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Cite as: [2005] CSOH 126, [2005] ScotCS CSOH_126

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Gallagher, Re Application For Judicial Review [2005] ScotCS CSOH_126 (27 September 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 126

P1562/05

OPINION OF LORD MACPHAIL

in the petition of

JASON GALLAGHER (AP)

Petitioner:

for

Judicial Review of a decision of the Parole Board for Scotland

________________

Petitioner: Burns, Q.C., Ross; Balfour & Manson (for Taylor and Kelly, Coatbridge)

Parole Board for Scotland: Davidson, Q.C., Lindsay; Anderson Strathern, W.S.

27 September 2005

[1] This is a petition by a prisoner for judicial review of a decision of the Parole Board for Scotland ('the Parole Board'). The Scottish Ministers are called as respondents, but they have not compeared. The petition was, however, served on the Parole Board, and they were represented before me by counsel at the first hearing on 16 September 2005.

[2] The petitioner was sentenced to four years' imprisonment on 11 March 2003. The Prisoners and Criminal Proceedings (Scotland) Act 1993 provides that a person serving a sentence of four years or more is a long-term prisoner (section 27(1)); and that after a long-term prisoner has served one-half of his sentence the Scottish Ministers must release him on licence if recommended to do so by the Parole Board (section 1(3)). The petitioner had served one-half of his sentence on 11 March 2005. As soon as a long-term prisoner has served two-thirds of his sentence, the Scottish Ministers must release him on licence unless he has already been released (section 1(2)). The petitioner will have served two-thirds of his sentence on 9 November 2005.

[3] On 21 June 2005 the Parole Board decided not to recommend that the petitioner be released on licence. The petitioner seeks reduction of that decision and other remedies. The question whether the decision should be reduced is clearly a matter of urgency, because a valid decision should have been made before 11 March 2005.

[4] The Parole Board reached their decision in the following circumstances. After he was sentenced the petitioner was detained in various closed prisons until 19 August 2004, when he was transferred to an open prison, H M Prison, Noranside. He remained there until 23 November 2004, when the Governor told him that as a result of subversive activities he was to be downgraded. He was then transferred to a closed prison, H M Prison, Kilmarnock. On 1 February 2005 the Parole Board considered him for release on parole licence. They noted that no explanation was before them as to why the petitioner had been removed from the open conditions at Noranside, and they deferred consideration of his case to await a report from Noranside that would clarify the matter. On 2 February 2005 the Secretary of the Parole Board wrote a letter (No 7/102 of process) to the early release liaison officer at Noranside explaining that the Board had been unable to decide whether the petitioner was a suitable candidate for release on parole without access to additional information. The Secretary asked for a report clarifying when and why the petitioner had been removed from open conditions. The Secretary also said that if his removal from open conditions had resulted from "intelligence reports", the Board would appreciate being advised of the reliability of the source or sources of the "intelligence" information and "the actual scoring on the 4 x 4 system". On 22 February 2005 the relevant officer at Noranside wrote to the Parole Board (No 7/89 of process) saying that the petitioner had been returned to closed conditions on 23 November 2004 "as a result of numerous intelligence reports linking him to drug-related activity at Noranside". The letter also said that the petitioner had "14 intelligence entries made to his file between 8 October and 3 December 2004" (the last having been received after his transfer), and that the Deputy Governor had been "of the opinion that Mr Gallagher presented a serious and unacceptable risk to the Open Estate". On 24 March 2005 the Parole Board Secretariat replied (No 7/90 of process), pointing out that that letter had not fully addressed the information requested in the letter of 2 February 2005 and that in order to arrive at a decision the Board members would require "the actual scoring on the 4 x 4 system on the intelligence information". On 26 April 2005 the relevant prison officer sent the Board a letter (No 7/86 of process) saying, "I cannot provide further comment in relation to the intelligence report supplied. This is a direction from our security unit staff and SPS [Scottish Prison Service] Headquarters. Unfortunately I am unable to provide the weighting or scoring in relation to the information provided."

[5] The stalemate continued. On 27 April 2005 the Secretary to the Board wrote to the Assistant Director of Prisons asking him to look into the matter (No 7/82 of process). The Secretary said,

"While the members of the Board do not require specific information on the names of the other prisoners or prison officers who may have provided information in relation to Mr Gallagher's behaviour, the Board does require information about the quality of the intelligence information that resulted in Mr Gallagher being removed from an open prison. Such information has been provided to the Board on a number of other occasions in the past and it is, therefore, difficult to understand why the scoring of the intelligence information is being withheld from the Board on this occasion."

The Assistant Director replied on 18 May 2005 (No 7/81) saying,

"You will be aware from our discussions that this surfaces an incredibly complex issue. I am currently trying to work out a pragmatic way to resolve the issue in this particular case whilst still remaining true to our requirement to protect the identity of informants, under RIP(S)A legislation."

That appears to be a reference to the Regulation of Investigatory Powers (Scotland) Act 2000. There is no further reference to that Act in the subsequent correspondence. On 1 June 2005 the Assistant Director wrote to the Secretary of the Board in these terms (No 7/80 of process):

"I have considered your request and would advise that, as a result of a review of our procedures, SPS is taking great care in divulging any information which may place the safety of individuals at risk.

I have examined the intelligence provided in respect of Mr Gallagher and would state that much of the information is sufficiently detailed as to identify the source, if provided in conjunction with precise details of how it has been evaluated. As such, I am not prepared to give specific scores.

However, I can say that the intelligence sources varied in evaluation from 'always regarded as reliable' to 'not tested'. Similarly, the content of the intelligence ranged from facts which were known to be true through to facts which were unable to be judged. I can also say that over 1/3 of the entries were at the most reliable end of our assessment scale.

I am sorry I cannot be more specific. We are continuing to investigate more satisfactory ways in which to meet the twin objectives of being as open with information as possible whilst protecting the interests of informants, third parties and our security and intelligence system."

[6] The Board considered the petitioner's case at a meeting on 21 June 2005. The petitioner had written to the Board denying that he had been linked to drug-related activity. The Board decided not to recommend his release on parole licence. The minute of the Board's meeting states:

"It was noted that despite requests from the Board to have the scoring of the intelligence information provided on the 4 x 4 system, the officials of the Scottish Prison Service had indicated that they could not do so."

The Board expressed the reasons for their decision in these terms:

"This was Mr Gallagher's first prison sentence. Until his downgrading the details of which are unknown he had been the subject of positive prison staff reports. Mr Gallagher had realistic plans for his release and considerable family support and commitment. The Board noted Mr Gallagher's progress but also the concerns of the Scottish Prison Service which had resulted in his downgrading. He, therefore, presents as an unacceptable risk."

[7] At the first hearing, counsel for the petitioner submitted that the Court should grant reduction of the Parole Board's decision and the other orders sought, apart from an order liberating the petitioner ad interim. Counsel for the Board submitted that the petition should be dismissed on the ground that the petitioner's averments were irrelevant. The position of the Scottish Prison Service was not explored. It was clear that the Scottish Prison Service had identified the need to reconcile the objectives of being as open with information as possible and of protecting the interests of informants, third parties and their security and intelligence system. The result, however, appears to be unsatisfactory. Because of the attitude of the Scottish Prison Service, the Board reached their decision in the absence of information which they had identified as essential. They did not know in any detail why the petitioner had been downgraded, but they nevertheless felt obliged to give decisive weight to the "concerns" of the Scottish Prison Service, the grounds for which they were unable to assess for themselves. It is difficult to see how that could be regarded as an acceptable method of reaching a decision as to the petitioner's possible entitlement to parole.

[8] The result thus far is that no satisfactory means are established for resolving an impasse of this kind. One possible solution is suggested by the case of Regina (Roberts) v Parole Board [2005] UKHL 45, [2005] 3 WLR 152. The House of Lords there approved the appointment by the Board of a specially appointed advocate to whom alone information from the Home Secretary should be disclosed. I note that the Parole Board for Scotland may take "damaging information" into account even although it has not been disclosed to the person concerned and, in a case such as this, may regulate its own procedure in dealing with any case (Parole Board (Scotland) Rules 2001, rules 6(2)(b) and 15(1)). It was held in Roberts that the use of a specially appointed advocate would accord the prisoner a substantial measure of procedural justice and the Board had acted within its powers in making such an appointment.

[9] It is important that the Parole Board for Scotland should not be impeded in the exercise of its statutory responsibilities if a way can be found of reconciling the interests of the petitioner, the public and the informants whose intelligence is necessary for the orderly running of prisons. I shall therefore put the case out by order for a further hearing on Tuesday 4 October 2005. The Scottish Ministers may wish to reconsider their decision not to be represented, and decide whether it is appropriate that the views of the Scottish Prison Service should be conveyed to the Court. My current view is that the Court would derive invaluable assistance in seeking to balance the interests at stake by hearing submissions, effectively on behalf of the Scottish Prison Service, through the Scottish Ministers. Since the Scottish Prison Service has been considering the issues involved since at least May of this year, I would expect the by order hearing to proceed without delay, this being a case which potentially affects the liberty of the subject, albeit the subject is a convicted prisoner seeking parole.