Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 20

P200/15

 

Lady Paton

Lord Brodie

Lord Malcolm

OPINION OF THE COURT

delivered by LADY PATON

in the petition

of

ALEXANDER LEWIS HUTCHISON REID (AP)

Petitioner and Reclaimer

against

THE SCOTTISH MINISTERS

Respondents

Petitioner:  K Campbell QC, McCluskey;  Drummond Miller LLP

Respondents:  Ower;  Scottish Government Legal Directorate

 

2 March 2017

The rehabilitation of a life prisoner:  Article 5 of the ECHR
[1]        In 1967 the petitioner (then aged 17) was convicted of a violent homicide as detailed in Reid v HM Advocate 2013 SLT 65, paragraph [2].  He was detained in Carstairs State Hospital, where he remained for about 45 years.  In 2012, following upon developments in the diagnosis relating to his mental health, he was successful in an appeal to the High Court of Justiciary (Reid v HM Advocate cit sup).  He was transferred from Carstairs to serve a life sentence in HM Prison, Glenochil.  The punishment part of his life sentence was set at 10 years.  That punishment part expired on 8 September 1977.  The petitioner is accordingly a “post-tariff” prisoner, serving an indeterminate life sentence.

[2]        In this judicial review, the petitioner contends that he has suffered a breach of his rights under Article 5 of the European Convention on Human Rights (ECHR), in that the Scottish Prison Service, for whom the Scottish Ministers are responsible, have failed in their duty to:

“ … provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he is no longer an unacceptable danger to the public …”

 

(R(Haney) and others v Secretary of State for Justice [2015] 1 AC 1344, paragraph 36 et seq).  In statement 3 of the petition, the petitioner seeks:

1.         Declarator that his convention rights under Article 5 of the ECHR have been breached by the respondents’ failure, in the period 27 November 2012 to date, to facilitate his progress towards release in order that he is able to demonstrate to the Parole Board for Scotland that he no longer presents an unacceptable danger to the public.

2.         Damages of £5,000.

3.         Such further order as the court deems just and reasonable in all the circumstances of the case.

 

Agreed facts:  time spent in Carstairs State Hospital (1967-2012)
[3]        In paragraph [6] of his opinion, the Lord Ordinary (Lord Glennie) sets out a chronology of the petitioner’s circumstances from 1967 until 2012, when the transfer to Glenochil prison took place.  We gratefully adopt that summary, which is based upon the parties’ Joint Statement of Facts (“JSF”).  What follows is a brief outline of events since 2012.

 

Time spent in Glenochil prison (2012 to date)
[4]        Relevant dates for present purposes include the following:

27 November 2012 (aged 62):  The petitioner was admitted to Scottish Prison Service custody at HM Prison, Glenochil.  He was placed in conditions of high supervision.  No lone female was permitted to enter his cell.  He was to be seen at the Health Centre by staff on a 2:1 ratio.  He was not to participate in visits with children (JSF paragraph 15).

29 December 2012 (aged 62):  The level of supervision was reduced to medium (JSF paragraph 15).

18 January 2013 (aged nearly 63):  The petitioner attended his initial Case Management conference (JSF paragraph 16).

6 February 2013 (aged 63):  The Risk Management Tribunal decided that special risk precautions were required for the petitioner.  Matters were to be reassessed after 6 months (JSF paragraph 18).

15 February 2013 (aged 63):  The petitioner attended a Generic Programmes Assessment (JSF paragraph 17).

8 March 2013 (aged 63):  The petitioner attended a meeting of the Programme Case Management Board, who decided that he should participate in the Good Lives programme, which is directed at sexual offenders (JSF paragraph 19).

11 March 2013 (aged 63):  The Parole Board decided that it could not be satisfied that the petitioner’s continued detention was no longer necessary for the protection of the public (JSF paragraph 20).  The Board agreed upon a management plan which “would probably take 2 years to complete” (see letter dated 19 March 2013, noted below) with the aim of reducing or controlling the risk he presented (JSF paragraph 20 et seq).

19 March 2013 (aged 63):  The Parole Board by letter advised the petitioner of the management plan, explaining inter alia that:

• He should participate in a 3-month CARE course (CARE being the acronym for Controlling Anger, Regulating Emotions).
• He should participate in the Good Lives programme (also known as “Moving Forward: Making Changes”), which would take about 8-9 months.
• Post-programme reports on the petitioner and the risk he presented would be necessary.Such reports might take several months to prepare.
• The risk which the petitioner presented would be re-assessed in around June/July 2013.
• In order to progress to Top End conditions and ultimately to the open estate, the petitioner would have to meet the relevant criteria for such progression.
• The next Parole Board review would be in two years’ time, i.e. in about March 2015.

The letter recorded the submissions made by the Life Liaison Officer on the petitioner’s behalf, and noted “The Management Plan set out … would probably take 2 years to complete and it might be that, if matters progressed in a satisfactory fashion, you would be able to transfer to Top End conditions and ultimately to the open estate.  Fife Council had now agreed to assist with MAPPA supervision (MAPPA being the acronym for Multi-Agency Public Protection Arrangements).

9 January 2014 (aged 64):  The petitioner began the 3-month CARE programme (JSF paragraph 23).

26 February 2014 (aged 64):  The Risk Management Tribunal met, and noted that the petitioner had begun the CARE programme (JSF paragraph 25).

28 March 2014 (aged 64):  After 25 sessions, the CARE programme was completed.  As noted in the Joint Statement of Facts at paragraphs 23-24:

“23 … A number of key treatment needs were identified, including emotional identification, emotional management (including problem solving) and unhelpful thinking styles.  The petitioner denied that he had any issue with anger, stating that previous reports of his aggressive behaviour were ‘lies’.  He declined the opportunity to engage in a number of skills practices and provided little personal input into assignment work.  With support, he evidenced a basic understanding of helpful and unhelpful thinking, although that understanding was not consistent … 24 … He made only limited progress [during the CARE programme] despite attending all 25 sessions.  A number of factors account for that.  He presents with a moderate degree of psychopathy and dissocial personality disorder.  He has a lower level of cognitive functioning and intelligence and struggles to process and retain information presented to him.”

 

August 2014 (aged 64):  The post-programme report on the petitioner’s progress was completed (JSF 26).  The petitioner’s progress was described as limited, due to his low level of understanding, literacy abilities, personality traits, denial of behaviour at Carstairs, unwillingness to discuss his offending, and ambivalent motivation to change (JSF paragraph 26).  It was noted that the petitioner still had a number of outstanding treatment needs.

1 September 2014 (aged 64):  The Scottish Prison Service’s Offender Outcomes Unit manager wrote to the petitioner’s solicitor advising that (i) the CARE programme had been completed and the petitioner’s case returned to the Programme Case Management Board;  and (ii) the petitioner had outstanding needs in relation to his sexual offending, and was awaiting consideration for a place on the “Moving Forward: Making Changes” programme.  He had been placed on a national waiting list (JSF paragraph 27).

9 September 2014 (aged 64):  The Programme Case Management Board met and discussed the petitioner’s limited progress in the CARE programme.  The Board decided that the petitioner –

“would not benefit from participating in any further programme work at that time, but that a case management discussion should take place to discuss the petitioner’s participation in offending behaviour programmes”

 

The Board recommended support for the petitioner in future programme work (JSF paragraph 28).

5 December 2014 (aged 64):  The Programme Case Management Board met with the petitioner and representatives from the Scottish Prison Service psychology and social work departments to discuss the petitioner’s readiness to participate in intervention work.  The description of the petitioner’s responses during the discussion (paragraph 29 of the JSF) is suggestive of an inability to appreciate the work required of him, although he was keen to engage in work to assist in his transition to the community.  The Board agreed to allow the petitioner time to reflect on the discussion (JSF paragraph 29).

19 December 2014 (aged 64):  The petitioner attended a case conference (JSF paragraph 30).

14 January 2015 (aged nearly 65):  In preparation for the petitioner’s Life Prisoner Tribunal, an overview was prepared, noting some concerns about him and recommending some further work (JSF paragraph 31).

21 January 2015 (aged 65):  The Programme Case Management Board met with the petitioner, who indicated that he did not feel that he had any issues requiring to be addressed (JSF paragraph 32).

February 2015 (aged 65):  The petitioner raised the current petition for judicial review, seeking declarator and damages as set out in paragraph [2] above.  The petition was served on the Scottish Ministers, the Advocate General for Scotland, and the Lord Advocate.

4 March 2015 (aged 65):  The Programme Case Management Board met with the petitioner.  Again he indicated that he did not feel that intervention work would be beneficial, as he did not have any issues which would be addressed through programme interventions.  He continued to deny that he was a sex offender.  The Board concluded that a treatment pathway remained unclear, and that the petitioner’s case should be remitted to the Risk Management Tribunal for inter alia a comprehensive risk formulation (JSF paragraph 33).

10 March 2015 (aged 65):  The planned Parole Board hearing concerning the petitioner had to be postponed because no local authority would accept responsibility for him (JSF paragraph 35).

18 March 2015 (aged 65):  The Risk Management Tribunal met and discussed factors which might have contributed to the petitioner’s lack of progress (JSF paragraph 36).  The tribunal recommended that a Psychological Risk Assessment should be carried out, and a robust risk formulation plan prepared.  The case should then be referred back to the tribunal to discuss the way forward (JSF paragraph 36).

16 August 2015 (aged 65):  The Psychological Risk Assessment report became available.  It was intended that the petitioner’s case be referred back to the Risk Management Tribunal for recommendations about the way forward.

 

Court procedure
[5]        A first hearing before Lord Glennie took place on 22 May 2015.  The Lord Ordinary heard submissions and made avizandum.  On 23 June 2015 he issued his opinion, refusing the petition and in particular refusing to grant declarator of a breach of the petitioner’s convention rights under Article 5 of the ECHR, and refusing to award any damages.  The petitioner reclaimed.

 

Grounds of appeal
[6]        The petitioner contends that the Lord Ordinary erred in the following respects (as set out in his grounds of appeal, but substituting the word “petitioner” for the word “reclaimer”):

1.         In failing to hold that the circumstances of the petitioner’s case required the respondents, in fulfilling the implied ancillary duty owed to the petitioner under … Article 5 of the ECHR, to prioritise his case within the prison system;  (paragraph 22).  Since 8 September 1977 the petitioner has been in the post-tariff stage of his detention.  The nearer to or further from post-tariff date a prisoner is, the duty incumbent on the respondents to facilitate a prisoner’s progress towards release, by the provision of appropriate course work and facilities, becomes a greater and more pressing obligation.

2.         In failing to hold that the period of time that lapsed before the petitioner commenced participation in the CARE programme resulted from a breach by the respondents of the implied ancillary duty incumbent upon them in terms of Article 5 of the ECHR to facilitate the reclaimer’s rehabilitation and release from custody.  The respondents provided no explanation for the delay (paragraph 27).

3.         In failing to hold that the respondents’ overall management of the petitioner’s rehabilitation was in breach of the implied ancillary duty to facilitate his rehabilitation and release in terms of Article 5 of the ECHR.  The Lord Ordinary failed to have regard to the respondents’ failure to carry out a psychological assessment of the reclaimer prior to his involvement in the CARE programme, the period of time that elapsed before the respondents provided a place to the petitioner on the CARE programme and thereafter the period of time that elapsed before the provision of a Psychological Risk Assessment (paragraph 29).  The petitioner had appeared before the Parole Board on 11 March 2013, he was provided with a place on the CARE programme in January 2014, and a Psychological Risk Assessment was not available until August 2016 at the earliest.  That was [a] full year after the end of CARE and 2 years 6 months from the Parole Board hearing.

4.         In failing to have regard to the facts of the petitioner’s case and to consider these against the decision of R (on the application of Haney & Ors) v Secretary of State for Justice 2015 2 WLR 76 “Haney”.  The Lord Ordinary failed to apply the ratio of the decision of the UKSC in Haney as he should have done (paragraphs 21-33).

 

Submissions for the petitioner
[7]        Lord Glennie’s interlocutor of 23 June 2015 should be recalled;  the petitioner’s pleas-in-law sustained;  the respondents’ first, second, and third pleas repelled;  and decree for declarator and damages granted (although the question of damages could, if thought necessary, be remitted to the Outer House to proceed as accords).

[8]        There were four grounds of appeal:  the fourth ground was an over-arching all-inclusive statement encapsulating the other, more specific, grounds.

[9]        The Lord Ordinary had failed properly to apply Haney.  The petitioner’s case required the respondents to give him priority within the prison system.  The petitioner had not been given a reasonable opportunity to progress to a point where the Parole Board would be in a position to consider releasing him.  Because of the petitioner’s unusual circumstances and unique history, the only reasonable option was to give him priority:  all other options (even if they involved treating the petitioner in the same way as other prisoners) were unreasonable.  The Lord Ordinary erred in concluding otherwise (paragraph [22]).

[10]      While it would be artificial to use the expiry of the punishment part (1977) as the start-point of the period of delay, that did not mean that one left out of account the petitioner’s unique history:  in particular, that did not mean that the start-point should be taken to be 2012.  A relevant circumstance in considering the petitioner’s case was that he had been “post-tariff” since 1977.  The Lord Ordinary had failed to strike the right balance.  Any reliance on M v The Scottish Ministers 2013 SLT 875 (for example, the view that a prisoner’s rate of progress through the rehabilitation process largely depended on matters of judgment by the prison authorities supported by experts) had to be qualified by the subsequent guidance given by the Supreme Court in Haney.  While the prison service acted on the advice of teams of skilled advisers, nevertheless the court had to assess the reasonableness or irrationality of decisions taken on the basis of the material presented to the court.  A decision taken by a team of advisers might be demonstrated to be bizarre, perverse, or odd.  If, for example, no action had been taken, or if there was no clear reason why something had been done (or done in a particular way), that would engage the court’s scrutiny.  The question was:  is the process, viewed as a process, reasonable in the circumstances?

[11]      The Lord Ordinary had failed to take sufficient account of the petitioner’s unique history.  Contrary to the guidance given in Haney, he had not looked at matters in the round;  he had not given sufficient weight to the prior history of the period of detention.  Looking at the progression in the prison system as a whole, the question was one of reasonableness in the round (cf Haney) not one of the rationality or irrationality of a particular decision.  By focusing on irrationality, the Lord Ordinary had gone beyond what Haney had set out.

[12]      The submission before the Lord Ordinary was not a criticism of the plan decided upon in 2013, but rather a criticism that the various steps had not been taken promptly.  A programme of work had been identified, but the petitioner had not been given priority. 

[13]      Specifically, a 2-year programme was planned in March 2013 (JSF paragraphs 35 and 36).  As set out in paragraph [11] of the Lord Ordinary’s opinion, nothing much happened until January 2014, when the petitioner entered the CARE programme (JSF paragraph 23).  The petitioner completed that programme at the end of March 2014, but the post-programme report on his progress was not completed until August 2014.  The report was considered by the Scottish Prison Service in early September.  That left insufficient time for the other steps envisaged by the Parole Board (the second ground of appeal).  Senior counsel submitted that the court could draw the conclusion that, had the petitioner been given priority over other prisoners, those periods of delay would have been shorter:  the petitioner should have been placed “at the top of the list”, particularly as it had been decided that he should undergo a programme of work over two years.

[14]      With reference to paragraphs 35 and 36 of the JSF, it was accepted that the Parole Board hearing due to take place on 10 March 2015 was postponed as “no local authority [would] accept responsibility for [the petitioner]”.  It was also accepted that a range of factors may have contributed to the petitioner’s lack of progress in the CARE programme, many of those factors relating to the petitioner’s own psychological features and behavioural traits.  It had to be accepted that those matters were outwith the respondents’ control.  Nevertheless the essential point was that the programme decided upon in 2013 was envisaged as a 2-year programme.  The period between the decision in 2013 and the commencement of the programme in 2014 called for an explanation, and no clear explanation had been given.  In those circumstances, the petitioner had not been afforded a reasonable opportunity to progress. 

[15]      It had also taken 5 months for the post-programme Psychological Risk Assessment to be produced.  The Risk Management Tribunal had made the decision to obtain such a report on 18 March 2015 (JSF paragraph 36).  The report had not been produced until 16 August 2015.  While it was accepted that, in part at least, the risk assessment was to take into account the petitioner’s performance during the CARE course, 5 months passed following the decision on 18 March 2015 before the report was issued.  The petitioner was thus not given an opportunity to go through the programme in the two years following the Parole Board’s decision in March 2013.  The report should have been ordered earlier, to avoid any delay.  

[16]      In conclusion, it was not the selection of a 2-year course which was criticised:  it was the fact that the 2-year timetable envisaged did not take place.  The plan which had been agreed was not delivered sufficiently quickly.

[17]      Senior counsel submitted that the petitioner did not have to demonstrate that any culpable delay had had any consequences for the petitioner.  It was not, for example, being suggested that but for the delay, he would have been released into the community.  But if it could be seen that the petitioner was not being given a chance to move forwards, he was entitled to an award of damages (subject always to the de minimis rule).  An award would mark the court’s disapproval in the same way as a “just satisfaction” award in the Strasbourg jurisprudence.  Haney gave guidance on that issue in paragraphs 49-50 (an award of £500).  If the court took the view that there had been unreasonable delay, an award in that region would be appropriate.

[18]      The reclaiming motion should be allowed;  the interlocutor of 23 June 2015 recalled;  the petitioner’s plea should be sustained;  the respondents’ first, second, and third pleas repelled;  and damages in the region of £500 awarded. 

 

Submissions for the respondents
[19]      The petitioner had been post-tariff since 8 September 1977:  however his circumstances were unique.  The proper starting-point for consideration of his treatment while in custody was November 2012, when he was transferred from Carstairs to prison.  Only then did he acquire the status of a “post-tariff prisoner”.  Further, his unique history (although a factor to be taken into account) did not dictate that he be given priority over other prisoners.  The Lord Ordinary was correct to conclude that (i) the petitioner’s case presented unusual difficulties (paragraph 22 of his opinion);  (ii) the rate at which a prisoner proceeds through rehabilitation depends largely on matters of judgment by the prison authorities supported by experts.

[20]      A lapse of time between one step in rehabilitation and another step did not necessarily mean that there had been a breach of duty to provide a reasonable opportunity for rehabilitation. The Lord Ordinary was correct to hold that the authorities were entitled to take the view that it was necessary to have the petitioner psychologically assessed after he had carried out the CARE programme.

[21]      The Lord Ordinary had properly applied the ratio of Haney to the facts.  The reclaiming motion should be refused.

 

Discussion
[22]      As was emphasised in paragraph 41 of R(Haney) and others v Secretary of State for Justice [2015] 1 AC 1244, each case must be determined on its particular facts.  Prison authorities, assisted by experts, have to exercise a degree of judgment in questions of rehabilitation of prisoners, and may at times be constrained by the resources available, the competing claims of other prisoners, and the assistance forthcoming from other bodies or authorities in respect of services and/or accommodation. 

[23]      The standard by which prison authorities are to be assessed is not one of perfection, as –

“no system is likely to be able to avoid some periods of waiting and delay, especially for a highly intensive course such as the ESOTP [Extended Sex Offenders Treatment Programme]” (paragraph 42 of Haney).

 

[24]      In the case of the petitioner, it is our view that the following factors play some part in his progress towards rehabilitation.

[25]      The first factor is the petitioner’s past history, including the unprovoked and violent homicide of a young woman;  the high level of risk to the public which he presented; and the lack of success with the opportunity given to him for progress towards integration with the community (namely the offence in 1986, when he abducted and assaulted an 8-year-old girl).  As is noted in the Joint Statement of Facts at paragraph 7:

“Both the index offence [the violent homicide in 1967] and that which occurred in August 1986 [the abduction and assault involving an 8-year-old girl] are considered by the relevant authorities to have contained a sexual element.  The victim of the index offence was found with her clothes in disarray, exposing her breasts and pubis.  The State Hospital’s records state that the petitioner’s position in relation to the index offence was that, if the victim had not been wearing a sanitary towel, he would have raped her.  The petitioner denies making that statement.  His position is that all he did was loosen the victim’s shirt in order to apply CPR to her breast area, and that he pulled her waistband down in order to allow her to breathe.  The petitioner denies that either the index offence or that which occurred in 1986 contained any sexual element …  The petitioner does not consider that he is a sex offender.”

 

As was noted by the 5-judge bench in Reid v HM Advocate 2013 SLT 65 at paragraphs [17] and [18]:

[17]      The crime committed by the appellant in 1967 was a horrific and appalling one.  The appellant (then aged 17) brutally attacked and killed a young woman (then aged 26) who had earlier given him a cup of tea after he had sharpened gardening tools for her.  The attack occurred in her own home, while her husband was at work and she had the care of their young child.  It was a terrible and senseless crime, resulting in the loss of a young wife and mother, and inflicting lasting grief and suffering on her bereaved family…

 

[18]      In view of the appellant's untreatable dissocial personality disorder, which has been described as ‘a persistent and permanent psychopathic/anti-social personality disorder, manifested by abnormally aggressive and seriously irresponsible behaviour’ (paragraph 36 of the Statement of Reasons by the SCCRC dated May 2010), we are in no doubt that the appellant presents a major continuing danger to the public:  cf the consensus of medical opinion regarding the appellant's level of risk of harm to others referred to in paragraph 56 of the Statement of Reasons.  We note that on a previous occasion in August 1986, after being moved to a more open regime at Sunnyside Hospital, Montrose, the appellant attempted to abduct a child aged 8.  He was subsequently convicted of assault and attempted abduction and sentenced to 3 months imprisonment: see paragraph 30 of the Statement of Reasons, and paragraph [7] of the opinion in Reid v HM Advocate [2012] HCJAC 18;  2012 S.C.L.  475.  As noted in paragraph 31 of the Statement of Reasons, that incident ‘raised grave doubts concerning the safety to other people of allowing [the appellant] to be released from institutional care’.  We are therefore receptive to the Crown's submission that, had the appellant in 1967 been sentenced to life imprisonment for either murder or culpable homicide, he would by now have made several unsuccessful applications to the Parole Board, and would still be serving his life sentence in prison.  No doubt the Parole Board will, in the future, exercise extreme caution when dealing with any application made by the appellant.  For our part, we see this present decision as substituting one system of confinement for life for another system of confinement for life, subject always to the Parole Board's discretion exercised with the protection of the public as the overriding factor in their considerations.  It may well be that this particular appellant, suffering as he does from an untreatable dissocial psychopathic personality disorder which has already manifested itself in a horrific and unprovoked killing, should never be released.”

 

With such a past history, the prison authorities cannot be criticised for adopting a careful and cautious approach to the petitioner’s development in his new custodial environment, and a careful and cautious approach to the petitioner’s progression through courses and programmes with the ultimate goal of transferring to Top End conditions and to the open estate.

[26]      A second factor playing a part in the petitioner’s progress in rehabilitation is the nature and extent of the petitioner’s current insight, understanding, and ability to co-operate and participate meaningfully in courses and programmes designed to assist him in achieving a gradual and supervised release into the community.  The Joint Statement of Facts in paragraphs 23, 24, and 36 discloses clear and concerning limitations in that context which may impede progress.  For example:

“ 24 … He presents with a moderate degree of psychopathy and dissocial personality disorder.  He has a lower level of cognitive functioning and intelligence and struggles to process and retain information presented to him … a range of factors may have contributed to his lack of progress [in the CARE programme], including lack of recognition and insight into his emotions and risk factors;  his cognitive abilities and subsequent lack of understanding of the material or ability to understand concepts in an abstract manner;  his previously assessed personality traits (i.e. dissocial personality disorder, psychopathy);  denial of past behaviour and lack of motivation to change …”

 

[27]      A third factor relevant to the petitioner’s progress is the issue of limited resources.  The prison authorities cannot command unlimited resources or provide meetings of experts or places on courses on demand (cf Lord Hughes’ observations in paragraph 91 of Haney).  As was observed in paragraph 42 of Haney:

“The European court does not … insist at the international level on standards of perfection that would be unrealistic, bearing in mind the numbers of prisoners involved and the limits on courses, facilities and resources in the prison system.  Nor should domestic courts do so … [In Hall v United Kingdom (Application No 24712/12) unreported 12 November 2013, the] European court was … prepared to look at the matter overall, and to accept that no system is likely to be able to avoid some periods of waiting and delay, especially for a highly intensive course such as ESOTP [Extended Sex Offenders Treatment Programme] …”

 

In the present case, the Scottish Prison Service have responsibility for many prisoners.  Many prisoners request places on courses.  The organisation of an appropriate placement on an appropriate course may take some time.

[28]      A fourth factor of significance is the involvement of professionals and experts.  Such professionals and experts, when requested to assess and review prisoners, and to give expert advice and other services, have to be allowed a reasonable time within which to operate.  They are dealing with matters of considerable difficulty and importance.  Production of an appropriate course with equipment and/or staff may take some time to organize.  The assessment of an individual and the writing of a professional report (for example, a Psychological Risk Assessment report) may take some months – even without considering other competing commitments which the professional might have.

[29]      Against that background, the petitioner’s criticisms of the Outer House decision in the present case may be summarised as follows:

1. The Lord Ordinary erred in failing to conclude that the petitioner should be given priority over all other prisoners as a result of (a) his 45 years in Carstairs State Hospital, and (b) the fact that he has been a “post-tariff” prisoner since 1977.
2. The Lord Ordinary erred in failing to conclude that the delay of about nine months in his starting the CARE programme amounted to a breach of the respondents’ duty under Article 5.
3. The Lord Ordinary erred in failing to hold that the overall management of the petitioner’s rehabilitation was in breach of the respondents’ Article 5 duty (in particular the delay in the start of the CARE programme, the delay in the production of post-programme reports, and the delay in ordering a Psychological Risk Assessment).The report of the risk assessment did not become available until 16 August 2015, more than one year after the completion of the CARE programme, and about two and a half years after the Parole Board’s recommendation of 11 March 2013.
4. Viewed in the round, the Lord Ordinary failed properly to apply the ratio in Haney to the facts of the petitioner’s case.

[30]      In these ways, it is said that the Lord Ordinary failed to recognise that the Scottish Prison Service had failed in their duty to

“ … provide an opportunity reasonable in all the circumstances for [the petitioner] to rehabilitate himself and to demonstrate that he is no longer an unacceptable danger to the public …”

 

The Lord Ordinary should have concluded that the matters outlined in paragraphs [13] to [16] above constituted a breach of the prison service’s duty in terms of Article 5 of the ECHR.  The Lord Ordinary failed properly to apply the ratio in Haney.

[31]      We address each criticism in turn.

(i)         The question of priority
[32]      We do not accept that the petitioner’s history per se entitles him to priority over all other prisoners.  Obviously the petitioner’s history is an important factor to be taken into account by the prison authorities when providing him with an opportunity reasonable in all the circumstances for him to rehabilitate himself:  but the time he has spent in Carstairs does not necessarily mean that he takes precedence over all other prisoners.  As was explained in paragraphs 41 and 43 of Haney, the satisfaction of the right under Article 5: 

“41 … depends on the particular circumstances of the individual case.

43 … Whether there has been a breach of the duty is a highly fact-sensitive question in each case [emphasis added]”.

 

In the petitioner’s particular case, although having been in Carstairs State Hospital for about 45 years, he has only been within the prison regime (for which the prison authorities are responsible) since November 2012.  Furthermore, the petitioner’s history and level of insight and cognitive ability give rise to the various unknowns and uncertainties referred to by the Lord Ordinary in paragraph [22] of his opinion.  These, then, are the circumstances which the prison authorities have to bear in mind in the petitioner’s case, but there is, in our opinion, no automatic entitlement to priority for any rehabilitation intervention.  We therefore agree with the Lord Ordinary on this matter, and are not persuaded that he has erred.

 

(ii)        The nine-month period
[33]      As already noted, courses and programmes, and places on courses and programmes, take some organisation and preparation.  Resources are limited.  Staff and equipment have to be arranged.  There may be a waiting-list of other prisoners wishing to take a course.  It is unrealistic (or alternatively a counsel of perfection) to expect that a place on a recommended course should be made available to a prisoner immediately or shortly after the Parole Board’s discussion and decision.  We accept that a significant or inordinately long wait for a place on a course might require explanation.  But in our opinion a period of about nine months simply reflects the factors noted in paragraphs [27] and [28] above.  Again therefore the Lord Ordinary’s reasoning and conclusion at paragraph [27] of his opinion cannot, in our view, be criticised.

 

 

(iii)       The overall management of the petitioner’s progress
[34]      We have already given a view about the nine-month period which elapsed before the start of the petitioner’s CARE programme.  As for a period of about five months for the production of a post-programme report  or a risk assessment, it is our opinion that such a report may require professional research, the collection of information, the collating of material, the forming of views and opinions, and the final compilation of the report  – in short, significant time and effort on the part of the professional involved.  We accept that an inordinate delay in issuing such a report might require explanation.  But in our opinion a period of about five months cannot be regarded as such, particularly if the subject of the report is someone such as the petitioner.  The Parole Board in March 2013 outlined certain recommended steps with the goal of achieving the petitioner’s rehabilitation.  But the Board’s time estimates are just that:  estimates.  They are not strict deadlines.  In their letter dated 19 March 2013, the Board clearly indicated the provisional nature of the timetable and the fact that reports take time to be compiled when they stated:

“… reports concerning the petitioner and the risk he presented would be necessary.  Such reports might take several months to prepare …

 

The Management Plan set out would probably take 2 years to complete … [emphases added]”

 

Matters which might alter the provisional timetable would include the prisoner’s own response to the programme(s);  the needs of other prisoners;  limited resources;  and any exigencies or difficulties arising in the course of the timetable (for example, Fife Councils’ refusal at one stage to accept responsibility for the petitioner).  As was explained in Haney:

“60      Article 5 does not create an obligation to maximize the coursework or other provision made to the prisoner, nor does it entitle the court to substitute, with hindsight, its own view of the quality of the management of a single prisoner and to characterise as arbitrary detention … any case which it concludes might have been better managed.  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 …”

 

Viewing the petitioner’s case in the round, and bearing in mind the guidance that the question of any breach of the duty under Article 5 is “a highly fact-sensitive question in each case” (Haney paragraph 43), the Lord Ordinary was entitled to conclude that, in the petitioner’s particular circumstances (including the factors outlined at paragraphs [25] to [28] above), there had been no breach of the Article 5 duty on the part of the prison authority in the overall management of the petitioner’s personal programme.

[35]      For completeness we add that the submission that the prison authority should have carried out a psychological assessment of the petitioner prior to his participation in the CARE programme is, in our view, without merit.  The timing of such an assessment is a matter for the judgment of the Scottish Prison Service assisted by the relevant experts.   

[36]      In the result, we are not persuaded that the Lord Ordinary erred in his reasoning or his conclusion in paragraph [31] concerning the overall management of the petitioner’s rehabilitation.

 

The application of the ratio in Haney
[37]      Finally, we have been unable to detect, in the Lord Ordinary’s opinion, any misapplication of the ratio of the decision of the UKSC in Haney.

 

Conclusion
[38]      In our opinion, the steps taken with a view to the rehabilitation of the petitioner (referred to in paragraph [4] above) disclose a careful and consistent endeavour on the part of the Scottish Prison Service to provide the petitioner with opportunities reasonable in all the circumstances for him to rehabilitate himself and to demonstrate that he is no longer an unacceptable danger to the public.  Applying the guidance in Haney, we have detected no breach of any duty arising under Article 5 of the ECHR, nor any error in the Lord Ordinary’s approach or conclusions. 

[39]      In relation to the question of damages, senior counsel for the petitioner submitted that if the petitioner satisfied the court that there had been a breach of the Article 5 duty, he need not demonstrate any particular consequences.  The petitioner should be awarded damages as an expression of the court’s disapproval (cf “just satisfaction” in the Strasbourg court).  Damages of £500 might reasonably be awarded.

[40]      We wish to reserve our opinion on the question of damages.  As we have concluded that there has been no breach of the duty arising from Article 5, and that the petitioner is being provided with opportunities reasonable in the circumstances for him to rehabilitate himself and to demonstrate that he is no longer an unacceptable danger to the public, it is difficult to identify, far less quantify, any alleged loss, injury or damage suffered by him.

 

Decision
[41]      We refuse the reclaiming motion, and adhere to the interlocutor of the Lord Ordinary.  We continue any question of expenses.