Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 172
P603/13	OPINION OF LORD BURNS in the petition of KENNETH DUTCH (ASSISTED PERSON), presently a prisoner with HMP Edinburgh, 22 Stenhouse Road, Edinburgh Petitioner; against (FIRST) THE PAROLE BOARD FOR SCOTLAND; and (SECOND) THE SCOTTISH MINISTERS Respondents: ________________

Petitioner: Leighton, advocate; Drummond Miller LLP

First Respondent: Dunlop QC; Anderson Strathern Solicitors

Second Respondent: Ross, advocate; Scottish Government Legal Directorate

7 November 2013

[1] A first hearing in this petition called before me on 27 September 2013 when Mr Leighton appeared for the petitioner, Mr Dunlop QC for the first respondents (the Parole Board for Scotland) and Mr Ross for the second respondents (the Scottish Ministers). The petitioner seeks judicial review of a failure by the Parole Board to release him and by the Scottish Ministers to provide sufficient opportunities for the petitioner's rehabilitation. I was informed at the outset of the hearing that, as a result of agreement between the parties, discreet issues relating only to the Parole Board had been identified which could be canvassed at this one day hearing. Notice of such a proposal had been given in a note of argument submitted to the court on behalf of the Parole Board which outlines those issues. I acceded to the motion to deal with those issues at this hearing and to reserve the other issues raised by the petitioner relating to the Scottish Ministers to a further hearing.

Background

[2] The petitioner was born on 17 July 1962. On 25 May 1979, when 16 years of age, he was convicted of the murder of a lady by kicking her repeatedly on the head and body, stamping on her head and body, dragging her along the ground and kicking her in the private parts. There were indications of nine separate impacts with the sole and heel of shoes. There was a penetrating injury to the deceased's private parts. On 23 October 1997 in terms of section 16 of the Crime and Punishment (Scotland) Act 1997, the Lord Justice General certified that nine years would have been the period of the punishment part of the life sentence of imprisonment under section 2 of the Prisoners and Criminal Proceedings Scotland Act 1993.

[3] The petition is directed at the Scottish Ministers and seeks a number of declarators and orders in relation to an alleged failure to provide the petitioner with "appropriate opportunities to reduce the risk of offending that he poses and 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". Declarators are also sought that the petitioner's convention rights have been breached by the Scottish Ministers' failure to provide him with a real opportunity at (sic) rehabilitation. The petitioner seeks an order ordaining the Scottish Ministers to release him in terms of their powers under section 3 of the 1993 Act.

[4] In so far as the Parole Board is concerned, the petitioner seeks a declarator that his convention rights have been breached by the Parole Board's failure to direct his release, reduction of the decision of 21 February 2013 refusing to direct his release and an order ordaining the Parole Board to direct his release.

The Submissions of the Parole Board for Scotland
[5] Mr Dunlop, on behalf of the Parole Board, asked me to sustain his first plea in law which was directed to the relevancy and specification of the petitioner's averments and calls for the petition to be dismissed. He outlined the history of the petitioner's incarceration since 1979. He accepted that the petitioner's averments relating to the Parole Board's consideration of the petitioner's case were accurate. In brief summary, the Parole Board has met to consider the petitioner's case on at least 13 occasions since 1998. It has not directed his release. The pleadings do not challenge the Parole Board's assessment that the statutory conditions for his release are not, and never have been, met in the petitioner's case and specifically accept that the petitioner has failed to progress "through the prison estate", principally because he is unable to interact suitably with women, lacks social skills, does not know how to behave appropriately in the presence of women and has serious and ongoing difficulties in these respects. However, it is contended on his behalf that the failure of the Scottish Ministers to provide treatment and rehabilitation for him has resulted in his continuing confinement being arbitrary and unlawful. Accordingly, the decisions of the Parole Board to refuse to direct his release are also unlawful.

[6] Mr Dunlop emphasised that the Parole Board has no role in the conditions under which the petitioner has been confined since 1979 and, in particular, has no responsibility for any failure which might have occurred in the petitioner's progression through the prison estate. That lack of progression is said to be due to the failure of the Scottish Ministers to provide a real opportunity for rehabilitation. The Parole Board's duties for present purposes are set out in section 2(4) and (5) of the 1993 Prisoners and Criminal Proceedings Act 1993 (the 1993 Act). So far as material those provisions relate to the duty to release not only discretionary but also mandatory life prisoners such as the petitioner who was sentenced to life imprisonment for murder. The subsections provide as follows:

"2(4) Where this subsection applies, the Secretary of State shall, if directed to do so by the Parole Board, release a life prisoner on licence.

2(5) 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."

[7] I was referred to the terms of the Human Rights Act 1998 (the 1998 Act). It was accepted that the Parole Board is a public authority in terms of section 6 and that it is unlawful for it to act in any way incompatible with a convention right. Section 6(2) of the 1998 Act provides as follows:

"(2) Subsection (1) does not apply to an act if - (a) as a result of one or more provisions of primary legislation, the authority could not have acted differently."

[8] In considering the interpretation of the above quoted provisions of the 1993 Act it was necessary for the court also to have in mind section 3 of the 1998 Act which provides:

"3(1) so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights."

[9] Turning to the petition, Mr Dunlop directed my attention to paragraph 38 which is in these terms:

"That the first respondents (the Parole Board) have acted unlawfully in refusing to release the petitioner. Continued detention is a continuing breach of the petitioner's convention rights. The decision made by the first respondents continued the petitioner's detention and so continued the breach of his convention rights. A direction to release him would have remedied the breach. The decision of the first respondent is accordingly unlawful in terms of the Human Rights Act. The 1993 Act should be read to permit release if continued detention would be a breach of the prisoner's convention rights."

[10] In the following paragraph the petition proceeds upon the assumption that the 1993 Act requires the Parole Board to make the decision they did and contends that such an Act is incompatible with a petitioner's convention rights and that a declaration of incompatibility should be pronounced.

[11] Accordingly, submitted Mr Dunlop, it is apparent that the petitioner's case, as directed against the Parole Board, is predicated on the premise that the court should "read down" section 2(5) of the 1993 Act in some unspecified way, so as to permit the Parole Board to release the petitioner notwithstanding the unchallenged assessment that the petitioner's continuing confinement remains necessary for the protection of the public. Mr Dunlop did not know in what way the petitioner was suggesting the section 2(5) of the 1993 Act ought to be read.

[12] Mr Dunlop argued that, even having full regard to the wide‑ranging powers available to this court by virtue of section 3 of the 1998 Act, it was simply not possible to read section 2(5)(b) of the 1993 Act in such a way as to allow the Parole Board to direct the Secretary of State to release the petitioner without placing a reading on that provision which would run directly counter to its plain and obvious purpose.

[13] In R v Lambert 2002 2 AC 545 at page 584 Lord Hope of Craighead explained how this important and far reaching new approach to the construction of statutes contained in section 3(1) of the 1998 Act should be employed. At paragraph 79 his Lordship pointed out that although the obligation was a powerful one, it was not to be performed without regard to its limitations. He went on:

"Resort to it will not be possible if the legislation contains provisions, either in the words or phrases which are under scrutiny or elsewhere, which expressly contradict the meaning which the enactment would have to be given to make it compatible. The same consequence will follow if legislation contains provisions which have this effect by necessary implication."

[14] His Lordship emphasised that the obligation was one which applied to the interpretation of legislation and such a function belonged to judges. But it was not for judges to legislate and section 3(1) preserved the sovereignty of Parliament. In particular his Lordship said at paragraph 79:

"It does not give power to the judges to overrule decisions which the language of the statute shows have been taken on the very point at issue by the legislator."

[15] The point at issue in section 2(5) of the 1993 Act could not be clearer, argued Mr Dunlop. The Parole Board is expressly enjoined not to direct the release of a life prisoner unless it is satisfied that confinement is no longer necessary for the protection of a public. He founded on what Lord Bingham of Cornhill said in R (Anderson) v The Home Secretary 2003 1 AC 837 at page 883 paragraph 30:

"To read section 29 as precluding participation by the Home Secretary, if it were possible to do so, would not be judicial interpretation but judicial vandalism: it would give the section an effect quite different from that which parliament intended and would go well beyond any interpretative process sanctioned by section 3 of the 1998 Act."

He also referred me to the passage in the speech of Lord Steyn at page 894 in paragraph 59 where his Lordship says:

"It would not be interpretation but interpolation inconsistent with the plain legislative intent to entrust the decision to the Home Secretary, who was intended to be free to follow or reject judicial advice. Section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute; In Re S (Minors) (Care Order): Implementation of Care Plan (2002) 2 AC 291, 313 - 314, paragraph 41 per Lord Nicholls of Birkenhead. It is therefore impossible to imply the suggested words into the statute or to secure the same result by a process of construction."

Statements to the same effect were found in the speech of Lord Hutton at page 901 paragraph 81.

[16] Reference was made to Ghaidan v Godin‑Mendoza 2004 2 AC 557 at page 571 paragraph 32 where Lord Nicholls of Birkenhead said:

"From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention‑compliant meaning does not of itself make a Convention‑compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention‑compliant. In other words, the intention of parliament in enacting section 3 was that, to an extent bounded only by what is "possible", a court can modify the meaning, and hence the effect, of primary and secondary legislation.

33. Parliament, however cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention‑compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, 'go with the grain of the legislation'. Nor can parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention‑compliant, and the choice may involve issues calling for legislative deliberation."

In Re S (Minors) (cited above) Lord Nicholls of Birkenhead said at paragraph 40:

"A meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate. In such a case the overall contextual setting may leave no scope for rendering the statutory provision Convention‑compliant by legitimate use of the process of interpretation."

That approach was followed in Smith v Scott 2007 SC 345 (see paragraph 27 of the opinion of the court delivered by Lord Abernethy). Mr Dunlop submitted that a departure from the plain terms of section 2(5) of the 1993 Act as proposed by the petitioner would have the sort of important practical repercussions which were envisaged by Lord Nicholls which the court was not properly equipped to evaluate. The consequences of releasing a prisoner who the Parole Board considered to pose a risk to the public would be far reaching and Parliament would want to put in place properly planned safeguards after due legislative deliberation.

[17] Mr Dunlop also drew my attention to AS (Somalia) v Secretary of State for the Home Department 2009 1 WLR 1385 where the House of Lords considered the terms of section 85(5) of the Nationality, Immigration and Asylum Act 2002 which expressly disapplied subsection 4 of that section in appeals against refusal of entry clearance so that an adjudicator could only consider the circumstances appertaining at the time of the decision to refuse. It was argued that the section should be read down to enable the adjudicator to look at all the circumstances including those which had occurred after the date upon which the decision to refuse was made. Lord Hope said at paragraph 19 on page 1392:

"I agree with Sedley LJ that the language of section 85(5) is incapable of being read down in the way Mr Gill suggested. The directions that it contains could not be put more plainly. Subsection (4) 'shall not apply'. The adjudicator 'may consider only' the circumstances appertaining at the time of the decision to refuse. These words are, as Sedley LJ said [2008] Imm AR 510, para 16, unequivocal and unyielding. Reading them down would be to cross the boundary between interpretation and amendment of the statute."

[18] In the present case Mr Dunlop submitted that the plain wording of section 2(5)(b) led to the conclusion that it is not open to the Parole Board to direct release of a prisoner unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The wording of the provision is "unequivocal and unyielding" and the protection of a public was paramount.

[19] All the above cases showed that, while section 3 is a powerful provision, it has its limitations. Any interpretation which goes "against the grain" of primary legislation, which inverts the purposes behind it or which requires the court to engage in tasks which are the proper province of parliament should not be entertained.

[20] Mr Dunlop turned to what he referred to as the genesis of the petitioner's argument in this case. In James and others v United Kingdom 2012 56 EHRR 399 the European Court considered that the claimants' 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 risk they posed to the public. A real opportunity for rehabilitation was a necessary element of any detention which was to be justified solely by reference to public protection. See R (Sturnham) v Parole Board: R (Faulkner) v Secretary of State for Justice 2013 2 WLR 1157 at page 1170 at paragraph 22). Mr Dunlop pointed out that none of the claimants had seen fit to ask the court to read down section 28(6) of the Crime (Sentences) Act 1997, which is in similar terms to section 2(5)(b) of the 1993 Act (see paragraph 16 of Lord Reed's speech). Similarly, in James and others v Justice Secretary 2010 1 AC 553 none of the claimants before the House of Lords had made such a suggestion. At paragraph 64 Lord Brown of Eaton‑under‑Heywood said:

"Given section 28 of the 1997 Act, it is difficult to see how either the Secretary of State or the Parole Board could have acted differently in these cases so that it would not have been unlawful for them (under domestic law, as opposed to the United Kingdom under international law) to act incompatibly with article 5(1). Section 3 of the 1998 Act could not help".

In the present case, the wording of section 2(5)(b) meant that the Parole Board could not have acted differently. Accordingly, it was impossible to read the section down so as to allow the Parole Board to release the petitioner in circumstances where the Parole Board was not satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined. The petition, as directed towards the Parole Board, was irrelevant and no amendment could cure it. It should be dismissed.

Submissions for the petitioner

[21] Mr Leighton stated that in the circumstances of this case he did ask the court to read and give effect to section 2(5)(b) of the 1993 Act in such a way as to make it compatible with the petitioner's convention rights. It was possible to do so in the circumstances of this case. He submitted that the case of Faulkner was not in point since it concerned a delay in the Parole Board's consideration of the prisoner's cases in breach of article 5(4) of the convention. Here it was contended that the detention of the petitioner was unlawful because of the failure to provide real opportunities for rehabilitation. He submitted that it was possible to read section 2(5)(b) so that the words "or would be an arbitrary interference with the prisoners convention rights" were added by implication at the end of it.

[22] He referred to Secretary of State for the Home Department v MB 2008 1 AC 440 where Lady Hale considered at paragraph 72 that the provision in question should be read and given effect "except where to do so would be incompatible with the right of the controlled person to a fair trial". Accordingly section 3 of the Human Rights Act empowers the court, where appropriate, to imply words into a section which parliament has not included. Such a course was possible in the present case.

[23] Mr Leighton also referred me to the observations of Lord Steyn at paragraph 44 of R v A (No.2) 2002 1 AC 45 at page 68 where he made observations as to the extent of the obligation imposed by section 3. It went much further than involving ordinary methods of interpretation whereby a court could depart from the language of statute to avoid absurd consequences. It requires a court to find an interpretation compatible with convention rights, if it is possible to do so. It will sometimes be necessary to adopt an interpretation which linguistically may appear stained. It may not only involve reading down of express language in a statute but also the implication of provisions. It was only where a clear limitation on convention rights is stated in terms within the statute that it would be impossible to deploy section 3 and require a declaration of incompatibility.

[24] He also referred me to section 3A of the 1993 Act which deals with re-release of prisoner serving extended sentences. He suggested that 3A(4) requires the Parole Board to have regard to considerations other than risk. Thus to impose upon the Parole Board a duty of the type he proposed would not be a radical step. Section 3A requires the board to direct that a prisoner sentenced to an extended sentence and whose licence is revoked to be re‑released if satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined (but not otherwise). That provision suggests, argued Mr Leighton, that the Parole Board can have regard to considerations wider than the risk to the public that prisoner poses.

[25] Mr Leighton asked me, in terms of section 3 of the 1998 Act, to imply the words suggested into section 2(5)(b). If that were done, the orders sought in paragraph 3(3), (4) and (5) of the petition are relevant and the petition should not be dismissed against the Parole Board.

Discussion and Decision

[26] I have reached the view that the words which the petitioner asks me to read into section 2(5)(b) of the 1993 Act cannot be implied by the proper use of section 3(1) of the 1998 Act. In my view, the wide ranging powers given by section 3(1) do not extend to reading into section 2(5)(b) the words suggested by the petitioner's counsel. I come to that conclusion for a number of reasons. First, the terms of section 2(5)(b) are "unequivocal and unyielding" and could not have been put more plainly (see paragraph 19 of AS Somalia). The parole board "shall not give a direction under subsection (4) above unless" it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Reading the provision so that it required the parole board to direct release if the prisoner's confinement would be an arbitrary infringement of the prisoner's convention rights would be to cross the boundary between interpretation and amendment of the statute (Ghaidan v Godin-Mendoza paragraph 121) and would depart substantially from a fundamental feature of the 1993 Act (Smith v Scott paragraph 27). Parliament could not have indicated more plainly its intent that prisoners whose confinement remains necessary for the protection of the public should not be released. In my opinion, the proposed "reading down" would not, in the words of Lord Rodger of Earlsferry, "go with the grain" of the legislation but against it. Accordingly, the first stage of the approach set out by Lord Nicholls of Birkenhead in Re S (Minors) at paragraph 40 appears to me to have been reached here, since the suggested meaning departs substantially from a fundamental feature of the 1993 Act.

[27] The second reason relates to the second part of the approach of Lord Nicholls. It is possible to look at some of the practical repercussions of such a departure from the plain wording of the section. The petitioner suggests that the Parole Board should have imposed upon it an additional duty to judge when the stage has been reached that a particular prisoner's convention rights have been infringed because of alleged failures of the Scottish Ministers to provide real opportunities for rehabilitation. I am not equipped to evaluate the repercussions of the imposition of such a function upon the Parole Board and to affirm whether or not it could discharge such a function within its present structure. Such a step would, in my view, represent a significant sea change in the functions of the board and would require the careful scrutiny after due public consultation.

[28] I fully accept, as Mr Leighton pointed out, that the courts have been willing to imply words into a statute consistent with the duty contained in section 3(1) of the 1998 Act. But it is instructive, in my view, that this has been done in circumstances where the duty thus imposed was, in a case such as MB, entrusted to judges who were well acquainted with the performance of such a duty. In that case, the question was whether the provision in question should be read subject to an implied power to order disclosure of "closed material" despite the fact that it would be contrary to the public interest "except where to do so would be incompatible with the right of the controlled person to a fair trial" (see Lady Hale paragraph 72). As Lady Hale at paragraph 73 and Lord Carswell at paragraph 85 pointed out, if these words were implied into the section, the judge would be able to weigh up and assess the considerations which would then arise. Judges are well used to discharging such a function.

[29] The petitioner here would impose a task upon the parole board with which it is not, upon the information available to me, shown to be equipped to deal and would involve judgments not only on the history of the "opportunities for rehabilitation" given to a prisoner during his incarceration but whether any such opportunities found to have been provided were so deficient as to render his continued confinement in breach of his convention rights. I accept that the parole board is concerned with the assessment of the risk that a prisoner would pose to the public if released and the task which the petitioner suggests should be undertaken by it is far removed from such a role. I do not accept that the parole board's role is shown to be a wider one by reference, for example, to section 3A of the 1993 Act. That section deals with the re‑release of prisoners serving an extended sentence imposed where the ordinary period of licence would "not be adequate for the purpose of protecting the public from serious harm from the offender" (see section 210A of the Criminal Procedure (Scotland) Act 1995). Section 3A(4) repeats that formulation of risk and requires the Parole Board to address the specific requirements of section 210A of the 1995 Act. It must be satisfied that the risk set out in section 210A no longer exists. The section does not indicate that the Parole Board should have regard to any considerations other than the type of risk set out in the section.

[30] Thirdly, what is suggested is that, notwithstanding the fact that the parole board considers that the prisoner remains a risk to the public so that his continued confinement is necessary for its protection, it should direct his release. Such a step would have the potential for obvious and very serious consequences and would require careful consideration of the safeguards which would then be necessary to deal with those consequences. Without the benefit of consultation and advice, the court would in a real sense be legislating on its own account where there may be a wide range of safeguards and other measures which would thereby be necessitated the selection of which would involve questions of policy (see paragraph 27 of Smith v Scott).

[31] Fourthly, I asked Mr Leighton what he envisaged the procedure would be for any appeal against a direction to release (or the failure to give such a direction) on the basis of an infringement of convention rights. His answer was such a decision would be amenable to judicial review. Thus the court would be creating, at its own hand, a further example of the exercise of the supervisory jurisdiction of this court against an "unappealable decision" without any consideration of any possible alternative methods of dealing with such a matter or any idea of the extent of the additional burden it would be imposing.

[32] These considerations lead me clearly to the view that the proposed use of section 3(1) of the 1998 Act would be to cross the boundary between interpretation and legislation to a significant extent and to leave the realm of interpretation well below the horizon.

Disposal

[33] For these reasons, I consider that the first plea in law of the first respondents is well founded. I will therefore sustain that plea and dismiss the petition insofar as directed at the first respondents.