STUART QUINN (AP) FOR JUDICIAL REVIEW OF A FAILURE  BY THE SCOTTISH MINISTERS TO PROVIDE HIM WITH REHABILITATION AND THEIR ASSOCIATED POLICY [2015] ScotCS CSOH_110 (12 August 2015)

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 110

P625/14


 

OPINION OF LORD TYRE

In the Petition of

STUART QUINN (AP)

Petitioner;

for

Judicial Review of a failure by the Scottish Ministers to provide him with rehabilitation and their associated policy. 

 

Petitioner:  Leighton;  Drummond Miller LLP

Respondents:  D Ross;  Scottish Government Legal Directorate

12 August 2015


Introduction
[1]        The petitioner is a prisoner serving a sentence of life imprisonment for murder.  The punishment part – or tariff – of his sentence is 18 years, imposed with effect from 22 May 2001.  He will become eligible to apply to the Life Prisoner Tribunal of the Parole Board for Scotland for release on licence from May 2019.  In this petition he seeks various declarators and other orders in relation to the respondents’ alleged failure to provide him – and other prisoners – with rehabilitation, and also their policy for prioritising prisoners for rehabilitative courses.  He contends that the consequence of such failures and of the prioritisation policy is that he and others are being deprived of a reasonable opportunity to demonstrate to the Parole Board at the time of expiry of their tariff that they no longer present an unacceptable risk to the public.  He submits that the respondents are in breach of their duties at common law and under articles 5 and 14 of the European Convention on Human Rights. 


 


Rehabilitation policy and practice
The petitioner’s averments
[2]        The petitioner avers that progress through the prison estate towards release of a prisoner serving life imprisonment follows a general pattern.  The first requirement is the undertaking and completion of necessary rehabilitative coursework.  If and only if that has been achieved, a prisoner may advance to the National Top End (NTE) where he will embark upon a programme of escorted leave before applying for a first grant of temporary release.  He will then obtain a work placement and progress to unescorted leave.  From the NTE he will advance to the Open Estate.  This procedure takes a number of years.  In making its assessment of the risk of releasing a prisoner on licence, the Parole Board will have regard to his successful progression through the prison estate.  In general the Board will only consider a life prisoner for release on licence if he has spent a substantial amount of time in the Open Estate. 


[3]        Following amendment of his pleadings, the petitioner avers that in order to have a reasonable chance of release at his tariff expiry date, a prisoner requires to have completed his rehabilitative coursework by a date not later than three or more years before tariff expiry.  Satisfactory completion of coursework is an essential condition of advancement to the NTE.  Prisoners will normally then spend two years in the NTE and the Open Estate respectively, although some will spend less time in one or other or both.  In the case of the petitioner, it is averred, the circumstances of his offence and the absence of a stable environment into which he could be released mean that he will require to spend at least four years in the preparation for release phase. 


[4]        The petitioner has been assessed as requiring coursework of various sorts.  He has completed the constructs course and now requires to undertake the Self Change Programme (“SCP”).  This programme may take between nine and 15 months to complete depending upon availability of the modules in which he has to participate.  Thereafter he may have to undertake the Substance Related Offending Behaviour Programme (“SROBP”), which would take about three to four months.  Time must also be allowed for the preparation of post-programme reports. 


[5]        There is a waiting list for available spaces on offending behaviour treatment programmes such as SCP.  The Scottish Prison Service has issued a notice containing guidance to prison governors and managers on how to prioritise the allocation of prisoner spaces on such programmes.  The current version of the notice (Amendment 21A/13) was issued on 13 May 2013.  It states as follows: 

“The following should be implemented: 

  1. Once a prisoner has been deemed suitable for an offending behaviour treatment programme, then he/she is placed on a waiting list.The individual should only be placed on a waiting list if he/she is motivated and able to participate.
  2. Spaces are then allocated according to critical dates.
  3. No prisoner-type is prioritised over another.Regardless of what sentence he or she is serving (ie, short-term, long-term, Life and OLR, Recalled), the critical date (according to the table below) is listed sequentially and spaces are offered as and when they become available.
  4. Critical dates are calculated based on the criteria below:

    Sentence                                                              Critical date

    Short-term prisoner (less than 4 years)               EDL – halfway point of sentence

    Long-term prisoner (four years or more)            PQD – halfway point of sentence

    Life & OLR prisoner                                            Punishment Part Expiry Date

    …

  5. In the case of long-term prisoners and Lifers, every effort will be made to offer programme spaces prior to progression dates, in order to allow prisoners the opportunity to prepare for progression, however, this cannot be guaranteed due to the length and dynamic nature of the waiting lists (for progression time frames, refer to the RMT guidelines document).”

 


[6]        Reference is made in the petition to certain developments in recent years, notably the addition of the Order for Lifelong Restriction (“OLR”) as a sentencing option, and the introduction of wide-ranging Generic Assessment of prisoners’ need of and suitability for coursework.  It is averred that although these developments will have had an impact on demand for coursework, it is believed that there has been no increase in the resources available for rehabilitative coursework. 


 


Respondents’ averments
[7]        It is admitted by the respondents that there is a four‑year management plan that forms a framework for advancement of prisoners from closed conditions through the NTE and the Open Estate.  The petitioner’s description of the general procedure for progression to the Open Estate is also admitted.  It is averred that the preparation for release phase commences no earlier than four years before the expiry of the punishment part of a life prisoner’s sentence.  The four‑year rule is a “population management rule” designed to avoid places in conditions of low security being blocked by life sentence prisoners far ahead of the earliest date when they could be liberated.  Such prisoners will not necessarily spend as long as four years in the preparation for release phase.  Progress is determined on the merits of individual cases, and the ultimate decision made by the Parole Board for Scotland is based upon assessment of risk. 


[8]        As regards rehabilitative coursework, it is admitted that prisoners are listed for courses based upon the earliest date when they might be released.  It is averred that waiting lists are subject to change, as prisoners’ needs change over time and some decline to undertake courses when places become available.  Completion of coursework is relevant not only to decisions of tribunals of the Parole Board for Scotland but to reduction of the risk of re‑offending of all categories of prisoners after release.  There is no statutory requirement for a life prisoner to complete coursework before progression through the prison estate.  Long term and short term determinate sentence prisoners may be in as much need of offending behaviour programmes as life prisoners.  A policy which placed life prisoners on waiting lists by reference to a date four years prior to their tariff expiry date would have the likely effect that some other prisoners would be released without completing rehabilitative courses that they had been assessed as requiring.  As regards the introduction of OLRs and of Generic Assessment of prisoners’ needs, it is averred that neither has had an adverse impact on demand for rehabilitative coursework and that, in any event, resources for psychological programmes were increased in or about 2011.


[9]        So far as the petitioner himself is concerned, it is admitted that he has been assessed as requiring to undertake the SCP and that after completion of that course he will be re‑assessed for the SROBP.  It is averred that completion of the SCP takes about six months on average, and the SROBP about three to four months.  Reference is made to certain factors which will be taken into account by the Parole Board for Scotland when the time comes to assess the risk of release of the petitioner, including misconduct reports of which he has been the subject during the course of his current period of imprisonment. 


 


Orders sought by the petitioner
[10]      The petitioner seeks the following orders: 

(1)   Declarator that the respondents have acted unlawfully by failing to provide for measures to enable prisoners serving indeterminate sentences to demonstrate to the Parole Board for Scotland by the end of their punishment part that it is no longer necessary for the protection of the public that they continue to be detained;

(2)   Declarator that the respondents have acted unlawfully in failing to provide the petitioner with means to demonstrate to the Parole Board for Scotland by the end of his punishment part that it is no longer necessary for the protection of the public that he continues to be detained;

(3)   Declarator that the respondents have failed and are failing to provide the petitioner with a reasonable opportunity for him to rehabilitate himself and to demonstrate to the Parole Board for Scotland that he no longer presents an unacceptable danger to the public;

(4)   Declarator that the petitioner’s Convention rights have been breached by the said failure to provide him with a reasonable opportunity to rehabilitate himself and to demonstrate to the Parole Board for Scotland that he no longer presents an unacceptable danger to the public;

(5)   An order that the respondents provide the petitioner with a reasonable opportunity to rehabilitate himself and to demonstrate to the Parole Board for Scotland that he no longer presents an unacceptable danger to the public by the expiry of his punishment part;

(6)   Declarator that the policy adopted by the respondents in relation to the prioritisation of prisoners for rehabilitative coursework is a breach of the petitioner’s Convention rights;

(7)   Reduction of the Governors and Managers Action Notice number GMA 21A/13;

(8)   Payment of £10,000 by way of damages.


 


Submissions for the petitioner
(a) Failure to provide coursework timeously
(i) Domestic law arguments


[11]      On behalf of the petitioner it was submitted that delays at all stages of progression through the prison system were such that life prisoners, and in particular he himself, would be unlikely to be in a position to demonstrate, at tariff expiry date, that the risk of release had reduced sufficiently that their detention was no longer necessary.  In particular, the petitioner and other indeterminate sentence prisoners had not been provided with reasonable opportunities for rehabilitation.  They had been assessed as requiring rehabilitative coursework but had not been provided timeously with the chance to undertake that coursework.  Having regard to the difficulties faced by the petitioner and by other such prisoners, the apparent increase in the need for rehabilitative coursework caused by the introduction of the OLR and of the Generic Assessment system, and the lack of any apparent increase in resources available, it could be inferred that there is a failure to provide appropriate systems and resources for rehabilitation of indeterminate sentence prisoners.  Reference was made to the propositions set out in the judgment of Cranston J in R (Weddle) v Secretary of State for Justice [2013] EWHC 2323 (Admin) at paragraph 42, and in particular to the first and second of these, namely: 

“(1) The Secretary of State is under a public law duty to provide indeterminate sentence prisoners with the means by which they can demonstrate, at or around the expiry of their sentences, that their risk has reduced sufficiently to enable their release…

(2) A breach of the duty occurs when there is a failure to provide the appropriate systems and resources covering matters such as reports and rehabilitative courses.  This failure may be described as systemic although proof of a systemic breach (whatever that means) is not an additional requirement to establish a breach of duty.” 

 


It was a breach of the Secretary of State’s public law duty to put beyond prisoners the means of demonstrating progress towards rehabilitation while at the same time demanding such progress from the prisoner before granting him re-categorisation:  see R (James) v Secretary of State for Justice [2010] 1 AC 553 (“James UK”);  R (Falconer) v Secretary of State for Justice [2009] EWHC  2341 (Admin).  That was in effect the current position within the Scottish prison system.  The terms of the first order sought were modelled on the Secretary of State’s acknowledgement noted by Lord Hope of Craighead in James UK at paragraph 3. 


[12]      With regard to the petitioner himself, the respondents had behaved irrationally in not providing him timeously with the coursework he required.  An analogy could be drawn between security re‑categorisation (the problem in Falconer above) and progress through the prison system.  According to the respondents’ risk management and progression guidance, the petitioner could only progress to the NTE and Open Estate after completion of coursework.  He would not now be able to do so in time for commencement of a preparation for release period beginning four years before his tariff expiry date.  The respondents were accordingly in breach of their public law duty to provide him with a reasonable opportunity to demonstrate at tariff expiry that he no longer required to be detained.  As it was already apparent that the petitioner was unlikely to have such reasonable opportunity, the present application was not premature:  cf R (Weddle) (above) at paragraphs 49‑50.  The petitioner should not have to wait until a reasonable opportunity has become impossible before seeking relief from the court.  A declarator in the terms of the second order sought should be granted; the respondents would then be expected to take cognisance and address the problem in relation to the petitioner. 


 


(ii) Convention argument
[13]      Article 5 of the European Convention on Human Rights states inter alia 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…”

 


Article 14 provides: 

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

 


[14]      When this petition called for a first hearing on 4 December 2014, the judgment of the Supreme Court in R (Haney) v Secretary of State for Justice and related appeals had not been delivered but was understood to be imminent.  I accordingly heard parties’ arguments in relation to the domestic law challenge and adjourned the hearing to await the outcome of Haney.  The opinions of the Supreme Court in the cases of Haney and three others have since been issued and are reported as R (Kaiyam) v Secretary of State for Justice [2015] 2 WLR 76.  Parties’ submissions at the adjourned first hearing on 22 May 2015 were presented under reference to the Supreme Court’s decision. 


[15]      On behalf of the petitioner it was submitted that the question of the respondents’ compliance with his Convention rights now fell to be determined under reference to the duty, implicit in the scheme of article 5, enunciated in the opinion of Lord Mance and Lord Hughes (with whom the other Justices agreed) at paragraph 36 of Haney, namely: 

“a duty to provide an opportunity reasonable in all the circumstances for [a life prisoner] to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.”


The nature of this duty, and the consequences of breach of the duty, were explained at paragraph 38, where it was said that: 

“…A duty to facilitate release can and should … be implied as an ancillary duty – a duty not affecting the lawfulness of the detention, but sounding in damages if breached.” 

Where such breach occurred, a prisoner might therefore complain and seek orders from the court, and also claim damages in respect of any period of extended detention or other loss which he could establish.  These rights existed regardless of whether the failure occurred before or after the tariff expiry date:  ibid paragraph 40. 


[16]      Unless the respondents altered the manner in which the petitioner was managed, he would not be given an opportunity at his tariff expiry date to demonstrate to the Parole Board of Scotland that he no longer presented an unacceptable danger to the public.  He sought a declarator (the fifth order set out above) with a view to changing the course of events to obtain a reasonable chance of release at tariff expiry.  The terms of the Haney decision indicated that there was no impediment to pronouncing a coercive order against the Crown.  It was accepted, however, that before such an order could be made, the court would require to be satisfied, after hearing evidence, that as matters stand the petitioner would not have the requisite opportunity at his tariff expiry date;  that was what he offered to prove. 


 


(b) Prioritisation policy
(i) Domestic law argument
[17]      The objectionable feature of the respondents’ prioritisation policy, according to the petitioner’s submission, was its dependence solely upon the earliest date at which a prisoner might be released.  Long term prisoners required to spend about two years more in prison than short term prisoners before the Parole Board for Scotland would realistically consider them for release.  Life prisoners required to spend about four years more in prison after completing their coursework before they would be considered for release.  It was not therefore rational to prioritise access to rehabilitative coursework by reference to earliest possible release date.  Although that might appear to treat all prisoners equally, it did not and in fact discriminated irrationally against certain categories of prisoner.  Life prisoners were disadvantaged in comparison with long term determinate sentence prisoners, who were in turn disadvantaged when compared with short term prisoners.  A fair and rational policy would set the critical dates for life prisoners and long term determinate sentence prisoners four and two years earlier respectively.  

 


(ii) Convention arguments
[18]      It was further contended that the respondents’ policy breached the petitioner’s Convention rights in terms of article 5 and separatim articles 5 and 14 together.  The policy did not provide adequate protection against arbitrariness in the detention of life prisoners such as the petitioner, and as such was in breach of article 5.  “Arbitrariness” meant being unfair.  The policy was unfair because it failed to take account of different categories of prisoner.  The Supreme Court in Haney recognised that there was an article 5 obligation to provide rehabilitation for life and other indeterminate sentence prisoners. 


[19]      In any event, even if the prioritisation policy did not breach article 5 taken on its own, it was nonetheless within the ambit of article 5, so as to bring the article 14 duty of non‑discrimination into play:  see eg R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, Lord Bingham of Cornhill at paragraph 18, Lord Brown of Eaton-under-Heywood at 66;  Clift v UK (Application no 7205/07;  13 July 2010), paragraph 42.  Differences between prisoner categories, especially between life prisoners and others, amounted to “other status” for the purposes of article 14.  Reference was made to R (Clift), Lord Bingham at paragraph 28, Lord Hope at paragraph 46;  Clift v UK at paragraphs 55‑63.  The prioritisation policy discriminated between different categories of prisoners to the detriment of inter alia life prisoners.  In the circumstances, article 14 required differential treatment of different categories of prisoners in order to render the principle of non‑discrimination effective (cf Thlimmenos v Greece (2001) 31 EHRR 411 at paragraph 44).  Any objective justification for the policy founded upon by the respondents should not be accepted without proof. 


 


Submissions for the respondents
(a) Failure to provide coursework timeously
(i) Domestic law arguments
[20]      As regards the first order sought by the petitioner, it was submitted on behalf of the respondents that there was no basis averred upon which the court could conclude that they had failed in their duty to prisoners serving indeterminate sentences generally.  The decisions of the English Administrative Court to which reference had been made by the petitioner were concerned with difficulties that had arisen following the introduction of indeterminate prison sentences (“IPP”) in England and Wales.  The factual context in Scotland was different:  the respondents had not put beyond life prisoners the means of demonstrating progress towards rehabilitation while at the same time demanding such progress.  The petitioner’s averments regarding the effect on rehabilitative coursework resources of the introduction of the OLR and of Generic Assessment of prisoners were entirely speculative and unsupported by any factual averment.  In any event it was not accepted by the respondents that the duties formulated by Cranston J in Weddle were accurately stated;  doubt had been cast on their accuracy by Richards LJ in R (Robinson) v Governor of Whatton Prison [2013] EWHC 3777 at paragraph 58.  The question was whether, in all the circumstances, the respondents had made reasonable provision of a system of rehabilitative coursework. 


[21]      As regards the alleged breach of duty owed to the petitioner himself, it was submitted that the declarator sought was again too general and unspecific.  His complaint appeared to be that he was not being progressed through the rehabilitation process as speedily as he would wish.  But the rate of progression was a matter for the judgement of the prison authorities, with which the court would interfere only in exceptional circumstances.  The petitioner had misinterpreted the Scottish Prison Service’s progression guidance as requiring life prisoners to spend at least four years in the NTE and Open Estate.  That was not the case;  the length of time which a prisoner spends in each part of the preparation for release phase is determined on individual merits having regard to the risk that he presents.  The decision to release was made by the Parole Board for Scotland, not the respondents, applying the statutory test in section 5 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, ie whether it was no longer necessary for the protection of the public that a prisoner should be confined.  Although it was usually the case that a prisoner would spend two years in each of the NTE and the Open Estate before release, the Parole Board applied no rule to that effect.  In any event the application was premature.  With almost four years remaining until the petitioner’s tariff expiry date, there was no basis on which to conclude that he would not by then have the means to demonstrate that he met the statutory test for release.   


 


(i) Convention argument
[22]      Reference was made by the respondents to certain further passages in the opinions of the Supreme Court in Haney.  At paragraph 60 it was observed that article 5 did not create an obligation to maximise the coursework or other provision made to a prisoner, nor did it entitle the court to substitute its own view of the quality of the management of a single prisoner and to characterise as arbitrary detention any case which it concluded might have been better managed.  It simply required: 

“…that an opportunity be afforded to the prisoner which is reasonable in all the circumstances, taking into account, among all those circumstances, his history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use which has been made of such rehabilitative opportunity as there has been.”

 


At paragraph 85, Lord Hughes (with the majority of the other Justices agreeing) noted that the critical question, ie whether a prisoner had been afforded a reasonable opportunity to reform himself and to demonstrate to the Parole Board, by the time of tariff expiry or within a reasonable time thereafter, that he no longer presented an unacceptable risk to the public, was not to be transmuted into the different question of whether reasonable provision had been made for a particular course which might have been relevant to him.  Considerably greater delay in putting a prisoner on to a particular course than one would choose to see in an ideal prison management system was not the same as saying that he had not had a fair opportunity to reform himself or to demonstrate that he was no longer a danger (ibid, paragraph 89).


[23]      When the guidance in Haney was applied to the circumstances of the present case, it should be concluded that there had been no breach of the ancillary article 5 duty.  It was anticipated that the petitioner would complete any necessary rehabilitative coursework well ahead of his tariff expiry date.  The petitioner’s averment that he would require to spend a full four years after completion of coursework in the preparation for release phase was mere assertion, which might or might not prove accurate depending upon a variety of factors including the petitioner’s own conduct.  It was acknowledged that it was unlikely that the petitioner would progress to the NTE unless and until he had completed at least the SCP.  It was important to note, however, in the case of a prisoner who had not passed his tariff expiry date that a failure before that date would only constitute a breach “if it remained uncorrected” – Haney at paragraph 48.  Any conclusion now regarding the petitioner was no more than a prediction.  It would be anomalous for the court to hold at this stage that a breach had been established, and to award damages, if the petitioner were subsequently to be released at his tariff expiry date (as might occur).  It was inevitable that a proportion of life prisoners would not be released at their tariff expiry date;  if the petitioner was one of them, this did not demonstrate a breach of the ancillary duty.  The underlying circumstances which led to a breach being established with regard to the successful claimants in Haney were not present in the Scottish system.  Separatim the fifth order sought, being an order ad factum praestandum, had to be stated precisely and unambiguously.  It was, however, wholly unspecific and accordingly incompetent. 


 


(a) Prioritisation policy
(i) Domestic law argument
[24]      The respondents submitted that the petitioner had failed to make out a relevant case that their prioritisation policy was irrational or unfair.  Once again, the petition proceeded upon the factually incorrect basis that life prisoners could not be released for at least four years after completing rehabilitative coursework.  It was equally incorrect to assert that long term determinate sentence prisoners spent at least two years in prison after completing coursework;  they were entitled to automatic release on licence after serving two‑thirds of their sentence.  Allocation of prisoners to courses was a complex task.  The purpose of coursework was not restricted to affording life prisoners an opportunity to demonstrate that it was safe to release them:  it was rather to reduce the risk of re‑offending by all prisoners.  The test of irrationality was a high one.  In R (Robinson) v Secretary of State for Justice (above) it had been held in similar circumstances not to have been met:  see Richards LJ at paragraph 68.  The court should adopt the same approach in the circumstances of the present case.   


 


(i) Convention arguments
[25]      The petitioner had failed to identify any breach of article 5 taken on its own.  Reference had been made to arbitrariness, but the only arbitrariness founded upon was the allegedly discriminatory treatment of life prisoners, ie the same argument as that based upon articles 5 and 14 together.  So far as the latter argument was concerned, it was submitted: 

(i)         The petitioner’s complaint was not within the ambit of article 5.  The present case was distinguishable from R (Clift), which had concerned the right to early release.  The link between prioritisation of selection for coursework and article 5 was too tenuous to give rise to a potential complaint under article 14 (see M v Secretary of State for Work and Pensions [2006] 2 AC 91;  Lord Nicholls of Birkenhead at paragraph 13-14, Lord Walker of Gestingthorpe at paragraph 60); 

(ii)        Categorisation of the petitioner as a life prisoner did not, according to R (Clift) amount to “other status” within article 14;  

(iii)       The petitioner had failed to aver any difference in treatment of life prisoners as opposed to others.  All prisoners were prioritised with regard to earliest possible release date.  The concept of requiring different treatment of different cases in ECHR case law was a narrow one and there was no basis for the petitioner’s assertion that it was applicable here. 

(iv)       In any event the respondents had averred objective and reasonable justification for the prioritisation policy that had been adopted. 


 


Decision
(a)  Failure to provide coursework timeously
(i)  Domestic law arguments
[26]      The petitioner seeks orders that the respondents have acted unlawfully with regard to prisoners serving indeterminate sentences generally and with regard to himself in particular.  Both of these challenges are founded upon principles and other dicta pronounced in recent English cases concerning mainly IPP prisoners.  It is important therefore to understand the context in which those dicta were pronounced.  That context is fully explained in the opinions of Lord Brown and Lord Judge CJ in James UK at paragraphs 24‑28 and 118‑122 respectively.  Briefly, the introduction of IPPs swamped the English prison system with increasing numbers of indeterminate sentence prisoners, many with short tariffs.  There were neither the systems nor the resources available to undertake the required assessments, identification of risk factors and provision of rehabilitative coursework before expiry of the tariffs.  The consequence was that many prisoners reached their tariff expiry date without having had the opportunity to undergo coursework which they had been assessed as requiring before the risk of their release could be considered.  Against that factual background, it was a matter of admission by the Secretary of State that during the period of systemic failure to make reasonable provision to enable IPP prisoners to demonstrate to the Parole Board their safety for release, he had been in breach of his public law duty. 


[27]      The petitioner attempts in his averments to suggest that something similar has occurred in Scotland as a consequence of (i) the introduction of OLRs from 2006, (ii) the introduction of Generic Assessment in 2011, and (iii) the wide range of Generic Assessment undertaken within the prison estate.  It is “believed and averred” that these changes have created pressure on resources and, in particular, increased the demand for rehabilitative coursework.  It is also believed and averred that there has been no increase in resources devoted to coursework.  The difficulty for the petitioner is that no basis is pled for these “believed and averred” assertions.  It is not sufficient for the petitioner to make such assertions and invite the respondents to disprove them.  Without some factual foundation, they amount to nothing more than speculation, and provide no relevant basis for the key averment that the respondents have failed to provide “the petitioner and other indeterminate sentence prisoners” with reasonable opportunities for rehabilitation.  It follows that no relevant case has been made that there is a systemic failure by the respondents to enable life prisoners generally to demonstrate to the Parole Board for Scotland by the end of their punishment part that it is no longer necessary to detain them for public protection.  For that reason I shall sustain the respondents’ third plea in law (a general plea to relevancy and specification) in so far as directed against the first order sought by the petitioner, and dismiss the petition to that extent. 


[28]      Turning to the domestic law challenge with regard to the petitioner himself, the first issue is whether the petitioner is entitled, as a matter of law, to a declarator in terms of the second order sought.  The formulation of that order appears to be based upon the first of Cranston J’s propositions in R (Weddle).  I have noted that reservations were expressed regarding this formulation by Richards LJ in R (Robinson), in that it omitted any reference to reasonable provision of systems and resources to enable indeterminate sentence prisoners to demonstrate their safety for release.  I respectfully share those reservations.  The public law duty acknowledged by the Secretary of State in James UK, as recorded by Lord Brown at paragraph 28, was to “make reasonable provision to enable IPP prisoners to demonstrate to the Parole Board (if necessary by completing treatment courses) their safety for release”.  In my opinion the same duty applies with regard to a life prisoner such as the petitioner.  It follows that the petitioner is not entitled to an order in the terms sought nor, indeed, a proof on the question whether the respondents are in breach of a duty formulated in those terms.


[29]      Putting aside for a moment the terms of the order sought, it is obviously the case that it will not be known for certain until his tariff expiry date whether the petitioner’s release will be delayed as a result of a failure by the respondents to provide him timeously with rehabilitative coursework.  The petitioner’s case is that with less than four years now remaining until tariff expiry, and with the SCP which he has been assessed as requiring to undertake as yet uncommenced, it can be ascertained now, as a matter of fact, that he will not have had the opportunity, by the time of his tariff expiry date, to demonstrate to the Parole Board for Scotland that his continued detention is no longer necessary.  For their part, the respondents deny that the petitioner will inevitably spend at least two years in the NTE and a further two years in the Open Estate.  I did, however, understand them to accept, in accordance with the policy described at paragraph 4.4 of the SPS progression guidance, that the preparation for release phase will normally involve a prisoner progressing to the NTE, spending 12 months on escorted leaves, 12 months on a work placement, and 24 months in the Open Estate.  I also understood counsel to accept that it was unlikely that the petitioner would advance to the NTE without having satisfactorily completed the SCP. 


[30]      Bearing in mind those matters apparently not in dispute, I consider that the petitioner has sufficient averments to entitle him to a proof as to whether the respondents, by virtue of a failure timeously to provide the petitioner with an opportunity to undertake necessary rehabilitative coursework, are in breach of a duty to make reasonable provision to enable him to demonstrate to the Parole Board for Scotland, at or shortly after his tariff expiry date, that his continued detention is no longer necessary for public protection.  At such a proof, attention would no doubt focus, in the evidence and in submissions, on what constituted “reasonable provision”.  It might also be that after enquiry the petition would be held to be premature, in respect that the likelihood of the petitioner being deprived of the said means could not then be determined.  I do not, however, feel able to hold at this stage that that would inevitably be the outcome. 


 


(ii) Convention argument
[31]      I have reached the same view with regard to the petitioner’s averments based upon the ancillary duty under article 5.  The fact that it may not be possible at this stage to state with certainty that the petitioner’s Convention right will be breached at the time of his tariff expiry does not, of itself, prevent him from raising the matter prior to expiry:  as Lord Mance and Lord Hughes observed in Haney at paragraph 48, the ancillary duty exists throughout a prisoner’s detention, and a failure before tariff expiry may constitute a breach “if it remains uncorrected”.  This passage emphasises that the primary purpose of an application for judicial review may not be to seek redress for breach of a Convention right, but rather to seek a finding by the court which results in action being taken by the respondents to reduce the likelihood of a breach eventually occurring. 


[32]      In determining whether, in the petitioner’s case, there had been a breach of the ancillary duty, being a duty to provide an opportunity reasonable in all the circumstances for him to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public, it would be appropriate for the court to have regard to the various matters listed in Haney at paragraph 60 (see paragraph 22 above).  Once again, it might be that when all of those factors were taken into account it would be difficult for the petitioner to satisfy the court that there had been a failure to provide him with an opportunity which was “reasonable in all the circumstances”.  I do not, however, consider that this possibility should be ruled out without enquiry. 


[33]      As regards the orders sought by the petitioner, it is not entirely clear to me what the basis is for the order third sought.  It employs the phraseology of the ancillary article 5 duty but under omission of any reference to the petitioner’s Convention rights.  If it is intended to refer to breach of a common law duty, no authority was cited for the proposition that such a duty, if different from the common law duty acknowledge to exist in James UK, was incumbent upon the respondents.  If it is intended to refer to breach of the article 5 duty then it would appear to add nothing to the order fourth sought.  As regards the order fifth sought, I accept the respondents’ submission that it would not be competent to grant an order ad factum praestandum in such vague and unspecific terms, as it would afford no indication to the respondents as to what they required to do in order to comply with it. 


 


(a) Prioritisation policy
(i) Domestic law argument
[34]      What the petitioner seeks, in effect, is a finding that the respondents have failed to act fairly or rationally in adopting a policy in which prioritisation of availability of rehabilitative coursework depends solely upon a prisoner’s earliest possible release date.  A fair and rational system, it was said, would attribute to life prisoners a critical date four years before earliest possible release and to long term prisoners a critical date two years before earliest possible release. 


[35]      The test of irrationality is a high one, even if “irrationality” in this context is interpreted as meaning “reasonable in all the circumstances” (cf R (Robinson) at paragraph 55).  The discretion afforded to the respondents and to those tasked with administration of the prison service must be a broad one with which this court should be slow to interfere.  I have noted (at paragraph 8 above) the explanation given by the respondents for the SPS prioritisation policy.  It accords generally with the explanation provided to and accepted by the Divisional Court in R (Robinson) at paragraph 68, in the context of the English prison system.  Counsel for the petitioner submitted that the court should not accept the respondents’ explanation in the absence of proof that short term prisoners require to undertake the same rehabilitative coursework as long term and life prisoners.  I am not, however, minded to put the respondents to proof of their averments in this regard.  It seems to me to be self‑evident, as the respondents aver, that rehabilitative coursework will be of relevance to the reduction of risk of re‑offending after release of all categories of prisoner.  It is also self-evident that a policy which placed life prisoners on waiting lists by reference to a date four years prior to tariff expiry would operate to the prejudice of other categories of prisoners and accordingly that a likely effect would be that some determinate sentence prisoners would be released without completing courses which they had been assessed as requiring.  In my view the prioritisation policy currently adopted cannot be said to lie outwith the range reasonably open to the respondents.  Like any other policy, there may be scope for departure from it in appropriate cases.   The petitioner has, however, failed to make a relevant case under domestic law that he is entitled to any order with regard to the prioritisation policy, or that the court should make an order reducing the Governors and Managers’ Notice number GMA 21A/13. 


 


(i) Convention arguments
[36]      The petitioner’s argument based upon article 5 alone depends upon the proposition that the prioritisation policy does not provide adequate protection against “arbitrariness” in the detention of life and other indeterminate sentence prisoners.  If detention is “arbitrary”, it would be unlawful in terms of article 5.  It was acknowledged by counsel for the petitioner that the submission that “arbitrary” in this context simply meant “unfair” was a novel one.  I do not accept it.  In my view it is clear from the Strasbourg case law summarised and discussed in Haney at paragraphs 25 and 26 that arbitrariness has a more confined meaning than a general notion of unfairness.  Moreover, if what was meant by unfairness – as I understood counsel to submit – was a failure to take account of different categories of prisoner, then the argument effectively becomes one of discrimination, ie the petitioner’s contention under articles 5 and 14 together.  I therefore reject the argument based upon article 5 alone. 


[37]      Turning then to the argument based on discrimination, the first question is whether the present circumstances are “within the ambit” of article 5, so as to bring article 14 into play.  As Lord Bingham observed in R (Clift) at paragraph 14, the word “ambit” and related expressions such as “scope” and “linked” used in Strasbourg case law are not precise and exact in their meaning, but denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed.  It is not in dispute that the successful completion of necessary rehabilitative coursework will normally constitute an essential step along the path towards eventual release of a life prisoner.  The prisoner therefore, in my view, has a personal interest in being afforded the opportunity to undertake such coursework which is sufficiently close to the core of his article 5 right to fall within the ambit of article 5.  I therefore find that on the petitioner’s averments, the non-discrimination duty under article 14 is engaged.


[38]      The next question is whether life and other indeterminate sentence prisoners have an “other status” so as to entitle them to found upon article 14.  Contrary to the respondents’ submission it seems to me to be clear that Lord Bingham in R (Clift) at paragraph 28 was supportive of the proposition that a life prisoner had “other status”, and that nothing in Haney cast any doubt on this.  Lord Bingham’s observation was, of course, obiter, and in Haney the issue was rather whether there was a difference in status as between pre- and post‑tariff expiry prisoners.  For the purposes of this opinion, I am content to adopt Lord Bingham’s obiter view without expressing a concluded view of my own. 


[39]      The third question is whether the petitioner has averred a relevant case of discrimination as between life and other indeterminate sentence prisoners on the one hand and another category or other categories of prisoners on the other.  I have no difficulty rejecting the petitioner’s argument based upon direct discrimination:  as the Governors and Managers’ Notice states explicitly, no prisoner type is prioritised over any other.  The same criterion of critical date referable to earliest possible release date is applied without discrimination to all categories of prisoner.  In order to succeed, therefore, the petitioner must rely upon the type of discrimination described in Thlimmenos v Greece (above) at paragraph 44, ie a failure without objective and reasonable justification “to treat differently persons whose situations are significantly different”.  This was paraphrased in DH v Czech Republic (2008) 47 EHRR 59 at paragraph 175 as “a failure to attempt to correct inequality through different treatment”.  In Eweida and Others v United Kingdom (2013) 57 EHRR 213, the phrases “significantly different” and “relevantly different” were treated at paragraphs 87 and 88 as synonymous.  In my opinion, the petitioner has not averred circumstances which would demonstrate, if proved, that there is an inequality or relevant difference between life prisoners and other categories of prisoner.  All share the critical characteristic that they have been assessed as being in need of rehabilitative coursework prior to release in order to reduce the risk of their re‑offending.  In that crucial regard, the fact that some prisoners have determinate sentences and some have indeterminate sentences is not in my view a relevant difference nor an inequality requiring correction.  It does not render their respective situations significantly different so as to require differential treatment in order to avoid a breach of the Convention right of any particular category.  I accordingly reject the petitioner’s argument founded upon articles 5 and 14 together.  That being so, the question of objective and reasonable justification does not arise.   


[40]      As the petitioner has failed with regard to both his domestic and his Convention challenges to the respondents’ prioritisation policy, he is not entitled to declarator in terms of the sixth order sought, nor to reduction of Notice number GMA21A/13.  I shall therefore sustain the respondents’ third plea in law in so far as directed against those orders and dismiss the petition to that extent also.


 


Disposal
[41]      To summarise my decision, I shall dismiss as irrelevant the petitioner’s complaint of systemic failure in the provision of measures to enable life prisoners to demonstrate at their tariff expiry date that they may safely be released.  I shall also dismiss his challenge to the respondents’ prioritisation policy.  As regards the orders sought by the petitioner regarding himself alone, I hold the order ad factum praestandum sought to be incompetent.  I regard the order second sought as irrelevant in the terms in which it is presently stated, and have expressed doubt as to the basis for granting the other third sought.  If, however, the orders sought by the petitioner could be framed in satisfactory terms, I would be minded to fix a second hearing, in the form of a proof before answer, on the petitioner’s complaints under both domestic law and the Convention regarding his own treatment.  It is a matter of agreement between parties that it would be premature to deal at this stage with any question of award of damages.


[42]      I shall therefore put the petition out by order to be addressed on (i) amendment by the petitioner, if so advised, of the terms of the orders sought by him;  (ii) if appropriate, the fixing and scope of a second hearing, including the extent to which proof ought to take place by way of affidavit evidence;  and (iii) any other matters arising out of this opinion.  Questions of expenses are reserved in the meantime.