Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 57

 

P500/15

OPINION OF LORD ARMSTRONG

In the petition of

DAVID BEATTIE (AP)

Petitioner

for

Judicial Review of a failure by the Scottish Ministers to assess him for rehabilitative course work and their associated policy

Petitioner:  Leighton;  Drummond Miller LLP

Respondents:  Ross;  Scottish Government Legal Directorate

21 April 2016

Introduction
[1]        The petitioner is a convicted prisoner in HMP Glenochil.  The respondents are the Scottish Minsters.  They have responsibility for the prison service in Scotland.  The petitioner has been convicted of rape three times.  On the last occasion, on 11 April 2012, at Glasgow High Court, he was made the subject of an order for lifelong restriction (“OLR”), the punishment part of which is a period of imprisonment of 7 years.  His punishment part expiry (“PPE”) date is 10 April 2019, which is the earliest date from which he will be eligible for release on license if the Parole Board for Scotland so directs.

[2]        In that regard, in determining whether release on license is appropriate, a critical consideration for the Parole Board is whether it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (Prisoners and Criminal Proceedings (Scotland) Act 1993, section 2).

[3]        The petitioner’s contentions are that by failing to assess him for rehabilitative course work and by adopting the policy which they have in prioritising assessments for such course work, the respondents are failing in their duty to provide him with an opportunity, reasonable in all the circumstances, for him to rehabilitate himself and demonstrate to the Parole Board at the point of his PPE date that he no longer represents an unacceptable danger to the public.  The petitioner submits that these failings constitute breaches of the respondents’ duties at common law and of articles 5 and 14 of the European Convention on Human Rights (“ECHR”).  In these circumstances, he seeks four declarators to the effect that:

(i)         the respondents have acted unlawfully in failing to generically assess the petitioner for rehabilitative course work;

(ii)        the petitioner’s convention rights in terms of article 5 had been breached by the failure of the respondents to generically assess the petitioner for rehabilitative course work;

(iii)       the policy adopted by the respondents in relation to prioritising assessment for course work is a breach of the petitioner’s convention rights in terms of article 5, taken with article 14;

            and

(iv)       the policy adopted by the respondents in relation to prioritising assessments for course work is unlawful.

 

The factual background
[4]        In general OLR prisoners, such as the petitioner, after undertaking necessary course work, may advance to conditions of reduced security in the form of National Top End (“NTE”) and may embark upon a programme of escorted leaves.  Following a work placement and progression to unescorted leave, such prisoners may advance to the Open Estate in preparation for release.  OLRs were introduced as a sentencing option in about June 2006.  Given their relatively short history, it is as yet unclear how, in general, OLR prisoners will progress through the prison estate in practice.  The sentence management of OLR prisoners is subject to the supervision of the Risk Management Authority.  Sex offenders are generally treated with greater caution than other categories of offender.  In these circumstances, it may be that, generally, OLR prisoners convicted of sexual crimes will progress to the Open Estate through NTE rather than to it directly.  The management of a prisoner’s sentence is a dynamic and changeable process.  The advancement of a prisoner’s progress through NTE and Open Estate depends on his individual circumstances, taking into account the risk which he presents, and may take more or less than 2 years.  The earliest date on which an OLR prisoner can access NTE and the Open Estate is generally 2 years before his critical date, (Scottish Prison Service Governors & Managers Action Notice:  Ref. Amendment 21A/13; Scottish Prison Service: Risk Management and Progression Guidance, paragraph 4.17-19).  In the case of an OLR prisoner, his critical date is the PPE date.

[5]        Prisoners are generally only considered for progression from closed conditions on completion of any course work that they have been assessed as requiring.  Generic Progress Assessment (“GPA”) is conducted in order to determine what behaviour types a prisoner will require to address before advancing through the prison estate, and what course work the prisoner might be suitable for and ought to complete before advancing further.  GPA consists of a file review and an interview.  Prisoners are prioritised for GPA by reference to their critical dates.  In the case of an OLR prisoner the critical date is his PPE date.  In relation to the GPA of the petitioner, the file review of his case has been completed.  He is awaiting interview.

 

The submissions
[6]        Written notes of argument were provided by counsel for both parties.  Although I do not repeat their content in detail, I have taken them fully into account, together with the submissions made at the bar, in what follows.

 

Submissions for the petitioner
[7]        The basis in law for the petitioner’s case is to be found in the decision of Haney v Secretary of State for Justice [2015] AC 1344.  In that case, the Supreme Court accepted as implicit in the scheme of ECHR article 5 that the state is under an ancillary duty to provide an opportunity, reasonable in all the circumstances, for a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public (paragraph 36).  The court further stated that the obligation is geared towards the prisoner having such a reasonable opportunity, to establish that he is safe to release, at or within a reasonable time after the expiry of the referable tariff period and, further, that a failure before tariff expiry may constitute a breach of the duty if it remains uncorrected so that the prisoner is deprived of such reasonable opportunity as he ought to have had (paragraph 48).

 

(i)         Assessment for course work
[8]        In circumstances where the petitioner had completed more than one half of the determinate part of his sentence, with little over 3 years remaining, and given the likely time he would require to progress, from having completed course work, through NTE to the Open Estate, the failure to date of the respondents to afford him a GPA was to be characterised as a failure of the duty recognised in Haney.  It was that failure to which the first and second of the declarators sought were directed.  It was to be noted that they were sought in the alternative, on the basis that while the same essential argument applied to each, it was recognised that the actings of the respondents challenged by the petitioner could be unlawful in domestic law but might not involve a breach of human rights.

 

(a)        The specific challenge
[9]        In essence, this submission was that the failure on the part of the respondents to assess the petitioner was likely to result in a breach of the duty recognised in Haney because of the timescale of what would be required to follow GPA.

[10]      In order to predict the likely timing of the petitioner’s progression through the prison estate, it was necessary to identify the courses for which he was likely to be assessed as suitable, and to consider their likely duration.  It was accepted that what the likely progression of the petitioner might be, assessed in advance, could never be predicted with certainty.  Counsel for the respondents went slightly further and described such an exercise as speculative.  For the petitioner, it was submitted that the courses likely to be required in his case were:  Moving Forwards Making Changes (“MFMC”) and Substance Related Offending Behaviour Programme (“SROBP”), a programme with a likely duration of 50 weeks, plus, in addition, Constructs, a course which addressed problem solving, social skills and pro‑social attitudes, with a duration of 9 weeks, and Controlling Anger Regulating Events (“CARE”), having a duration of 12½ weeks.

[11]      In respect of progression through changing prison conditions, in general, life prisoners spent 2 years progressing through NTE to reach the Open Estate.  It was reasonable to assume that sex offenders would be managed more conservatively than other categories of prisoner.

[12]      In these circumstances, in the case of the petitioner, given what was likely to be required following GPA, in particular having regard to the duration of the course work likely to be required and the likely timescales of the his progression through NTE to the Open Estate, he would not be in a position to make his case to the Parole Board, that he no longer presented an unacceptable risk to the public, by the time of his PPE date.  The respondents were accordingly in breach of the duty recognised in Haney.

 

(b)        The general challenge
[13]      This submission was directed to the general position of OLR prisoners.  Given the risk criteria required to justify such a sentence, these prisoners were likely to require more positive intervention than others before being able to progress.  In addition, they were likely to have shorter determinate sentences, comprising the punishment part of the order, than life prisoners, and so, in comparison, had less time in which to undertake and complete the necessary rehabilitation.  Current policy was that the timing of GPA, in respect of an OLR prisoner, was referable to his critical date.  There would however be a point in time by which failure to assess such a prisoner would constitute a breach of the relevant duty, by denying him a reasonable chance of demonstrating by the time of his PPE date that he met the Parole Board’s criteria for release.  The question was when that critical point would be reached.  The contention for the petitioner was that, in order to avoid such a situation, assessment should take place, not at the time currently determined by reference to a fixed period in advance of an OLR prisoner’s critical date, but at an earlier stage such as the first Integrated Case Management meeting.  On the basis of the petitioner’s likely progress, given the duration of the courses realistically to be in contemplation, and his likely progression through NTE to the Open Estate, the contention was that he should already have been assessed and that the critical point had already passed.

 

(ii)        The policy of prioritisation
[14]      In this regard, the submissions were directed towards the third and fourth declarators sought.

 

(i)         The domestic case
[15]      In terms of the Scottish Prison Service Governors & Managers Action Notice:  Ref. Amendment 21A/13, the prioritisation of provision to prisoners of course work was regulated by reference to a prisoner’s critical date, which in the case of OLR prisoners was the PPE date.  The definition of the referable critical date varied from one category of prisoner to another.

[16]      In Weddle v Secretary of State [2013] EWHC 2323 (Admin), it was stated as an established proposition that in making choices in relation to the allocation of resources for rehabilitation programmes, (in England and Wales), there is a public law duty on the Secretary of State to act rationally and to take account of relevant factors, while disregarding irrelevant matters (paragraph 42).

[17]      Under reference to that duty, the adoption by the respondents of the current prioritisation policy was not rational to the extent that the prioritisation of assessment for course work was carried out by reference to a prisoner’s first possible release date.  Long term prisoners required to spend about 2 years more in prison than short term prisoners before the Parole Board would realistically consider them for release.  Life prisoners require to spend about 4 years more in prison after completing course work, before they would be considered for release.  The pattern of management of OLR prisoners fell somewhere between that of long term prisoners and life prisoners.  Although the policy might appear to treat prisoners equally, it did not, and in fact discriminated irrationally between different categories of prisoner.  In order to secure fulfilment of the duty to provide prisoners with the means by which they could demonstrate, at or around the expiry of their sentences, that the risk had reduced sufficiently to enable their release, it would make rational sense, and be fairer, if the critical dates for long term and life prisoners were set respectively 2 years and 4 years earlier.  On that basis, in adopting a fair and rational approach, it would be appropriate to set the critical date for OLR prisoners 2 or more years earlier than was currently the case.  As matters stood, it was not rational to determine such a complex matter in such a simple manner.  In contrast, it would be rational to take factors other than the prisoner’s earliest release date, such as the number and types of courses which a prisoner might be assessed as requiring, into account.

 

(ii)        The Convention case
[18]      This submission was to the effect that the respondent’s adopted policy was in breach of ECHR article 5 and article 14, taken together, in that it resulted in discriminatory, unfair and irrational provision of rehabilitation in respect of different categories of prisoner.  It was not contested by counsel for the respondents that the circumstances of this case fell sufficiently within the ambit of article 5 to allow consideration of the application of article 14.  Indeed that position was consistent with the decision of the Supreme Court in Haney (at paragraph 36).  In that context, for the petitioner, reference was made to the case of R (Clift) v Secretary of State for Justice [2007] 1 AC 484, paragraphs 28 and 46, and to the case of Clift v UK [2010] ECt HR 1106, paragraphs 55 ‑ 63.  In the first of these cases, the House of Lords decided that, when compared with shorter term prisoners and life prisoners, a prisoner serving a long term determinate sentence did not have “other status” for the purposes of article 14.  Although the House of Lords did not determine the position of life prisoners in that regard, obiter dicta by Lord Bingham and Lord Hope indicated some sympathy for the proposition that life prisoners ought to be so regarded.  The decision of the European Court of Human Rights, in the second case, was that a prisoner serving a long term determinate sentence did enjoy “other status” for the purposes of article 14.

[19]      In those circumstances, it was submitted that, on the basis that the position of an OLR prisoner should be equated to that of a life prisoner, the petitioner should be viewed as enjoying “other status”.  Article 14 was therefore engaged.

[20]      The blanket application of the policy under reference only to a prisoner’s first possible release date had resulted in discriminatory treatment without objective justification.

[21]      Alternatively, there was no apparent objective justification for the failure by the respondents to treat different categories of prisoners differently, having regard to their referable earliest release dates.  The application of article 14 embraced the possibility of differential treatment of individuals in different situations in order to secure the efficacy of the principle of non‑discrimination.  Reference was made to DH v Czech Republic [2008] 47 EHRR 3, paragraphs 175 ‑ 179.  Reference was also made to Brown v Scottish Ministers [2015] SLT 568, in which the court considered that the European Court of Human Rights recognised that there was a fundamental difference in the nature of determinate and indeterminate sentences and their consequences (paragraph 47).  Given that recognition, it was appropriate and would be rational, that in respect of prisoners serving such sentences there should be differential treatment.

[22]      In that regard, the material differences between the relevant four categories of prisoners as defined by reference to the sentences being served by them – (ie. short-term determinate, long-term determinate, OLR, and life) ‑ should be seen to be the different ways in which progress of each prisoner category is managed through the prison estate, from assessment for course work until release.

[23]      Viewed in that context, and by way of an alternative analysis, there had been a separate failure to take into account that where an early release scheme applied differently to prisoners, depending on the length of their sentences, there was a risk that, unless the difference in treatment was objectively justified, the protection from arbitrary detention afforded by article 5 would be defeated and that, accordingly, there was a need for careful scrutiny of differences of treatment in that regard (Clift v UK, at paragraph 62).

 

Submissions for the respondent
[24]      The context of the petitioner’s application was that (at the time of the hearing) he had more than 3 years yet to serve before his PPE date.

[25]      He had previously undertaken a number of courses.  These included Reasoning and Rehabilitation, in 2006, Cognitive Skills, in 2006, Alcohol Awareness, in 2007, Core Sex Offenders Treatment Programme, in 2007, and Constructs in 2009.  The file review element of the petitioner’s GPA had been completed.  He was awaiting an interview to complete the process.  Although there was no written policy in relation to the prioritisation of assessment for course work, what happened in practice in that regard reflected the management of prioritisation of the provision of courses to prisoners, which was conducted by reference to a written policy.

 

(i)         Assessment for course work
[26]      The petitioner’s position in relation to the first and second orders sought, to the effect that the arguments submitted in justification of each were essentially the same, was accepted.  In each case, the issue was whether there had been a breach of the ancillary duty encompassed by ECHR article 5, as described in Haney.  It was accepted that the duty applied to OLR prisoners such as the petitioner.

[27]      It was important, however, to note the content of the referable duty, as it was set out in Haney, at paragraph 60:

“It requires that an opportunity must 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.”

 

The duty was to afford the prisoner a relevant opportunity which was reasonable in all the circumstances.

[28]      In Haney, the Supreme Court had also provided guidance as to what the ancillary duty did not entail.  It was not a strict or absolute duty to achieve a particular result, such as ensuring that the prisoner was able to persuade the Parole Board that the level of risk he presented would make his release appropriate.  The duty did not involve a standard of perfection (paragraph 42).  It did not create an obligation to maximise course work or other provision made to the prisoner, and nor did it entitle a court to substitute, with hindsight, its own view of the quality of the management of an individual prisoner and to characterise, as arbitrary detention, any case which it concluded might have been better managed (paragraph 60).  The question whether a prisoner had been afforded a reasonable opportunity to reform himself and to demonstrate to the Parole Board that he no longer represented an unacceptable risk to the public must not be transmuted into the different question of whether reasonable provision had been made for a particular course which might have been relevant to the prisoner (paragraph 85).  Greater delay than one would choose to see in an ideal prison management system did not necessarily mean that a prisoner had not had a fair opportunity to reform himself (paragraph 89).

[29]      It was against that background that the petitioner’s complaint of delay in the completion of his GPA should be assessed.  Reference was made to the case of Reid v Scottish Ministers [2015] CSOH 84, in which Lord Glennie recognised that to infer, from a lapse of time in a particular step of the rehabilitative process, that there had been a breach of duty to provide a reasonable opportunity for rehabilitation, was inappropriately simplistic.  The rate at which a prisoner proceeded through the rehabilitation process would depend largely on matters of judgment reached by the prison authorities and experts consulted by them (paragraph 23 and 24).

[30]      The petitioner’s PPE date was over 3 years in the future.  The earliest date on which an OLR prisoner could access conditions of reduced security was generally 2 years before his critical date (Scottish Prison Service Risk Management and Progression Guidelines, paragraph 4.17).  The likely durations of the MFMC and SROBP courses were respectively 9 months and 5 months.  On that basis, even if the GPA indicated that the petitioner required to undertake more than one course, there was still time for that to be achieved before his PPE date.  It was accepted that the petitioner was likely to be required to spend time in the Open Estate but the particular period of that requirement was not constrained;  rather it would be determined on an assessment of the degree of risk he presented.

[31]      Having regard to these factors, and against the content of the ancillary duty incumbent on the respondents, which was to provide the petitioner with “a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period.”  (Haney, paragraph 48 – italics inserted), the orders sought were premature.  It was not possible at this point to conclude that the petitioner would not be afforded a relevant reasonable opportunity at the relevant time.  Unless there was a complete failure to provide an effective system of assessment for course work, demonstration of a breach of the relevant duty was likely to be possible only at or very near to the time of tariff expiry, (R (Weddle) v Secretary of State for Justice [2016] EWCA Civ 38, at paragraph 31).  In the present case, as matters stood, the position adopted by the petitioner was premature and speculative.

[32]      In any event, even if after the petitioner’s PPE date he found himself unable to persuade the Parole Board that his release was appropriate, it would not necessarily follow that there had been a breach of duty on the part of the respondents.  The duty was to provide an opportunity “reasonable in all the circumstances”.  It was not a duty to “cure” the prisoner or to ensure his release.  The petitioner’s GPA had not yet been completed and he was currently on a waiting list in that regard.  The petitioner was therefore awaiting his turn in a system which necessarily required to take account of the needs of other prisoners and to the limits of the resources available.  In these circumstances, it was not appropriate to hold that a resulting delay necessarily constituted a breach of article 5, (Haney, at paragraph 91).

 

(ii)        The policy of prioritisation
(a)        The Convention case
[33]      Although it was accepted that the petitioner’s case fell within the ambit of ECHR article 5, the argument made in reliance on article 14 was misconceived for the reason that, on a proper analysis, the petitioner’s position as an OLR prisoner, as such, did not involve an “acquired personal characteristic” and therefore did not confer on him “other status” for the purposes of the application of article 14.  Although the House of Lords had indicated some sympathy, in passing, for the proposition that a life sentence might represent an acquired personal characteristic, so as to confer on a life prisoner “other status”, the decision of the House on the point was that the type or length of a sentence did not  operate to that effect (R (Clift and others) v Secretary of State for the Home Department [2007] 1 AC 484, per Lord Bingham at paragraphs 27 ‑ 28;  per Lord Hope at paragraphs 42 ‑ 49;  per Baroness Hale at paragraph 62;  per Lord Brown at paragraph 67).

[34]      Although, subsequently, in Clift v United Kingdom, the Fourth Section of the European Court of Human Rights had decided the matter differently and to the opposite effect, the decision of the House of Lords was to be considered as binding on this court (R (Foley) v Parole Board for England and Wales [2012] EWHC 2184 (Admin), at paragraphs 20 ‑ 26;  R(Cossey) v Secretary of State for Justice [2013] EWHC 3029 (Admin), at paragraphs 15 ‑ 19).  It was significant that, in Haney, the Supreme Court had not taken the opportunity to review the decision of the House of Lords in R (Clift) on the point (see Haney, paragraphs 51 ‑ 53).  In a situation where the decision of the House of Lords was in relation to a matter bearing on a UK statute (the effect of the Human Rights Act 1998) the decision of the House was binding on the Scottish courts (Dalgleish v Glasgow Corporation 1976 SC 32, per Lord Justice Clerk Wheatley, at page 52).

[35]      Two further arguments were submitted on behalf of the respondents.

[36]      First, even if the petitioner was to be accorded “other status” no relevant case of discrimination had been demonstrated as between, on the one hand, OLR prisoners together with prisoners serving other indeterminate sentences, and, on the other, all other categories of prisoner.  No one category of prisoner was in fact prioritised over any other.  The same criterion of critical date applied to all.  No evidence had been presented of any discriminatory impact.

[37]      Secondly, it was to be noted that there was an objective and reasonable justification for the respondents’ policy.  The allocation of courses to prisoners and the prioritisation of course places were complex exercises which required account to be taken of a number of factors.  The waiting lists were dynamic and subject to change in the light of prisoners’ changing needs.  These exercises were carried out on a country‑wide basis which involved the whole prison estate.  The completion of course work was relevant not just to the decisions to be made by the Parole Board, but also to the reduction of the risk of re‑offending after release, and consequently to the protection of the public, in relation to all categories of prisoners.

[38]      Although any given prisoner might consider that he had grounds for criticism of, or disagreement with, the respondents’ policy, that would not render it discriminatory.  It was not incumbent on the respondents to demonstrate that their approach was flawless (R(M) v Secretary of State for Work and Pensions [2009] 1 AC 311, per Lord Neuberger, at paragraphs 54 ‑ 57).

[39]      In any event, it was to borne in mind that a policy which placed OLR prisoners and prisoners serving indeterminate sentences on waiting lists by reference to a date earlier than their current critical date would operate to the prejudice of other categories of prisoner.

 

(b)        The domestic case
[40]      To the extent that it was asserted in this context, for the petitioner, that the respondents’ policy was discriminatory, the Convention case submissions presented in that regard, for the respondents, were adopted in response to this argument also.

[41]      Otherwise, it was submitted for the respondents that the policy adopted was neither irrational nor unfair.  The threshold to be met in order to demonstrate unreasonableness, amounting to unlawful action, had been emphasised in other cases involving the progression of prisoners, as being a high one (M v Scottish Ministers [2013] SLT 875, at paragraphs 97 ‑ 99, 103 ‑ 104, 108 ‑ 109;  Reid v Scottish Ministers [2015] CSOH 84, at paragraphs 24 ‑ 25).

[42]      The development of the respondents’ policy had resulted from the need to take account of many competing factors, amongst which were that waiting lists were necessarily fluid in that there was a need to take account of prisoners’ changing needs for course work over time, and the consequent requirement for re‑assessment, the fact that significant numbers of prisoners who were placed on waiting lists subsequently chose not to undertake course work when places became available, and the necessary recognition that prisoners serving determinate sentences might be in need of course work programmes to the same extent as OLR prisoners.

[43]      In these circumstances, the respondents’ policy did not fall outwith the range of reasonable options open to them.  The adoption of the policy was not unreasonable in the Wednesbury sense.

 

Decision
(i)         Assessment for course work
[44]      The petitioner’s arguments in this regard were presented on two fronts, addressing his position in particular, but also that of OLR prisoners in general.  In respect of both challenges, however, the essence of the issue to be considered is that of the referable chronology.  The question of whether the respondents are in breach of the ECHR article 5 ancillary duty, recognised in Haney, is framed against the background of the extent to which the particular circumstances of OLR prisoners, (including in each case the duration at any time, prior to its expiry, of the part of the determinate sentence yet to be served), can reasonably be accommodated in the management of their rehabilitation.  Given the petitioner’s particular circumstances, the course work which he is likely to require, to the extent that it is possible to predict, and the likely duration of his progress through NTE to the Open Estate, the submission on his behalf is that, by failing to complete GPA in his case by now, the critical date by which the respondents can be said to be in breach of the ancillary article 5 duty has past, in that it will not now be possible for the petitioner to make his case for release to the Parole Board at the time of his PPE date.

[45]      In determining whether that contention is well founded, it is necessary to take as a starting point what was stated in Haney.  Although the ancillary article 5 duty was set out in general terms, at paragraph 36, the extent of that duty was further defined at paragraphs 48 and 60. 

[46]      What is envisaged as the effect of the duty is that a prisoner should have the relevant opportunity at or within a reasonable time after the expiry of the tariff period, which in the case of the petitioner must be taken to equate to having the opportunity at or within a reasonable time after his PPE date.  Equally, however, the opportunity to be afforded to the prisoner is to be one which is reasonable in all the circumstances, taking into account, amongst all these circumstances, the prisoner’s 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.

[47]      The petitioner has previously undertaken a number of rehabilitative courses.  I accept that in circumstances where his GPA is not yet completed, it is premature to specify what further coursework might be thought appropriate in his case.  What that might be will depend on the whole circumstances relating to the petitioner as they become apparent in the process of GPA.  I also accept, and agree with Lord Glennie’s comments in Reid, that, in circumstances where the rate of a prisoner’s progress through the whole rehabilitative process depends largely on matters of judgement by the prison authorities and experts consulted by them, it is less than a proper analysis to conclude, from a perceived lapse of time in a particular step of the process, that there has been a breach of duty to provide a reasonable opportunity for rehabilitation;  in the petitioner’s case such as to demonstrate at or within a reasonable time after his PPE date that he no longer presents an unacceptable risk to the public. 

[48]      On the basis of the guidance set out in Haney, it would follow as appropriate that whether or not the duty has been breached ought to be determined by having regard not just to the point in his sentence prior to his PPE date which a prisoner such as the petitioner has reached, but also to the factors identified in Haney at paragraph 60, assessing them over the period during which fulfilment of the duty ought to occur.  In the petitioner’s case that period, which logically must extend to a point at or within a reasonable time after his PPE date, has not yet expired.

[49]      Counsel for the petitioner placed some emphasis on the fact that in Haney it was recognised that failure to fulfil the duty before tariff may constitute a breach if it remains uncorrected so that the prisoner is deprived of the reasonable opportunity which he should have had.  It would be reasonable to contemplate a case in which it could be said to have become clear in advance of the relevant point at or within a reasonable time after the expiry of the PPE date, that is, at a critical point capable of being determined, that a prisoner was unlikely to be afforded the opportunity required in terms of the article 5 ancillary duty.  As matters stand, however, I find that it cannot be determined at this stage in the petitioner’s sentence that there has been such a breach of the duty on the part of the respondents.  Even if I was wrong to reach that conclusion, I would be unable to find, again as matters stand at this stage in his sentence, that any such relevant breach would remain uncorrected.  In that regard, the petition is premature.  I therefore dismiss the challenge made in relation to the assessment of coursework.  I find that neither the first nor the second declarator sought is justified.

 

(ii)        The policy of prioritisation

(a) The domestic case

[50]      The petitioner contends that the respondents’ adopted policy is unfair and irrational because it results in the prioritisation of availability of rehabilitative course work being dependant solely on a prisoner’s first possible release date.  He submits that a fair and rational policy would be to fix the critical date for OLR prisoners at a period two or more years earlier than is currently the case.

[51]      In determining whether or not the respondents’ policy is unreasonable, it must be borne in mind that the test, in such cases, is a high one (M v Scottish Ministers;  Reid v Scottish Ministers).  In that context, I accept that waiting lists for coursework are subject to change for the reasons submitted by the respondents, and that in circumstances where rehabilitative coursework is relevant to the reduction of the risk of reoffending after release of all categories of prisoner, a system which provided an earlier critical date in relation to OLR prisoners would operate to the prejudice of other categories of prisoner by removing or restricting the coursework currently available to them.  On that basis, I am persuaded that the prioritisation policy currently adopted does not fall outwith the range of options reasonably open to the respondents.

 

(b)        The Convention case
[52]      The submission for the petitioner, to the effect that the respondents’ policy is discriminatory, rests on the contention that, by reason of being on OLR prisoner, he has acquired “other status” for the purposes of ECHR article 14.  That contention in turn rests on the obiter dicta of Lord Bingham and Lord Hope in R (Clift) by which they indicated some sympathy for the proposition that life prisoners might be so regarded.  The petitioner equates the positions of OLR and life prisoners.

[53]      Notwithstanding the merits of the content of these obiter dicta, and notwithstanding the subsequent decision of the European Court of Human Rights in Clift v UK, as a matter of law the decision of the House of Lords is binding on this court ((R) (Foley); (R) (Cossey);  Dalgleish v Glasgow Corporation).  The decision in R(Clift), to which I must defer, is to the effect that the type or length of a prisoner’s sentence does not operate so as to confer on him “other status”.  That being so, the petitioner’s submission in that regard must fail. 

[54]      Had it been necessary to determine the matter, I would have found that, in any event, the respondents’ policy does not create circumstances of direct discrimination as between different categories of prisoner.  On the contrary, as stated explicitly in the Scottish Prison Service Governors & Managers Action Notice:  Ref.: Amendment 21A/13, no prisoner-type is prioritised over another and the same criterion of critical date is applied to all.

[55]      Under reference to DH v Czech Republic, the petitioner also submitted that, in adopting the policy which they had, the respondents had failed without objective and reasonable justification to treat differently different categories of prisoner.  Again, had it been necessary to determine the matter, I would have found in favour of the respondents.  Their stated position is that a policy which prioritised OLR prisoners over other categories of prisoner, by placing them on a list for assessment for coursework by reference to a date earlier than their critical date, would operate to the detriment of other prisoners in that it would be likely to have the effect that some prisoners serving short term and long term determinate sentences would be released without completing courses which they had been assessed as requiring, and would be likely to impact on the opportunity for prisoners serving determinate sentences to progress to less secure conditions in the period prior to their release.  On the implicit basis that the current policy is intended to reduce the risk of such occurrences, I am satisfied that there is an objective and reasonable justification for its adoption.

[56]      Further, applying careful scrutiny to the whole facts pertaining to the manner in which different categories of prisoner are managed under the current policy, including the factors which contribute to that objective and reasonable justification, I am satisfied that ECHR article 5 has not been breached such as to bring about a system which could be said to expose the petitioner to arbitrary detention.

[57]      In these circumstances, I find that neither the third nor the fourth declarator sought is justified.

 

Conclusion
[58]      In the result, for these reasons, I will sustain the respondents’ second, third and fourth pleas-in-law and their seventh plea-in-law as amended at the bar, repel the petitioner’s pleas-in-law, and dismiss the petition.  I reserve, meantime, all questions of expenses.