Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 5

P1237/15

OPINION OF LORD BOYD OF DUNCANSBY

In the petition of

ALEX KEENAN

Petitioner;

for Judicial Review of a failure to provide him with rehabilitation by the Scottish Ministers

Petitioner:  Leighton;  Drummond Miller LLP

Respondents:  Ross;  Office of the Advocate General

22 December 2015

[1]        The petitioner is serving a determinate sentence of nine years seven months.  He is first eligible for parole on 20 November 2016 when he will be considered for release by the Parole Board.  If he is not released then he will be released on non-parole licence on 27 June 2018.  The sentence expires on 5 September 2021. 

[2]        This petition for Judicial Review seeks a number of declarators specified in paragraph 4 of the petition.  These are to the effect that the respondents have failed to provide the petitioner with a means by which he could demonstrate to the Parole Board for Scotland that he no longer poses a risk to the public and therefore be eligible for release when first considered by the Parole Board.  The means by which he could demonstrate that he no longer poses a risk are spelt out in the petition. 

[3]        The petition proceeds on both ECHR and common law grounds.  The test at permission stage is whether there are real prospects of success – see section 27B of the Court of Session Act 1988 as amended by section 89 of the Courts Reform (Scotland) Act 1994.  I accept the submission from Mr Leighton that in this context “real prospects of success” means more than a fanciful prospect – see paragraph 52 of Chapter 12 of the Scottish Civil Courts Review, the “Gill Review”. 

[4]        So far as the ECHR case is concerned, the petitioner accepts that this ground is predicated on a challenge to the Inner House decision of Brown v The Scottish Ministers 2015 SLT 568.  He contends that Brown was wrongly decided.  That case is binding on me and accordingly I cannot hold that on this ground the petition has real prospects of success. 

[5]        The petitioner avers that the respondents are under a duty at common law to provide courses which promote rehabilitation.  Mr Ross for the respondents accepts that the respondents are bound to act reasonably and rationally, the Wednesbury test, but does not accept that there is any special duty in relation to determinate prisoners.  No authority is cited for the proposition that the duty extends to determinate prisoners.  Quinn v The Scottish Ministers 2015 CSOH 110 and Weddle v The Secretary of State for Justice 2013 EWHC 2323 (Admin) are both cases concerning indeterminate prisoners.  Indeed the duty in Weddle is specifically confined, in my reading of the case, to a duty towards indeterminate prisoners – see Cranston J at paragraph 42. 

[6]        If the petitioner is correct that there is a common law duty then it must both predate the duty under article 5 of the ECHR and be more extensive than the ECHR duty.  I can see no hint of the courts recognising the existence of such an extensive common law duty in Quinn, Weddle or the Supreme Court case of Kaiyam v The Secretary of State for Justice 2015 AC 1344. 

[7]        Mr Leighton’s submission is based on the supposed parallels between long term determinate prisoners and those serving indeterminate sentences.  In particular he attempts to equiparate the stage at which long term determinate prisoners may go before the Parole Board at the half way point of their sentence with that which occurs with indeterminate prisoners who have completed the punishment part of their sentence.  I am not persuaded that there are such parallels or, if there are, it gives rise to similar duties on behalf of the respondents. 

[8]        Accordingly I do not consider that there are real prospects of success and I shall refuse permission for this petition to proceed. 

[9]        I will make an award of expenses in favour of the respondents against the petitioner as an assisted person.