in custody on a remand warrant in respect of the alleged drugs offence.

Petitioner's arguments and response by Scottish Ministers

[18] The petitioner seeks declarator in terms of paragraph 3(a) of the petition that the Scottish Ministers' decision of 7 July 1999 was ultra vires of section 57(2) of the Scotland Act 1998 in respect that it was an act incompatible with the petitioner's rights under Article 5 of the European Convention on Human Rights. Further he seeks reduction of the decision in terms of paragraph 3(b) of the petition. No argument was presented in relation to the remaining sub-paragraphs of paragraph 3 of the petition.

[19] The argument fell into three chapters: (1) whether the operative decision was the Scottish Ministers' or the Parole Board's; (2) ultra vires in the sense of lack of a sufficient causal nexus between the original prison sentence imposed in 1984 and the ministerial act revoking the petitioner's licence in 1999; and (3) proportionality in the sense that the ministerial act was said to have had an excessive and disproportionate effect on the petitioner's interests.

Operative decision: whether Scottish Ministers' or Parole Board's

[20] Counsel were agreed that the Court of Session was the appropriate forum for review of decisions of the Parole Board and the Scottish Ministers: cf. Holmes v. Secretary of State for Scotland, 1999 S.L.T. 706. At the outset, counsel for the petitioner drew attention to Answer 7 in which the Scottish Ministers aver that:

"... the Parole Board has power to order the re-release of prisoners such as the petitioner. The Parole Board is empowered to make a recommendation which the respondents are required by statute to give effect to (section 28(5) of the 1989 Act). The initial decision to revoke the licence was taken by the respondents under section 28(2) of the 1989 Act. On 16 July 1999 the respondents referred the matter to the Parole Board as required by section 28(4) of the 1989 Act. The Parole Board's decision of 31 August 1999 supersedes the initial decision of the respondents. Further explained and averred that a further review of the petitioner's suitability for release on licence was scheduled to be completed by 31 August 2000. The petitioner has indicated that he does not wish to be considered for release at this time."

Counsel for the petitioner accepted that if the Scottish Ministers were correct in their assertion that the Parole Board's decision of 31 August 1999 had superseded their decision of 7 July 1999, then the petitioner had no relevant case, for while the Scottish Ministers were subject to Article 5 of the European Convention on Human Rights by virtue of section 57(2) of the Scotland Act 1998, the Parole Board were not. The discrepancy would be resolved in October 2000 when the Human Rights Act 1998 came into effect. As at the date of the judicial review hearing, the petitioner could not and did not seek review of the Parole Board's decision: he sought review of the decision of the Scottish Ministers dated 7 July 1999.

[21] Counsel for the respondents argued that the system of release on licence, revocation of licence by the Scottish Ministers, opportunity to make representations and to request an interview with a member of the Parole Board, mandatory referral to the Parole Board, decision by the Parole Board in terms of section 28 of the Prisons (Scotland) Act 1989 and subsequent reconsiderations by the Parole Board, had to be viewed as a whole, and not as separate parts. The proper question was whether the scheme as a whole (and not just the Ministers' decision in isolation) contravened human rights: cf. Weeks v. United Kingdom (1987) 10 E.H.R.R. 293, para.69:

"The court has in previous cases recognised the need to take a comprehensive view of the system in issue before it, as apparent shortcomings in one procedure may be remedied by safeguards available in other procedures..."

Counsel contended that section 28(4) of the 1989 Act provided a crucial stage: if a person were recalled by the Scottish Ministers without reference to the Parole Board in terms of section 28(2) - as had occurred in the present case - there was an automatic referral of the case to the Parole Board in terms of section 28(4), and the Parole Board then had power in terms of section 28(5) to take a different view from the Scottish Ministers, and to order the re-release of the prisoner. The role of the Parole Board was fundamental, and it was their decision on 31 August 1999, and not the Scottish Ministers' decision of 7 July 1999, which was the operative one resulting the petitioner's current continuing detention. Admittedly the Parole Board could not alter the decision of the bail appeals judge on 8 July 1999: but if the Board had on 31 August 1999 recommended release on licence, the petitioner could have re-applied for bail, citing a change of circumstances. Alternatively he could have petitioned the nobile officium. The Parole Board's function was not identical to the bail appeals judge: while both the Board and the judge could properly take into account previous convictions and the gravity of the offence with which the accused was charged, the Parole Board were entitled to take into account a third factor namely the disturbing prima facie association of the petitioner with a person alleged to be involved with drugs. The Scottish Ministers had acted urgently to avoid the possibility that the petitioner might, on his release following a successful bail appeal, become untraceable. If it transpired that no trial against the petitioner on the alleged drugs offence took place, the Scottish Ministers would in practice refer the case back to the Parole Board, although it was accepted that in theory it was quite possible for the Parole Board to decide against re-release even where the allegations about an alleged drugs offence had not been explored or proved during a trial. The petitioner was seeking to challenge the wrong decision; alternatively the petitioner was seeking to challenge only one part of the whole system. The petitioner's approach was misconceived. His motion for declarator and reduction should be refused.

[22] I agree with counsel for the respondents that it is necessary to view the decision of the Scottish Ministers in context and not in isolation. The Ministers, the Parole Board, the police, the procurator fiscal, the sheriff, and the bail appeals High Court judge, all have important parts to play in a situation involving release on licence, revocation of licence, recall to custody, remand pending trial and possible re-release on licence. In particular, in the circumstances of the present case, the Ministers have to consider any representations made by the recalled prisoner. A member of the Parole Board may conduct an interview with the prisoner if he so requests. The Ministers must refer the prisoner's case to the Parole Board in terms of section 28(4). The Parole Board must then consider his case. Paragraph 8 of the Parole Board (Scotland) Rules 1995 (S.I.1995 No.1273) governing the Board's procedures for determinate sentence prisoners who were sentenced before October 1993, and who fall under the release regime set out in the Prisons (Scotland) Act 1989, provides:

"Matters to be taken into account by the Board

In dealing with a case of a person, the Board may taken into account any matter which it considers to be relevant, including, but without prejudice to the foregoing generality, any of the following matters: -

the nature and circumstances of any offence of which that person has been convicted or found guilty by a court;
that person's conduct since the date of his current sentence or sentences;
the likelihood of that person committing any offence or causing harm to any other person if he were to be released on licence, remain on licence, or be re-released on licence as the case may be; and
what that person intended to do if he were to be released on licence, remain on licence or be re-released on licence, as the case may be, and the likelihood of his fulfilling those intentions."

[23] If the Parole Board then consider that the petitioner should be re-released, and they make such a recommendation to the Ministers in terms of section 28(5), the Ministers "shall [emphasis added] give effect to the recommendation". If the Parole Board made such a recommendation, the petitioner would be entitled to re-apply to the bail appeals judge on the basis of a change of circumstances, and that judge would determine any such appeal on the basis of the new information put before him. Alternatively the petitioner could petition the nobile officium, and the Court would determine the matter. If the Crown did not proceed with the prosecution for the alleged drugs offence (as indeed appears to have happened, in that the twelve month period has expired without the petitioner's trial having been commenced: section 65(1) of the Criminal Procedure (Scotland) Act 1995), it would be more appropriate for the case to be referred back to the Parole Board. In such circumstances the Parole Board would not necessarily be obliged to recommend his re-release: see Howden v. Parole Board for Scotland, April 8, 1992 unreported, 1992 G.W.D. 20-1186; and R. v. Secretary of State for the Home Department, ex p. MacNeill, The Times, May 26, 1994.

[24] Viewing the system as a whole, I consider that the petitioner's current continuing detention is attributable to the Parole Board's decision of 31 August 1999, which in effect reviewed and superseded the Scottish Ministers' decision of 7 July 1999. That being so, the petition is ex concessu ill-founded, and I refuse the petitioner's motion for declarator and reduction.

Ultra vires

[25] While that is sufficient for disposal of the matter before me, it may be appropriate that I express views on the arguments presented in relation to ultra vires.

[26] Counsel for the petitioner contended that the Scottish Ministers' decision on 7 July 1999 had been taken in terms of section 28(2) of the Prisons (Scotland) Act 1989 as an emergency, as it must have appeared to be "expedient in the public interest" to recall the petitioner before consultation with the Parole Board was practicable. As on 7 July 1999 the petitioner was in prison awaiting his bail appeal hearing on 8 July 1999, the only cause for emergency or urgency must have been a perception that the High Court bail appeals judge might grant the bail appeal and thus allow the petitioner's release on bail. That being so, the decision of the Scottish Ministers on 7 July 1999 was ultra vires of their power by virtue of section 57(2) of the Scotland Act 1998 in that there was not a sufficient causal connection between the original conviction and sentence in 1984 and the deprivation of liberty in 1999.

[27] Section 57(2) provides:

"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."

In terms of sections 129(2) and 126(1) of the Scotland Act 1998, and section 1 and Schedule I of the Human Rights Act 1998, "Convention rights" include Article 5 of the European Convention on Human Rights which provides inter alia:

"5(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

the lawful detention of a person after conviction by a competent court; ...

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial...

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

[28] Counsel for the petitioner contended that the Court of Human Rights has held that the "lawfulness" required by Article 5(1)(a) of the Convention presupposes not only conformity with domestic law but also conformity with the purposes of the deprivation of liberty permitted by Article 5. The word "after" in subparagraph (a) did not simply mean following chronologically but also meant "follow and depend upon" or "occur by virtue of" the conviction. There had therefore to be sufficient causal connection between the conviction and the deprivation of liberty at issue. The causal link required by sub-paragraph (a) might be broken if a decision to revoke a licence was based on grounds which were inconsistent with the objectives of the sentencing court.

[29] Counsel referred to referred to Weeks v United Kingdom (1987) 10 E.H.R.R. 293, and in particular to paragraphs 38 to 42 and paragraph 46. In that case an indeterminate life sentence had been imposed, the judge expressly stating that the accused was a very dangerous young man, exhibiting unstable, disturbed and aggressive behaviour, and commenting:

"I think an indeterminate sentence is the right sentence for somebody of this age, of this character and disposition, who is attracted to this form of conduct. That leaves the matter with the Secretary of State who can release him if and when those who have been watching him and examining him believe that with the passage of years he has become responsible. It may not take long. Or the change may not occur for a long time - I do not know how it will work out."

The rationale underlying the sentence had therefore been the protection of the public. That rationale continued to form the basis of any consideration of the young man's case. Thus the mere fact that he had been released on licence was insufficient to break the causal link, in that the question was always one of adequate protection of the public. By contrast in the present case the petitioner had been sentenced to determinate sentences totalling 29 years. No observations had been made about his unstable behaviour. The sentences were therefore presumably directed to punishment. The offences were of some antiquity. The question whether the petitioner should be granted bail pending trial on an alleged drugs offence should be determined by the sheriff and the High Court bail appeals judge. The Ministers' decision had simply been a manoeuvre to avoid the operation of the normal court process. If the bail appeals judge had been left to take the decision on 8 July 1999, and if that judge had taken the view that the petitioner should be at liberty, then it was proper that he should be released. Accordingly in the petitioner's case, the Ministers' decision was not founded on the same underlying reason as in 1984 (contrast with Weeks v United Kingdom cit. sup.) but on something new, namely a desire to avoid a judicial determination of the matter. The Ministers' decision in 1999 was therefore ultra vires in that there was no sufficient link with the 1984 conviction and sentence.

(30) Counsel for the respondents submitted that Weeks v United Kingdom related exclusively to discretionary life sentences, and not to determinate sentences such as those imposed on the petitioner. Weeks v United Kingdom was a rather special case concerning a discretionary life sentence imposed because of the instability of the accused's behaviour, a factor which might change over time. Discretionary life sentences such as that imposed in Weeks v United Kingdom were unusual, and inevitably required consideration of features such as character and mental health. Once the 'tariff period' (directed mainly to punishment) was served, the detention remained lawful only so long as those features (character and mental health) did not change. Review might be required if those features did in fact change. By contrast in a mandatory life sentence, or a determinate sentence, no new issue of lawfulness arose, because the maximum duration of the sentence did not depend on circumstances which might vary over time. The judicial supervision of the lawfulness of detention required by Article 5 was incorporated in the decision of the sentencing court: Thynne, Wilson and Gunnell v United Kingdom (1990) 13 E.H.R.R. 666, at paragraphs 76, 77 and 86. Thus revocation of a release licence and recall into custody did not give rise to new issues of lawfulness. There was no need for "court-like" supervision in relation to a determinate sentence.

[31] In support of these submissions, counsel for the respondents referred to Wynne v United Kingdom (1994) 19 E.H.R.R. 333, and in particular to paragraphs 31 to 36, where it was held that review of the lawfulness of detention was a requirement in terms of Article 5 in relation to discretionary life sentences, but such review was not a requirement in terms of Article 5 in relation to mandatory life sentences. The court noted:

"33. The court recalls its judgment in Thynne, Wilson and Gunnell (loc. cit.) where it held that discretionary life prisoners were entitled under Article 5(4) to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court. This view was taken because of the very nature of the discretionary life sentence which, unlike the mandatory sentence, was imposed not because of the inherent gravity of the offence but because of the presence of factors which were susceptible to change with the passage of time, namely mental instability and dangerousness. A clear distinction was drawn between the discretionary life sentence which was considered to have a protective purpose and a mandatory life sentence which was viewed as essentially punitive in nature (ibid., pp.27 and 29, paragraphs 70,73-74)...

35. ... the fact remains that the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender ... That mandatory life prisoners do not actually spend the rest of their lives in prison and that a notional tariff period is also established in such cases - facts of which the court was fully aware in Thynne, Wilson and Gunnell (loc. cit. p.29, paragraph 74) - does not alter this essential distinction between the two types of life sentence...

36. ... the court sees no cogent reasons to depart from the finding in the Thynne, Wilson and Gunnell case that, as regards mandatory life sentences, the guarantee of Article 5(4) was satisfied by the original trial and appeal proceedings and confers no additional right to challenge the lawfulness of continuing detention or re-detention following revocation of the life licence ..."

[32] Similarly in T v United Kingdom European Court of Human Rights, application no.24724/94 December 16, 1999, [2000] 1 C.L. paragraph 245, The Times, December 17, 1999, it was noted in paragraph 118 that:

"The court recalls that where a national court, after convicting a person of a criminal offence, imposes a fixed sentence of imprisonment for the purposes of punishment, the supervision required by Article 5(4) is incorporated in that court decision (see the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no.12 pp.40-41, paragraph 76, and the Wynne v. the United Kingdom judgment of 18 July 1994, Series A no.294-A, p.15 paragraph 36). This is not the case, however, in respect of any ensuing period of detention in which new issues affecting the lawfulness of the detention may arise (see the Weeks v. United Kingdom judgment of 2 March 1987, Series A no.114, p.28 paragraph 56, and the Thynne, Wilson and Gunnell v. the United Kingdom judgment of 25 October 1990, Series A no.190-A, pp.26-27, paragraph 68). Thus, in the Hussain judgment (op. cit., pp.269-70, paragraph 54), the court decided in respect of a young offender detained during Her Majesty's pleasure that, after the expiry of the tariff period, Article 5(4) required that he should be able periodically to challenge the continuing legality of his detention since its only justification could be dangerousness, a characteristic subject to change. In the Hussain case the court was not called upon to consider the position under Article 5(4) prior to the expiry of the tariff (op. cit. p.266 paragraph 44)."

[33] Counsel for the respondents submitted that, when determining the right or otherwise of a prisoner such as the petitioner to a court-like review on revocation of his release licence, a determinate sentence such as had been imposed upon the petitioner should be equated to a mandatory life sentence, and thus the requirements of Article 5(4) were in each case satisfied by the original trial and sentence procedure. He referred to Mansell v United Kingdom, European Commission of Human Rights, application no.32072/96, 2 July 1997, in which it was stated:

"In the present case, the Commission must determine whether the applicant was entitled, under Article 5(4) of the Convention, to a further review of the lawfulness of his detention after the expiry of the first two and a half years of his sentence.

The sentence imposed on the applicant was a fixed term sentence of five years. There is no question of the sentence being imposed because of the presence of factors which were susceptible to change with the passage of time, namely mental instability and dangerousness (above-mentioned Thynne, Wilson and Gunnell judgment, p.29). Rather, there was an element of `simple' punishment as well as an element of deterrence. It is true that the latter part of the sentence was imposed pursuant to section 2 of the Criminal Justice Act 1991, which provides for sentences in the case of violent or sexual offenders to be longer that `normal' in order to protect the public from serious harm. Such an `increased' sentence is, however, no more than the usual exercise by the sentencing court of its ordinary sentencing powers, even if the `increase' has a statutory basis. In particular, nothing in the sentencing procedure indicates that the fixed term sentence of five years imprisonment was anything other than a sentence which was imposed as punishment for the offence committed.

It follows that the judicial control required by Article 5(4) of the Convention was incorporated in the original conviction and sentence, and that Article 5(4) of the Convention does not apply to the parole proceedings in which the applicant was denied an oral hearing."

[34] Counsel for the respondents further argued that, esto there were a requirement for a court-like review on re-detention of the petitioner following revocation of his licence, that requirement was met by the Parole Board, who by their decision of 31 August 1999 had not recommended re-release.

[35] I accept that discretionary life sentences stand in a category of their own, as explained in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 E.H.R.R. 666, Wynne v United Kingdom (1994) 19 E.H.R.R. 333, T v United Kingdom, cit. sup., and Mansell v. United Kingdom, cit. sup. Their exceptional nature, and the purpose underlying their imposition, have recently been emphasised by Parliament in section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, in terms of which a sentencing judge is directed to specify what period of the discretionary life sentence reflects (a) the seriousness of the offence or of the offence combined with other offences associated with it; and (b) any previous conviction - in effect, what is to be the "punitive period": cf. O'Neill v H.M. Advocate, 1999 S.L.T. 958, 1999 S.C.C.R. 300. I also accept that, when assessing whether a prisoner is entitled to challenge the lawfulness of his continuing detention or re-detention following revocation of his licence, it is appropriate both in principle and on authority to regard determinate sentences such as those imposed upon the petitioner as falling within the same category as mandatory life sentences. It follows therefore that, in the petitioner's case, the guarantee of Article 5(4) was satisfied by the original trial and sentence procedure, and that Article 5(4) confers no additional right to challenge the lawfulness of continuing detention or re-detention following revocation of a release licence. I therefore refuse the petitioner's motion for declarator and reduction for this reason also.

[36] Esto, contrary to the above, the petitioner is entitled in terms of Article 5 to review by an independent court-like body, the Parole Board in my view fulfils that function: see section 28(5) of the Prisons (Scotland) Act 1989; Weeks v United Kingdom cit. sup. paragraph 62; and dicta of the Lord Justice General in O'Neill v H.M. Advocate, cit. sup. at p.961H. I would for this reason also refuse the petitioner's motion.

[37] I should add (obiter) that I am of the view that a wide variety of circumstances or events could comprise a failure to comply with a release licence condition to be "of good behaviour and ... [to] keep the peace". Grounds entitling revocation of a release licence on the basis of breach of such a condition would not necessarily have to amount to an alleged criminal offence. Further, different types of failure giving rise to revocation might have a variety of consequences within certain systems or procedures, whether civil or criminal, quite independently of the release regime under the Prisons (Scotland) Act 1989 or other similar enactment. In the case of an alleged criminal offence allegedly committed while at liberty on licence, consequences might include being arrested, placed on petition, and being refused bail, as happened to the petitioner in the present case. Such consequences would involve procedures operated by the procurator fiscal, the police, the sheriff, and the High Court bail appeals judge. But quite independently of such procedures, I consider that questions arising in terms of section 28 of the Prisons (Scotland) Act 1989 relating to the possible revocation of the release licence and recall to custody remain for the decision of the Scottish Ministers and the Parole Board. Indeed they have a duty to take decisions in such circumstances: cf. McRae v Parole Board for Scotland, 1997 S.L.T. 97. The considerations which might be taken into account by the Scottish Ministers and the Parole Board when assessing the question of revocation of a release licence may not necessarily be the same as the considerations which might be taken into account by the police, or the procurator fiscal, or the sheriff, or the bail appeals High Court judge when operating their procedures and considering whether bail should be granted. The former may be concerned inter alia with the person's original sentence, his behaviour and his life generally since his release on licence, the nature of the alleged new offence, the protection of the public, and the person's own interests. The latter may be more focussed upon inter alia the nature and gravity of the alleged new offence, the person's previous convictions (if any), his current circumstances, the likelihood of his attending for trial if released on bail, the person's own interests, and time-limits such as the 80-day, 110-day, and twelve-month rules. Moreover the Scottish Ministers and the Parole Board are entitled in my view to take steps in the light of an apparent breach of a condition such as condition 6 of the release licence, no matter where the person is (for example, whether he is at liberty or in custody) and no matter what decisions are being taken in relation to him in respect of any alleged new offence by the police, the procurator fiscal, the sheriff and the bail appeals judge.

Conclusion

[38] In the result I find it unnecessary to deal with the question of proportionality. I refuse the petitioner's motion for declarator and reduction in terms of paragraphs 3(a) and (b) of the petition, repel the petitioner's first plea-in-law, sustain the respondents' second plea-in-law, and dismiss the petition.. I reserve the question of expenses to enable parties to address me on that matter.