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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 98
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P2873/06
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OPINION OF LORD McEWAN
in the Petition of
DAVID LAIDLAW
Petitioner;
against
THE PAROLE BOARD
FOR SCOTLAND
Respondents:
for
Judicial Review of
a decision of the Parole Board for Scotland
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Petitioner: Burns, Q.C.; Pirie; Balfour & Manson
Respondents: Cullen, Q.C.; Dunlop; Anderson Strathern
Hawkes;
M Sinclair, Solicitor for the Secretary of State
12 June 2007
[1] In December 2001 after
trial in the High Court at Edinburgh this petitioner, a man aged 52, was
convicted of charges of rape upon a woman who was his former partner and the
mother of his son. It took place in her
home. Plainly, the experienced trial
judge took a very serious view of it. He
passed a sentence of six years imprisonment.
The petitioner lodged a Note of Appeal against conviction (I was told on
Anderson
grounds) and was granted interim liberation.
After a lengthy delay his appeal was heard, refused and he was recalled
to prison. The petition before me
concerns his status before the Parole Board.
Being a long term prisoner his case must be referred to the Board after
one half of his sentence. The qualifying
date for that was 27 October
2006. His release at that
time is at the discretion of the Board.
He has a right to be released after three quarters of his sentence (26 October 2007).
[2] When
the petition first appeared before me on 9 February it had as its basis
"Human Rights" arguments, but nothing based on the reasons given by the
Board. After lunch on the first day
counsel withdrew and the case before me returns in a wholly amended form. Mr Burns who now appears told me there had
been a complete "rewrite" and he was now advancing Wednesbury grounds with certain other arguments. He accepted that much, but not all, of his
submission was based on the admitted fact that the petitioner continues to deny
his guilt of the offence of which the jury convicted him. For shorthand I will call the petitioner,
where appropriate, "a denier". The
phrase is taken from one of the English cases cited to me and is a convenient
description. Mr Burns also stressed a
failure by the Board to attach appropriate weight to the petitioner's good
behaviour while on interim liberation
and his settled future plans.
[3] Let
me now look in more detail at what happened here. With his appeal refused the petitioner was
returned to prison to serve his sentence.
At the appropriate time the Scottish Ministers referred his case to the
Board and the petitioner was told of this.
(All of this takes place in terms of the Parole Board Rules - see
Rules 3(1) and 4). A dossier is
compiled of his case (Rule 5) and he gets a copy for comments. In this case he submitted extensive comments
in writing (Rule 7). The petitioner
received his dossier on 30 May 2006. On 13 June he was interviewed. A Parole Board Hearing subsequently took
place at which he appeared and was represented.
All the written material earlier referred to was before the Board. These are all part of the dossier which forms
No.7/1 of process. It runs to many pages
and includes inter alia all relevant
correspondence, the report of the trial judge and two recent social background
reports which look from past events to the future and consider specifically
issues of "risk". The authors of these
are Farrier (May 06) and Flannery (April 06). The Board are obliged to consider the terms
of Rule 8 which provides
"Matters to be taken into account by the
Board
In dealing with
a case of a person, the Board may take into account any matter which it
considers to be relevant, including, but without prejudice to the foregoing
generality, any of the following matters:-
(a) the nature and circumstances of any offence
of which that person has been convicted or found guilty by a court;
(b) that person's conduct since the date of his
or her current sentence or sentences;
(c) the risk of that person committing any
offence or causing harm to any other person if he or she were to be released on
licence, remain on licence or be re-released on licence as the case may
be; and
(d) what that person intends to do if he or she
were to be released on licence, remain on licence or be re-released on licence,
as the case may be, and the likelihood of that person filling those
intentions."
[4] Seized
of all this information, the Board made a decision to refuse release. It was given on 3 August 2006 and I set it out below, viz ..... "Although
this was his first offence, his consistent denial of guilt and anger towards
the victim and the violence at the time of the index offence are of
concern. Mr Laidlaw has a support
network on release but his lack of victim empathy and offence related work indicated
that the risk posed by Mr Laidlaw is unacceptable.....".
[5] I
was referred to a number of cases, viz. R(C)
v Parole Board [2001]
1 PLR 134; Carr v Secretary of State for Scotland 1998 SCLR 160; R v
Secretary of State for the Home Department ex parte Harrold
[1998] EWHC Admin.538; McBrearty v The Parole Board 19 December 2006 (unreported); Lillycrop
[1996] EWHC Admin.281; R v Parole
Board and Secretary of State for the Home Department ex parte Oyston [2000]
1 PLR 45; R v Secretary of State for the
Home Department ex parte Zulfikar 27 July 1995 unreported (Div.Ct); South
Buckinghamshire Council v Porter
[2004] 1 WLR 1953. Passing
reference was also made to Roberts v Parole Board [2005] UKHL 45 and Birrell v Parole Board 2006 CSOH 181.
[6] I
listened to three arguments all of which were well presented and helpful to the
Court. I deal with these in turn. Mr Burns began for the petitioner and what he
told me I now summarise. He began by
looking at in detail the various statements in the amended Petition. He highlighted certain factors. His client had been on interim liberation pending his appeal for almost two years. During that time he had been of good
behaviour and caused no trouble to the complainer. Counsel accepted that the petitioner, who was
in fact present in Court, continued to deny his guilt of the offences. He took me through parts of the dossier
(No.7/1 of process) including the Report of the Trial Judge, noting that the
jury verdict was a majority one. The
detail of the various preparations prior to the Parole Board hearing on 18 July
was accepted as accurate and properly done.
He mentioned the involvement of the petitioner's solicitors (Bruce &
Co) and the fact that his client had a supportive family and realistic
prospects of employment. He also told me
that the petitioner had made one application to the Scottish Criminal Cases
Review Commission. That had been
unsuccessful. He was now compiling
another application.
[7] Senior
counsel then looked at the reasons given by the Board in their letter. Of that he had this to say. The Board had carried out a risk assessment
and concluded the risk of releasing him was unacceptable. The basis for that decision was that he was a
"denier", had not participated in any offence related work when in prison and
showed no victim empathy. The Board's
reasons were very brief and appear to have proceeded only on the fact that he
was a "denier" from which everything else flowed. That was basically wrong because it left out
of account other balancing factors. To
treat a denial as all but conclusive was wrong and rendered the decision as
unreasonable. He referred me to Rule 8
in some detail and to the cases of Zulfikar
and Oyston. It was basically wrong to say that risk could
not be reduced to an acceptable level unless an offender admitted his guilt,
showed empathy and went on offence related courses.
[8] In
the present case two positive factors had been left out of account and were not
mentioned in the reasons. The first was
the admitted fact that when he was on interim
liberation he had been of good behaviour.
The Board were told this. It
ought to have been mentioned in their reasons (Oyston). The second matter
was that risk assessments were done in the reports by Farrier and
Flannery. These were before the Board
and showed the risk was low. They also
attracted no mention, showing that no proper balancing exercise had been
done. All of this pointed to the need
for me to remit the matter to another Board to consider it afresh. That was done in McBrearty.
[9] Mr
Burns ended by saying that even if the Board did take these matters into
account the reasons failed to show that.
He mentioned Carr as an
example. He asked me to sustain his
pleas to the extent of giving declarator and reduction as asked, and remitting
the matter to be decided anew quam primum.
[10] In a short reply Mr Burns distinguished Harrold where there was only the one factor to rely on. The balance had not been properly done
here. I was asked to look again at Oyston and the various decisions
embraced under Lilleycrop.
[11] Mr Cullen appeared for the Board. He accepted that his first plea in law was no
longer apt as there was no dispute on the facts, he invited me to sustain his
second and third pleas. He took me first
to the 1993 Legislation and the 2001 Rules.
Under reference to these he traced the requirement to refer the case of
a long term prisoner to the Board, to the referral, dossier, interview and
hearing before the Board. Everything had
been done properly and the petitioner had had and had exercised his right to
make representations and be heard.
Counsel took me to Rule 8 of the rules and stated that the Board
had the widest discretion to consider "...any matter...." ..... "including but
without prejudice...."what was defined in paragraphs (a) to (d). The Board did consider all of these. They were all in the dossier. It was stressed then and later that the Rules
in Scotland
were permissive and very wide. The
position in England,
as will be seen later, is different.
[12] Counsel then invited attention to the dossier (No.7/1). He emphasised the report of the trial judge
which was highly relevant to the assessment of risk. The complainer had a son to the
petitioner. The crime showed planning
and lots of anger. A weapon was used in
repeated brutal rapes. The "Indian"
remark was stressed. In spite of the
petitioner's evidence the judge categorised it as "...nothing less than horrific
....". No shame or remorse had been
expressed. Against that the petitioner
had stressed in every possible way his good behaviour when on interim liberation, his family support
and settled plans for the future.
[13] The Board had all of these matters before it as well as the
fact that he was and remained a "denier" with the absence of offence related
work which that inevitably meant.
[14] The Board also had the two social background reports (Farrier
and Flannery). Both of these
independently expressed concern at his being a "denier" as well as the ongoing
position of a desire to maintain contact with his son.
[15] Counsel then looked at the decision of 3 August in some
detail. The passage before the
recommendation showed that everything put before them had been considered. When the decision was fairly considered it
was unimpeachable. A balancing exercise
could be seen to have been carried out and the whole of Rule 8
addressed. It was impossible to say the
decision was solely based on him being a "denier". The petitioner admitted he had no victim
empathy and the Board had to take account of that. The risk assessments in the two background
reports had properly been considered and a view taken about them. The Board had a duty to focus on public
safety. The English cases such as Oyston proceeded on a different
statutory basis which was more strictly couched.
[16] The Court had to rely on the experience of the Board and the
Court did not have that experience. He
referred me to the case of Lillycrop,
itself a series of separate appeals.
Counsel said that Carr was
only a decision on its own facts and McBrearty
was a good example of a case where the brief opinion showed that a Board had
proceeded only on the basis that he was a "denier". Finally, he invited me to conclude from the Porter case that administrative
decisions like this should not be fertile areas for the intense scrutiny of
lawyers.
[17] Mr Hawkes for the Scottish Ministers adopted Mr Cullen's
arguments. He then added a separate
argument relating it to offence course work in prison. Under reference to No.14 of process he showed
the Court the various types of sex offender courses and at what prisons they
are available. Everyone is assessed but
"deniers" are not considered appropriate as that would be unproductive use of a
scarce resource. The petitioner was to
have gone to Peterhead but he refused the STOP course there and was sent to Dumfries. There were courses there, for example
"relationship skills". That could have
helped with his former partner and son.
Anger management courses were available but in different prisons. No.14/3 showed his clear refusal to
participate. The consequence of that was
that preparation for his release had to be done without his co-operation. That meant that there was a lack of reliable
information to enable the Board objectively to assess risk. The Board in weighing up risk had to look at
why there was a lack of information.
Being a "denier" was only relevant to showing the reason for lack of
evidence.
[18] In this context he referred me to R(C), and to Harrold. In all cases before the Board there were
three interests, the prisoner, third parties and protection of the public. The last was preponderant. He referred me to Roberts and Birrell. I should sustain his second and third pleas.
[19] I turn to the cases and
want to begin by looking at what happened in Zulfikar because the case is unusual. These were two points with one of which
(strip search) I am not concerned. The
other concerned the decision of the Parole Board on his case dated 1 December 1994. He had been convicted after trial of arson
with intent to endanger life. He
continued to deny his guilt. The report
makes reference to the various Home Office directions and in particular 1.3.b
relating to addressing offending. An
examination of the dossier which is set out by Stuart-Smith L.J. shows that all
the recommendations were in favour of parole and that he would benefit from
it. He had been on courses and had a
good relationship with staff.
[20] The December decision appeared to confirm a decision some ten
months earlier. The reason was a failure
to address the issues that brought him into prison. Clarification of that had been sought from
the Secretary of the Board (Mr Russell).
It is clear from what the court said about that clarification that it
was overly concerned about the fact that he was a "denier". It is also clear that there were unjustified
concerns about his resettlement plans.
[21] The facts were very different from the present case and it is
easy to see why the decision was quashed and remitted.
[22] Oyston was relied on
by both parties and I can deal with it briefly for it is not really in
dispute. The conviction was for rape of
a young woman (see para 15). The
prisoner continued to deny his guilt of the offence and had not undertaken
course work when in prison. On the facts
of the case there was a considerable body of material in favour of parole, the
risk was low according to reports and there was evidence of a wish to change
his risky and flamboyant lifestyle. The
decision of the Board is seen at paragraph nine. It was almost entirely devoted to his being a
"denier", showing lack of insight and having done no courses.
[23] The single judge quashed the decision and the Court of Appeal
supported that. At para 13 Zulfikar was approved on the point that
in the majority of cases it would be wrong to deny parole solely because of the
prisoner's attitude to the offence. Two
things were said. The prisoner was
entitled to know that his proposed change of lifestyle had been
considered. If it had been, something should
have found expression in the reasons. At
para 45 Bingham LCJ said that the decision letter suggested that his denial had
been treated as "... all but conclusive against him ...".
[24] The case is of high authority, though the facts in the case
before me are very different. Also it
has to be observed that the Parole Rules in England
are different and more restrictive (see para 6).
[25] Lillycrop is a case
of some interest. It embraced three
appeals by different prisoners all serving sentences for sexual offences, all
continuing to maintain their innocence and all refusing offence related
work. It was argued that completing work
could be a positive factor but not completing could not be taken as a negative.
That argument was rejected (para
14). What the Divisional
Court said was, that in assessing risk, conduct in
prison was an important factor. Part of
the conduct is the extent to which a prisoner had examined the behaviour which
put him in prison in the first place. It
was observed that the risk of further offending from a sexual offender was more
serous than for other offences. Where
there had been no examination of behaviour it made it very difficult for any
Board to say the risk had been reduced.
(see paras 14 to 16).
[26] C was referred
to. In that case the prisoner had
committed a serious sexual offence against his daughter which he continued to
deny and refused to undertake offence related work. Of interest was the fact that his current
fiancée had a daughter. The decision was
upheld even though all matters in favour of the prisoner had not been expressed
in the decision. The board had not
fallen into the trap of saying he was at risk because he was a "denier".
[27] I next look at Harrold. That was not a case involving a Parole Board
or release of a prisoner. It related to
a refusal to alter the security classification of a high risk Category A armed
robber. He was a "denier" and had
refused to undertake offence related work.
He was doing this as he was still appealing his conviction and any
admission would compromise that. The way
the Review Team looked at it was to say that lack of work meant that there was
no positive evidence to allow assessment of the risk of re-offending. As there was no other evidence produced by
the prisoner all that was left was the original offence. The decision taken had to act on the evidence
available to it. In the opinion of the
judge (paras 22 and 23) it was not the duty of the Team or Secretary of State
to look for other possibilities when the prisoner had not suggested any.
[28] The two Scottish cases referred to in detail do not really
assist. In Carr the Parole Board had recommended release. The Secretary of State, in a very brief
intimation to the prisoner, told her that he refused to accept that. The Lord Ordinary had little difficulty in
concluding that no clear and cogent reasons had been given. Also, it appeared that the Minister had
applied a general policy rather than looking at the facts of the case before
him. McBrearty
was only provided to me in an abbreviated opinion. It does not narrate the actual decision
complained of, only the judge's comment that it related almost entirely to a
continued failure to admit guilt. The
decision was reduced and to that extent is consistent with some of the English
cases. The facts in the case before me
have been more fully gone into, and are, of course, quite different.
[29] Two other cases should be mentioned. In Roberts
there were many issues far outwith the case now before me. The importance of the decision for present
purpose lies in what was said about reconciling the conflicting interests
arising in cases before the Board. These
were categorised as a triumvirate of interests (para 76 Lord Woolf) or a triangulation
(paras 122, 128Lord Carswell). The
triangle is the prisoner, third parties and the general public. It has to be accepted that protection of the
public is the most important (see paras 46 Lord Woolf and 94 Lord Steyn). I made reference to all of this in Birrell at para 40 and have no
reason to alter that view which larger courts have made clear.
[30] What then do I make of all of this. In my opinion the decision of this Board and
the reasons given cannot be challenged as unlawful or unreasonable on the facts
of this case. It is true that some
matters may not have been expressly mentioned and that a different Board might
have expressed matters more fully or even reached a different view. That, however, is nothing to the point. It is perfectly clear that this Board has
properly considered all matters remitted to it and reached a reasoned decision.
[31] The Board must be presumed to have considered the whole of the
dossier against the representations made to it for the Petitioner. As Mr Cullen said that is "a given". I agree with him. They have clearly had regard to the terms of
Rule 8, the careful report of the trial judge and attached much importance
to it. They were entitled to do so. It was the most serious offence and the
presence of the complainer and the son in the area to which the petitioner will
return cannot be ignored. Both
background reports indicate a low risk.
A low risk is, however, not "no risk" and the report from Farmer in
particular expresses "concern" because of his continued denial of guilt and
lack of work. The Board has balanced and
taken account of the positive factor of his support network on release. That is expressed. In my opinion they were not only entitled,
but bound to take account of his being a "denier" and having done no offence
related work. What is most important is
his attitude in prison as the time approaches for his release. The prison has a duty to prepare him for safe
release as best it can. To that end the
Board must have, if possible, material before it to make an objective assessment
of the risk. That, as Mr Hawkes said, is
the purpose of the various courses. Here
there can be no such material due to the petitioner's attitude. He is not being refused parole because he is
a "denier" but because, in part, there is a lack of material in one area to
assist the risk assessment. That, I
venture to say, is the proper way to look at this point. These points, all expressed briefly in the
reasons, are in my view more important than his good behaviour some five years
ago when on interim liberation and
awaiting an appeal. The Board has made
no mention of that and in my view cannot be faulted for making that omission.
[32] In view of the careful arguments of counsel I should add a few
more remarks. The cases tell me that the
Board must presume the guilt of the prisoner no matter how much and how often
he continues to deny his guilt. That may
be the more so if he has tried one or several avenues of appeal without
success. The verdict of the jury at
trial has to be respected. They must next
have regard to all the facts of the case before them. Cases will vary and some facts may be more
important than others. In my view,
unless the contrary is clearly shown or expressed, it has to be assumed that a
Board has taken account of all these matters and conducted a proper balancing
exercise. In all of this context the
Board must have regard to all the relevant Rules which govern their
decision. They must have regard to what
I have earlier called the triumvirate or triangle of interests of which the
protection of the public from risk is the most important. Risk has to be objectively assessed.
[33] Against all of this they have to give reasons which will be
readily understandable to the prisoner and his advisers. Ideally these should be short, simple and
easy to follow. In a few cases they may
have to find lengthier expression. I do
not think that they have to be an essay or appear like a court judgment with
analysis and counter analysis. The Board
is busy. It has many cases and regard
has to be had to these practical considerations.
[34] Although given in the context of planning, I adopt with respect
what was said in Porter by Lord Brown
of Eaton-under-Heywood at paragraphs 35 to 36. In his speech he stressed inter alia that not every matter had to
be reflected in reasons given, as if the parties had been unaware of the issues
and the arguments. In my opinion his
wise words apply to the case before me.
(I also agree with what was said much earlier on this point in Lillycrop at para 21 and Oyston at para 46).
[35] I would add further this.
The English jurisprudence about "deniers" is now quite dated and the
principle is reasonably clear. I have to
assume that Parole Boards, who do have legal composition, are aware of these
matters and will act accordingly. It
would be most surprising if they fell into that kind of basic error. For the reasons I have already given, in this
case they are not in error.
[36] I shall accordingly repel the first plea-in-law for the
petitioner. No motion was made on the
second plea and I will repel that also.
I will sustain the second and third pleas-in-law for both respondents
and find it unnecessary to deal with their remaining pleas. The petition will accordingly be
refused. There has already been a
lengthy hearing on expenses and I will put the case out By Order to allow that
to be concluded in the light of my present decision.
