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Cite as: [2008] ScotCS CSOH_168, [2008] CSOH 168

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OUTER HOUSE, COURT OF SESSION

[2008] CSOH 168

OPINION OF LORD MALCOLM

in the petition of

D L

Petitioner;

against

THE PAROLE BOARD FOR SCOTLAND AND OTHERS

Respondent

for

JUDICIAL REVIEW

________________

For petitioner: Reilly; Drummond Miller LLP

For 1^st respondents: Cullen QC; Dunlop; Anderson Strathern LLP

For 2^nd respondents: Lake; Scottish Government Legal Directorate

9 December 2008

[1] On 22 October 2008 I heard a first hearing in this application for judicial review on behalf of D L presently a prisoner in HM Prison Saughton, Edinburgh. That day I refused the application, delivering an ex tempore judgement in the terms set out below. The respondents are the Parole Board for Scotland and the Scottish Ministers. On 21 February 2003 the petitioner was sentenced at the High Court to six years imprisonment in respect of two charges of lewd, indecent and libidinous practices and behaviour towards a male and female step-child of the petitioner. The offences took place over a period of four and a half years during which the victims were between the ages of four and eight. The sentence will expire in February 2009.With effect from 21 February 2007 the petitioner was released on licence. On 27 March 2007 the Parole Board recommended that the petitioner be recalled to custody. In due course his licence was revoked. On 5 June 2007 the Board, having considered the petitioner's representations in relation to his recall to custody, decided not to order his immediate release. On 29 April 2008 the Board reconsidered whether the petitioner should be released. It decided not to order his re-release. The petitioner's case was again referred by the Scottish Ministers to the Board on 29 September 2008. A decision on this matter was pending at the date of the first hearing.

[2] When the petitioner was released on licence on 21 February 2007 that release was subject to certain conditions. One of the conditions was:

"12. You shall have no contact or attempt to contact either directly or indirectly P, A, M, J and J A without prior approval of your supervising officer."

[3] The petitioner is the natural father of J A the youngest child of Ms A, with whom he had been co-habiting prior to his conviction. Ms A's children were placed on the Child Protection Register because of concern as to the threat posed to them by the petitioner. They were made the subject of supervision orders by the Children's Panel.

[4] When presenting the application on behalf of the petitioner Mr J Reilly explained that when in custody the petitioner enjoyed prison visits from his son J. Those visits were stopped by the prison authorities, so the petitioner raised proceedings in the Sheriff Court to reinstate them. The respondents to that action were Ms A, as J's mother, and the Scottish Ministers. The Scottish Ministers did not enter appearance. On the day of his release, through his solicitors the petitioner applied to the sheriff for an ad interim contact order with J. The petitioner's supervising officer was not informed of this application. It is clear from the information given to the court at the hearing that if the supervising officer had been informed, he would not have approved, but rather would have taken steps to ensure that the sheriff was aware of the full background.

[5] In due course these events formed the basis for the decisions by the Parole Board and the Scottish Ministers to the effect that the petitioner should return to and remain in custody. It is those decisions which are the subject of challenge in this judicial review.

[6] While the pleadings for the petitioner set out a number of alleged grounds for review, including human rights issues, in his submissions to me Mr Reilly presented the application solely on the basis that the Parole Board and the Scottish Ministers were not entitled to reach those decisions because the petitioner was seeking contact with J through the mechanism of a court order. It was submitted that the use of a legal process meant that condition 12 was not breached, thus decrees of declarator and reduction as sought should be pronounced.

[7] In his response Mr Cullen QC for the Parole Board stated that he would deal with the petition on the short and narrow basis on which it had been presented in oral submission. It was submitted that it was clear that the petitioner had breached condition 12 of his licence. The decision letter of 5 June 2007 stated, amongst other things, that it was

"clear that Mr L has decided to persist with an application to the Sheriff Court for a contact order in relation to J A. This is contrary to licence condition 12, which states clearly that he must not attempt to have such contact. This has been done without prior knowledge or approval of his supervising officer. He has shown little regard for licence conditions and the nature and restrictions of supervision, both of which are in place to protect the public. Taking into account the nature of the index offence, the lack of any offence related work, Mr L's denial of personal responsibility, his attitude to supervision, the circumstances of the breach of licence, and the assessment that he poses a high risk of re-offending, the risk that Mr L poses is unacceptable and cannot be managed in the community. As the Board had before it detailed representations from Mr L and his solicitors, and there were no outstanding matters of fact in dispute in relation to the recall, an oral hearing was not required."

[8] Mr Cullen recounted the full history of events by reference to the relevant documentation. It is clear that a decision was taken by the petitioner to try to see J without the knowledge, let alone the approval of his supervising officer. In my opinion the fact that an application for a court order was the chosen method of achieving this is irrelevant, not least since there is no suggestion that all interested parties were given intimation of the application. On the contrary, and under reference to one of the file notes of the petitioner's Aberdeen solicitors, it would appear that the intention was to obtain the order in a court process which was undefended, and then use it as a vehicle to attack the condition itself, something which it was suggested should be resolved at a hearing. The conflict between any such order and condition 12 was implicitly recognised in some of the correspondence and other documentation at the hand of the petitioner's Aberdeen agents.

[9] Understandably all of this caused considerable concern to the petitioner's supervising officer, all as set out in his letter of 8 March 2007 to the Scottish Ministers. In my opinion not only was the Board entitled to come to the decision which it did on the information before it, I would have been surprised if it had reached any other conclusion. I am of the view that what happened was a clear breach of the terms of condition 12 of the petitioner's licence. I can well understand the Board's concern as to the petitioner acting in this way without involving his supervising officer, and as to the potential implications for the safety of the children concerned. The risk of history repeating itself if the Board and the Scottish Ministers had not acted was obvious. It follows that I agree with the submission made by Mr Lake for the Scottish Ministers that, whatever else, the decisions taken were reasonable decisions. In my view there is no merit in the petitioner's submission that his un-intimated application to the sheriff on the day of his release for contact with J was not in breach of condition 12 of his licence.

[10] The result is that I uphold the first respondents' fourth plea-in-law, the second respondents' fourth plea-in-law, repel the petitioner's first to third pleas-in-law and refuse the prayers of the petition.