Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 24
P401/13	OPINION OF LORD GLENNIE in the Petition of ARTHUR DUNCAN Petitioner; For judicial review of decisions of the Scottish Ministers ________________

Petitioner: Bain QC, MacKenzie; Drummond Miller LLP

Respondent: Ross; Scottish Government Legal Directorate

18 February 2014

Introduction

[1] The petitioner is a prisoner in HM Prison Glenochil. On 13 October 1970, while serving in the Army, he was convicted of the murder of a young female. She was a complete stranger to him. She had been raped and strangled, and there were other signs of depravity. He was sentenced to life imprisonment. He has been in prison now for over 43 years.

[2] On 25 March 2002 the High Court of Justiciary sitting in Glasgow fixed a punishment part of 10 years, expiring (retrospectively) on 12 October 1980. Since then, or at least since March 2002 when the punishment part was fixed, the petitioner has been in the post-tariff stage of his detention, during which his continued stay in prison is justified by reference to the need for public protection. Before he can be released, he must satisfy the Parole Board for Scotland that he no longer presents a danger to the public: see s2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

[3] By this petition for judicial review, the petitioner complains that he has been deprived of any real opportunity within the prison environment for rehabilitation, with the result that he has been deprived of the opportunity of addressing his offending behaviour and the risk that it poses, and with the result also that he is unable to satisfy the Parole Board that he no longer presents a danger to the public and is therefore suitable for release. The complaint is against the Scottish Prison service ("SPS") and the Scottish Ministers are therefore respondents by reason of their responsibility for the acts and omissions of the SPS. Initially the petition was directed also against the Parole Board for Scotland but the complaint against its failure to direct his release is not persisted in, it being recognised that on the material placed before it at the various reviews of his case, limited as that material was because of the absence of any courses for the petitioner's rehabilitation or by which his progress could be judged, the Parole Board could not be satisfied that the petitioner no longer presented a danger to the public.

[4] Before considering the law on this matter, it is convenient to summarise, albeit at some length, the relevant facts relating to the last 10 years or so of his detention and his efforts to persuade the SPS as to the appropriate measures to take with a view to his potential rehabilitation and, perhaps more pertinently, his efforts to persuade the Parole Board (acting through its Life Prisoner Tribunal ("LPT")) as to his suitability for release. These facts are relevant not only to the merits of the petitioner's complaints but also to the pleas of time bar and mora, taciturnity and acquiescence tabled by the respondents.

The relevant history

[5] The relevant history appears mainly from what was referred to as the Parole Board dossier lodged in process. From this dossier, the following narrative emerges.

Courses undertaken before 2003

[6] During his time in prison, the petitioner has undertaken a number of courses and other interventions. For example, in 1983 he was seen for the period of 5 months or so by a Clinical Psychologist in relation to his sexual fantasies. He had alcohol counselling from April to June 1997. He underwent cognitive skills therapy between October and December 1999. He attended the National (Core) Sex Offenders' Programme from February to August 1999. And he undertook a course relating to victim empathy in 2002.

Events leading up to LPT review of August 2003

[7] In April 2003 the petitioner was transferred to Noranside Prison. This was part of the planning for his release. He was to be monitored closely. A psychological and social work report was to be prepared. There were plans for him to be allowed into the community in Aberdeen, that being where he intended to live when he was eventually released. In July 2003, however, he refused to go on his first visit to Aberdeen because he was not going to be allowed to contact his sister.

[8] His plans for release were changed when he became engaged to a lady who had been visiting him in Edinburgh. He then stated that he wished to live in Edinburgh on his release; and SACRO in Aberdeen, who had up until that stage been dealing with the plans for his accommodation in the event of his release, had to contact their counterparts in Edinburgh to take over the case. Because of this, and the short timescale within which SACRO had to act, no structure could be put in place prior to his appearance before the LPT on 11 August 2003.

[9] At the hearing on 11 August 2003, which took place in Noranside Prison, the LPT decided not to direct that the petitioner be released. It considered that the petitioner required an extensive period of testing in the community and that he had to respond positively to that challenge. It recommended that prior to his next review, which it fixed for 10 May 2004, the petitioner should remain within the open estate and should continue to take outside visits of whatever sort were available. The open estate is the lowest level of security within the prison system, with no secure perimeter; prisoners may be allowed to leave the prison to go on home leave.

Events leading up to LPT review of May 2004

[10] Almost immediately after that decision was taken, the petitioner was found to have "inappropriate" material in his prison cell relating to sexual fantasies, including hard-core pornography videos as well as pornographic magazines of the sort which can be purchased from the top shelves in most newsagents. The discovery of this material was of obvious concern given the sexual element in the murder for which he was convicted.

[11] As a result of this material being discovered in his cell, the petitioner was transferred to Peterhead Prison on 14 August 2003. The Risk Assessment Management Group ("RAMG") at HM Prison Peterhead considered his case on 2 October 2003 and concluded that he should remain at Peterhead and be assessed for participation in the Core 2000 STOP programme. "STOP" is the convenient, albeit inaccurate, acronym given to the sex offender treatment programme (SOTP) run by the SPS to assist in the rehabilitation of sex offenders.

[12] On 12 February 2004 Mr Cunningham, the relief Lifer Liaison Officer, prepared an Overview Report for the purpose of updating the petitioner's file. After referring to the most recent developments, he concluded that he could not recommend the petitioner for release at that stage. He said that the petitioner should become involved in the Core 2000 STOP programme and that, upon successfully completing that programme, he "should be returned to less secure conditions at the earliest opportunity". Issues in respect of future accommodation, supervision and support should continue to be high on the agenda. Mr Cunningham assessed the petitioner as presenting a high risk of re-offending in the future, therefore requiring a high level of supervision and monitoring on his release.

[13] A memo from the Scottish Executive Justice Department dated April 2004 referring to these matters concluded that, "given [the petitioner's] continuing sexual fantasies (which were a factor in the index offence), his poor relapse prevention plan and coping skills", Scottish Ministers considered that until he had undertaken further work aimed at addressing his sexual offending behaviour he would continue to pose an unacceptable risk to the public.

[14] The LPT met at HM Prison Peterhead on 10 May 2004. It was not satisfied that the conditions for the petitioner's release, i.e. that it was no longer necessary for the protection of the public that he continue to be confined, were met. It recommended a review in 12 months and fixed a hearing for 9 May 2005.

[15] In its letter of 18 May 2004 notifying the petitioner of the decision taken by the LPT, the Parole Board set out the reasons for that decision. Those reasons included the following:

"History. In October 1971 while you were in the army you murdered a young woman who was not known to you. You were sentenced to life imprisonment. In March 2002 your punishment period was set at 10 years. After years of setbacks the last Tribunal took a slightly more optimistic view and suggested that you stay in the open estate and set up arrangements for going to live in Edinburgh. Within days of that Tribunal you were found to have in your possession material which was considered to be pornographic. You were moved to Peterhead. There it was considered that you required to take the STOP core 2000 programme. You refuse to accept that. You accept that there is work that you can do to deal with your present deviant sexual fantasies and lack of victim empathy but consider that this can be done in the community. You are now engaged to a lady in Edinburgh. There are no proper support plans in place for you in Edinburgh. You could not be released without there being in place an extensive support package. You are still a risk to the public."

The Parole Board then gave its views on a number of matters requested by Scottish Ministers in the following terms:

"The Tribunal considers that you still present as a risk of harm in the community and will continue to do so until you can demonstrate that you can cope with the pressures of life outside without resort to fantasies. However, the Tribunal notes that the basis of your being transferred to HM Prison, Peterhead was the finding of material said to be pornographic. Apparently some 30 tapes were seized. Six were tested. One was found to be of such a nature as to suggest your removal to Peterhead. It is not known what was contained on the other tapes. According to you these tapes came with you from Edinburgh to Noranside and had been recorded from television. In Edinburgh you were allowed to have videotapes. The Tribunal finds it strange that such material was allowed in Edinburgh but in Noranside it triggered off a move to Peterhead. The Tribunal thinks that the way ahead for you is to be returned to Edinburgh top end for six months and then be sent to the open estate for six months. These periods will give an opportunity for you to receive one to one counselling on your admittedly poor relapse prevention plans and victim empathy. It will also provide time for you and your fiancée to be open with each other and clarify your relationship. This time will also give an opportunity for the various social work departments to sort out accommodation and finance. It has to be said that you have to work with the authorities and accept that matters may not always work out as you expected or hoped."

The reference to "top end" is a reference to conditions of reduced security, where prisoners have keys to their cells, enjoy a reasonable degree of freedom in cell blocks and can go on escorted leave and work placements. It is an intermediate stage between mainstream and open estate. A spell in national top end conditions often forms part of a long-term prisoner's progress towards release.

Events leading up to LPT review of May 2005

[16] On 24 June 2004 solicitors for the petitioner wrote to the governor of HM Prison Peterhead enclosing a copy of the Parole Board decision of 10 May 2004 and pointing out the comments of the LPT as to how they saw the best way forward in terms of where the petitioner ought to be detained. In that letter they acknowledged that that was, of course, only a recommendation; but they suggested that it would no doubt "go a long way in assisting the Tribunal in reaching a decision at the next Life Prisoner Tribunal which is set down for 9 May 2005." There having been no reply, a chaser was sent on 4 August 2004. This prompted a reply from Mr Badenoch, the SPS Residential Unit Manager at HM Prison Peterhead. He said that, at the recent case conference attended by the petitioner, SPS had recommended that he should engage in the STOP programme as outstanding issues connected to his index offence had still to be addressed. However, the petitioner had clearly disagreed with this and had stated that he would not participate now or at any time in the future. The letter ended by saying that that was entirely his decision but it "does mean that [the petitioner] will be detained here at HMP Peterhead for the foreseeable future."

[17] Solicitors for the petitioner wrote in reply to that on 8 October 2004. They said that whilst it might be correct that the petitioner's refusal to participate in the STOP programme was entirely his decision, it could not be inferred from that that his continued detention within HM Prison Peterhead was therefore of his own making. They went on to say that Mr Cunningham - who they wrongly described as the Scottish Minister's representative at the LPT on 10 May 2004 when he was then in fact the Life Liaison Officer for Peterhead prison - had conceded that the STOP programme was not directed at the petitioner's specific needs. That was why the Parole Board, after fully discussing the matter with all present, "recommended that our client be returned to Edinburgh top end for 6 months and then sent to an open estate for 6 months." They added that

"... it would appear that the Risk Management Group convened within HM Prison Peterhead on the 16 July 2004 simply flies in the face of that recommendation."

The letter went on to submit that there would be no point in the petitioner attending a course "that by the department's own admission would be of no benefit to him." They asked for reasons why the petitioner was not being returned to Edinburgh "for onward progression to an open establishment", saying that it was essential that "our client undergoes this two 6 month stage course in order to stand any prospect of release on licence when the matter is next considered by the Parole Board" on 9 May 2005.

[18] On 13 October 2004 Mr Badenoch sent what he accepted was likely to be viewed as a "holding letter" in which he acknowledged that there were conflicting recommendations as to the way forward for the petitioner. He had contacted the Lifer Management Department to seek further information. He noted that there was "ongoing dialogue" between Scottish Ministers representatives and members of the Parole Board to clarify issues relating to decisions "that are, at the best, complex and in some people's opinion, unworkable and unmanageable."

[19] After a couple of chasers from those acting for the petitioner, there was a further letter from SPS dated 4 April 2005, this time from Mr Cunningham, the Residential Manager as well as the Life Liaison Officer, who said that he was the first to admit that he had stated that the STOP programme was not directed solely towards the petitioner's needs, as the programme was delivered within a group setting dealing with a number of prisoners. He went on to say that he had since taken advice from the core programme providers, and through his recent Lifer Liaison Officer Overview had highlighted how the core programme would be of great benefit to the petitioner. He said that the petitioner had had regular contact with his personal officer to the sentence management process and had been kept fully up to date with the SPS position.

[20] Solicitors for the petitioner wrote again on 7 April 2005 in response to this letter, pointing out that it did not in fact answer the query in their earlier letters. They repeated that what they were seeking to establish was why the petitioner had not been dealt with in accordance with the recommendations of the LPT as set out in the letter from the Parole Board of 18 May 2004.

[21] The response from SPS on 11 April 2005, only four days later, pointed out (correctly) that:

"While it is for the Tribunal to make recommendations about individual prisoners, the SPS is responsible for the management of prisoners and their allocation to particular establishments."

They explained that following "extensive and careful consideration" of the petitioner's circumstances by the Peterhead Multi-Disciplinary Risk Management Group and others,

"... we have concluded that the best way for his needs to be met would be through participation in an offence specific group work programme."

They explained that the treatment outcome literature indicated that this could be an effective way of reducing the likelihood of recidivism and was more effective than non-participation. While there was some research to suggest that alternative approaches could help, that body of research was nowhere near as compelling as the group work research. The letter went on to note the LPT's observation that the petitioner had refused to participate in group work at Peterhead and its recommendation that he be transferred away from Peterhead. However, SPS considered that Peterhead contained the staff with most experience of dealing with sex offenders, particularly those in denial and lacking in motivation to participate in group work; and a move from Peterhead would neither benefit the petitioner nor prepare him for release.

[22] The reference to the petitioner's refusal to participate in group work at Peterhead was a reference to the fact, noted by the Parole Board in its letter of 18 May 2004, that the petitioner had refused to accept the recommendation that he take part in the STOP Core 2000 programme. The Parole Board had, however, gone on to say that the LPT itself was not convinced that the way forward for the petitioner was to undergo such programmes. At this stage there was clearly a difference of opinion between the Parole Board, who did not think that the way forward was for the petitioner to undergo STOP programmes, and the SPS, who considered that he ought to remain at Peterhead in order to participate in group work. Whatever the rights and wrongs of this difference, it resulted in the petitioner not being treated in a way which the LPT considered would have helped it reach a decision as to whether he was safe to be released.

[23] Not surprisingly, when the LPT next met on 9 May 2005 it concluded that it was not satisfied that the petitioner's detention was no longer necessary for the protection of the public. It fixed a further review for 8 January 2007.

[24] The reasons for this decision were set out in a letter from the Parole Board dated 20 May 2005. After reciting the history of the offence, and noting that this was the petitioner's twenty fourth review, it confirmed that the problem had been caused, in large measure, by the difference of opinion referred to above. It noted that, at the review on 10 May 2004, the LPT had suggested:

"that you should return to Edinburgh top end for 6 months and then be sent to the open estate for 6 months, and that during that time you should receive one-to-one counselling on relapse prevention plans and victim empathy."

However, the letter went on to note that:

"This recommendation was not followed and you remained in HM Prison, Peterhead."

It is clear that this divergence between the recommendation of the SPS and that of the LPT meant that the LPT was simply not able to consider the petitioner as suitable for release because he had not undertaken the tests which would have enabled them to assess him could not to their criteria.

[25] The letter then summarised the submissions both by the Scottish Ministers and by the petitioner. The Scottish Ministers submitted that the petitioner should continue to be confined for three principal reasons: the serious nature of the offence and the sexual fantasies linking directly to it; his behaviour, including continuing sexual fantasies and hard-core pornography found in his prison cell at Noranside in August 2003, again linking to the index offence; and the history of failures in conditions of reduced security, including a number of incidents of breach of trust and inappropriate viewing of female staff. The Scottish Ministers explained that the recommendations of the LPT from May 2004 were not followed

"... because the view of the Scottish Prison Service is that you require to undertake Core STOP before you can progress to less secure conditions. This is the collective view of psychologists, prison management and group work programme managers. There is no scope for one to one work in the Scottish Prison Service and Core STOP is the only option available. Despite the fact that it is 35 years since you committed the index offence, in the Scottish Ministers' view you may re-offend in a similar manner if your outstanding treatment needs are not addressed."

While recognising the length of time that the petitioner had spent in custody, the Scottish Ministers considered that this had happened because of his own behaviour. They recommended a review in 2 years. They pointed out that the next Core STOP would begin in November 2005 and would last for 8 months. That would be followed by an evaluation, after which the petitioner would be required to move to less secure conditions.

[26] On behalf of the petitioner it was submitted at that hearing that the LPT should direct his release, failing which it should insist that the Scottish Ministers give effect to the recommendation of the previous Tribunal and set a review in one year from then. It is worth setting out the next part of the submission verbatim, because it reflects, albeit at a different time and in different circumstances, the continuing complaint underlying this petition. Referring to the submissions made by the petitioner's solicitor, Mr Burgess, the letter (addressed to the petitioner, who is therefore referred to as "you") says this:

"He [Mr Burgess] submitted that you are in a unique and difficult position. You are unable to progress and show the Parole Board that you no longer pose a significant risk to the public because of a policy decision that you must undertake Core STOP, rather than because of your personal circumstances. For four months leading up to your return to HM Prison, Peterhead, you were in open conditions and there were no incidents. You had unescorted leave into Forfar without incident, and before that you had long periods in placements in Edinburgh.

You are concerned that if you are made to undertake Core STOP, you will not be considered to have completed successfully, and that you may then be required to take it again before the Scottish Prison Service is prepared to move you to less secure conditions. You have demonstrated that you do not act on your fantasies. A key question is whether there is another way of addressing risk. For example, attending the Joint Sex Offenders Programme is likely to be a condition of release, and you are fully prepared to comply with this. One to one counselling could take place through the social work department. You do accept that there are hurdles to be gone through before you are released to the community. Housing is your main concern, and SACRO interviewed you on 6 May 2005 to assess your suitability for their accommodation."

The nub of the submission made on behalf of the petitioner was described in this way: "you feel that you cannot prove that you are not a risk when you are still in prison." By this he meant that he could not prove that he was not a risk unless he was given the opportunity to demonstrate this by being placed in top end conditions and then in an open prison.

[27] As I have indicated, the LPT was satisfied that it was necessary for the protection of the public that the petitioner continued to be confined. It gave two main reasons for this decision. First, the violent, sexual and sadistic nature of the index offence coupled with the information available about his outstanding treatment needs indicated that he posed an unacceptable risk to the public, particularly to women. Further treatment was needed on a number of issues. Secondly, however, the Tribunal considered that after such a lengthy time in prison it was essential that he "be adequately prepared for release by having an opportunity to spend time in the community on a gradual basis". That would help him adapt to being out of prison and give an opportunity for an assessment to be made about how he responded to increasing freedom. If he did not progress to less secure conditions over a period of time, the risk of re-offending was likely to remain unacceptable. This second reason puts flesh on the petitioner's concern that the regime being implemented by the SPS, contrary to the recommendations of the LPT, was depriving him of the opportunity of adjusting to being out of prison and of demonstrating to the Parole Board that he was suitable for release.

[28] The next review was fixed for 20 months thence, namely 8 January 2007, "because of the time required for you to undertake treatment and be prepared for release by having increased freedom."

[29] At the end of the letter, the Parole Board responded to two requests for advice from Scottish Ministers. The first was: "what degree of risk do you pose and what steps are needed to address the risk?" The answer to this, in summary, was that the petitioner posed an unacceptable risk and that further work was required to address that risk before his release could be directed. They went on:

"Given the Scottish Prison Service and Scottish Ministers' position on your participation in the STOP Core 2000 programme, the Tribunal has little alternative but to recommend to you that you undertake this programme so that you can demonstrate that your treatment needs have been met as far as possible, and can then progress to a top end facility and begin to undertake Special Escorted Leaves and placements. However, this advice is subject to a recommendation that steps are taken to ensure that the alternative of Rolling STOP has been fully considered. This option may have already been explored and rejected, but it is not clear from the dossier that this is the case ..."

The second question was: "is it desirable for you to be transferred to different conditions within the options available?" The answer to this was that if the SPS considered that Rolling STOP could meet the petitioner's treatment needs, then a move to Edinburgh to undertake that programme would be appropriate. However, if the SPS considered that Core STOP was the only possible option, then they would recommend a move to a top end facility as soon as participation in Core STOP was complete. Successful participation in SELs and placements should lead to a move to open conditions. The risk posed by the petitioner and the length of time that he had spent in prison meant that freedom had to increase gradually and be monitored. The LPT considered that his case should be prioritised by the SPS in every way possible.

Events leading up to LPT review of April 2007

[30] For whatever reason, Rolling STOP was not available. The petitioner undertook and completed the Core STOP programme in Peterhead. That led to a recommendation that he undertake the Healthy Sexual Functioning course. That did not run in Peterhead.

[31] It is not clear whether there was in fact a further review before the LPT in January 2007 - there may have been but I was not shown any relevant material.

[32] A Risk Management Group ("RMG") meeting on 14 February 2007 agreed a plan comprising a move to Peterhead top end facility, local SELs, the making of an application for Shotts top end and onward movement to the open estate at Noranside.

[33] However, a search carried out in March 2007 found inappropriate sexual and/or pornographic material in the petitioner's cell, comprising DVDs made by the petitioner himself and local paper cuttings. The decision was made to prioritise the petitioner for the Healthy Sexual Functioning Programme.

[34] There was a hearing before the LPT at HM Prison, Peterhead, on 2 April 2007. Again the Tribunal was not satisfied that his continued confinement was no longer necessary for the protection of the public. It fixed a further review for 1 April 2009.

[35] The reasons for that decision are contained in a letter from the Parole Board dated 16 April 2007. After summarising the background and the LPT's previous recommendations, the letter set out the position of both the Scottish Ministers and the petitioner. In so far as the Scottish Ministers were concerned, the petitioner had completed Core STOP but had not had the opportunity to address all of his treatment needs, including sexual preoccupation and sexual fantasies. They suggested that the Healthy Sexual Functioning course could begin to meet his outstanding needs. They referred to the fact the pornography found in his cell included DVDs showing images of women being tied up and attacked as well as cuttings of brides from newspapers (together with a note of their names and addresses). They noted, with obvious and justified concern, the petitioner's explanation that he used the photographs of brides to have sexual offence related fantasies, which made him feel better. The petitioner had not mentioned any of that material at the RMG meeting of February 2007, despite claiming that he was being honest. Before that material had been found it had been agreed that the petitioner would move to top end conditions, but the material raised additional concerns about his suitability for SELs and increasing freedoms. As a result, it was now proposed that he be transferred to the enhanced regime at HM Prison Peterhead and be prioritised for the Healthy Sexual Functioning course due to begin in September 2007. There would be a RMG meeting in July 2008 after which, if it was considered suitable, the petitioner would progress to top end conditions in September or October 2008. He would then be tested by way of SELs and placements with a view to applying for a transfer to open conditions before the next hearing before the LPT.

[36] The solicitor for the petitioner (Mr Maitland) asked the LPT to consider immediate release, failing which a move to open conditions with a review in six (failing which 18) months. He explained that although the petitioner continued to have fantasies, the STOP report showed that he had come some way towards understanding how to deal with them. Further work was required, but that did not have to be undertaken in prison. The fantasies occurred because the petitioner became bored and depressed in prison - he was stagnating in custody and depressed by his continued incarceration, including being locked alone in his cell each night. There was no risk of him acting on his fantasies.

[37] In its reasons for its decision, the tribunal made these remarks:

"It is positive that you undertook and completed STOP. However, the recent discovery of materials in your cell is of great significance. You had cut photographs from newspapers of brides from the Aberdeen area, where you would be likely to reside on release. You had written the names and addresses of the brides on the photographs, and admitted to the prison social worker that you had fantasised about going to one of these women's homes and tying her up without her consent. You also admitted that you had a DVD containing a compilation of film clips of women being tied up and attacked. Bondage and non-consensual sexual offending appear to be central to your fantasies. This ties in very directly with the nature of the index offence, and is therefore of great concern in terms of the risk of future sexual offending against women. It is evident from the dossier that you admitted that you had sexual fantasies about rape and bondage prior to the index offence, and that the index offence was an attempt to act out your fantasies. The photographs from newspapers were of particular concern as these involve fantasies about existing and identified women, and you were aware of their names and addresses.

... the Tribunal considered that the risk you pose is too high for you to be released at this time. Satisfactory release plans were not in place, but this did not make a difference to the Tribunal's decision, as it considered that the risk you pose is of a level where it is necessary that you continue to be confined, and the risk could not be managed in the community at this time even with the most robust of release plans.

... the Tribunal considers that the risk you pose is too high for you to be moved directly to open conditions.

... the Tribunal did not consider that a period of 18 months would be sufficient for you to complete further treatment and for gradual transfer to less secure conditions if assessed as suitable. The Tribunal considered that the level of risk that you pose meant that further work should be carried out in secure conditions prior to consideration of progression, and that progression should be gradual and carefully monitored. The next review of your case will be in two years to allow time for this to happen."

[38] At the end of the letter, the Parole Board responded to a request for advice from the Scottish Ministers on the degree of risk posed by the petitioner, what steps were needed to address that risk and whether or not it was desirable for him to be transferred to different conditions. The Tribunal made the following recommendations:

"Given the recent concerns about DVDs with footage of women being tied up and attacked, and photographs of women in the Aberdeen area that you were using in your sexual offence related fantasies, the Tribunal considers that the risk you pose is unacceptable and that further work should be undertaken in secure conditions to address this risk.

The Tribunal considers that it will be important for you to move to conditions of increasing freedom prior to release, to ensure that you are prepared for release and to allow an ongoing assessment of your behaviour and the risk that you pose as you are gradually reintroduced into the community. Preparation for release may assist in reducing the risk of re-offending and ongoing assessment will inform future decisions. Given the recent adverse development and the need for further offence related work and ongoing assessment, the Tribunal considers that this must be done on a gradual basis.

Plans for your release must be robust and sustainable."

[39] It is clear from this letter that the Parole Board, as well as the Scottish Ministers, were concerned by the recent discovery of inappropriate material in the petitioner's cell in HM Prison Peterhead. They regarded it as an adverse development, a step backwards, taking the petitioner further away from the point at which he might be considered suitable to take the steps preparatory to assessment for release. Such a view is by no means surprising. They were obviously and justifiably concerned about the possible link between sexual fantasies and future offending, particularly when seen against the background of sexual fantasies having led to the initial index offence.

Events leading up to LPT review of April and July 2009

[40] On 10 May 2007 the Scottish Ministers wrote to the petitioner informing him that they had accepted the LPT's recommendations: that given the recent concerns about DVDs and sexual offence related fantasies, the petitioner should undertake further work in secure conditions to address that risk; that it would be important for him to move to conditions of increasing freedom prior to release, to ensure that he was prepared for release and to allow an ongoing assessment of his behaviour and the risk that he posed as he was gradually reintroduced into the community; that that had to be done on a gradual basis; and that plans for his release had to be robust and sustainable. The petitioner was told that if any points required clarification, he should contact the Lifer Liaison Officer (Mr Milne) and that the letter was being copied to Mr Milne with a request that he let the writer of the letter know immediately should circumstances change which affected the implementation of the earlier decision.

[41] At this stage it is apparent that despite their earlier divergence of views about the proper way to treat and assess the petitioner, the Parole Board and the Scottish Ministers now both took the view that there required to be further steps taken in secure conditions to address the risk posed by the petitioner before any consideration could be given to a more relaxed regime. There can be no valid criticism of this at this stage in light of the problems created by the petitioner's own conduct.

[42] There was a meeting of the RMG on 20 November 2007. The reason for that meeting was that it appeared that the Healthy Sexual Functioning programme had been withdrawn and was no longer available; and therefore a decision had to be made regarding onward progression in the absence of that programme. On this aspect, however, no alternative was suggested. It was simply noted that the petitioner was unable to undertake HSF (i.e. the Healthy Sexual Functioning programme) due to it having been withdrawn. In the course of her submissions Ms Bain QC, who appeared for the petitioner, was critical of the fact that nothing appears to have been done to notify the Scottish Ministers, or for that matter the Parole Board, that the Healthy Sexual Functioning programme had been withdrawn and that, in consequence, part of the action plan which they had settled upon could not be implemented. There is considerable force in this criticism.

[43] There was an Internal Case Management Conference within the RMG on 8 April 2008. It was noted that the petitioner was finding it difficult to get motivated. There were no classes, "nothing". He had been kept at Peterhead for the Healthy Sexual Functioning programme, but this was not happening and he felt he was only getting excuses. He had been at Peterhead now for some five years. It was pointed out that as the Healthy Sexual Functioning programme was not available, an alternative had to be found and that needed to be decided upon at a meeting of the RMG. This was about a whole year after the Healthy Sexual Functioning programme had been recommended for the petitioner and about five months after it had been noted at the previous RMG meeting that it had been withdrawn.

[44] The next LPT hearing was scheduled for April 2009. In preparation for that, the petitioner was interviewed on 16 January 2009 by the Life Liaison Officer, Mr Milne. His Overview Report (mis-dated 15 January 2009) again refers to the unavailability of the Healthy Sexual Functioning programme. Under the heading "Scope for Further Work" Mr Milne says this:

"it has been highlighted via his Core STOP Post Programme Treatment Report that [the petitioner] requires additional work in relation to his inappropriate fantasies. It was initially expected that he would participate in the HSF Programme but this has not rolled out as planned.

Local Psychology has now advised that the best way forward would be for [the petitioner] to be considered for anti libidinal medication, as stated [the petitioner] is willing to comply with an assessment for this."

In effect, therefore, nearly two years had passed since the Parole Board had recommended, and the Scottish Ministers had agreed, that work should be undertaken in a secure environment to address the petitioner's sexual fantasising. One important element of that was to have been the Healthy Sexual Functioning programme. That programme had been withdrawn, but no alternative was put in place. As a result, the petitioner was kept at Peterhead for no particular purpose, so it seemed to him, and the treatment of him and his sexual fantasising had not progressed. More importantly, not having been engaged on the Healthy Sexual Functioning programme, no steps had been taken to move him to top end conditions or other conditions of greater freedom which would enable him to prepare for release or for his suitability for release to be monitored and assessed.

[45] There was a further meeting of the LPT at Peterhead on 1 April 2009. The decision is recorded in the letter from the Parole Board dated 15 April 2009. The Tribunal decided to adjourn the hearing until 7 July 2009. Its reasons are set out in the following passage:

"The Tribunal noted that the case conference held after your previous Life Prisoner Tribunal had recommended that you undertake the Health Sexual Functioning Programme as a means of addressing your ongoing problems with fantasies. This programme did not commence at HM Prison, Peterhead and is no longer available in the Scottish Prison Service. The Tribunal also noted that your case is shortly to be considered by the Risk Management Group in respect of your future management and you are also to be assessed by Dr Bremner, Consultant Forensic Psychiatrist.

In these circumstances the Tribunal decided to adjourn the hearing as it was of the view that in order to properly consider how you should be managed it was essential that the Tribunal has sight of the Risk Management Group Report and Dr Bremner's assessment. In addition the Tribunal will require Scottish Ministers' representative to provide details of any programmes available in the United Kingdom that may address your outstanding needs. Programmes both in and out of the Prison Service should be considered. Finally the Tribunal was of the view that at the adjourned hearing a Scottish Ministers' official should attend to address any issues which may arise from the above information."

The purpose of the adjournment was to allow time for those reports to be considered by both parties. It is not difficult to detect in that brief statement of the reasons for adjourning the hearing a note of irritation at the two years wasted as a result of the failure either to implement the previously agreed strategy or, when it became clear that it was not available, to pursue an alternative strategy designed to achieve the same purpose.

[46] On 8 May 2009 the Parole Review Manager at the Criminal Justice Directorate, which I understand to be an agency of the Scottish Ministers, wrote to the Parole Board seeking clarification of one of the reasons given for the adjournment in relation to the availability of programmes both in and out of the SPS which could address the petitioner's outstanding treatment needs. The response from the Chairman of the Tribunal which decided to adjourn the hearing was as follows:

"Scottish Ministers opposed [the petitioner's] release on the basis that he has unmet needs in relation to sexual fantasies. The management plan presented to the Life Prisoner Tribunal in 2007 was that he would complete the Healthy Sexual Functioning Programme. This has never run and is not planned to run. At the Tribunal Mr Mill conceded that the Scottish prison service will not be running any programmes designed to address sexual fantasies. The Tribunal adjourned in order that the Scottish Ministers identify a resource in either the English prison system or in the NHS in Scotland or England that can deliver either through group work programme or through one to one work with [the petitioner] the programme work to address sexual fantasy. The Tribunal also required Scottish Ministers to identify the necessary funding to provide [the petitioner] with such a programme."

[47] The resumed hearing before the LPT took place on 7 July 2009. Again, understandably in the circumstances, the LPT refused to order the petitioner's release because it was not satisfied that his continued confinement was no longer necessary for the protection of the public. It fixed in the next review to take place on 31 March 2011.

[48] At the resumed hearing, the Scottish Ministers noted that the petitioner had been downgraded twice during the period since the last full hearing but had returned to the "enhanced regime - which, I was told, involves reduced security and is similar to what is otherwise known as "top end" - in February 2009. The Healthy Sexual Functioning programme was not running and therefore the petitioner could not access it. The psychiatrist had recommended against the use of anti libidinal medication because the petitioner deliberately used his fantasies as a coping mechanism in prison. The Scottish Ministers proposed that the petitioner should undertake two to one counselling and thereafter be tested in less secure conditions. A risk assessment of his "dynamic risk factors" would be undertaken and the RMG would then consider the options available to progress him. They confirmed that funding would be required to provide appropriate counselling. The petitioner had done no programme work since the last LPT hearing, and until this was done it would be difficult for him to make progress. The intention was that the petitioner would be assessed for new modules on the Core STOP programme dealing with coping skills and sexual interests. Those modules would deal with sexual fantasy. Staff training for those modules would commence in October 2009 and the modules themselves should be available from April 2010. The petitioner would be supported by his personal officer with motivational work, which would require six months given his "entrenched" position. If he progressed further, a further assessment of his risk would be carried out in 2010 and then, if appropriate, he would be offered a place on the new STOP modules. Once the outcomes of those programmes were known, a RMG would consider his progress to date and decide on future progress, including SELs and work placements if appropriate.

[49] The petitioner's solicitor, Ms Bremner, made the point that very little had been done in the last two years due to a cessation of programmes within HM Prison Peterhead. That hurdle still existed before the petitioner could get onto the new course. She suggested that the petitioner be released immediately or, failing that, moved to open conditions with SELs. She explained that sexual fantasies were deliberately induced by the petitioner to cope in prison. The petitioner believed that he could get rid of those fantasies "just like that". While the petitioner accepted that there was a link between his fantasies and his offending, once he was released from prison he would have hope, which he did not presently have while in prison. He had fantasies because he was depressed. If he was in the community he would be able to make contact with his family and other people, and there was no risk of him acting on his fantasies.

[50] In giving its reasons why it was satisfied that continued confinement was necessary for the protection of the public, the LTP commented that although the petitioner had completed the Core STOP programme, further work was necessary to address his fantasies. It had been intended that he would complete the Healthy Sexual Functioning course but that course had been cancelled. It was concerned that little progress had been made since his last LPT hearing. A more robust management plan had now been set in place, involving motivational work which should lead to the petitioner being able to access new modules on the Core STOP programme to assist him in addressing his fantasies.

[50] In answering requests for advice from Scottish Ministers, the Tribunal said that it regarded the proposed management plan including the motivational work and access to additional modules on the Core STOP programme as reasonable and as likely to enable progress to be made. It considered that it would be important for the petitioner to move to conditions of increasing freedom prior to release, to ensure that he was prepared for release, and to allow an ongoing assessment of his behaviour and the risk that he posed as he was gradually re-introduced into the community. A robust release plan would require to be put in place.

Events leading up to LPT review of March 2011

[51] On 3 August 2009 the Scottish Ministers wrote to the petitioner, in effect agreeing to that proposal. Again it was suggested that if any problems arose Mr Milne, the Lifer Liaison Officer, should notify the Criminal Justice Directorate.

[52] I was told that the petitioner was assessed as suitable for the Good Lives Course, which I understand to be a module within the Core STOP programme dealing with sexual fantasies. However, he was not put onto the course until early 2011. He completed it successfully in about March 2011. But, as appears below, that was too late for the next LPT review.

[53] The next hearing before the LPT took place on 31 March 2011 at HM Prison Peterhead. The report of the petitioner's success or otherwise at the Good Lives Programme was not yet available. The programme facilitator did not expect that further work would be required but that could not be confirmed until the report was available. Once it was available, the risk assessment would be updated.

[54] At the hearing, details of the proposed management plan were explained by Scottish Ministers to the LPT. They were as follows:

"Following receipt of the Good Lives post programme report, you will be referred to the next Risk Management Group Multi-Disciplinary Progression Management Group (RMGMDPMG) for consideration of your suitability for transfer to top end conditions.

If the RMGMDPMG decide that you are ready to move to top end conditions a Prisoner Progression Assessment (PPA) would be prepared.

Once completed the PPA would be discussed at the RMGMDPMG and if approved preparations would be made for you to transfer to top end conditions. It is anticipated that following approval it would take 4 to 6 months for you to transfer.

In the interim period before moving to top end conditions you would take Special Escorted Leaves from HM Prison Peterhead to meet your supervising officer and family in the community.

Following the move to top end conditions further management of your case would be in the hands of that establishment. You should spend time in top end and open conditions prior to release."

The Scottish Ministers suggested a further review in two years, noting that, the petitioner having been in custody for over 40 years, access to the community should be on a gradual and supported basis and a long transition period was required to allow him to adjust.

[55] Mr Maitland, solicitor for the petitioner, pointed out that although some of the setbacks in transferring to less secure conditions were the fault of the petitioner, other delays were not entirely of his own making. He referred back to the events since 2004. Testing in less secure conditions had been recommended for a long time and there must come a time when the Tribunal decided that that was not going to happen and should simply direct his release. Testing could take place thereafter with his release being subject to very strict licence conditions. There had been good progress since completing the Good Lives programme and the petitioner might be able to obtain temporary accommodation with his sister. In answer to questions from the Tribunal, the petitioner said that he had learnt a lot from the Good Lives programme. Now that things were going well, he did not need the fantasies any more.

[56] The Tribunal was not satisfied that it was no longer necessary for the protection of the public that the petitioner should continue to be confined. The petitioner was assessed as a high risk of reoffending and causing harm. While noting that it was positive that the petitioner had recently completed the Good Lives programme, which included modules relating to sexual fantasies, and that he believed that he did not "need" to use the fantasies in the way in which he had previously used them, they went on to say this:

"A Post programme report was not available to the Tribunal, but in any event a period of time requires to elapse to assess the impact, if any, of this programme on your use of offence related fantasies and the risk of re-offending. In line with previous Tribunals, this Tribunal considers that it is important for you to move on a gradual basis to conditions of increasing freedom prior to release. This will allow for ongoing assessment of your behaviour and the rescue pose as you are exposed to different situations. You have been in custody for over forty years and it is essential that you are prepared for release by way of a long transition period into the community."

They fixed the further review for two years' time, which they regarded as a reasonable period over which the petitioner might, if considered suitable, be exposed to conditions of increased freedoms. The Tribunal supported the management plan suggested by Scottish Ministers (see para [54] above).

Events leading up to LPT review of July 2013

[57] I was told, and I did not understand this to be disputed, that following the LPT hearing of 30 March 2011 there was very little progress to implement the management plan which had been outlined by the Scottish Ministers at that hearing. There is no indication that the Good Lives post programme report was unfavourable. Yet there was no further assessment of the petitioner's suitability for transfer to top end conditions in that year or the next.

[58] In fact in early May 2012 the petitioner was transferred from Peterhead to HM Prison, Glenochil, where he was kept in closed conditions and confined to his cell for 21 hours a day. He was only transferred to national top end conditions at Greenock on about 3 May 2013. I was given no explanation for this failure to adhere to the proposed management plan. On the face of it, it appears that the proposals put forward at the LPT meeting of March 2011 were simply ignored. In consequence the petitioner has had no opportunity to take the steps which would be required to prepare him for release or at least to prepare him for assessment as to his suitability for release.

[59] It comes as no surprise, therefore, that at the hearing on 4 July 2013 the LPT remained of the view that it was not satisfied that it was no longer necessary for the protection of the public that the petitioner should be confined. The submissions from the Scottish Ministers at the hearing in opposition to the petitioner's liberation were summarised in the Parole Board letter of 10 July 2013 in the following way:

"... given the very lengthy time you had spent in custody and your history of downgrades while in progression it was necessary that you move on a gradual basis to conditions of increased freedom and prepare for release by way of a long transition period. That process had now begun with your transfer to NTE [national top end] at Crisswell House and the recognition by SPS that you had no further outstanding programme requirements.

The Scottish Ministers' representative... confirmed that you moved to NTE in May 2013. Since your arrival you had been fully compliant with the regime. A further negative drug test had been supplied on 11 June 2013."

[60] The Scottish Ministers submitted that the petitioner had yet to access the community but might be able to start a programme of SELs potentially as soon as the next week. It was envisaged that there might be an application for a First Grant of Temporary Release in about October 2013 and, if that was granted, then he would be given a period on community placement for about five months. He would be regularly assessed during that period. It was hoped to move him to the open estate in or about May 2014 for about nine months. Given the length of time the petitioner had been in custody, it was anticipated that a period in the independent living unit would benefit him. The summary of their submissions concluded in this way:

"This gradual progression was considered necessary. Although you had been on placements before and had access the open estate in 2003 for three and a half months, you had had no extended period of testing in the community during your sentence."

They suggested a further review in 18 months.

[61] On behalf of the petitioner it was submitted that he was ready for liberation on licence and could be safely managed in the community. He took the LPT through the history of appearances before them since 2004 and pointed out that each Tribunal had recommended that the petitioner advance to NTE and the open estate. That progression had only begun, however, in May 2013, despite the petitioner having completed all required programme work in March 2011.

[62] The Tribunal was not persuaded that the petitioner could safely be released. They noted:

"that there has been an unexplained delay in progressing your case since the March 2011 Tribunal."

That seems to me, with respect, to be putting it mildly. They went on to say that:

"The delays prior to that however, on examination, seem to be in large part down to your behaviour which led to a downgrade from the open estate in 2003, subsequent upgrading of your security status to medium in 2007, following an adverse development, and requirements to complete further programme work as a consequence of adverse developments in prison."

That is, of course, substantially correct. It was the petitioner's own conduct which led to the requirement that he should complete further programme work within the prison environment before being considered for other programmes. But it ignores the fact that the further programme work identified for him (the Healthy Sexual Functioning programme and, subsequently the Good Lives programme) was not available for some three years or more after the requirement for such work was identified. The Tribunal went on to express the view that the petitioner required to progress to the open estate and demonstrate an ability to comply with licence conditions before he could be said to be a manageable risk; and, therefore, it endorsed the management plan. That is unexceptional, and obviously right, given the position that had been reached. But the complaint is - and I should emphasise that it is not directed at the Tribunal but at the Scottish Ministers - that the petitioner was prevented from progressing to that open estate because of the failure to place him on the programmes identified as being necessary. Further, the Tribunal placed weight on the petitioner's own admission that it was only since completing Good Lives in 2011 that he had been able to control and restrict the fantasies which he had pursued since childhood, though the coping mechanisms had only been tested in a close custodial setting not in conditions of increased freedom. Again, that is obviously right; but the complaint made on behalf of the petitioner is that he should have had that programme made available to him much earlier than it was. All that is in addition to the complaint that for two years after the LPT hearing in 2011 the petitioner was again not offered the programmes identified in the management plan put before the Tribunal at that hearing. That, so he says, is or is likely to be a cause of yet further delay.

[64] The Tribunal fixed a further review in 18 months from them, on 31 December 2014. That, of course, has not yet taken place.

Interim assessment of the facts

[65] It is convenient at this point, before considering the law applicable to this case, to make an interim assessment of the way in which the petitioner has been treated by SPS in the prison regime over the last 10 years or so, having regard to his complaints that he has for considerable periods not been provided with courses to assist in his rehabilitation and to enable him to demonstrate to the parole board that he no longer presents a danger to the public and therefore ought to be released.

[66] Before doing so, I should emphasise three matters of some importance.

[67] First, it is not for this court to make any assessment itself of whether or not the petitioner continues to present a risk to the public making it unsuitable that he be released. That is not a decision for the court - the court has neither the expertise nor the relevant materials on which to take a decision of that sort - nor, indeed, for the Scottish Ministers or the SPS. It is a decision for the Parole Board. The Parole Board can only make the decision on the basis of the material put before it at periodic reviews. On the material put before it at the various periodic reviews, there can be little doubt that the Parole Board reached the only decision open to it. Its decisions at those reviews are not challenged. Unless and until the petitioner undergoes programmes, courses and tests assisting his rehabilitation and enabling an assessment to be made of whether or not he continues to present a danger to the public if released, there will inevitably be no material upon which the Parole Board can be satisfied that he does not present such a danger.

[68] That is where the SPS comes in. It is responsible for deciding what programmes, courses and tests are suitable for someone in the position of the petitioner - i.e. for a prisoner whose release after expiry of the tariff period depends upon an assessment by the Parole Board that he no longer presents a danger to the public - and for ensuring that they are both generally available and available to him. That is why the complaint in these proceedings for judicial review is directed against the Scottish Ministers, they being responsible for the conduct of the SPS. The complaint is that such programmes, courses and tests have not been made available, at least to the petitioner for considerable periods, with the result, so it is contended, that the petitioner has been unable to undertake (or embark upon) effective rehabilitation and has been prejudiced in his ability to demonstrate to the Parole Board that he no longer presents a risk. His complaint does not depend upon him establishing that at any particular time, had they been made available to him, he would have been able to satisfy the Parole Board that he no longer presented a risk (though that might be relevant to any assessment of damages if the complaint succeeds). His complaint is simply that they were not made available to him; and he contends that the law entitles him to a remedy for that failure without him having to prove that at any particular moment he would then and there have been able to satisfy the Parole Board that he was no longer dangerous.

[69] Second, and this really follows on from what I have just said, the fact that, following successful completion of a course, such as the Good Lives programme, the petitioner was still not (or not yet) in a position to satisfy the Parole Board that he was suitable for release is irrelevant to his present complaint. As is apparent from the above narrative, and the discussions at the various LPT reviews, there are many stages in the process of rehabilitation and preparation for release which have to be gone through before the Parole Board can make an informed assessment of whether release is appropriate. Successful completion of one or more courses will be followed by gradual re-introduction into the community, by being placed in top-end conditions and by SELs and/or other measures. The petitioner's complaint is that that process was not taken forward when it should have been - you only get to be placed in top-end conditions and be allowed gradually into the community if you have already successfully undertaken other courses, such as the Healthy Sexual Functioning or Good Lives programmes. The complaint neither loses nor gains in strength from the fact that, even after undertaking such a course, the petitioner then required to be put on other programmes and broken in gently to a less restrictive prison regime.

[70] Third, it follows from the above that periods during which the petitioner has been his own worst enemy, and has suffered setbacks in his desire for release because of his own foolish or depraved conduct, such as the possession of pornographic material to feed his sexual fantasies) are not relevant to a consideration of the complaint about the failures of the SPS to put in place the appropriate programmes, courses and tests (though again they might be relevant to any assessment of damages). That conduct has counted against him. It meant that plans to put him in a less restricted prison environment were put on hold; and he was required to participate in programmes which he, wrongly, considered to be unnecessary. But that does not mean that at the appropriate time, when he was ready for them, courses and tests appropriate for his rehabilitation (and for his efforts to persuade the Parole Board that he was no longer a danger) should not have been provided. After all, the Healthy Sexual Functioning and Good Lives programmes were specifically designed to help him overcome his reliance on sexual fantasy to cope with prison conditions.

[71] There are, so it seems to me, four separate periods to be considered.

[72] The first is the period between the LPT reviews of May 2004 and May 2005, summarised in paras [15] - [26] above. In short, as the review of May 2004, the Parole Board had recommended that the petitioner be returned to Edinburgh top end for six months and then be sent to the open estate for six months, which would allow one to one counselling and provide time for him to clarify his relationship with his fiancée. The SPS disagreed with this approach and considered that the petitioner should engage in the STOP programme at Peterhead Prison. This led, in effect, to a stand-off, the petitioner refusing to take part in the STOP programme and the LPT, in consequence, not having before it at the review in May 2005 any additional relevant information upon which it could make a decision in favour of the petitioner. The failure of the SPS and the Parole Board to agree upon treatment which would be suitable for the rehabilitation of the prisoner and, at the same time, enables the LPT to assess whether he still remained a risk to the public is, to say the least, regrettable. However, having considered this matter carefully, it does not seem to me that this is a legitimate ground for criticism of the Scottish Ministers. The decision on treatment is one primarily for the SPS, the role of the Parole Board being to assess the prisoner on the basis of the material put before it. While, no doubt, the Parole Board can give suggestions as to how it would be assisted in its attempts to assess the danger posed by the prisoner, it can only give suggestions and it is ultimately a matter for the SPS as to how to proceed. I am unable to conclude that the petitioner has shown any relevant failure by the SPS in this regard.

[73] The second period is that between the LPT reviews of April 2007 and April/July 2009. This is summarised at paras [40] - [47] above. By this time the petitioner had completed Core STOP. He still needed to address his sexual preoccupations and fantasies. The Healthy Sexual Functioning course was identified as one that would meet those requirements; but that programme was withdrawn later in 2007, before the petitioner could be placed on it. That, in itself, cannot be the subject of legitimate criticism. However, since the petitioner's needs had been identified, it was incumbent on the SPS to take steps to provide for them. Accordingly, when the Healthy Sexual Functioning course was withdrawn, some other programme offering comparable treatment ought to have been made available. It seems as though no comparable existed. In those circumstances the period between April 2007 and July 2009 was, in effect, wasted so far as concerns both the rehabilitation of the petitioner and his own efforts to persuade the Parole Board that he was no longer a danger.

[74] The third period is that immediately following the second, i.e. from July 2009 until March 2011. This is dealt with at paras [48] and [50] - [53] above. At the review in July 2009, it had been agreed that the petitioner should have access to additional modules on the Core STOP programme, which modules would, in effect, be a substitute for the Healthy Sexual Functioning programme and would assist the petitioner in addressing his sexual fantasies. It was anticipated that those modules would be available from April 2010. On that basis, it could reasonably be anticipated that the petitioner would have completed such modules well in time for a report on his progress to be available for the further LPT review fixed for March 2011. However, for reasons which have not been explained, the petitioner was only put onto the course early in 2011. Although he completed it successfully in about March 2011, that was too late for a report to be made available for the March 2011 review. The LPT was therefore not able to take it into account. That might be regarded as another year wasted.

[75] The fourth period again the follows on from that, i.e. from the review of March 2011 up to the review fixed for July 2013. This is summarised in paras [54] - [63] above. At the 2011 review, that the Scottish Ministers had put forward a proposed management plan which, subject to receipt of a positive report of his performance in the Good Lives programme, involved the possibility of the petitioner being transferred to top end conditions within about six months, and in the meantime the possibility of SELs. That Management plan was supported by the LPT. It was clearly designed to enable the next LPT review to have full information before it is to the suitability or otherwise of the petitioner for release. The Good Lives post report was, as I understand it, favourable. But for some reason which was not explained to me (and does not appear from the documents trace before me) this Management programme was not implemented. Instead of moving to top end conditions, the petitioner was transferred from Peterhead to HM Prison Glenochil, where he was kept in closed conditions and confined to his cell for 21 hours a day. Only in May 2013, after these proceedings for judicial review had been raised, was the petitioner transferred to national top end conditions at Greenock. That, of course, was far too late for any steps to be taken which might provide information to the LPT at the review in July 2013. That again represented a further loss of two years or more.

[76] The second, third and fourth periods referred to in paras [70] - [72] above give rise to complaints - which appear to me on the present material to have considerable force - that the Scottish Ministers simply failed to provide the petitioner with programmes and courses which they themselves recognised were a necessary part of his rehabilitation and which were necessary to enable him to make progress towards having an effective review before the Parole Board.

The judicial review proceedings

[77] In these proceedings for judicial review the petitioner seeks to hold the Scottish Ministers responsible for that failure which, he says, is incompatible with his rights under Article 5 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR"). He seeks declarator to this effect and damages. He relies, in particular, upon the decision of the European Court of Human Rights ("the Strasbourg court") in James v. United Kingdom (2013) 56 EHRR 12 ("James (Strasbourg)").

[78] The respondents dispute this. They say that there were no failures on their part in any material respects. While the petitioner's progress through the rehabilitation system has not been as fast as the petitioner would have wished, the rate of progress through such a system "is very much a matter of judgement for the prison authorities". They contend that it would take "exceptional circumstances", not present here, to entitle the court to conclude that the petitioner's continued detention was "arbitrary" and therefore "unlawful". In so far as James (Strasbourg) provides any support for the petitioner's case, it should not be followed because it is inconsistent with the prior decision of the House of Lords in James, Lee and Wells v. Secretary of State for Justice [2010] 1 AC 553 ("James (HL)").

[79] In addition, the respondents contend that the action is time-barred under s100(3B) of the Scotland Act, which failing it is barred by mora, taciturnity and acquiescence.

[80] I should note that the petition also includes a claim for declarator that s2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which provides for continued detention post-tariff until such time as the Parole Board is satisfied that the prisoner no longer represents a danger to the public, is incompatible with the petitioner's convention rights under Article 5 ECHR. That was not argued before me, though Ms Bain QC did not wish to abandon it. Mr Ross, for the Scottish Ministers, objected to the point being kept open though not argued. I shall deal with this matter at the end of this Opinion.

Article 5 ECHR

[81] Article 5 ECHR is headed "Right to liberty and security". So far as material, it provides as follows:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. The lawful detention of a person after conviction by a competent court;

...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."

The question which arises in this case is whether continued detention in circumstances where, for a significant period at least, no steps are being taken to make available appropriate courses for rehabilitation and/or to enable the petitioner to have an effective review before the Parole Board falls within the exception in (a), viz. "the lawful detention of a person after conviction by a competent court"; or whether, in such circumstances, the detention has become "arbitrary" and therefore unlawful.

The case law

[82] Before examining the case law in detail, it is useful to anticipate that examination by dealing with one particular point which tends to get in the way of a rational discussion of the issues. That relates to the effect of a finding of a breach of Article 5. It was argued on behalf of the UK in James (Strasbourg), for understandable forensic reasons, that a finding of arbitrariness and therefore unlawfulness would necessarily result in the release into the community of a potentially dangerous prisoner. This is a classic "floodgates" argument. Like most such arguments, it overstates the case and is seldom persuasive. It did not prevail before the Strasbourg court and nor does it, to my mind, carry any weight here. This is because, as was explained by Lord Mance in In re Martin Corey [2013] 3 WLR 1612, at paras 62-69, a finding of "arbitrariness", and therefore unlawfulness, is not a finding that the continuation of the detention is necessarily arbitrary or unlawful. It is, in effect, no more than a finding that the authorities are or have been in breach of an obligation, ancillary to that which arises directly under the terms of Article 5(1) ECHR, to progress the prisoner through the prison system in a proper manner. The finding of unlawfulness is, similarly, a finding that the failure to progress the prisoner in the proper manner during detention is unlawful, rather than a finding that the detention itself is unlawful. Accordingly, such a finding does not lead to the conclusion that the prisoner must immediately be released. It simply means that for the period during which the detention was arbitrary and unlawful the prisoner has a legitimate complaint of a breach of Article 5 and can seek redress, by way of declarator or damages or otherwise, in respect of that period.

[83] I turn to a consideration of the case law. Given the nature of the argument before me, it is necessary to go through this in rather more detail than would otherwise be desirable.

[84] In James, Lee and Wells v. Secretary of State for Justice [2010] 1 AC 553 ("James (HL)") the claimants had each been given an indeterminate sentence for public protection ("IPP") pursuant to s225 of the Criminal Justice Act 2003. It was implicit in the statutory scheme - and it was not suggested in argument that there was any material difference between the English statutory scheme and the Scottish provisions under s2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 with which I am here concerned - that the Secretary of State would make reasonable provision to enable IPP prisoners to demonstrate to the Parole Board that they were safe for release, if necessary by enabling them to complete treatment courses ("effective review"); though it was not accepted that the scheme included a requirement on the part of the authorities to make available courses for the rehabilitation of offenders ("rehabilitation"). The Secretary of State conceded that there had been a systematic failure to make provision for courses enabling effective review by the Parole Board; and that he had thereby been in breach of his public law duty so to do. In three different proceedings, the claimants variously sought judicial review of aspects of that failure, claiming unlawful detention at common law and breaches of ECHR Article 5(1) and (4).

[85] Their cases were heard together in the House of Lords. The House of Lords rejected the common law claims. As to the claims under Article 5, it held that for a prisoner's detention to be justified under Article 5(1)(a) there had to be sufficient causal connection between his conviction and the deprivation of his liberty. The causal link was not broken by the Secretary of State's failure to provide risk-reducing courses or treatment and, while it might be broken by a prolonged failure to enable the prisoner, in an effective review of his case, to demonstrate that he was safe for release, such failure would have to be for a period of years rather than months. In none of the cases had there been a breach of Article 5(1) so as to render their post-tariff detention unlawful. It also rejected the claims under Article 5(4) on the basis that that provision was concerned with procedure rather than substance. It required no more than that the Parole Board should decide whether the prisoner continued to be lawfully detained; and he would be lawfully detained unless and until the Parole Board was satisfied that it was no longer necessary for the protection of the public that he should be confined or so long had elapsed without any effective review of his dangerousness that the Article 5(1) causal link had to be presumed broken. The fact that on the material before the Parole Board the prisoner might be unable to demonstrate his safety for release did not involve a breach of Article 5(4). (In fact in one of the cases it had been conceded that the Secretary of State was in breach of Article 5(4) and in another case there had been no appeal against a finding by the court below that the Secretary of State was in breach of Article 5(4), and the claims for damages consequent upon that concession and on that unappealed finding were remitted for assessment - but that does not affect the decision in principle, which was to reject the claim for breach of Article 5(4).)

[86] Underlying the decision in the House of Lords was the conclusion that the purposes of the 2003 Act did not include any requirement for the rehabilitation of prisoners: see per Lord Brown at para 49 and per Lord Judge at para 126. Although the House of Lords held that there had been no breach of Article 5(1) or (4) in the case of Mr James, they did conceive of a situation where there might be a breach of Article 5(1), where the system laid down by the statutes broke down entirely, with the result that the Parole Board was denied the information that it needed for the purpose of performing its function for a very long period (measured in years rather than months). In such a case the continued detention could be said to be "arbitrary", " because there was no way in which it could be brought to an end in the manner that the original sentence contemplated": see per Lord Hope at para 15. Lord Brown said much the same at para 51, suggesting that Article 5(1) might be breached where there was, in consequence of failures by the Secretary of State, "'a very lengthy period' without an effective review of the case". Similarly, Lord Judge CJ at para 128 contemplated that there might be a breach of Article 5(1) if the prisoner was "allowed to languish in prison for years without receiving any of the attention which both the policy and the relevant rules, and ultimately, humanity, require", though the picture painted so graphically by him suggests that he may have had in mind circumstances very extreme indeed before there would be a breach of the Article. Lord Hope (at para 21) considered that the same analysis could apply also to article 5(4), but both Lord Brown and Lord Judge were of the view that Article 5(4) was procedural only, concerned with the prisoner's ability to take proceedings (whether before the Parole Board or in court) to demonstrate that his continued detention was no longer justified because he no longer presented a risk. It was not directed to the inadequacies of a prison regime which might make it impossible for the prisoner to addresses offending with a view to reform and rehabilitation: see e.g. per Lord Judge at para 132. The other members of the court agreed with all three judgments, from which it must be taken that the views of Lords Brown and Judge on the scope of Article 5(4) prevails.

[87] James, Lee and Wells took their cases to the European Court of Human Rights in Strasbourg. Their applications were consolidated and the decision of the court is reported as James v. United Kingdom (2013) 56 EHRR 12 ("James (Strasbourg)"). The case was heard by the Fourth Section of the court. The court unanimously held that their detention during the period after expiry of the tariff and before steps were taken both to progress them through the prison system and to provide access to rehabilitative courses had been a violation of Article 5(1). The court held that the complaints under Article 5(4) regarding lack of access to courses gave rise to no separate issue; but that there had in fact been no violation. It ordered the United Kingdom to pay damages ("compensation for non-pecuniary damage") to the applicants (€3,000 to James in respect of a period of 5 months arbitrary and unlawful detention, €6,200 to Wells in respect of a period of 21 months, and €8,000 to Lee in respect of a period of 30 months).

[88] In the course of its decision, the court examined thoroughly the decisions of the courts in England, including the speeches in the House of Lords in James (HL). It then turned to deliver its own judgment, beginning at para 171. At para 187 onwards, it assessed the "general principles" applicable to an understanding of Article 5, reiterating at the outset that the object and purpose of Article 5(1) was to ensure that no one is dispossessed of his liberty in an arbitrary fashion. Any deprivation of liberty had to fall within one of the exceptions set out in subparagraphs (a) to (f) of Article 5(1) and had also to be "lawful". In relation to Article 5(1)(a), it noted that there must be a sufficient causal connection between the conviction and the deprivation of liberty and that, with the passage of time, the link between the initial conviction and a continued deprivation of liberty gradually becomes less strong. As it had previously indicated,

"... the causal link required by subpara (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 initial decision of the sentencing court or on an assessment that was unreasonable in terms of those objectives."

So far as concerned the "lawfulness" of detention, the Convention referred essentially to national law, but it was clear that compliance with national law was not sufficient in order for a deprivation of liberty to be considered "lawful". Article 5(1) also required that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness.

[89] Noting that the court had not previously set out an exhaustive list of the types of conduct on the part of the authorities which might constitute arbitrariness for that purpose, it identified some key principles to be extracted from the Strasbourg court case law in that area to date, though recognising that the principles had to be applied in a flexible manner having regard both to the degree of overlap between them and to the recognition that the notion of arbitrariness varies according to the type of detention involved. Those principles were as follows: (i) first, detention will be arbitrary where, despite it complying with the letter of the law, there has been an element of bad faith or deception on the part of the authorities; (ii) second, the condition that there be no arbitrariness demands that both the order to detain and the execution of the detention genuinely conform with the purpose of the restrictions permitted by the relevant subparagraph of Article 5(1); (iii) third, for the deprivation of liberty not to be arbitrary there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention; and, (iv) fourth, the requirement that detention not be arbitrary implies the need for a relationship of proportionality between the ground of detention relied upon and the detention in question.

[90] Applying those general principles to the facts, the court noted that the applicants did not dispute that their detention during their tariff periods fell within the exception in the subparagraph (a). The question for the court was whether their post-tariff detention for public protection was compatible with that subparagraph. The court, therefore, had to examine whether there was a causal link between the continuing detention and the original sentence, whether the detention complied with domestic law, and whether it was free from arbitrariness having regard to the considerations already mentioned.

[91] So far as concerned the existence of a causal connection, the court was satisfied that the post-tariff detention was based upon the applicants' conviction and that there was no break in the chain of causation. Indeterminate sentences were imposed on the applicants because they were considered to pose a risk to the public. Their release was contingent on the applicants demonstrating to the Parole Board's satisfaction that they no longer posed such a risk. They had failed to demonstrate this. The court considered that the lack of availability to the applicants of courses, which might have enabled them to satisfy the Parole Board that they no longer posed such a risk, fell to be considered not under this head of causal connection but under the question of whether the detention was free from arbitrariness.

[92] So far as compliance with domestic law was concerned, the court was satisfied that the post-tariff detention was compatible with domestic law. The opposite was not contended.

[93] Finally, the court considered the question of whether the detention was free from arbitrariness. The court noted that the 2003 Act, introducing the possibility of indeterminate sentences for offences of the nature and level of gravity of those committed by the applicants, was intended to protect the public from the risk posed or assumed (under the provisions of the Act) to be posed by certain offenders. Where reasons of dangerousness were relied on by the sentencing courts in ordering an indeterminate period of deprivation of liberty, those reasons were by their very nature susceptible of change with the passage of time. At para 204 the court commented that the restrictions on judicial discretion in sentencing did not per se render any ensuing detention arbitrary. The decision to impose a sentence of detention and the length of that sentence were matters which generally fell within the discretion of the national authorities. But it did not follow that such restrictions were entirely irrelevant to the courts examination of the question whether the detention was arbitrary. It went on to say this:

"In particular, the Court is of the view that in the circumstances which arose in the present cases, where the applicants were assumed to constitute a risk and there was little scope to counter that assumption and where, risk having been established, the sentencing judge had no power to impose any sentence but an indeterminate sentence of imprisonment, the need to ensure that there was a genuine correlation between the aim of the detention and the detention itself is all the more compelling."

In order to assess whether the detention was arbitrary, it was necessary to identify the purpose of the detention under Article 5(1)(a). A central purpose of the IPP sentences was protection of the public - but this was not the only purpose. Having considered the legislation, the debate in Parliament on the draft legislation, the comments of judges both in the lower courts and the House of Lords, and international obligations such as those in Article 10 of the ICCPR (the International Covenant on Civil and Political Rights 1966), the court expressed itself in this way (at para 209):

"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. ... The Court accordingly agrees with the applicants that one of the purposes of their detention was their rehabilitation."

This is a critical part of the decision. It was a necessary part of continued detention after expiry of the tariff period that the prisoner should be afforded a real opportunity for rehabilitation. Not only was that consistent with the international obligations undertaken by the UK and other countries; it was an essential condition to make such a regime of detention post-tariff compliant with Article 5 ECHR. Without the prisoner having access to the means of rehabilitation, detention post-tariff would be arbitrary. The point is repeated in para 218 of the judgment, quoted below.

[94] The court considered certain aspects of the operation of the IPP regime, both generally and in relation to the applicants, citing criticisms by judges in the Court of Appeal and the House of Lords. It concluded its consideration of this aspect of the case in this way (in paras 217 - 222):

217 The Court acknowledges that the IPP sentence was intended to keep in detention those perceived to be dangerous until they could show that they were no longer dangerous. The Government has suggested that, in these circumstances, a finding of a violation of art.5(1) as a result of the lack of access to appropriate treatment courses would allow the release of dangerous offenders who had not yet addressed their risk factors. The Court accepts that where an indeterminate sentence has been imposed on an individual who was considered by the sentencing court to pose a significant risk to the public at large, it would be regrettable if his release were ordered before that risk could be reduced to a safe level. However, this does not appear to be the case here. ...

218 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 action 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.

219 Mr James' tariff expired almost one year and 295 days after he was sentenced. He was not progressed through the prison system during that period and recommended courses were unavailable to him. He was not transferred to a first-stage lifer prison until five months after his tariff had expired. He was released three months later. Mr Wells' tariff expired 307 days after he was sentenced. He was also not progressed through the prison system during that period and recommended courses remained unavailable to him. He was not transferred to a first-stage lifer prison until 21 months after his tariff had expired. Thereafter he was given access to relevant courses and completed three such courses over a period of approximately eight months. Mr Lee's tariff expired 163 days after he was sentenced. Like Mr James and Mr Wells, he was not progressed through the prison system during that period and recommended courses remained unavailable to him. He was not transferred to a first-stage lifer prison until 25 months after his tariff had expired. Although assessments for the course recommended for him then commenced, a further five-month period of delay occurred following a recommendation for prior motivational work which was not available to him.

220 The Court considers it significant that substantial periods of time passed in respect of each of the applicants before they even began to make any progress in their sentences, and this despite the clear guidance in PSO 4700. It is clear that the delays were the result of a lack of resources and while, as noted above, resource implications are relevant, it is nonetheless significant that the inadequate resources at issue in the present case appeared to be the consequence of the introduction of draconian measures for indeterminate detention without the necessary planning and without realistic consideration of the impact of the measures. Further, the length of the delays in the applicants' cases was considerable: for around two-and-a-half years, they were simply left in local prisons were there were few, if any, offending behaviour programmes. As Laws LJ indicated, the stark consequence of the failure to make available the necessary resources was that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariff periods expired. Further, once the applicants' tariffs had expired, their detention was justified solely on the grounds of the risk they posed to the public and the need for access to rehabilitative treatment at that stage became all the more pressing.

221 In these circumstances, the Court considers that following the expiry of the applicants' tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses, their detention was arbitrary and therefore unlawful within the meaning of art.5(1) of the Convention. ...

222 There has accordingly been a violation of art.5(1) of the Convention in the case of all three applicants."

[95] Having found there to have been a violation of Article 5(1), the court considered the alleged violation of Article 5(4). It concluded that the issues raised by the applicants under that head had already been examined in the context of the complaint under Article 5(1); so the complaint under Article 5(4) raised no separate issue. However, it went on to say that since it had been open to the applicants to commence judicial review proceedings to challenge the conduct of the Secretary of State in failing to provide relevant rehabilitation courses, and since it was open to the Parole Board to order the release of a prisoner sentenced to an IPP, and the applicants had failed to establish that the combination of those two methods of review could not have resulted in their release, there had been no violation of Article 5(4). In effect, therefore, the court regarded Article 5(4) as procedural, in the same way as had Lords Brown and Judge in the House of Lords; and since procedures existed by which the applicants could have sought to persuade the Parole Board or a court to order their release, there was no breach of that Article.

[96] In summary, therefore, the Strasbourg court in James (Strasbourg) agreed with the decision of the House of Lords in James (HL) on the interpretation and application of Article 5(4) but differed in relation to Article 5(1). The main points emerging from a comparison of the two decisions are these.

(1) First, the courts differed on the question whether there was a duty to provide the prisoner with the opportunity for and means of rehabilitation. The House of Lords held that there was no such duty, though (in agreement with the Strasbourg court) it held that there was a duty to provide access to the means whereby a prisoner could seek an effective review of whether he continued to pose a danger. The Strasbourg court, by contrast, held that, in addition to the duty to provide the means to an effective review, there was a duty to provide the opportunity for rehabilitation.

(2) Second, both the House of Lords and the Strasbourg court held that the causal link between the conviction and the deprivation of liberty was not broken by the failure of the Secretary of State to provide the means by which the claimant could, in an effective review of his case before the Parole Board, seek to demonstrate that he was safe for release. The Strasbourg court applied the same approach to the failure of the Secretary of State to provide for rehabilitation; the causal link was not broken by the failure to provide for rehabilitation. The House of Lords contemplated that there might be exceptional cases where the causal link was broken (per Lords Brown and Judge). Lord Hope considered that such circumstances pointed to arbitrariness rather than to a break in causation, but that seems to me to be a matter only of terminology and nothing turns on it.

(3) Third, on the question of arbitrariness, the Strasbourg court held that while prisoners did not have an absolute right to have immediate access to all courses they might require for purposes of rehabilitation, any restrictions or delays encountered as a result of resource or other considerations had to be reasonable in all the circumstances of the case. Detention without access to opportunities for rehabilitation was arbitrary and therefore unlawful. In contrast to the dicta in the House of Lords about the lengthy period required before there would be a break in the causal chain between conviction and sentence, the Strasbourg court laid down no requirement that the period without access to rehabilitation opportunities should be particularly long, or extreme or exceptional. Nor did it lay down any requirement that the failure be systemic rather than the result of human error or oversight.

[97] The decision in James (Strasbourg) was a decision of the Fourth Section of the Strasbourg court, not a decision of the Grand Chamber. It therefore has less authority than a decision of the Grand Chamber. However, at its meeting of 11 February 2013, the Grand Chamber panel of five judges rejected a request for a referral of that decision to the Grand Chamber. In consequence the decision became final. Under Article 43 ECHR, a panel of five judges considering a request for a referral to the Grand Chamber will ask itself whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the request for a referral will be granted. The rejection of the request for a referral does not necessarily mean that the decision of the Fourth Section was considered to be correct; but it does indicate that that test was not met, thereby suggesting that the decision was not thought to raise any new principle of general importance.

[98] The decision of the Strasbourg court in James (Strasbourg) is clearly inconsistent with the decision of the House of Lords in James (HL). Quite apart from the differences of analysis referred to above - viz. the duty to provide access to the means of rehabilitation, and the finding of non-compliance with Article 5(1) for even a short period of failure to provide it - the result itself was different. The Strasbourg court found in favour of the applicants on their complaint under Article 5(1) whereas the House of Lords did not. The Strasbourg court awarded damages whereas Mr James' damages claim was rejected in the House of Lords - the remit for an assessment of damages in the case of Mr Lee and Mr Wells was made only because, in one case, the breach had been conceded in the courts below and, in the other, because the finding of breach in the courts below had not been made the subject of appeal. The Strasbourg court decided the case in favour of the applicants on the basis that the detention, albeit lawful under domestic law and linked in terms of causation to the original conviction and sentence, was arbitrary in the absence of any effective rehabilitation.

[99] The question arises as to how a court of first instance should deal with these apparently divergent authorities. That question was addressed by Lord Bingham, with the approval of other members of the House of Lords, at paras 40-45 of his speech in Kay v. Lambeth LBC [2006] 2 AC 465. It is not necessary to refer to the facts of that case. There was a difference of opinion both in the courts below and in the House of Lords as to whether the decision of the Strasbourg court was in fact inconsistent with the prior decision of the House of Lords. That is not an issue here; it is. Lord Bingham rejected an argument that where there was a clear inconsistency between a decision of the House of Lords and a subsequent decision of the Strasbourg court, an inferior court hearing a subsequent case should be free to follow the Strasbourg decision. The doctrine of precedence should continue to govern. The inferior court should follow the decision of the House of Lords, now the Supreme Court, although it might express its own views and give leave to appeal so that the matter could be addressed at the highest level at the earliest opportunity. To this rule, however, Lord Bingham admitted of one "partial exception": see para 45. Referring to the case of D v. East Berks Community NHS Trust [2004] QB 558, in which the Court of Appeal had held that the decision of the House of Lords in an earlier case - X (Minors) v. Bedfordshire County Council [1995] 2 AC 633 - could not survive the introduction of the Human Rights Act 1998, Lord Bingham pointed out that when D v. East Berks Community NHS Trust had reached the House of Lords, the House had expressed no criticism of the Court of Appeal's "bold course" in not following House of Lords authority. But he said that there were other considerations which made it "a very exceptional case". Judgment had been given in the earlier House of Lords case well before the introduction of the 1998 Act and no reference had been made in any of the opinions in the House of Lords to the Convention. And, importantly:

"... the very children whose claim in negligence the House had rejected as unarguable succeeded at Strasbourg in establishing a breach of article 3 of the Convention and recovering what was, by Strasbourg standards, very substantial reparation: Z v. United Kingdom (2001) 34 EHRR 97."

In other words, the Strasbourg court had in effect reversed the decision of the House of Lords in the same case and on the same facts. On those extreme facts the Court of Appeal was entitled to hold that the decision of the House in the earlier case in relation to children could not survive the 1998 Act.

"But such a course is not permissible save where the facts are of that extreme character."

I shall consider in due course to what extent the subsequent case law enables or requires this court of first instance to follow the decision of the Strasbourg court in James (Strasbourg) in preference to the earlier decision of the House of Lords in James (HL). But it is worth noticing that James (Strasbourg) was also a case where the very individuals whose claim the House of Lords had rejected succeeded at Strasbourg in establishing a breach of the Convention and recovering reparation. In other words, James was case where the Strasbourg decision in effect reversed the earlier House of Lords decision in the same case, between the same people and on the same facts.

[100] It was pointed out that James (UK) was a decision of the House of Lords on an English appeal. However, in my view this makes no difference. In Dalgleish v. Glasgow Corporation 1976 SC 32 at page 52 the then Lord Justice-Clerk expressed the view that where the decision of the House of Lords on an English appeal concerned legislation having equal applicability and force in both countries, then that decision should be regarded as binding in Scots law. That is the case here. Although the legislation affecting the punishment of offenders in England differs in some respects from that in force in Scotland, it was not submitted that anything turned on such differences. The decision of the House of Lords in James (UK) was a decision as to whether the established or admitted facts showed a breach of Article 5 of the Convention. The Human Rights Act 1998 applies in both jurisdictions, and the Convention to which it gives effect applies in Scotland also by reason of the Scotland Act 1998. Prima facie, therefore, the decision of the House of Lords in James (UK) should be followed, notwithstanding the subsequent decision of the Strasbourg court in James (Strasbourg), unless the court can be satisfied that it is an exceptional case of the kind mentioned in Kay. That is the question I have to decide. In addition to recognising the fact that the Strasbourg decision involved the very same individuals as had had their claim rejected by the decision of the House of Lords, and was a decision involving a detailed analysis of the requirement for lawful detention under Article 5(1)(a) ECHR, the answer to that question also involves, to some extent, a consideration of how the Strasbourg decision has been dealt with in subsequent cases.

[101] R (Faulkner) v. Secretary of State for Justice was heard with R (Sturnham) v. Parole Board. The judgment of the Supreme Court in the conjoined cases (to which I shall refer as "Faulkner") is reported at [2013] 2 WLR 1157. In the first case, Faulkner was given a life sentence for a second serious offence pursuant to s109 of the Powers of Criminal Courts (Sentencing) Act 2000. Following expiry of the minimum term set by the trial judge, the Parole Board twice recommended that he should be transferred to open conditions but, on each occasion, that recommendation was rejected by the Secretary of State. A further reconsideration by the Parole Board had to be aborted because of a delay by the Secretary of State in referring his case to the Board, resulting in a delay in the complete dossier of reports being provided to the Parole Board. When the hearing eventually took place, the Parole Board directed his release on licence. He sought judicial review of the failure of the Parole Board and the Secretary of State to conduct a review of his detention earlier, in breach of Article 5(4). He also contended that his continued detention after the date when his case ought to have been heard by the Parole Board constituted false imprisonment and/or a violation of Article 5(1). In the second case, Sturnham was convicted of manslaughter and sentenced to an indeterminate term of imprisonment for public protection pursuant to s225 of the Criminal Justice Act 2003. His case was referred to the Parole Board in anticipation of the expiry of the minimum term set by the trial judge, but as a result of administrative errors the necessary reports were not supplied to the board in time. However, following a hearing in May 2010, about a year later, the Parole Board declined to order his release on licence. He sought a judicial review of that decision and a declaration of infringement of his rights under Article 5(4). The relevant finding, dismissing cross-appeals by the applicant in each case, was to the effect that where the detention of a prisoner was prolonged as a result of a delay in the consideration of this case by the Parole Board, in violation of Article 5(4), that was not in itself a violation of Article 5(1) in the absence of exceptional circumstances warranting the conclusion that his continued detention had become arbitrary. The administrative errors which had resulted in delay were not of such a character and the delay was not of such a degree as to drive one to the conclusion that there had been a violation of Article 5(1).

[102] Before turning to consider the judgments in that case it is important to note two points in particular. First, the case was concerned not with complaints about lack of access to rehabilitation courses but with complaints about lack of any effective review by the Parole Board for certain periods (because of a failure to refer and a failure to put the relevant documentation before the Board). So the subject matter is different. Secondly, the claimants in each case sought an award of damages for loss of liberty, on the basis that had they had an effective review by the Parole Board earlier than they did they would have been released earlier. Again, that is different from James (Strasbourg). Neither of those points arose in James (Strasbourg), where damages were awarded for breach of Article 5(1) for feelings of distress and frustration resulting from continued detention without access to rehabilitative courses: see per Lord Reed at para 22 - 23. As a result, the issues considered by the Strasbourg court in James (Strasbourg) did not arise for decision in Faulkner.

[103] The leading judgment in Faulkner was given by Lord Reed, with whom (on the issues relevant to this case) all of the other justices agreed. In para 13 he summarised his conclusions in this way (I select only those of potential relevance to the current issue):

"13 It may be helpful at this point to summarise the conclusions which I have reached.

1. A prisoner whose detention is prolonged as a result of a delay in the consideration of his case by the Board, in violation of article 5.4 of the Convention, is not the victim of false imprisonment.

2. Nor is he ordinarily the victim of a violation of article 5.1 of the Convention: such a violation would require exceptional circumstances warranting the conclusion that the prisoner's continued detention had become arbitrary.

..."

The remainder of the sub-paragraphs set out principles relating to the award and assessment of damages when it is shown that a prisoner's detention is prolonged in circumstances identified in subparagraphs 1 and 2. I need not go into this matter for present purposes, save to note that at sub-paragraphs 12 and 13 Lord Reed accepts that damages for feelings of frustration and anxiety may be awarded for a breach of Article 5(4) even where it is not established that an earlier review by the Parole Board would have resulted in earlier release. This is consistent with the basis upon which damages were awarded by the Strasbourg court in James (Strasbourg).

[104] Sub-paragraph 1 of the conclusions set out in para 13 of Lord Reed's judgment is not strictly relevant to the present case, since it involves a complaint about delay in effective review in violation of Article 5(4) and is not concerned with delay in the provision of rehabilitative courses in violation of Article 5(1). Further, it is concerned with a claim for false imprisonment at common law. Nonetheless, it helps to provide some context for Lord Reed's discussion of James (Strasbourg). Similarly, sub-paragraph 2 of Lord Reed's conclusions raises the question of a violation of Article 5(1) only in the context of a complaint about delay in effective review and not in the context of a complaint about the absence of any provision for rehabilitation. This too is important, because it confirms the point made earlier, namely that the decision of the Strasbourg court in James (Strasbourg) that the claimants were entitled to damages for violation of their rights under Article 5(1) when they were not provided with any access to rehabilitative courses did not arise either for consideration or for decision in Faulkner.

[105] Nevertheless, Lord Reed did touch upon the decisions in James (UK) and James (Strasbourg) in considering the lawfulness of detention when there was a violation of Article 5(4). He dealt with this in paras 15 - 23. In para 18 he pointed out that Article 5(4) provided a procedural entitlement but that a violation of Article 5(4) did not necessarily entail a violation of Article 5(1) - the purpose of Article 5(1) was to prevent persons from been deprived of their liberty in an arbitrary fashion, and on certain facts detention during the period of a delay in review of the case in breach of Article 5(4) would not necessarily be regarded as involving an arbitrary deprivation of liberty. In paras 19-20 he referred to the reasoning of the House of Lords in James (UK), explaining that the House of Lords held there to have been no violation of Article 5(1) in that case, because the causal link with the objectives of the sentencing court had not been broken. In para 21 he pointed out that the Strasbourg court agreed with the House of Lords that there was a sufficient causal connection between the convictions and the deprivation of liberty following the expiry of the tariffs. But he went on to make the following remarks, in paras 22 and 23:

"22 The European court nevertheless 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 risks they posed to the public. Their 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 a justification for the detention after the expiry of the tariff was a 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.

23 The judgment of the European court in that case does not appear to me to be directly relevant to the present appeals. That is, in the first place, because these appeals are not concerned with the lack of access to rehabilitation courses which was in issue in the James case. Secondly, the awards made in the James case were not for the loss of liberty but for the feelings of distress and frustration resulting from continued detention without access to the relevant courses: see paragraph 244 of the judgment. That, as I have explained, is not an issue that arises in the present appeals."

[106] The Faulkner case is not directly in point. But it is of interest. That is not because of what it says about James (Strasbourg) but because of what it does not say. It is noteworthy that Lord Reed does not, in any of that discussion to which I have referred, question the correctness of the decision of the Strasbourg court in James (Strasbourg). Nor does he suggest that it would not be followed in any subsequent case in the UK. Lord Carnwath, who gave a separate judgment in addition to agreeing with Lord Reed, said nothing about the competing decisions in the two James cases.

[107] I was referred to three first instance decisions in which the inconsistency between the House of Lords and the Strasbourg court has been discussed. The first, in chronological order, is the decision of Lang J in R (Haney) v. Secretary of State for Justice [2013] EWHC 803 (Admin). The claimant complained that he was detained in closed conditions during a period of excessive delay awaiting transfer to open conditions. He alleged that this was a breach of Article 5(1). Lang J noted that all parties had submitted that the judgment of the Strasbourg court was inconsistent with the earlier decision of the House of Lords; and that, applying the doctrine of precedent as explained in Kay, she was bound to follow the decision of the House of Lords. This was not such an exceptional case as to justify a departure from that rule. Accordingly, she dismissed the claim under Article 5, but granted leave to appeal.

[108] In R (Faisal Kaiyam) v. Secretary of State for Justice [2013] EWHC 1340 (Admin), the claimant alleged that the Secretary of State had failed in his duty owed to each and every indeterminate sentence prisoner that they be given reasonable opportunity to demonstrate their safety for release at tariff expiry and at further Parole Board reviews. However, it was conceded before Supperstone J that the court was bound to dismiss a claim under Article 5(1) because of the decision of the House of Lords in James (UK) (see para 5). The judge accepted that concession (see para 37). After referring to what Lord Hope and Lord Brown had said (at paras 15 and 51), he commented that none of the requirements to establish a breach of Article 5(1) were satisfied in that case. He refused leave to appeal. On the basis of the decision in Faulkner, he considered that "exceptional circumstances" would need to be shown to warrant the conclusion that the prisoner's continued detention had been arbitrary. In his view no such exceptional circumstances existed in that case.

[109] I have no difficulty with that latter decision. The case was a case about the absence of effective review, not absence of rehabilitation, and therefore one to which the James (UK) and Faulkner exceptional circumstances test applied. Properly understood, James (Strasbourg) had no application to such a case. As to Haney, it is not clear to me whether this as an effective review or a rehabilitation case. The perceived conflict between James (UK) and James (Strasbourg) suggests that it was the latter, but the reference to exceptional circumstances (an expression used in Faulkner and derived from James (UK)) suggest that it may have been the former. Be that as it may, the decision to follow James (UK) was based on a concession (or rather a common submission) and does not provide much assistance.

[110] Finally, in M v. Scottish Ministers 2013 SLT 875 a discretionary life sentence prisoner sought declarator that the Scottish Ministers had acted unlawfully by failing to accommodate him in open conditions or otherwise provide him with opportunities by which he could demonstrate to the Parole Board that it was no longer necessary for public protection for him to be confined. He asserted a breach of his rights under Article 5. Lord Bannatyne held that the respondents had taken account of all relevant factors; and it could not be said that no reasonable decision maker, properly instructed, could have reached the decision which was reached. He noted Lord Reed's conclusion in Faulkner that there had to be exceptional circumstances before a conclusion that the petitioner's detention was arbitrary could be justified. The petitioner's detention was not arbitrary in the absence of such exceptional circumstances. Mere delay in his progress would not cause his detention to become arbitrary. In those circumstances the petitioner's claim failed on its facts. What the petitioner was really complaining about was not a failure to give him a real opportunity for rehabilitation but that the rate at which she was proceeding through the rehabilitation process was not as fast as he had hoped (see para [103]). This appears to be a "rehabilitation" case, though the court applied the exceptional circumstances approach from Faulkner which, in my opinion, applies only to a "no effective review" complaint. However, given that the case failed on its facts, I do not consider that this decision provides any real guidance as to whether a court of first instance should still regard itself as bound by James (HL) despite the subsequent decision in James (Strasbourg).

[111] Since hearing argument, a further case has been decided in the Supreme Court in which their Lordships, and particularly Lord Mance, analyse James (UK) and James (Strasbourg) in a way which bears directly on the issues here. I did not invite further argument on this decision since it did not seem to me to raise any point which had not already been canvassed in argument. It does, however, bear upon the question of whether the decision of the Strasbourg Court in James (Strasbourg) can now safely be regarded as an accepted part of the law of the United Kingdom.

[112] In re Martin Corey [2013] 3 WLR 1612 was a decision of the Supreme Court on appeal from the Court of Appeal in Northern Ireland. In that case the parole commissioners refused to direct the release of the appellant, basing their decision substantially on closed material, in other words material which was not made available to the appellant. The Court of Appeal, reversing the judgment of Treacy J, rejected the appellant's complaint of a breach of Article 5(4) on the basis that the material provided to the appellant and his advisers was sufficient to allow him to give effective instructions to those representing him. The Supreme Court refused the application for permission to appeal against the decision of the Court of Appeal on that issue. However it heard the appellant's appeal on the (in consequence, academic) question of whether the High Court had an inherent jurisdiction to grant bail or otherwise order the interim release of the appellant (as Treacy J had done). In considering that issue the Supreme Court reviewed the proceedings in relation to the complaint under Article 5(4). Lord Kerr (with whom the other members of the court agreed) discussed the decision of the House of Lords in James (UK) and the decision of the Strasbourg court in James (Strasbourg). At para 43, he noted that the Strasbourg court "did not agree with the finding of the House of Lords that the purposes of the 2003 Act did not include the rehabilitation of prisoners". He noted, at para 44, that "since the applicants in James did not have the opportunity to embark on rehabilitative courses, successful completion of which was indispensable to that of establishing their suitability for release, their continued detention was found to be arbitrary." He explained at para 45 that:

"The arbitrariness (and, on that account, the unlawful nature) of the continued detention stemmed from their detention while the means of bringing it to an end remained elusive for the prisoners. This was not directly related to the question of the causal link between the detention and the original sentence, however. The causal link has survived. ... It was because there was no means of ascertaining whether the danger had dissipated that the detention had become arbitrary."

He added, at para 46, that, logically, as soon as a means of assessing the risk of danger to the public became available through the courses which the prisoner was able to undertake in order to demonstrate that he no longer constituted such a danger, the detention was no longer to be regarded as arbitrary. When the necessary steps were taken, detention which had until then been arbitrary was no longer so. That analysis, in his opinion (see para 47), stood apart from the question of causal link between the original sentence and the reasons for continuing detention. He concluded his analysis of the Strasbourg decision at para 48 in this way:

"The lawfulness of the appellant's detention is not to be approached, therefore, solely in terms of whether the causal link between his original sentence and his current detention has been broken. The essential question is whether he has had an opportunity to demonstrate that the reasons that he was considered to present a threat to society no longer apply. If he does not have such an opportunity, then clearly, on the authority of James v. United Kingdom, his continued detention is arbitrary. Whether it follows that he must, therefore, be released is an altogether different question."

Lord Kerr return to that "vexed question" at paras 50 - 52, but thought it better to leave it for a future occasion when the issue arose directly.

[113] On one reading of that judgment, Lord Kerr appears to interpret the Strasbourg court decision in James (Strasbourg) as being a decision that a violation of Article 5(1) would be established by the lack of any opportunity for the prisoner to demonstrate that the reasons that he was considered to present a threat to society no longer apply - i.e. the lack of any effective review (see paras 45 and 48). However, I do not consider that this is a correct understanding of what Lord Kerr is saying, since in para 45 he talks about continued detention "while the means of bringing it to an end remained elusive for the prisoners" (which must include rehabilitation) and in para 46 he specifically refers to the undertaking of courses; and of course the undertaking of courses for rehabilitation merges into the use of participation in such courses as a means of providing evidence for an effective review.

[114] Lord Mance, with whom Lords Clarke, Hughes and Toulson agreed, added some further words on the decision of the European Court of Human Rights in James (Strasbourg). He explained, at para 59, that the House of Lords in James (UK) had recognised that prisoners in the invidious position of there not being any appropriate courses available to them through which they could seek to persuade the Parole Board that it was safe for them to be released, had a public law entitlement to judicial review, but had held that they had no complaint by reference to the ECHR. By contrast:

"The European Court of Human Rights in finding that the circumstances also constituted a cause of complaint under the Convention had to locate the violation somewhere in the Convention. It is located in article 5(1): see paras 221 and 231 and holding (3). It did so on the basis that the detention was 'arbitrary and therefore unlawful' under article 5(1) during the relevant periods of delay - that is, during the periods after expiry of the relevant tariffs and before steps were taken to progress the prisoners through the system by moving them to 'first stage' prisons where courses would be available, and also, in the case of Lee, during a subsequent period when he was still not offered any course: para 231."

Lord Mance regarded the Strasbourg court's reference to the detention as "unlawful" under article 5(1) during periods when courses were not being duly provided as "problematic", because it is suggested that in those circumstances the lawful detention of a person after conviction by a competent court had ceased to exist. If that were so, then logically that implied that the prisoner should have been at once released. Lord Mance did not accept that it followed automatically from the judgment of the Strasbourg court that a prisoner who was not being given appropriate courses could assert a right to release until such courses became available: see para 63. He thought there were indications in the judgment of the Strasbourg court to the contrary: para 64. He gave certain examples at paras 65 - 68. He concluded at para 69 with the following analysis:

"69 For these reasons, despite the court's description in para 221 of the detention as arbitrary and unlawful under article 5(1), I believe it to be well arguable that what was in truth being identified was a breach of an ancillary obligation to progress the prisoners through the prison system arising by implication from, rather than directly under the terms of, article 5(1). Such a breach would not mean that the prisoners were entitled to be released, but would entitle them to recover any damages which they could show had been suffered as a result of that breach. If this were to be regarded as the correct analysis, then their continuing detention would continue to be legitimate under the Convention as well as under domestic law, until the Parole Board was satisfied that their detention was no longer necessary for the protection of the public."

[115] I cite these passages at some length for two reasons. The first is that they show how a finding of arbitrariness and unlawfulness resulting from a violation of Article 5(1) does not necessarily result in the prisoner having to be released. That is a point I mentioned earlier (see para [78] above). The second is because nothing in the judgments of Lord Kerr and Lord Mance, both of whom had the concurrence of other members of the court, even hints at a suggestion that the decision of the Strasbourg court in James (Strasbourg) might not be followed were the same problem to occur again in the domestic courts. On the contrary, both Lord Kerr and Lord Mance are content to explain the decision in James (Strasbourg) as being based on arbitrariness, rather than a break in the causal link, and then to attempt to grapple, to a greater or lesser extent, with the problem potentially raised by the conclusion that detention in such circumstances was "unlawful".

[116] Having considered carefully all the cases referred to above, I have come to the following conclusions about the present state of the case law relevant to the issue under consideration:

(1) The decision of the House of Lords in James (UK) - to the effect that the purposes of the domestic legislation (in terms of which convicted prisoners sentenced to life imprisonment or imprisonment for an indeterminate period must serve their tariff, fixed by the judge, and must thereafter remain in custody until such time as the Parole Board is satisfied that they no longer represent a danger to the public) do not include the rehabilitation of offenders, so that the authorities are under no obligation to provide courses or other treatment enabling such prisoners to take steps to reduce or eliminate the risk which they pose - was rejected by the European Court of Human Rights in James (Strasbourg).

(2) The Strasbourg court expressly decided 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". The failure to provide such an opportunity when it ought reasonably to have been provided constituted a violation of Article 5(1), giving rise to the possibility of an award of damages for distress and frustration and, possibly, other damages.

(3) The Strasbourg court's decision that rehabilitation is a necessary part of such a post-tariff detention regime is not a decision simply on the proper interpretation of a domestic UK or English statute. It is a decision as to what Article 5(1) requires of such a detention regime for it to be ECHR compliant.

(4) While disagreeing about the requirement for rehabilitation, the House of Lords in James (UK) considered that it was a requirement of the post-tariff detention regime that the prisoner should have the opportunity, by undertaking courses or the like, to demonstrate to the appropriate body (such as the Parole Board) that he no longer constitutes a danger to the public. If the authorities deprived the prisoner of such an opportunity, with the result that there was for a very considerable period no effective review of his case, a breach of Article 5(1) might be established. Lord Hope put this on the basis that in those circumstances the continued detention without effective review might be considered arbitrary. Lord Brown and Lord Judge CJ put it on the basis that in those circumstances the causal link between the original conviction and the continued detention might be deemed to be broken. Nothing turns on this difference of analysis. All of them considered that the period of detention without effective review necessary to found a violation of Article 5(1) would stretch into years, not months.

(5) The decision of the Strasbourg court in James (Strasbourg) has been considered in at least two subsequent decisions of the Supreme Court (Faulkner and, in particular, In re Martin Corey) in terms which cast no doubt upon its authority and the likelihood of its being followed in subsequent cases in the various jurisdictions in the United Kingdom. Indeed, the very full discussion of the Strasbourg judgment by the Supreme Court in In re Martin Corey leaves no room for doubt that the Strasbourg decision is regarded as binding.

(6) This is one of those exceptional cases contemplated in Kay where an inferior court should follow the later decision of the Strasbourg court in James (Strasbourg) in preference to the decision of the House of Lords in James (UK), for three main reasons:

(i) the decision in James (Strasbourg) was, in effect, a successful appeal from the decision of the House of Lords in James (UK), involving a decision in the same case, between the same people and on the same facts;

(ii) the main point of difference between the two decisions was as to the proper interpretation of Article 5(1) of the Convention rather than on a point of interpretation of domestic law; and

(iii) the decision of the Strasbourg court has, in effect, been recognised in subsequent cases in the Supreme Court as representing the law which will be applied in the UK.

(7) The applicable law can be stated simply in these terms: detention beyond the tariff period set by the judge of a prisoner sentenced to life imprisonment or to imprisonment for an indefinite period for public protection will be considered arbitrary and therefore unlawful if and for so long as the prisoner is not provided with courses giving him an opportunity for rehabilitation.

(8) For the avoidance of doubt, a finding that the detention is arbitrary and therefore unlawful for such period does not necessarily lead to the conclusion that the prisoner must immediately be released. But it will, in the ordinary course, entitle him to claim damages for distress and frustration caused by the failure of the prison process and for such other damages as he may prove to have suffered. Other damages, such as damages for unlawful detention, will in all likelihood require him to prove that had he been provided with the appropriate courses he would have been able to persuade the Parole Board that he was suitable for release sooner than he was in fact released.

Discussion - applying the law to the facts found

[117] On the basis of the legal principles as I have sought to explain them, I consider that the petitioner shows a prima facie case that there has been a breach of Article 5(1) in respect of the second, third and fourth periods identified at paragraphs [70] - [72] above. Collectively these run from about April 2007 until about July 2013. In April 2007 the decision was made to attempt to address his sexual preoccupations and fantasies by putting him on the Healthy Sexual Functioning course. When that program was withdrawn before the petitioner could be placed on it, no alternative arrangements were put in place to address his identified problems. When, at the next review in July 2009, it was decided to give him access to additional modules on the Core STOP programme, he was only in fact put on those modules (in the form of the Good Lives programme) at the beginning of 2011, too late for any report of his performance to be put before the LPT at the March 2011 review. When, at the March 2011 review, a management plan was proposed, which was subsequently agreed, involving the petitioner being transferred to top and conditions, with the possibility of SELs in the meantime, that was departed from without any explanation - instead of being dealt with in this way, he was moved to closed conditions at Glenochil for about a year. All of the above had the result that there was no proper opportunity of access to any rehabilitation programmes from about April 2007 until about July 2013, a period of some six years.

[118] As I indicated earlier, however, my findings in this regard are provisional only. I heard no evidence in explanation of why things had gone wrong in this way. There may be explanations which satisfy me that there was in fact no breach of Article 5(1) or that any breach was more limited than at first appears. While the Strasbourg court has indicated that lack of resources would not generally be regarded as a good excuse for a failure to provide the necessary courses, there might be other reasons which the respondents would wish to put before the court before I reached a final view on the matter.

[119] For this reason it seems to me that the appropriate course is to appoint the petition to a second hearing at which there will be the opportunity of leading evidence. Before that, however, there ought to be a discussion as to the scope of any such evidence and as to the issues likely to arise. There will also be a consideration of the amount of any award of damages if I adhere to my preliminary view. I shall therefore at this stage simply appoint the petition to come out By Order before me for discussion of these matters and any other matters that parties wish to raise.

[120] Before making such an order, I should deal with the arguments advanced by the respondents on time bar and mora, taciturnity and acquiescence. I shall do so briefly.

Time bar under s100(3B) of the Scotland Act 1998 and s7(5) of the Human Rights Act 1998

[121] Section 100(3B) of the Scotland Act 1998, inserted by s14(6) of the Scotland Act 2012, provides as follows:

"(3B) Proceedings to which this subsection applies must be brought before the end of -

(a) the period of one year beginning with the date on which the act complained of took place, or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."

This provision matches that in s7(5) of the Human Rights Act 1998. Both subsections apply to the current proceedings.

[122] This petition was raised on 22 April 2013. The respondents submit that in so far as the petition is based upon alleged acts or omissions which are said to have taken place prior to 22 April 2012, the petition is time-barred. I reject that submission.

[123] True it is that many of the actions or failures to act of which complaint is made in the petition occurred more than one year before the petition was raised. In many cases they occurred several years before the petition was raised. But the complaints are cumulative. They depend for much of their force on what has gone on before. As appears from the lengthy narrative set out earlier in this Opinion, the petitioner presents a picture of a number of false dawns, in which hints or even promises of appropriate treatment, which might have enabled him to embark on guided efforts at rehabilitation and provided him with the opportunity of effective reviews, were made and then disappointed. No doubt on many occasions it would have been possible for him to bring proceedings. On the other hand, while there was the prospect of such courses being made available to him, there was the risk that bringing proceedings might rock the boat. Further, in order to bring proceedings for judicial review, the petitioner needed to apply for legal aid. The decision of the House of Lords in James (HL) was issued in May 2009. That was adverse to any prospect of a successful judicial review challenge. The decisions of the Court of Appeal also offered no encouragement. The decision of the Strasbourg court in James (Strasbourg) was issued in September 2012, but as I understood the submissions made to me on behalf of the petitioner it had at an earlier date been recognised that ECHR jurisprudence might offer some prospect of success to those in the position of the petitioner. The petitioner applied for legal aid in October 2011. That application was refused on 2 December of the same year. A review was sought on 5 December. That led to a further refusal of legal aid on 18 April 2012. There followed discussions between those acting for the petitioner and the Scottish Legal Aid Board. I was told that there were threats of proceedings for judicial review of the refusal to grant legal aid. In any event a fresh application for legal aid was made on 22 January 2013. Legal aid was eventually granted on 28 February 2013 and proceedings were raised in April of that year.

[124] If the court were to hold that the time bar of one year applied from the date of the act complained of, the delay in obtaining legal aid, which I suspect is typical in a case such as this and cannot be laid at the door of the petitioner, would result in a petitioner's complaints being time-barred before he was able to bring proceedings to vindicate them. That, to my mind, would be quite unjust. That is why there is the alternative period, described in subsection (3B)(b) as "such longer period as the court or tribunal considers equitable having regard to all the circumstances". In a case such as this, the petitioner's complaints have to be seen in the context of what has gone before. Past promises and failures are relevant to any assessment of the more recent conduct complained of; and, conversely, the more recent failures can cast new light on those occurring sometime before. For those reasons I am satisfied that it would be equitable having regard to all the circumstances to fix the period as one enabling the whole history of the matter to be taken into account. If necessary that would mean extending the period back to 2004, although it is sufficient, having regard to my views on the merits, to say that the period must date back to at least 2007.

Mora, taciturnity and acquiescence

[125] The respondents also contend that the petitioner is barred by mora, taciturnity and acquiescence. In this context I was referred to Portobello Park Action Group Association v. City of Edinburgh Council 2013 SC 184, particularly at paras [14] - [16] where the court cites, with apparent approval, my own decision in United Co-operative Ltd v. National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831.

[126] I need not go into this point in any detail. Much of what I said in the context of time bar applies here equally. The discretionary factors relevant to assessment of the appropriate time bar are effectively the same as those in issue on a plea of mora. In the circumstances I do not regard it as unreasonable for the petitioner not to have taken legal proceedings before he did - he was faced with almost insuperable obstacles to success until ECHR jurisprudence offered a hint of a promise at a fairly late stage. There was no unreasonable delay. Well before he took proceedings, he did speak out - at the various hearings before the LTP his legal representatives constantly complained of the failure by the SPS to give him the treatment which would have enabled him both to engage in rehabilitation and to enable him to present a case to the Parole Board that he was no longer a danger to the public. There was no taciturnity. For the same reasons, his conduct over the passage of time cannot be taken to amount to acquiescence, or assent to the failings now complained of. The plea of mora, taciturnity and acquiescence must fail. I cannot in fact conceive of any case in which the court would hold that the time bar in terms of s100(3B) of the Scotland Act 1998 (and the equivalent provision in the Human Rights Act 1998) could extend back to cover the whole of the period complained of and yet, at the same time, hold the claim to be barred by mora, taciturnity and acquiescence.

Disposal

[127] I shall appoint the petition to call By Order to enable parties to address the court on the precise scope of a second hearing, and to enable the court, with the assistance of the parties, to determine other matters of procedure, such as the use and exchange of affidavits, to facilitate the conclusion of this case.