Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 166

P729/15

OPINION OF LORD GLENNIE

In the petition of

JOHN DALY

Petitioner;

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

Petitioner:  McCluskey;  Drummond Miller LLP

Respondent:  van der Westhuizen;  SGLD

9 December 2015

Introduction

[1]        The petitioner is a convicted prisoner currently detained at HMP Glenochil.  He is subject to an Order for Lifelong Restriction (“OLR”) for assault to injury and rape.  The punishment part of his sentence will end on 10 November 2017.  After that date, but not before, he can be considered for release.  But before he can be released he will have to satisfy the Parole Board for Scotland that he no longer presents an unacceptable danger to the public.

[2]        The respondents, the Scottish Ministers, are responsible, through the Scottish Prison Service (“SPS”), for the detention of the petitioner and other prisoners and for the supervision of prisons and detention.

[3]        It is not in dispute that the purpose of a sentence such as an OLR includes rehabilitation.  In R (Haney) v Secretary of State for Justice [2015] 1 AC 1344 the Supreme Court held that implicit in article 5 ECHR was a duty on the state to provide a prisoner serving such a sentence with an opportunity, reasonable in all the circumstances, to rehabilitate himself and to demonstrate to the Parole Board that he no longer presents an unacceptable danger: see para 36.

[4]        The petitioner complains that he is not being provided with such an opportunity and, in particular, that he has not been provided with such an opportunity in time for the Parole Board to consider the possibility of his release at or about the time the punishment part of his sentence ends.  He also complains, as a discrete point (though it is obviously relevant to the broader complaint), about the respondents’ prioritisation policy in terms of which different categories of prisoners are put on the waiting list for rehabilitation courses.  He brings his complaints under articles 5 and 14 ECHR and under domestic public law (Weddle v Secretary of State [2013] EWHC 2323 at para 42). 

[5]        The case came before me for a substantive first hearing.  On behalf of the petitioner I was invited to grant declarators (under ECHR and at common law) to the effect that the respondents had failed and were failing in their duties to provide him, within an appropriate timescale, with a reasonable opportunity for him to rehabilitate himself and demonstrate to the Parole Board that he no longer presents an unacceptable danger to the public, and also to ordain the respondents to provide him with such an opportunity, failing which to appoint the petition to a second hearing at which evidence could be led on disputed issues.  The respondents invited me to refuse the petition at the first hearing.

Relevant averments of fact in the petition and answers

[6]        It is convenient to deal first with the averments relating to what might be called the petitioner’s “general challenge” to the respondents’ alleged failures to provide him with a reasonable opportunity for rehabilitation in time for the Parole Board to consider the possibility of his release at or about the time the punishment part of his sentence ends.  I then move on to deal, albeit more briefly, with the averments relating to the petitioner’s complaints about the respondents’ prioritisation policy.

General challenge under article 5 and common law

[7]        The petitioner avers in statement 6 that the progress of a prisoner through the prison estate will generally depend upon making progress in various ways and demonstrating an ability to behave appropriately.  The management of prisoners follows a certain general pattern.  Prisoners will only be considered for a move on from closed conditions when they have completed such coursework as they have been assessed as requiring.  Although there is no legal requirement that a prisoner complete such coursework before he moves on from closed conditions, it is the policy of the respondents not to move prisoners from closed conditions until they have done so.  There is no significant dispute between the parties on this point.  In their answers the respondents explain that the progression of prisoners through the prison estate is based on a number of factors including their behaviour, their performance on courses, the assessment of their particular needs and the level of continuing risk which they pose.  The rate of progression of each prisoner will depend on the specific circumstances of each case.

[8]        The averments in statement 7 are critical to the petitioner’s case that the way in which things have progressed – or not progressed, as he would have it – means that he cannot now expect to be put through the requisite stages of rehabilitation with any reasonable prospect that the possibility of his release on licence will be considered by the Parole Board at or about his first possible release date approximately two years from now.  I should quote those averments in full, emphasising by use of italics those passages which call for comment later in this opinion:

“7.       That, in general, life sentence prisoners, will, after undertaking necessary coursework, embark upon a programme of escorted leaves, after which they will apply for a First Grant of Temporary Release (“FGTR”).  Thereafter they should obtain a work placement and progress to escorted leave.  In parallel with this process the prisoner will progress to the National Top End (“NTE”) and from there to the Open Estate.  This procedure takes a number of years.  In practice for indeterminate sentence prisoners there is a four year management plan that forms a theoretical framework for the advancement of prisoners from closed conditions through the NTE and Open Estate to freedom at the end of that four year period.  Prisoners ought to have completed any outstanding coursework and be in a position to progress from closed conditions to NTE at the start of that four year period.  That four year period starts for the petitioner in January 2015.  The terms of the respondents’ Risk Management and Progression Guidance document, paragraphs 4.3 to 4.8 are referred to for their terms and incorporated herein brevitatis causa.  The preparation for release phase commences no earlier than four years before the expiry of the punishment part of a life prisoner’s sentence.  Life prisoners do not necessarily require to spend as long as four years in the preparation for release phase.  Prisoners may spend significantly less than two years in, respectively, NTE and the Open Estate, though they would only do so exceptionally.  The ultimate decision made by the Parole Board for Scotland as to whether or not to direct release is based upon an assessment of risk.  They will not however release a prisoner unless they are satisfied that it is safe for them to do so.  They will, other than in exceptional circumstances, require that a prisoner has been “tested out” through having access to the community before they direct his release.  The length of time that a prisoner spends at each stage of progression is a matter for the respondents.  In general, in order to have a reasonable chance of release at tariff expiry life prisoners require to have completed their coursework by a date not later than three years before tariff expiry.  There are delays in the system at each stage of progression.  Delays are common and can be lengthy.  In practice assessment of risk requires that prisoners spend not insubstantial amounts of time in a particular environment before they are assessed as being of a sufficiently low risk to be progressed through the prison system.”

In their answers, the respondents admit that the ultimate decision of the Parole Board as to whether or not to direct release is based upon an assessment of risk.  In all other respects, apart from a reference to the SPS Risk Management and Progression Guidance document, passages from which I was referred to in the course of the hearing, there is simply a general denial.

[9]        Some of the differences between OLR and life sentence prisoners are picked up in statement 8.  Under reference to the respondent’s Risk Management and Progression Guidance document, at paras 4.14 to 4.20, the petitioner makes the point that OLR prisoners, whose sentence management and progression is overseen by the Risk Management Authority, do not require to obtain an FGTR and may transfer directly to the Open Estate without going through NTE.  The respondents answer this in a little more detail.  After reference to the SPS Risk Management and Progression Guidance document, they say that an individual OLR prisoner’s progression to less secure conditions depends on his individual circumstances, including the length of his punishment part and the risk that he presents to the public.  The earliest date on which such a prisoner, who has a punishment part of four years or more, will be eligible for consideration for transfer to less secure conditions is generally two years prior to the expiry of his punishment part.  That two year period, referred to in paragraph 4.17 of the Guidance document is a “population management rule”, designed to avoid places in conditions of low security being blocked by OLR prisoners who are far ahead of their earliest release date.

[10]      In statement 11 the petitioner avers that in general the Parole Board will only release prisoners on parole licence if they have spent a substantial amount of time in the Open Estate.  Prisoners assessed as requiring coursework who have not completed that coursework will not be permitted to progress from closed conditions to the NTE or the Open Estate.

[11]      I should quote substantial parts of statements 12 and 13.  Statement 12, so far as material, reads as follows:

“12.     That the progress and ultimate release of the petitioner as condescended upon above is dependent upon the provision to him of coursework.  The progress and ultimate release of the petitioner depends upon assessment of risk.  Provision of and satisfactory completion of coursework is an essential prerequisite of the petitioner’s progression.  Without completing assessed coursework a prisoner will not be transferred from closed conditions.  A prisoner will not then be able to undertake any of the actions by which he might otherwise demonstrate a reduction in the risk that he poses, such as escorted or unescorted leave. …”

In their answers the respondents say that the petitioner has been assessed as requiring specific coursework, but successful completion of that coursework in itself does not make his transfer from closed conditions inevitable.  Progress towards ultimate release will depend upon a wide range of factors including assessment of risk.  The respondents then go on to say that during the course of his imprisonment the petitioner has incurred numerous misconduct reports and has been removed from association on various occasions, and that he has been convicted and sentenced to five further periods of imprisonment for assaults carried out between September 2011 and April 2013.  Those matters, they say, are all factors that will be taken into account by the Parole Board when deciding whether or not he should be released.  The petitioner, in response to those averments, admits that he has been convicted on a number of occasions and been sentenced to five further periods of imprisonment for such offences, but asserts that he has since then completed the CARE programme.  He says that such misconduct is not determinative of progress.  I need not go into this matter in any detail, though it might have become relevant had I been minded to allow the petition to proceed to a proof.

[12]      Statement 13 reads as follows:

“13.     That the petitioner has been assessed as requiring coursework in the form of the MFMC (“the Moving Forwards Making Changes Programme”).  The petitioner is a sex offender.  MFMC is the standard coursework for all sex offenders.  It would have been obvious from the petitioner’s conviction that he would require to undertake that coursework.  The undertaking and completion of that programme will take some time.  The petitioner has not undertaken that coursework.  The petitioner is reasonably apprehensive that even if he undertakes all possible actions that he can to obtain his release and demonstrate his safety for release he will not be able to do so by or around the expiry of his punishment part.  MFMC is a rolling programme.  The completion of that programme is likely to take 12 months.  Following the provision of that programme a post-programme report will be prepared.  The petitioner will then be able to progress to conditions of lesser security.  He will be considered for progression at a Risk Management Team meeting and subject to the oversight and approval of the Risk Management Authority in the period from the completion of the course to transfer is likely to be 8 months.  If he is transferred to NTE then he will have no reasonable prospect of release at the expiry of his punishment part.  If he is transferred to the Open Estate then he will require to spend 9 months there before he would have a reasonable chance of release before a hearing of the Parole Board.  He would require to spend such an amount of time in the Open Estate on account of the sexual nature of his offending and the length of time he had been in custody for.  This makes a total of 29 months from start of coursework to having a reasonable chance of release.  This means that in order to have a reasonable chance of release at the expiry of his punishment part, the petitioner should start or have started the MFMC by 10 June 2015.  As at 8 December 2014 the petitioner was 152^nd on the waiting list for MFMC.  It was estimated that there would be 78 individuals completing MFMC in the year 2014/15.  The petitioner’s access to MFMC has not been affected by his conduct in prison.  The amount of time that he would require to be tested out in the Open Estate will not have been affected by his conduct in prison.  …

The petitioner then goes on to respond to the respondents’ averments about the disruption he has caused in prison and his past refusal or failure to engage with coursework.  For the same reasons as set out above, I do not need to go into this issue.  The petitioner concludes statement 13 by making the following averment:

“The petitioner’s concern is that the respondents will not give him access to the requisite courses until after the completion of his punishment part and this will unlawfully delay his release from prison.”

[13]      The respondents’ answer to statement 13, omitting much of the detail about the disruption the petitioner has caused in prison and his past refusal or failure to engage with coursework, is as follows:

“Admitted that the petitioner has been assessed as requiring coursework in the form of the MFMC.  …  Admitted that the petitioner is a sex offender.  Admitted that the petitioner has not undertaken that coursework.  Admitted that the MFMC is a rolling programme.  Admitted that as at 8 December 2014 the petitioner was 152^nd on the waiting list for MFMC.  Admitted that it was estimated that there would be 78 individuals completing MFMC in the year 2014/2015.  Quoad ultra denied except insofar as coinciding herewith.  Explained and averred that throughout his imprisonment until about mid-2013 the petitioner was a disruptive prisoner.  Reference is made to Answer 12 above.  Further explained and averred that on or about 11 October 2011 the petitioner was assessed by the Programme Case Management Board (“PCMB”) as required to complete the CARE programme followed by the “Good Lives” Sexual Offender Trading Programme (“SOTP”).  He was subsequently placed on the waiting list for SOTP.  At the time, and until March 2014, the petitioner refused to engage with coursework and consistently maintained that he had no intention of participating in offence focused work until closer to the expiry date of the punishment part of his sentence.  …  The petitioner continued to refuse to engage with coursework until March 2014 when he agreed to participate in a Generic Assessment and was placed on the waiting list for that.  The petitioner subsequently completed the CARE programme between 16 October 2014 and 18 December 2014.  He remained on the waiting list for MFMC.  The CARE post programme report dated January 2015 and the minutes of the RMT meetings dated 26 June 2014 and 1 April 2015 are referred to for their terms, which are held as incorporated herein brevitatis causa.  Further explained and averred that the time required for the petitioner to complete MFMC will depend on a number of factors including his level of risk and treatment needs, his skills and strengths and his motivation.  His subsequent progression will depend on a number of factors including his performance on the course and his continuing level of risk.”

[14]      In conclusion, the petitioner avers in statements 17 and 18 that the failure to provide coursework, in circumstances where that has a knock-on effect of depriving him of a reasonable opportunity of rehabilitation and of demonstrating to the Parole Board by or about his earliest release date that he no longer presents an unacceptable risk to the public, is a breach of his rights under Article 5 ECHR and/or at common law.  This is denied by the respondents.

The prioritisation policy – challenge under articles 5 and 14

[15]      In statement 14 the petitioner makes averments about the prioritisation policy in terms of which coursework is allocated to prisoners chronologically by reference to the first occasion when a prisoner might be released.  Already in statements 8 and 9 he had explained that long term determinate sentence prisoners do not require to obtain an FGTR and typically do not require to spend time in NTE, while short term prisoners are automatically released halfway through their sentence without any of that.  He expands upon this in statement 16, complaining that this prioritisation policy is irrational and unfair in its application.  The real complaint, as I understand it, is that long term prisoners, including life sentence and OLR prisoners, require to proceed through further stages after the conclusion of any requisite coursework before they stand any realistic chance of release.  Short term prisoners and some others do not.  Therefore, so it is said, to allocate coursework to long term prisoners, on the same basis as to short term prisoners, simply by reference to the earliest release date is not only irrational but it discriminates between different categories of prisoner.  The petitioner avers in statement 19 that this prioritisation policy is in breach of his rights under articles 5 and 14 ECHR and/or at common law.

[16]      The respondents’ position is set out in answer 16.  They aver that the allocation of places on rehabilitation and treatment programmes was and is rational, proportionate and fair.  The approach taken, of allocating places based on the proximity of each prisoner’s earliest release date, maximises the opportunity for each prisoner to engage in the relevant rehabilitation programmes in close proximity to their individual critical date.  Allocation of prisoners to courses and prioritisation of places are complex tasks.  Waiting lists are dynamic and subject to change.  Prisoners’ needs for coursework change over time and require to be re-assessed.  Significant numbers of prisoners who are placed on waiting lists choose not to undertake the courses when places become available.  Completion of coursework is relevant not only to decisions of the Parole Board as to whether or not to direct the release of prisoners but also to the reduction of risk of reoffending of all categories of prisoners, and, hence, to the protection of the public.  Long and short term determinate sentence prisoners may be in need of these programmes as much as life sentence and OLR prisoners.  A policy that prioritised life sentence or OLR prisoners, by placing them on waiting lists by reference to a date four or two years prior to the expiry of the punishment part, would be detrimental to other categories of prisoners.  It would lead to the release of long and short term determinate sentence prisoners before they had completed necessary courses, and would limit the opportunities for determinate sentence prisoners to progress through less secure conditions in the period prior to their release.

Discussion

[17]      The complaints made by the petitioner in the present case are similar in their nature to those made by a different petitioner in Stuart Quinn, Ptr [2015] CSOH 110.  I was told by counsel that the arguments presented to me were substantially the same as those addressed to Lord Tyre in that case.  It is convenient to look briefly at Lord Tyre’s decision on all aspects of the case.

[18]      The petitioner in that case was serving a sentence of life imprisonment for murder, with a punishment part, or tariff, of 18 years, expiring in May 2019, at which point he became eligible to apply for release on licence.  He complained that the respondents, the Scottish Ministers acting through the SPS, had failed to provide him with reasonable opportunities for rehabilitation.  He complained about their policy (described above) for prioritising prisoners for rehabilitation courses.  He contended that, as a result of these failures, he was deprived of a reasonable opportunity to demonstrate to the Parole Board at or about the time his tariff expired that he no longer presented an unacceptable risk to the public.  As in this case, the complaint was made before the expiry of the tariff and in anticipation that there would be insufficient time left within which the petitioner could complete appropriate rehabilitative programmes in time for assessment at or about his earliest possible release date.  A number of detailed averments were made about the likely progress of a life prisoner through the prison estate before he became eligible to be considered for release, involving completion of the Change Program (“SCP”) and the Substance Related Offending Behaviour Program (“SROBP”) before advancing through the NTE and the Open Estate.  The petitioner had not yet been given a place on the SCP and his punishment part expired in less than four years.

[19]      On these averments, Lord Tyre allowed the petitioner a proof as to whether the respondents were in breach of the duty owed to the petitioner to provide an opportunity reasonable in all the circumstances for him to rehabilitate himself and to demonstrate by or about his earliest release date that he no longer presented an unacceptable danger to the public.  He held that, while it might not be possible at that stage to state with certainty that the petitioner’s rights would be breached at the time of his tariff expiry, that did not, of itself, prevent him from raising the matter then.  The primary purpose of an application for judicial review was less to seek redress for breach than to seek a finding by the court which might result in action being taken to reduce the likelihood of a breach eventually occurring.  I agree with that approach.  The reason, as I understand it, why Lord Tyre allowed the petitioner a proof of his averments was that it was not to be in dispute that the “preparation for release” phase for such a prisoner would normally involve some four years in the NTE and Open Estate, which would only begin once the petitioner had satisfactorily completed the Change Programme (“SCP”) which he had yet to commence[1].  In those circumstances the petitioner had made sufficient averments to entitle him to a proof.  In other words, his averments were sufficiently focused and, if correct, might well provide a basis for arguing that the respondents had already so delayed in providing opportunities for rehabilitation that it would be impossible at or about his tariff expiry date for him to demonstrate that he no longer presented an unacceptable danger.

[20]      But the decision in each case is fact sensitive.  In the present case the petitioner’s earliest release date is in November 2017, some two years off.  In statement 13 he makes averments to the effect that it will take 29 months or more from the time he starts the required coursework (MFMC) until, having completed time in the Open Estate, he is ready to be assessed by the Parole Board in terms of the danger he may at that stage present to the public.  That is four months after the expiry of the punishment part of his sentence.  That in itself, he argues, shows that the respondents have failed in their duty to provide him with an opportunity reasonable in all the circumstances to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public by or about the time of his earliest release date.

[21]      There are difficulties with this argument.  The make up of that 29 months is said to be 12 months for completion of the MFMC rolling programme, eight months thereafter before transfer to conditions of lesser security (including time spent in preparation of a post-programme report and consideration of his progress at a Risk Management Team meeting) and, assuming that he does not have to go to NTE, at least nine months spent on the Open Estate.  However the petition provides no basis for the assertion that the MFMC programme takes 12 months to complete.  There is no reference to any documentation or to the experience of others undertaking that programme, nor even to the content of the programme to show that it involves a number of stages each lasting a particular time.  The assertion that it will take 12 months to complete is just that, pure assertion.  Nor is any basis set out in the petition for the claim that it will take in the region of eight months between completion of the MFMC programme and transfer into the Open Estate.  This, too, is no more than assertion.  If those two periods are taken out of account, or discounted even a little, there is no adequate basis for the averment that it is already unlikely that he will have completed the relevant stages in time to be assessed at or about the time of his earliest release date.  That may in fact be the case, or it may not, I do not know, but the petitioner has not made any proper averments justifying me in sending that case to proof.

[22]      I have not overlooked the averment that as at December 2014 the petitioner was still only 152^nd on the waiting list for MFMC, and that only about 78 individuals completed MFMC in the year 2014/2015.  These averments are admitted by the respondents.  But the respondents go on to aver that waiting lists are dynamic and subject to change.  Many prisoners are placed on waiting lists and subsequently choose not to undertake the courses when places become available.  That is not disputed by the petitioner.  In those circumstances the averments about where the petitioner was on the waiting list at any particular time provides no sufficient basis for a conclusion that the petitioner will not be given a place on MFMC in time to move to the Open Estate and, thereafter, if all goes well, be assessed by the Parole Board at or about the time of his earliest release date.

[23]      In those circumstances, which differ materially from those in the case before Lord Tyre, I am not satisfied that there is any proper basis for sending the case to a proof of these averments.

[24]      I should add that there are a large number of averments in the petition which cause me some concern.  By way of example, I have already (in para [8] above) italicised certain passages in statement 7 of the petition.  I use these as an indication of the problems which would arise if I were to send the matter to proof.  Much of the detail in statement 7 is focused on life sentence prisoners, not prisoners detained under an OLR.  The difference is important.  Mr McCluskey pointed out a number of the major differences.  Ms van der Westhuizen identified others.  The italicised passages show areas where the main differences occur.  I did not understand there to be much dispute about them.  Thus, the FGTR does not apply to OLR prisoners.  OLR prisoners will sometimes move straight to the Open Estate without having to progress through NTE.  While it is true that for certain indeterminate sentence prisoners there is a four year pre-release management plan, for OLR prisoners that period is two years or less.  In general, references in statement 7 to four years should be to a period of, at most, two years.  In accordance with the respondents’ Risk Management and Progression Guidance document, the preparation for release phase will commence, in the case of an OLR prisoner, no earlier than two years before the expiry of the punishment part of the sentence.  It may be later.  The date at which the petitioner ought to be in a position to progress to NTE or the Open Estate, therefore, is November 2015, not January 2015 (as averred).  OLR prisoners do not necessarily need to spend as long as two years in the preparation for release phase.  The November 2015 date is therefore an earliest date.  And it cannot therefore be said of OLR prisoners that “in general, in order to have a reasonable chance of release at tariff expiry, [they] require to have completed their coursework by a date not later than three years before tariff expiry”.  It is true that statement 8 corrects the position about the FGTR and about the ability to transfer directly to the Open Estate without passing through NTE.  But it does not address the different periods required at various stages for OLR prisoners as opposed to life sentence prisoners.  As a result, statement 7 does not instruct any overall assessment of what is required before an OLR prisoner can, if all things progress satisfactorily, be assessed by the Parole Board as suitable for release.  The put bluntly, it contains a lot of material that is irrelevant to the position of OLR prisoners and much that is simply wrong.  Even if I had otherwise been minded to allow the petitioner a proof of his averments, I would not have allowed a proof on any averment to which these matters were relevant without requiring substantial amendment of the petition.

The prioritisation policy

[25]      The arguments advanced by the petitioner in Quinn concerning the respondents’ prioritisation policy were, I was told, identical to those advanced on the same point in this petition.  Lord Tyre rejected those arguments (at paras 34-40).  I suggested to Mr McCluskey, who appeared for the petitioner, that unless I found Lord Tyre’s reasoning to be entirely unpersuasive – which I do not – I should simply adopt it and refuse this part of the petitioner’s case for the same reasons, without prejudice, of course, to his right to argue the point should this matter go further.  He was content that I should take this course and I therefore propose to do that.

Disposal

[26]      For the reasons set out above I shall refuse the petition.  I reserve all questions of expenses.