Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 112
P309/13	OPINION OF LORD BANNTYNE in the Petition SM (A.P.) Petitioner; For Judicial Review of failure by the Scottish Ministers to provide sufficient opportunities for the petitioner's rehabilitation ________________

Petitioner: Leighton; Drummond Miller LLP

Respondent: Ross; Scottish Government Legal Directorate

9 July 2013

Introduction

[1] This matter came before me for a first hearing in a judicial review. The petitioner is a convicted prisoner detained within Her Majesty's Prison Greenock. He was represented by Mr Leighton, advocate. The respondents are the Scottish Ministers, who act in part through their executive agency the Scottish Prison Service. Through the Scottish Prison Service, the respondents are responsible for the detention of the petitioner and the management of his imprisonment. The respondents were represented by Mr Ross, advocate.

[2] Reading short the petitioner's basis for challenging the actings of the respondents was this: the respondents had failed to provide him with a reasonable opportunity for rehabilitation.

Definitions

[3] It is perhaps convenient, before turning to the factual background of the case, to define certain terminology which featured prominently in the course of the discussion:

(a) National Top End Conditions: are conditions within the prison estate of reduced security, prisoners have keys to their cells and enjoy reasonable freedom in cell blocks and can go on escorted leave and work placements. It is available in HM Prisons Greenock and Barlinnie and there is a combined capacity of 124 places. A spell in National Top End Conditions often forms part of a long term prisoner's progress towards release and it is an intermediate stage between mainstream and open conditions.

(b) Open Conditions/Open Estate: this is the lowest level of security within the prison system and the difference between National Top End and Open Conditions is that in the latter there is no secure perimeter and prisoners may be allowed to leave the prison to go on home leave. The open estate consists of HM Prison Castle Huntly and there are a total of 285 places. As at the date of the first hearing there were 242 prisoners within the open estate.

(c) First Grant of Temporary Release: the question of eligibility of prisoners for temporary release is dealt with by the Prison and Young Offenders Institutions (Scotland) Rules 2006, rule 145 and reading short the said rule is to the following effect: that a prisoner is only eligible for temporary release if he is assigned a low supervision level and in the case of a life prisoner cannot be granted temporary release unless the governor has obtained the prior consent of the Scottish Ministers.

The legislative framework

[4] Section 2 of The Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the Act") governs the duty to release discretionary life prisoners. A discretionary life prisoner includes in terms of subsection (1)(a):

"a person - (a) sentenced to life imprisonment for an offence for which...such a sentence is not the sentence fixed by law; ...and in respect of whom the court which sentenced him for that offence made the order mentioned in subsection (2)...

(2) The order referred to in subsection (1)... is an order that subsections (4) and (6)...shall apply to the life prisoner as soon as he has served such part of his sentence ('[the punishment part']..."

[5] Subsection 4 thereof provides:

"Where this subsection applies, the Secretary of State shall, if directed to do so by the Parole Board, release a life prisoner on licence."

Subsection 5 sets out the circumstances in which the Board shall give a direction in terms of subsection 4:

"The Parole Board shall not give a direction under subsection (4) above unless -

(a) the Secretary of State has referred the prisoner's case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."

Subsection 5(A) directs what the Board shall do if it declines to direct the prisoner's release:

"Where on the disposal of any reference of a life prisoner's case under section 28(4) of the 1989 Act, under subsection (5)(a) above, subsection (5C) or (6) below or section 17(3) of this Act or under paragraph 34, 38 or 42 of the Schedule to the Convention Rights (Compliance) (Scotland) Act 2001, the Parole Board declines to direct that the prisoner be released on licence, it shall -

(a) give the prisoner reasons in writing for the decision not to direct his release on licence; and

(b) fix the date when it will next consider the prisoner's case under this section, being ... a date not later than two years after the date of its decision to decline to direct the release of the prisoner."

The remedies sought by the petitioner

[6] As a result of the Scottish Ministers said alleged failure the petitioner sought the following remedies:

"declarator that the Scottish Ministers have acted unlawfully by failing to accommodate the petitioner in open conditions in order that he can, or otherwise to provide the petitioner with opportunities to, demonstrate to the Parole Board for Scotland that it is no longer necessary for the protection of the public for him to be confined;

declarator that the Scottish Ministers have breached the petitioners (sic) article 5 rights;

reduction of the decision of the risk management team of 31 October 2012 insofar as it delays transfer of the petitioner to open conditions;

an order ordaining the Scottish Ministers to transfer the petitioner to open conditions within the Scottish Prison Service estate;"

[7] Apart from the foregoing the petitioner sought a fifth remedy which was damages. However, it was agreed by parties that argument regarding this remedy should be reserved to await the outcome of my decision regarding the other remedies sought.

The factual background to the challenge

[8] The petitioner is presently a prisoner in HM Prison Greenock. He is a discretionary life sentence prisoner. He is subject to a sentence running from May 1999 for life with a punishment part of 4 years. He is accordingly a "post-tariff" life prisoner, having served his punishment part. On 19 August 1999 the petitioner was convicted of the indecent assault of a 10 year old girl.

[9] There have been various hearings of the Parole Board for Scotland, Life Prisoners' Tribunal ("the Tribunal") that dealt with the petitioner's case from May 2003 onwards. That up to 2004 the petitioner had completed a large number of special escorted leaves without incident.

[10] In July 2008 the petitioner was transferred to HM Prison Peterhead. Prior to his transfer he had been on a community work placement. The community work placement was discontinued in 2008 after alleged displays of inappropriate behaviour by the petitioner. His supervision level which at that time was low was raised to medium and his First Grant of Temporary Release status was removed.

[11] The petitioner since being downgraded has attended at three Tribunal hearings, namely: in 2009, 2011 and 2012.

[12] The tribunal in 2009 was initially set to take place in July, however, it was adjourned until November. The Tribunal's decision and reasons are set out in their letter to the petitioner dated 24 November 2009.

[13] The petitioner made progress following the review in 2009.

[14] The tribunal considered the petitioner's case again in May 2011. The Tribunal's decision and their reasons are set out in their letter to the petitioner dated 20 May 2011.

[15] The petitioner is presently not in open conditions. He was moved to HM Prison Greenock in January 2012.

[16] There was a further hearing of the Tribunal in August 2012. The Tribunal's decision and their reasons are set out in their letter to the petitioner dated 22 August 2012.

[17] The petitioner has throughout his sentence undertaken coursework that has been suggested to him. Throughout his sentence he has tested negative for drugs.

The submissions on behalf of the petitioner

[18] Mr Leighton opened his submissions by examining in some detail the decision letters of the Tribunal following the hearings in 2009, 2011 and 2012.

[19] In their decision letter of 24 November 2009 the Tribunal did not direct the petitioner's release, as it was not satisfied that it was no longer necessary for the protection of the public that he should be confined. The petitioner's next review was set for 12 May 2011.

[20] In relation to this decision letter Mr Leighton in particular directed my attention to the "Reasons for Decision" section and to the following specific section thereof:

"All the Tribunals that have considered your case concluded that you should spend time in open conditions, and this Tribunal also considered that this would be appropriate, both to allow ongoing assessment of your conduct and the risk you pose and to assist in preparing you for a successful release. The Tribunal noted that you spent approximately 34 months on community placement and that overall the reports of your conduct were positive. Concerns arose about the attitude you demonstrated towards children on the minibus from prison to your community placement and concerns were also raised about some aspects of your conduct in placement and other conduct. Some of the concerns raised are at best questionable, for example the suggestion that you 'groomed' an adult woman or that it was your responsibility to inform Scottish Prison Service staff that schoolgirls had been at your placement, when the placement had been approved by two prisons, and it must always have been foreseeable that there would be children present at the placement at times due to the nature of the establishment where you were working. It appears that some of the concerns raised in mid 2008 related to historic matters of which professionals were already aware, and which would have been taken into account when earlier decisions were made about your management. However, additional concerns were also raised, and from the Tribunal's perspective the fact that you have returned to closed conditions in itself is relevant in relation to the assessment of risk and the possibility of release."

...

He also highlighted the following recommendations of the Tribunal:

"

·      That you be considered for transfer to top end conditions at HM Prison Peterhead, despite the fact that you have outstanding treatment needs. Your case is unusual in a number of respects. It has been known for several years that you have outstanding treatment needs, and despite this you spent a number of years in top end conditions and undertook placements for approximately 34 months. Previous reports suggested that you could carry (out) the identified work in less secure conditions, for example by undertaking the Healthy Sexual Functioning programme, and Dr D considered that you could be returned to top end conditions. No information was provided to the Tribunal to suggest that your outstanding needs have changed in nature or degree. Transfer to top end conditions would again allow you to begin gathering the evidence you will need for onward progression.

·      Detailed information about the new rolling sex offender programme is now due to be available in December 2009. If the Progression Risk Management Group consider on receipt of this information that the new sex offender programme will meet your identified outstanding treatment needs you should be assessed for this programme as soon as possible. Although Dr D concluded in his report that further programmes would not be of assistance, he was not aware of the details of the new programme. The little information available to the Tribunal about the programme suggests that it is likely (to) include work in relation to sexual fantasies and that the programme can be focused towards the needs of the individual. If considered suitable you should undertake this programme from top end conditions in HM Prison Peterhead.

·      If the new sex offender programme is not deemed likely to meet your outstanding treatment needs, or you are not assessed as suitable for the programme, consideration should be given as soon as possible to how best to meet these needs and the appropriate conditions within which they can be met. As stated in the decision letter from 9 July 2009 the Tribunal was concerned to learn of your understanding that you would only be offered two to one work if you agreed to take anti-libidinal medication and are of the view that this work should be done with you even should you not agree to take such medication. Clyde Quay is now in receipt of the two Psychological Assessment Reports, and may therefore be in a position to indicate whether they could carry out any work with you while you were in less secure conditions."

[21] Turning to the next decision of the Tribunal which was contained in a letter dated 20 May 2011 the Tribunal for the same reasons as before did not direct the petitioner's release. They set a further review for 10 August 2012.

[22] Mr Leighton commenced his analysis of this decision letter by referring to the "Summary of the Scottish Ministers' Position" and highlighting this part of the submissions made on behalf of the Scottish Ministers.

"HM Prison Greenock has approved your application for a place in top end conditions and it is hoped that you will transfer there in two to three months. A cap is in place in relation to the number of sex offenders HM Prison Greenock can accept. It is anticipated that you would spend six to eight months in top end conditions before a Risk Management Team Meeting considered your suitability for transfer to open conditions. An application would be made for a First Grant of Temporary Release. You should then spend approximately one year in open conditions. The Scottish Ministers' representative asked that your case be reviewed in two years and suggested that a review in a lesser period may disadvantage you."

[23] He then directed me to the position put forward on behalf of the petitioner at that stage which included this:

"You are frustrated at your lack of progression in custody and are concerned that if not released you may not transfer to open conditions and be in a position to demonstrate that you are suitable for release prior to the next review of your case. If you transfer to different establishments, you do not know the view they will take about risk management and onward progression. You have previously been in the community on Special Escorted Leaves and on community placement for lengthy periods."

[24] Lastly he took me to the Reasons for the Decision section of the letter and highlighted the following recommendations of the Tribunal:

"The next review of your case will be in fifteen months. It is reported that you previously had approximately fifty or sixty Special Escorted Leaves without incident. You also spent over thirty months on placement from top end conditions, although some concerns about your behaviour arose. Given this history of exposure to the community, the positive progress you have made on the Good Lives programme, the formulation of risk, the current Stable and Acute 2007 risk assessment and the reasons for recommending exposure to increased freedoms outlined above, the Tribunal considers that open conditions will be the most significant environment for ongoing monitoring of the risk posed and providing you with the opportunity to demonstrate that you are suitable for release. The Tribunal recommends that you transfer to open conditions as soon as possible, and that consideration is given to transfer directly from HM Prison Peterhead. If this is not possible the Tribunal recommends that consideration is given to transfer to open conditions after a relatively short period in top end conditions. It is reasonable to reconsider your case in fifteen months."

[25] The Tribunal's next decision letter was dated 22 August 2012, again for the same reasons the Tribunal refused to direct the release of the petitioner. In terms of this decision letter the petitioner's next review was set for February 2014.

[26] Mr Leighton first referred me to the submissions to the Tribunal made on behalf of the Scottish Ministers which included these:

"Mr B spoke to the Scottish Ministers Position Statement which was contained in your dossier at B11. Scottish Ministers were of the view that you should continue to be confined for the protection of the public. Scottish Ministers noted that since your last Tribunal you had incurred no misconduct reports and provided seven negative drug tests. You have commenced Special Escorted Leaves (SELs) which have all passed without incident. You are assessed as a medium risk of offending and have completed further offence focused work since you were downgraded from top end conditions four years ago. Scottish Ministers are concerned that the impact of this work on your attitudes and behaviours is only beginning to be tested in conditions of increased freedoms. They are of the view that the recommendations of the previous Tribunal remain relevant and that you require to demonstrate your commitment to the progression process by responding appropriately in both community placements and within the open estate. Progression in this way will also allow you to evidence your willingness to work openly and honestly with those tasked with managing your risk in the community and your ability to adhere to temporary release licence conditions.

Mr B advised the Tribunal that there had been a delay in your progression following your last Tribunal as there was a prisoner in top end conditions at HM Prison Greenock at that time from whom Mr M required to be kept separate according to prison records. The prisoner in question was transferred to the open estate in January 2012 which enabled you to progress to Greenock. You have now completed five SELs. Two were taken to the Clyde Quay Project and two to places of interest, specifically the Transport Museum and Kelvingrove Museum in Glasgow. The most recent SEL was taken on 8 August 2012 to Glasgow city centre where you met family members. All SELs have passed with no adverse reports. The management plan envisages an application for First Grant of Temporary Release (FGTR) being made to the Risk Management Team in September 2012. Thereafter, a period of seven months on community work placement is proposed. Due to the nature of your offences it is anticipated that the only placement available to you would be .... While the limitations for testing in this placement are acknowledged, it would still provide you with your first unsupervised access to the community in four years. If this goes well, an application for transfer to the open estate would be made six months into the placement. A lengthy period of testing in the open estate would then be completed. This reflects the fact that you were downgraded from top end conditions four years ago after an extended opportunity to demonstrate that you could fully comply with licence conditions. The previous downgrade was due to behaviours which you exhibited while on community work placement which were of sufficient concern to result in your return to closed conditions with a recommendation that you complete further offence focused work. To support this latest management plan, a review in eighteen months is proposed."

"In response to questions from Tribunal members, Mr B clarified that the management plan envisages that you progress to the open estate by June 2013. Mr B advised that at this stage, the only placement identified as suitable for you was ...."

"Mr B commented that a direct move to open conditions was not the normal progression route. Given the limitation so the community work placement, RMT could also consider a shorter period in top end conditions, extending the period in open conditions as part of the 18 month period proposed."

[27] Counsel then turned to the Tribunal's reasons for decision and recommendations and in particularly referred me to the following:

"The Tribunal recognises that there has been a delay in your progression back to top end conditions and progress towards open conditions. You have completed the Good Lives programme since your return to top end conditions and the most recent Stable and Acute assessment of risk suggests a further reduction in the risk which you pose. However, you have several previous convictions for sexual offending, over a significant period of time. The index offence was of a serious nature, and appears to represent an escalation of your sexual offending against children. All previous Tribunals that have considered your case concluded that you should spend time in open conditions, and this Tribunal likewise agrees that this is required to allow ongoing assessment of your conduct and the risk you pose.

Time spent in open conditions will also assist in preparing you for a successful release. The reasons for the Tribunal's decision are consistent with those of your last Tribunal. Sexual fantasies about children and a sexual preference for children are risk factors. You have identified that your offending may relate to stress and act as a means of coping with difficulties. Increased exposure to a range of stressors and people in the community will give you an opportunity to demonstrate that you can deal with pressure and difficulties without resorting to deviant sexual fantasies and offending, that you can behave appropriately in conditions of increased freedoms given the previous downgrade and that you can put the learning from Good Lives into practice deal with the potential trigger of seeing children.

The next review of your case will be in 18 months. Given your history of exposure to the community and the limited testing offered by the proposed community work placement ..., the Tribunal recommends that consideration be given to extending the proportion of time to be spent in open conditions during this period. Effective testing of your ability to cope with a return to the community is essential to provide the evidence required to assess the risk you pose."

[28] Beyond the decision letters counsel took me to a position statement of the Scottish Ministers of August 2012 which was prepared for the Tribunal hearing that month. He made particular reference to the last two paragraphs thereof which stated:

"Scottish Ministers, therefore, consider that the recommendations of the last tribunal remain relevant. Mr M needs to continue to demonstrate his commitment to the progression process by responding appropriately to conditions of increasing freedom, by way of community placement and within the open estate. Progressing in this way will also allow him to demonstrate his commitment to engaging openly and honestly with those tasked with managing his risk in the community and complying with the conditions of a temporary release licence.

Unless and until these steps are fulfilled, Scottish Ministers do not feel they will have enough evidence to be satisfied that Mr M's release on life licence would not present an unacceptable risk to the public. Consequently, it is the view of Scottish Ministers that he should continue to be confined for the protection of the public at this time."

[29] Mr Leighton took three specific points from the documents to which he had taken me:

[30] First, the Tribunal had repeatedly indicated that the petitioner should spend time in open conditions.

[31] Second, the Scottish Ministers had repeatedly indicated that they intended to manage the petitioner in such a way that he would be transferred to open conditions.

[32] Despite the foregoing the petitioner had not been moved to open conditions. Accordingly, third, the petitioner was reasonably apprehensive that he would not be progressed to the open estate in order to serve 9 months there before his Tribunal hearing in February 2014. Moreover the petitioner was reasonably apprehensive that if he did not spend at least 9 months in the open estate before his Tribunal hearing he would not be released at that time and would spend a further period of time imprisoned.

[33] In light of the foregoing factual matrix Mr Leighton advanced two detailed bases for the petitioner's challenge to the actings of the Scottish Ministers: first: that the failure to accommodate the petitioner in open conditions, or otherwise provide him with an opportunity to demonstrate that it is no longer necessary for the protection of the public for him to be confined, is irrational.

[34] In elaboration of this ground of challenge Mr Leighton submitted that prisoners, such as the petitioner, who were serving life sentences after the expiry of the punishment part, were doing so because it was necessary in order to protect the public from harm. Thus the sole purpose of "post-tariff" detention was for the protection of the public.

[35] In terms of section 2(5)(b) of the Act the test which the petitioner must satisfy in order for the Tribunal to order his release was: that it was no longer necessary for the protection of the public that he should be confined.

[36] Having regard to that test, Mr Leighton contended that it would be very difficult for a prisoner, such as the petitioner, to secure his release unless afforded a proper opportunity to show that the risk he posed to the public had been reduced to a level which would satisfy the Tribunal that he no longer should be confined for the protection of the public. Following on from that he submitted that, in order to have any chance of release the petitioner had to be tested in open conditions.

[37] The petitioner in terms of section 2(5)(A)(b) of the Act was subject to regular review by the Board. In order for such review to be meaningful the petitioner required to be given a meaningful opportunity to show that he had reduced the risk he posed to the public and he submitted that this required him to be accommodated in open conditions.

[38] Moving on, he submitted that common sense showed that given the nature of his offending (sexual offences involving children) it was in a real sense impossible for the Tribunal to assess his level of risk without his having been accommodated within the open part of the prison system. Mr Leighton therefore submitted that he had no prospect of satisfying the test in a closed environment, within which he was presently confined.

[39] For the foregoing reasons Mr Leighton contended that the failure to provide such an opportunity by the Scottish Ministers was irrational and unlawful.

[40] In support of this ground of challenge Mr Leighton referred me to R (on the application of Wells) v Parole Board; R (on the application of Walker) v SSHD [2008] 1 AER 138 and [2007] EWHC 1835 (Admin) (which was a decision of the Queen's Bench Division); R (Walker) v Secretary of State for Justice (Parole Board intervening) and R (James) v Same [2008] 1 WLR 1977 and [2008] EWCA Civ 30 (the same case where it was argued before the Court of Appeal) and finally R (James), R (Lee) and R (Wells) v Secretary of State for Justice (Parole Board Intervening) [2010] 1 AC 553; [2009] UKHL 22 (the same case when it was argued before the House of Lords).

[41] The background to this case was this: a new form of sentence was introduced by the Criminal Justice Act 2003 in terms of which an offender was sentenced to an indeterminate sentence for public protection (an "IPP"), with a minimum term or tariff period of 18 months. Sentences of imprisonment for public protection were imposed under the 2003 Act where the court was of the opinion that there was a significant risk to members of the public of serious harm occasioned by the commission by the offender of further defined offences. The broad issue in the case was this: in circumstances where there did not exist measures to allow and encourage prisoners sentenced to imprisonment for public protection, in terms of the said Act, were the Secretary of State's actions in continuing to detain the prisoner lawful? Or put another way, was the opportunity for offending behaviour work necessary and if not available were the Secretary of State's actions lawful?

[42] Mr Leighton submitted that the IPP was of a similar nature to the sentence imposed in Scotland of the order for lifelong restriction. Moreover, it was his position that the principles identified in this case could be read across to the situation of a prisoner, such as the petitioner, serving a discretionary life sentence, who was post-tariff and was accordingly solely serving his sentence for reasons of public protection.

[43] Mr Leighton submitted that the principles that could be identified from the case of Wells etc were set out in the following passages: first before the Queen's Bench Division in the judgment of Laws LJ at paragraph 48 where he concluded as follows:

"[48] The point is one of principle. It has nothing to do with the wisdom or practicality of this or that use of scarce resources. It has nothing to do with the Secretary of State's recent actions to ameliorate the position relating to IPP prisoners (unless those actions now provide current and effective assessments of danger, which they do not). It does not touch the court's proper reluctance to tread ground which is the constitutional territory of the executive. It is a straightforward point of law. The Crown has obtained from Parliament legislation to allow - rather, require: the court has no discretion - the indefinite detention of prisoners beyond the date when the imperatives of retributive punishment are satisfied. But this further detention is not arbitrary. It is imposed to protect the public. As soon as it is shown to be unnecessary for that purpose the prisoner must be released (see ss 28(5)(b) and 28(6)(b) of the 1997 Act). Accordingly there must be material at hand to show whether the prisoner's further detention is necessary or not. Without current and periodic means of assessing the prisoner's risk the regime cannot work as Parliament intended, and the only possible justification for the prisoner's further detention is altogether absent. In that case the detention is arbitrary and unreasonable on first principles, and therefore unlawful."

[44] Mr Leighton secondly drew my attention to certain passages in the judgment of Lord Phillips of Worth Matravers CJ in the Court of Appeal in the case of Walter. He first referred me to paragraph 35 where he identified the object of the IPP thus:

"The primary object of the IPP is clear from the wording of sections 224 and 225 of the 2003 Act. It is to detain in prison serious offenders who pose a significant risk to members of the public of causing serious harm by further serious offences until they no longer pose such a risk."

[45] Mr Leighton submitted that given the object of IPPs the position of the petitioner was analogous to prisoners serving IPPs'.

[46] At paragraph 39 the following observations were made by Lord Phillips regarding the importance of provision of courses for rehabilitation to prisoners who were serving sentences in terms of IPPs:

"39. Courses are provided because experience shows that these are usually necessary if dangerous offenders are to cease to be dangerous. It is for this reason that performance of the appropriate courses is likely to be a prerequisite to a prisoner satisfying the Parole Board that he has ceased to be dangerous...The reality is that the possibility for dangerous prisoners both to cease to be dangerous and to show that they have ceased to be dangerous lies largely in the hands of the Secretary of State. It has been his policy to provide the necessary courses and to do so within a time scale that gives lifers a chance to demonstrate that they are safe for release by the time that they complete their tariff periods, or reasonably soon thereafter."

[47] Thereafter in conclusion at paragraph 40 Lord Phillips observed thus:

"40...This cannot simply be regarded as a discretionary choice about resources, which is pre-eminently a matter for the government rather than the courts. We are satisfied that his conduct has been in breach of his public law duty because its direct and natural consequence is to make it likely that a proportion of IPP prisoners will, avoidably, be kept in prison for longer than necessary either for punishment or for the protection of the public, contrary to the intention of Parliament (and the objective of Article 5 of which Parliament must have been mindful)."

[48] This matter was further appealed to the House of Lords. By that stage the Secretary of State had conceded that there had been a breach of the public law duty.

[49] Mr Leighton drew my attention to the following passage in the speech of Lord Judge at page 619, paragraph 105:

"A fair opportunity for their rehabilitation and the opportunity to demonstrate that the risk they presented at the date of sentence has diminished to levels consistent with release into the community should be available to them."

[50] The same point was made by Lord Hope of Craighead in his speech at page 590, paragraph 3 where he said this:

"There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection (IIP's) by section 225 of the Criminal Justice Act 2003. He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention."

[51] Applying those principles to the circumstances of the present case Mr Leighton in summary submitted that it was not rational in a post-tariff case that the petitioner should not be afforded an opportunity to show that he was not dangerous given that the purpose of his detention was protection of the public. The only means of affording him such an opportunity was to accommodate him in open conditions. The only realistic chance that the pursuer had of achieving release was if he spent time in open conditions. Thus it was incumbent upon the Scottish Ministers to accommodate him in open conditions. It was irrational not to provide such to him. That, he submitted, was particularly so in the instant case as the Scottish Ministers had repeatedly said that their intention was to move him to open conditions and that previously when this had been put forward, it had to be assumed, that they believed that it was a realistic plan for him to be moved to open conditions.

[52] It was accepted by Mr Leighton that the petitioner was only entitled to a reasonable opportunity to show that he was not dangerous, but looking to the facts it was his position that no such reasonable opportunity had been given.

[53] The second strand of the petitioner's argument was this: the failure to accommodate the petitioner in open conditions, or otherwise provide him with an opportunity to demonstrate that it is no longer necessary for the protection of the public for him to be confined, is a breach of the petitioner's rights in terms of article 5 ECHR.

[54] In support of this strand of his argument Mr Leighton referred me to the fourth stage in the Wells case which was the decision of the European Court of Human Rights when the case was reported as James v United Kingdom [2013] 56 EHRR 12.

[55] When the matter had been before the House of Lords the court's decision had been that there was no breach of article 5, however, the European Court of Human Rights decided that there had been such a breach.

[56] Mr Leighton in particular founded upon two passages in the judgment of the court: first at page 444, paragraph 209 where the following observation was made:

"The court is therefore satisfied that in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation is a necessary element of any part of the detention which is to be justified solely by reference to public protection."

[57] Having set out the general principle relative to indeterminate sentences the court turned to consider at paragraph 218, page 448 of its decision whether in the circumstances there had been a breach of article 5 and observed as follows:

"The Court reiterates that the right to liberty is of fundamental importance. While its case law demonstrates that indeterminate detention for the public protection can be justified under art.5(1)(a), it cannot be allowed to open the door to arbitrary detention. As the Court has indicated above, in circumstances where a government seeks to rely solely on the risk posed by offenders to the public in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders. In the applicants' cases, this meant that they were required to be provided with reasonable opportunities to undertake courses aimed at helping them to address their offending behaviour and the risks they posed. As Lord Phillips observed, courses are provided to prisoners because experience shows that they are usually necessary if dangerous offenders are to cease to be dangerous. While art.5(1) does not impose any absolute requirement for prisoners to have immediate access to all courses they may require, any restrictions or delays encountered as a result of resource considerations must be reasonable in all the circumstances of the case, bearing in mind that whether a particular course is made available to a particular prisoner depends entirely on the actions of the authorities. It is therefore significant that the failure of the Secretary of State to anticipate the demands which would be placed on the prison system by the introduction of the IPP sentence was the subject of universal criticism in the domestic courts and resulted in a finding that he was in breach of his public law duty."

[58] Mr Leighton contended that what had been said relative to the failure to provide courses was equally applicable in the context of the present case to the failure to accommodate the petitioner in open conditions. In this case as in James the petitioner was being denied the necessary basis to show that he was safe to be released.

[59] Mr Leighton lastly referred me to R (on the application of Faulkner v The Secretary of State for Justice [2013] UKSC 23. In that case Lord Reed (with whom the other Justices concurred) observed regarding the decision of the ECHR in James v United Kingdom:

"22. The European court nevertheless considered that the applicants' post-tariff detention had been arbitrary, and therefore in violation of article 5(1)(a), during the periods when they had no access to relevant courses to help them address the risks they posed to the public. That conclusion reflected the court's view, influenced by international law in respect of prison regimes, that a real opportunity for rehabilitation was a necessary element of any detention which was to be justified solely by reference to public protection. In other words, since the justification for detention after the expiry of the tariff was the protection of the public, it followed that the conditions of such detention must allow a real opportunity for rehabilitation. In the absence of such an opportunity, the detention must be considered to be arbitrary."

[60] For the foregoing reasons Mr Leighton submitted to me that I should grant the relief sought in terms of the four craves of the petition I have earlier set out.

The reply on behalf of the respondents

[61] Mr Ross commenced his reply by stressing that it was important to put the petitioner's case into context and this required an examination in some detail of the factual background. He submitted that the starting point was the petitioner's present incarceration which resulted from conviction for a serious sexual offence involving a 10 year old child. He had in addition a record of analogous offending and had also disclosed committing other offences although he had not been prosecuted regarding these.

[62] He had initially been assessed as being in the very high risk band for re-offending. He submitted that it was of some significance, given the authorities upon which the petitioner relied, that during the course of his imprisonment the petitioner had been afforded and had in fact completed a number of courses in order to reduce his risk of re-offending. He pointed out that in the course of the submissions made on behalf of the petitioner no criticism had been made as regards the provision of courses of a type designed to reduce the risk of re-offending.

[63] Counsel went on to observe that in 2005, 2006 and 2007 the Tribunal had considered the petitioner's case and did not recommend his release.

[64] In the context of the opportunities which were made available to the petitioner by the Scottish Ministers in order to evidence his lack of risk to the general public he pointed out that the petitioner had been granted three periods of temporary release. These had required to be stopped as a result of the petitioner's actings. As a result of certain incidents in 2008 the petitioner's classification within the prison system had been changed from low to medium. In terms of rule 145(2)(b) this had meant that the consent of the Scottish Ministers for First Grant of Temporary Release had ceased to have effect. The petitioner was sent to Peterhead Prison.

[65] Counsel then turned to look at the three decisions of the Parole Board specifically referred to by Mr Leighton and made the following comments thereon:

[66] As regards the decision in 2009 he drew my attention to the following aspects of the decision letter:

(a) The Tribunal had not been satisfied that it was no longer necessary that the petitioner should be confined.

(b) The Tribunal considered that he was still at risk of sex offending against children.

(c) The Tribunal expressed the view that the fact that he had been returned to closed conditions was relevant to the question of risk and the possibility of release.

[67] So far as the recommendations of the Tribunal made in the said letter he noted that their recommendation regarding transfer to top end conditions was stated thus:

"That you be considered for transfer to top end conditions at HM Prison Peterhead."

[68] As regards the decision letter of 20 May 2011 he invited me to have regard to certain passages in addition to those to which I had been referred by Mr Leighton and these were to the following effect:

(a) HM Prison Greenock had approved the application for the petitioner to be transferred to top end conditions and there was a plan to transfer in 2 to 3 months.

(b) It was anticipated by the Scottish Ministers that the petitioner would spend 6 to 8 months in top end conditions before a Risk Management Team considered his suitability for open conditions.

(c) It was noted that it was positive that the petitioner had completed the Good Lives programme, nevertheless the Tribunal remained of the view that the risk to the public was such that the petitioner should continue to be confined.

(d) As regards the recommendation regarding transfer to open conditions, the recommendation was not for an immediate transfer but as soon as possible.

[69] Turning finally to the tribunal decision letter of 22 August 2012 he sought to make five specific points:

(a) The Scottish Ministers informed the Tribunal that the petitioner had started special escorted leave, however, the Ministers remained concerned that the impact of offence focused work was only beginning to be looked at in terms of further freedom.

(b) There had been a delay in progression because of another prisoner in top end conditions at HM Prison Greenock.

(c) The management plan of the Scottish Ministers envisaged application to the Risk Management Team and an application for First Grant of Temporary Release in September 2012 followed by 7 months on community placement. In addition it envisaged progress to the open estate by the petitioner by June 2013.

(d) The Tribunal remained not satisfied that it was no longer necessary for the protection of the public that the petitioner should be confined.

(e) The Tribunal endorsed the management plan.

[70] As regards events subsequent to that tribunal hearing counsel drew to my attention the three meetings of the Risk Management Team which had decided in accordance with what had been presented on the Scottish Ministers behalf to the Tribunal by way of management plan that there should be first temporary release. That release required the approval of Scottish Ministers and that had been granted on 25 January 2013. The petitioner had started a work placement on 20 February 2013.

[71] Mr Ross, against that background, then turned to address me in relation to the petitioner's grounds of challenge.

[72] With respect to the first declarator sought his submission in short was this, that there was no basis for a finding of irrationality.

[73] In elaboration of that position he submitted that first there was no averment that the Scottish Ministers were in breach of any of the statutory duties incumbent on them either in terms of the prison rules or statute.

[74] In running prisons they acted within a statutory framework and there was no averment that they had acted contrary to that.

[75] Secondly the petitioner founded upon various passages in the case of Wells etc at its various stages as it moved through the court, however it was his position that the circumstances in it were quite different from those in the instant case.

[76] That case arose out of the introduction of the IPP system in England. The Home Secretary had been found, in relation to the IPP system to have been in breach of his public law duty, due to a systemic failure to make provision of courses for persons serving such sentences which was essential in order to allow the IPP system to operate as intended. The Secretary of State had wholly failed to provide access to necessary coursework. In the present case it was apparent that the petitioner had had access to such coursework.

[77] He made two specific observations regarding that case and they were these: the various applicants in that case were trapped, unable to make any progress towards showing that they were no longer a risk in that they were not given access to courses which they required to establish this. Secondly it was his position that it was difficult to read across the principles which that case established to the present case. It was entirely different. The petitioner was not going nowhere, he was perhaps not moving through the system at some stages at the speed at which he wished or to some extent as had been anticipated by the Scottish Ministers. However he had no right to proceed to the open estate at any particular time. The petitioner here was not complaining of any systemic failure. He was rather complaining of the precise way in which his case was managed. The petitioner he submitted had moved through the prison system at all stages of his incarceration. He had taken part in courses. Although his progress to open conditions had been slower than at one time envisaged that did not make the decision not, to date, to accommodate him in the open estate irrational. The petitioner had laid out no basis for challenging the management of his case by the Scottish Ministers.

[78] Turning to the second branch of the petitioner's challenge to the respondents' actings, namely: a breach of the petitioner's article 5 rights it was Mr Ross' position, in short, that the circumstances of the petitioner's case were markedly different from those in James v United Kingdom upon which reliance had been placed by Mr Leighton.

[79] In considering the implications of the James case for the present case Mr Ross sought to advance the following points.

[80] The principal issue arose in that case from the failure to provide courses which could lead to release. There was found to be a systemic failure and the Secretary of State had conceded a breach of the public duty incumbent upon him. The instant case was not concerned with lack of access to rehabilitative courses. Substantial periods of time passed in relation to each applicant in the James case before that person began to make progress and this was very different from the circumstances of the instant case.

[81] He referred me to paragraph 194 of the decision in James v United Kingdom where the court said this:

"In the context of art. 5(1)(a), a concern may arise in the case of persons who, having served the punishment element of their sentences, are in detention solely because of the risk they pose to the public, if there are no special measures, instruments or institutions in place - other than those available to ordinary long term prisoners - aimed at reducing the danger they present and at limiting the duration of their detention to what is strictly necessary in order to prevent them from committing further offences. However in assessing whether the place and conditions of detention are appropriate, it would be unrealistic, and too rigid an approach, to expect the authorities to ensure that relevant treatment or facilities are available immediately."

[82] In particular Mr Ross attached significance to the final sentence of the above paragraph.

[83] For all of the foregoing reasons it was his submission that James v United Kingdom was not authority for the proposition that delays in moving the petitioner to the open estate had resulted in such arbitrariness to amount to a breach of article 5.

For the foregoing reasons he moved that I should dismiss the petition.

Discussion

[84] The context of the present dispute is that the petitioner is a post-tariff prisoner and his continued detention is therefore justified solely by reference to public protection.

[85] From the cases to which I was referred by parties I believe that the following principles can be identified:

1. That such sentences are predicated upon a possibility of reform. (James v United Kingdom p399)

2. That "a real opportunity for rehabilitation is a necessary element of any part of the detention which is to be justified solely by reference to public protection" and that in the absence of such the detention must be considered to be arbitrary. (James v United Kingdom p 444 para 209)

3. "The reality is that the possibility for dangerous prisoners both to cease to be dangerous and show that they have ceased to be dangerous lies largely in the hands of the Secretary of State." (Walker & James v Secretary of State for Justice Parole Board Intervening per Lord Phillips of Worth Matravers at page 1991 para 39).

4. In "assessing whether the place and conditions of detention are appropriate, it would be unrealistic, and too rigid an approach, to expect the authorities to ensure that the relevant treatment or facilities be available immediately." (James v United Kingdom p439 para 194)

5. "Compliance with article 5(1)(a) requires more than that the detention is in compliance with domestic law. As the European court stated in Weeks v United Kingdom (1987) 10 EHRR 293, para 42:

"The 'lawfulness' required by the Convention presupposes not only conformity with domestic law but also...conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of article 5(1). Furthermore, the word 'after' in sub-paragraph (a) does not simply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue.

In relation to a discretionary life sentence imposed for the purpose of public protection, the court added (para 49):

"The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. 'In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5.'" (Faulkner v Secretary of State for Justice per Lord Reed at para 7).

6. "That the purpose of article 5(1) was to prevent persons from being deprived of their liberty in an arbitrary fashion." (Faulkner v Secretary of State for Justice per Lord Reid at para 7).

7. "The argument that the detention of a life prisoner constitutes false imprisonment, if it continues beyond the point in time when article 5(4) required a hearing to be held, must be rejected. As was explained in R (James) v Secretary of State for Justice [2010] 1 AC 553, the continued detention is authorised by statute. Under the relevant statutory provisions, which I have summarised at paragraph 3, there is no entitlement to release by the Secretary of State until release has been directed by the Board, and direction to that effect cannot be given until the Board is satisfied that detention is no longer necessary for the protection of the public. By virtue of the relevant legislation, the prisoner's detention is therefore lawful until the Board gives a direction for his release. That conclusion is not affected by section 6(1) of the 1998 Act, which makes an act of a public authority unlawful if it is incompatible with Convention rights. That provision does not apply to an act if, as a result of one or more provisions of primary legislation, the public authority could not have acted differently: see section 6(2)(a). In a case where there has been a failure to review the lawfulness of detention speedily, as required by article 5(4), there may well be some respects in which a public authority could have acted differently; but, as I have explained, the absence of a speedy decision does not affect the question whether the prisoner can be released under the relevant provisions. It has not been suggested that section 3 of the 1998 Act requires those provisions to be read or given effect in a way that differs from their ordinary meaning." (Faulkner v Secretary of State for Justice per Lord Reed at para 16).

8. That a prisoner whose detention is prolonged as a result of delay in the consideration of his case by the Parole Board would not ordinarily be a victim of a violation of article 5(1) of the Convention. Such violation would require exceptional circumstances warranting the conclusion that the prisoner's continued detention had become arbitrary. (Faulkner v Secretary of State for Justice per Lord Reed at para 13).

9. Problems of the following type causing delay in a prisoner's case being considered by the Parole Board would not amount to a breach of article 5(1): "of a kind which occur from time to time in any system which is vulnerable to human error." (Faulkner v Secretary of State for Justice per Lord Reed at para 86).

[86] Bearing in mind these principles I now turn to examine the three Tribunal decisions and the actings of the Scottish Ministers.

[87] In the decision letter of 24 November 2009 in their Reasons for Decision the Tribunal drew attention to the following:

"Using the RM200 risk assessment tool the prison social worker assessed you as being of very high risk of reconviction of a sexual offence. However, having applied the Stable and Acute 2007 assessment she considered that this overrepresented your risk of sexual reconviction. The community social worker assessed you as a very high risk of re-offending using the Risk Matrix 2000S risk assessment tool and considered that the Acute Risk Assessment covering the last 12 months also predicted a high risk of re-offending with a high risk of psychological harm."

[88] In their recommendations the Tribunal recommended as follows:

"That you be considered for transfer to top end conditions at HM Prison Peterhead, despite the fact that you have outstanding treatment needs....

If you complete the new sex offender programme or address your outstanding needs in some other format (or if it is considered that the needs can be addressed from open conditions), you be considered for transfer to open conditions."

[89] In my opinion it is of particular significance that in the first of these passages the Tribunal does not recommend the petitioner's immediate transfer to top end conditions. Moreover no recommendation for immediate transfer to open conditions is made in the second passage.

[90] By the stage of the next hearing of the tribunal the Good Lives programme had been made available to the petitioner and he had completed this. The senior psychologist at HM Prison Peterhead had indicated that he had progressed significantly. Beyond that HM Prison Greenock had approved his application for a place in top end conditions and it was hoped that he would transfer there in 2 to 3 months. Lastly the Scottish Ministers set out a plan for consideration of transfer to open conditions after 6-8 months in top end conditions.

[91] In their decision letter of 20 May 2011 the tribunal recommended as regard transfer to open conditions as follows:

"The Tribunal recommends that you transfer to open conditions as soon as possible and that consideration is given to transfer directly from HM Prison Peterhead. If this is not possible the Tribunal recommends that consideration is given to transfer to open conditions after a relatively short period in top end conditions. It is reasonable to consider your case in fifteen months."

[92] It is of significance that the Tribunal, once more, do not recommend that the petitioner be immediately transferred to open conditions. In addition it is of significance that in the period between the two Tribunal hearings the petitioner's position has not remained static: he has completed a course, namely the Good Lives programme and is said to have progressed significantly. He has been approved for a place in top end conditions and there is a plan in place for his movement to the open estate. Thus in this period he has not been trapped in the prison system unable to progress as the prisoners were in the English authorities upon which Mr Leighton relied. Rather he had been offered opportunities to progress and plans for his further progress were in place.

[93] Thereafter, the petitioner commenced Special Escorted Leaves. By the date of the next hearing before the Tribunal (10 August 2012) the petitioner had completed successfully five such Special Escorted Leaves. Further he had transferred to top end conditions at HM Prison Greenock, although this had been delayed due to the presence of a prisoner in that prison, from whom the petitioner had to be kept separate. A management plan was put before the Tribunal envisaging an application for First Grant of Temporary Release, a community work placement, and if that went well transfer to the open estate.

[94] With one minor alteration, the Tribunal endorsed the said management plan. Once more the petitioner in my judgment had made significant progress. He was achieving conditions of increased freedom within the prison system. It could not be said that he was being denied any means of progress by the Scottish Ministers. Opportunities for rehabilitation were continuing to be made available to him. There was a plan in place seeking to achieve further progress and offer him further opportunities for rehabilitation. It appears to me that the situation of the petitioner was completely different from the prisoners serving IPP sentences who for periods due to the complete failure by the Secretary of State to offer courses were unable to make any progress towards rehabilitation.

[95] As regards what has happened subsequent to the last Tribunal hearing the petitioner's case was considered on three occasions by the Scottish Ministers Risk Management Team during 2012. As a result of their consideration of the matter it was decided that there should be an application for First Temporary Release. That required the approval of the Scottish Ministers. The matter was sent to the local prison on 21 November 2012 and forwarded to the relevant minister on 25 January 2013 and approved the same day. In February 2013 he commenced a work placement. The petitioner's case is to be considered by the risk management team in June/July 2013 with the hope that he will transfer to open conditions in August or September of 2013. In this subsequent period the petitioner has it appears to me made further material progress and been offered further opportunities for rehabilitation.

[96] Against that background I turn to consider the first ground of challenge as articulated in paragraph 17 of the petition: that it was irrational for the respondents not to provide the petitioner with the opportunity to be accommodated in the open estate or otherwise provide him with an opportunity to demonstrate that it is no longer necessary for the protection of the public for him to be confined.

[97] It is perhaps at this stage appropriate to consider what is meant by irrationality. In their book Judicial Review the learned authors the Right Honourable the Lord Clyde and Denis Edwards at page 572 conveniently set out a number of the leading definitions of irrationality:

"In modern times, the meaning of irrationality has been put in various ways. In the GCHQ case, where Lord Diplock first adopted irrationality as the term for 'Wednesbury unreasonableness', his Lordship defined the concept in strong terms:

'It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at'.

In another case Lord Scarman considered that a decision vitiated by rationality meant that it was 'so absurd that he (the minister) must have taken leave of his senses'. In R v Hillingdon London Borough Council, ex parte Pulhofer Lord Brightman considered that irrationality meant that the decision was 'perverse' and demonstrated 'unreasonableness verging on an absurdity". Lord Lowry has given a possibly more restrained definition: 'so unreasonable that no statutory authority/public officer acting reasonably could have come to it'".

[98] It is clearly a substantial hurdle which the petitioner must overcome to satisfy the test of irrationality. In McCrae v Parole Board for Scotland 1997 SLT 97 Lord Weir observed at 101 where there was a challenge to the reasonableness of the decision of the Parole Board and where fairness to the prisoner required to be balanced by the issue of public safety.

"A very strong case has to be made out before intervention by judicial review is justified."

[99] Looking to the decision of the Scottish Ministers not to date to have allowed the petitioner to be accommodated in open conditions I am not persuaded, having regard to the principles I earlier outlined and the above guidance, it can be defined as irrational.

[100] The petitioner has not been denied a real opportunity for rehabilitation. He has been given, throughout his period of incarceration access to courses which are designed to lower his risk of re-offending. Prior to 2008 he was given community work placements which were designed to give him an opportunity to rehabilitate himself. These only stopped as a result of his behaviour. Since 2008 and the first of the Tribunal decisions to which Mr Leighton made particular reference: he has been offered by the Scottish Ministers and completed the Good Lives programme: he has transferred to top end conditions; he has commenced Special Escorted Leave; a Grant of First Temporary Release has been made; and he has commenced a work placement. Each of these offers an opportunity for rehabilitation. When taken cumulatively they offer a real opportunity for rehabilitation. Although the petitioner is not yet housed in open accommodation there is a plan to transfer him in early course to the open estate. This failure to date to house him in open accommodation does not, however, mean he has not been offered a real opportunity for rehabilitation. He has been offered these other opportunities by the Scottish Ministers which I have listed.

[101] Given the above the petitioner has been afforded substantial opportunities for rehabilitation and to show that his risk level has been lowered in order to satisfy the Tribunal that he can be released.

[102] The instant case is one which in my judgment is wholly different from the situation in the cases relied upon by Mr Leighton in the course of his address. In those cases there was a systemic failure to provide courses and in the circumstances the prisoners were not in a position to advance at all in establishing that they were no longer a risk to the public. The situation in the instant case is that the petitioner is being offered such opportunities, as I have above outlined. He is being given the means to progress towards freedom.

[103] What in reality the petitioner is complaining of here is not the failure to give him a real opportunity for rehabilitation. Rather his complaint is that the rate at which he is proceeding, through the rehabilitation process, to what is hoped will be the final stage, namely: a period in open conditions has not been as speedy as he hoped and not as speedy as the respondents have on occasions believed that it might be.

[104] In my opinion the rate at which the petitioner proceeds through the rehabilitation process within the prison system is very much a matter of judgment for the prison authorities. It would in my view be only in the most exceptional circumstances that a decision as regards this could be regarded as irrational. I am not satisfied that such exceptional circumstances exist in this case.

[105] In looking at the issue of whether the failure to this point to accommodate the petitioner in the open estate is irrational respect has to be given to the nature and circumstances of the decision being made by the Scottish Ministers who are in a better position than the court to assess the rate at which the petitioner should progress to accommodation in the open estate.

[106] The respondents undoubtedly have an extremely difficult decision to take balancing the rights of the petitioner to show he is no longer a risk against the risk to the public that a person, such as the petitioner, who has several previous convictions for sex offending should progress through the prison system too quickly and be given limited freedom or eventual release where he is still a material risk.

[107] The petitioner's case as is recognised in all the papers before me is a particularly difficult and anxious one in judging how he should proceed through the prison system.

[108] In looking at the way that the Scottish Ministers have approached the issue of whether he should by this stage be in the open estate the respondents appear to have had regard to all relevant factors and taken account of no irrelevant factors. In particular they have had regard to the recommendations of the Tribunal so far as the issue of the petitioner being given opportunities to show that his risk level has lessened. It is of significance in judging the rationality of their decisions that it cannot, when the Tribunal's decisions are fairly read, be argued that the Scottish Ministers have ignored their recommendations. They have perhaps not moved the petitioner to open accommodation quite as swiftly as was recommended by the Parole Board, however, the Scottish Ministers have set out reasons, which I believe cannot be faulted as to why the petitioner has not to this point proceeded to open accommodation, namely: that they believe given the whole background and in particular given their assessment of the petitioner's risk it is not appropriate that he be moved directly to open conditions but that he should be moved in stages as they are doing.

[109] In the whole circumstances I am not persuaded that no reasonable decision maker properly instructed could not have reached the decision which the Scottish Ministers have reached as regards when the petitioner should be housed in the open estate.

[110] The mere fact that the petitioner's rate of progress has not met his expectations does not make the Scottish Ministers decisions as regards these matters unlawful.

[111] I turn now to the second ground of challenge articulated in paragraph 18 of the petition which in summary is that the failure to provide real opportunities for rehabilitation has rendered the petitioner's detention arbitrary.

[112] For the reasons which I have detailed when dealing with the first ground of challenge the petitioner has not been denied a real opportunity for rehabilitation. He has been offered a number of means to work towards his rehabilitation and it is shortly planned to move him to the open estate.

[113] Lord Reed in James v UK stressed that delay in a prisoner's case being considered by the Parole Board would require exceptional circumstances to warrant the conclusion that the petitioner's imprisonment had become arbitrary. Equally it seems to me that exceptional circumstances would require to be shown to justify the conclusion that the petitioner's detention was arbitrary.

[114] No such exceptional circumstances have been shown in this case for the reasons which I have earlier articulated. Such a circumstance might have been if there was a systemic failure to move prisoners such as the petitioner to the open estate. However, that is not the case here. The petitioner has not progressed to that point, because the Scottish Ministers assessment of risk, which for the reasons I have earlier stated is not impeachable, renders it inappropriate for him yet to reach open accommodation.

[115] There have been delays in the progress of the petitioner and accordingly slippages in his predicted rate of progress. Examples of this would be the presence of the other prisoner in Greenock and the slight administrative delay when the application for First Grant of Temporary Release was made to the relevant minister, however, these appeared to me to be grounds for delay which would not cause the petitioner's detention to become arbitrary (see Lord Reed at paragraph 86 in James v United Kingdom).

Decision

[116] Having refused the petitioner's said two grounds of challenge it follows that I refuse the first four remedies sought. The third and fourth remedies would only have been of relevance had I been satisfied that either of the grounds of challenge were made out. As regards the fifth remedy upon which I heard no argument I have had the matter put out by order. I reserve the position as regards expenses.