Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 5

P524/15

Lady Paton

Lord Bracadale

Lord Malcolm

OPINION OF THE COURT

delivered by LORD BRACADALE

in the Reclaiming Motion

of

YOUSEF ANSARI

Petitioner and Reclaimer

against

ABERDEEN CITY COUNCIL and OTHERS

Respondents

Petitioner and Reclaimer:  K Campbell QC, Leighton; Drummond Miller LLP

Respondents:  Howie QC, Irvine; Morton Fraser LLP

27 January 2017

Introduction
[1]        The petitioner and reclaimer is serving a discretionary sentence of life imprisonment, imposed in 1996.  On 17 March 2005 the punishment part of the sentence, which had been reduced on appeal to nine years, expired.  The petitioner remained, and continues to remain, in custody.

[2]        In R (Haney) v Secretary of State for Justice [2015] AC 1344 the UK Supreme Court accepted as implicit in the scheme of Article 5 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) that the state was under a duty to provide a reasonable opportunity for a prisoner serving a life long term indefinite sentence, including a life sentence, to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public.

[3]        By judicial review the petitioner sought declarator that his Haney Convention right under Article 5 ECHR had been breached by failure to provide him with rehabilitative coursework and opportunities to experience meaningful home leave.  The first respondents, who are the relevant local authority, and the second respondents, who are the Scottish Ministers, should be ordained to fulfil their duty to provide a reasonable opportunity to him to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public.  At the hearing before the Lord Ordinary the discussion was restricted to the issue of whether, in light of the decision of the Supreme Court in Haney, the first respondents owed any relevant duty to the petitioner under Article 5 ECHR and, if so, the scope of such duty.  The Lord Ordinary held that the first respondents owed the petitioner no such duty under Article 5 and that the petitioner's case against the first respondents was accordingly irrelevant.  Neither the second respondents nor the first interested party (Police Scotland, by virtue of its involvement in Multi‑Agency Public Protection Arrangements (MAPPA)) was represented at the hearing before the Lord Ordinary or in this reclaiming motion against the decision of the Lord Ordinary.  

[4]        It is contended that the Lord Ordinary erred in law.  Following Haney a prisoner in the position of the petitioner should be provided by the state with an opportunity, reasonable in all the circumstances, to rehabilitate himself and demonstrate that he no longer represented an unacceptable danger to the public.  Properly understood the "state" included the first respondents.  Any rights should be real and effective, not theoretical or illusionary.  The decision of the Lord Ordinary had rendered the petitioner's rights ineffective.

Factual Background

[5]        In his opinion the Lord Ordinary set out the general scheme for progress of a life sentence prisoner within the prison system and described the lack of progress on the part of the petitioner. 

[6]        Progress through the prison estate generally depended on the life sentence prisoner taking various steps in demonstrating an ability to behave appropriately, with a view to his eventual assessment by the Parole Board in terms of section 2(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993.  The Parole Board would direct his release on licence only if satisfied that it was no longer necessary for the protection of the public that he should still be confined.  Before assessment by the Parole Board, a life sentence prisoner would usually progress to “National Top End” conditions and from there to the Open Estate.  Part of the purpose of the Open Estate was to test prisoners in conditions of greater freedom.  The Parole Board would generally only consider prisoners for release on licence if they had spent a not insubstantial amount of time in the Open Estate.

[7]        The petitioner had been transferred to the Open Estate on a number of occasions without, as the Lord Ordinary put it, conspicuous success.  In December 2009 he was transferred to the Open Estate only to be downgraded to closed conditions in May 2010.  In August 2012 he was again transferred to the Open Estate but was again downgraded to closed conditions in October 2013.  He spent some 20 months in closed conditions at HMP Edinburgh before being transferred back to the Open Estate in Castle Huntly, where he remained at the time of the hearing before the Lord Ordinary.

[8]        The preparation for release of prisoners on life licence takes place under a “through‑care” function, provided by local authorities in co-operation with the Scottish Prison Service (SPS).  Local authorities have statutory functions in the supervision and care of those released from prison under section 27 of the Social Work (Scotland) Act 1968 (the 1968 Act).  Sections 12 and 12A of the 1968 Act place duties upon local authorities to assess the needs of prisoners released on licence and to provide advice, guidance and assistance to them.  The National Outcomes and Standards for Social Work Services in the Criminal Justice System, published in August 2010, state that criminal justice social work services contribute to effective throughcare in partnership with the SPS and other agencies (page 14 paragraph 2.3).  They also indicate that preparation for release from prison is an element of rehabilitation undertaken by the first respondents, in partnership with the SPS (page 24, practice framework).  Local authorities also have an obligation to provide housing to people who would otherwise be homeless or who are threatened with homelessness (Housing (Scotland) Act 1987, Part II).  The petitioner averred that these various responsibilities should be interpreted in such a way as to create an obligation upon the first respondents to provide reasonable rehabilitative opportunities as required by Haney.

Breaches of Duty Pled by the Petitioner
[9]        The petitioner averred that the first respondents had breached the duty in two significant respects.  First, his release from the Open Estate into the community in the past had been on such a restricted basis that he was deprived of the opportunity to demonstrate that any risk he posed had been reduced.  He had been subjected by the staff of the first respondents, along with staff from the Scottish Association for the Care and Resettlement of Offenders (SACRO) operating under their direction, to almost constant supervision and such stringent conditions that he was not effectively tested.  On one occasion he was left alone outwith prison for a total of only 30 minutes.  He averred that he had been advised that any future temporary release would be under similar stringent conditions.  These would include:  not to deviate from any specified route when travelling to or from any location; to inform staff of any relationship, whether platonic or intimate, with an individual of either sex; not to enter any shop; not to have any contact directly or indirectly with any female; to comply with all directions of agencies such as social work, police, SACRO and SPS;  to make any telephone used by him available at all times to all agencies;  and to complete activity sheets for any activity that he might wish to undertake.  He would have to request permission from staff to undertake any activity outwith prison and would have first to identify the risk factors associated with that activity, failing which permission would be refused.  He would be required to keep with him at all times a mobile phone provided to him, and use that phone to confirm his position at each individual stage of any journey.  The petitioner averred that these conditions are so strict that they are likely to engender ill‑will and frustration in him;  he would inevitably fail to comply with them completely, with the result that he would be downgraded from the Open Estate.  They were so restrictive that they frustrated the purpose of testing him in conditions of greater freedom.

[10]      Secondly, he averred that the first respondents had failed to assist him in obtaining suitable accommodation during home leave.  For home leave to work he required to have access to an address to which he could be released temporarily.  On the last occasion on which he had been in the Open Estate the first respondents had not identified a home leave address for him, with the result that he was not given the opportunity to demonstrate that the risk posed by him had reduced.  His brother’s home had not been assessed as suitable for home leave;  the accommodation assessed in other home background reports had never been made available for his use.  He averred that he had been informed by different members of staff that no address in Aberdeen was available and suitable as home leave accommodation for him.  In furtherance of their through‑care responsibilities for the petitioner the first respondents should have provided him with a home leave address.

The Decision of the Lord Ordinary
[11]      The decision of the Lord Ordinary is succinctly focused in paragraph [19] of his opinion:

            “[19]    I am not persuaded that the first respondents, the local authority, owe any such duty.  It is not in dispute that the first respondents are a public authority and are obliged to act in a manner which is not incompatible with Convention rights.  But that does not advance the argument.  The Haney duty is not a freestanding duty arising out of article 5.  Rather it is imposed on the state in circumstances where the state has detained the prisoner and relies upon the justification in article 5(1)(a) (conviction and sentence by a competent court).  Since part of the purpose of the sentence is rehabilitation, it is implicit in article 5 that the state, which is responsible for his detention, must provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.  But the local authority is in an entirely different position.  It has no role in the detention or release of the prisoner.  It is (sic) only role is to provide assistance in some parts of the rehabilitation process, both before and after release.  Not being in the position of having to justify detention of the prisoner, there is no reason to impose on it the duty associated with that position.”

The Petitioner’s Submissions
[12]      All public authorities, including the first respondents, were obliged to comply with the Human Rights Act 1998 section 6(1) which provides that it is unlawful for a public authority to act (including failure to act) in a way which is incompatible with a Convention right. 

[13]      The obligation in terms of Haney on the first respondents to provide an opportunity reasonable in all the circumstances for the prisoner to rehabilitate himself existed in parallel with the obligation on the Scottish Ministers to provide such an opportunity.  For the right to be effective, both respondents should be subject to the duty.

[14]      The provision to the prisoner of an opportunity to demonstrate reduction of risk to an appropriate level required to be given practical effect as he progressed through the prison estate.  While the prisoner was in closed conditions, the duty was on the Scottish Ministers through the SPS.  When the prisoner was being tested in the open estate, he was still detained by SPS but there was an important practical provision provided by the local authority.  The local authority was the provider of these facilities and was not the servant of the Scottish Ministers.  The local authority, which had staff and housing stock and obligations with respect to supervision, was not simply a provider of a service on behalf of the Scottish Ministers but was an independent actor on whom an obligation was placed.  In relation to rehabilitation the first respondents were part of the mechanism by which the state met its obligations in terms of Article 5.

[15]      As a matter of practicality, the obligation to make reasonable rehabilitative provision included providing housing for home leaves and supervision for prisoners released on temporary licence.  The first respondents were the emanation of the state charged with the responsibility for providing those facilities.  In order for the reasonable rehabilitative provision to be effective, local authorities such as the first respondents should be within the scope of the Haney duty.

[16]      There was no necessary connection between paragraphs 5.1 and 5.4 of Article 5 such as to restrict the obligation to provide rehabilitation in terms of Article 5 generally.  The various statutory responsibilities incumbent on the first respondents should be interpreted so as to articulate an obligation on the first respondents to provide reasonable rehabilitative opportunities. 

[17]      If a local authority such as the first respondents was not subject to a Haney duty, the obligations incumbent upon the state in terms of rehabilitation of prisoners outwith prison would fall into a void.  There would be no domestic body that would meet the Convention requirements to which the United Kingdom as the Convention State was subject.  This suggested that the duty ought to be incumbent on the first respondents, otherwise there would be a “duty gap”.  It would not be lawful for there to be no suitable provision for rehabilitation on the part of the state. 

[18]      It was necessary to rely on the Haney duty because of the risk of there being a gap between the obligations arising in statute and the prisoner making progress in the phase of being partly in prison and partly outside prison. 

The First Respondents’ Submissions
[19]      Where the government sought to justify detention on the sole basis of public protection, it could not do so indefinitely without also ensuring that efforts were being made towards rehabilitation of the prisoner.   The European Court had made it clear that it was the body benefiting from the Article 5.1 exemption, namely, central government, that required to justify the detention and that it was central government which was subject to the obligation to ensure efforts as to rehabilitation were being made.  The Supreme Court had taken a similar approach in Haney.

[20]      It was not disputed that the first respondents were part of the apparatus of the state in general, nor that it was a public authority for the purposes of section 6 of the Human Rights Act 1998 and so bound to act in accordance with the Convention.  The mere fact, however, that the respondents was bound so to do could not of itself create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances where the first respondents were not responsible in any way for his imprisonment or his release.  The Scottish Ministers being the only such body responsible for such matters, as a matter of logic and law, they could be the only body required to provide the ancillary duties which had been identified by the Supreme Court as being implicit within the scheme of Article 5.

[21]      The local authority did not detain anyone.  It had no duty under Article 5.  It had a duty to provide a service to the Scottish Ministers to enable them to fulfil their duty under Article 5.  In providing assistance, advice and supervision to prisoners outwith the prison context for purposes connected with rehabilitation, the local authority provided a service to the Scottish Ministers.

[22]      In so far as the petitioner was entitled to a remedy in respect of any failings of the first respondents in relation to his rehabilitation, he had such a remedy against the Scottish Ministers, and proceedings against the Scottish Ministers in that respect remained extant.  The Scottish Ministers not only accepted in principle that they were subject to the duty identified in Haney but agreed that the first respondents were not.  There was no duty gap.

[23]      No case had been pled by the petitioner that there had been a breach of the statutory provisions to which the first respondents were subject.  This was not an action in damages or for specific performance under the 1968 Act.  In the absence of an action under the relevant legislation there was no duty on the local authority and no obvious reason why there should be.  There would be significant consequences in policy and calls on the resources of a local authority if such a duty were to be placed on them.

Discussion and Decision
[24]      Although in his submissions the petitioner referred to the statutory obligations on the first respondents, he did not found on breach of the statutory provisions as giving rise to a cause of action.  In the judicial review he relied solely on a breach of his rights in terms of Article 5 ECHR.  Article 5.1 is designed to prevent arbitrary detention.  Any deprivation of liberty must fall within one of the exceptions set out in sub‑paragraphs (a)-(f) and must be lawful.  So far as material for present purposes Article 5 provides:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

            (a) the lawful detention of a person after conviction by a competent court

…

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

In James, Wells and Lee v UK (2012) 56 EHRR 399 the Fourth Section of the European Court of Human Rights recognised that in the context of Article 5.1 in the case of persons, such as the petitioner, who, having served the punishment element of their sentences, are in detention solely because of the risk they pose to the public, a concern may arise if there are no “special measures, instruments or institutions” in place, other than those available to ordinary long‑term prisoners, aimed at reducing the danger they present and at limiting the duration of their detention to what is strictly necessary in order to prevent them from committing further offences (paragraph 194).  The court was satisfied that in cases concerning indeterminate sentences of imprisonment for the protection of the public, “a real opportunity for rehabilitation was a necessary element of any part of the detention which was to be justified solely by reference to public protection” (paragraph 209).  It noted that rehabilitation is one of the purposes of detention.  The court summarised its view at paragraph 218:

“The Court reiterates that the right to liberty is of fundamental importance. While its case-law demonstrates that indeterminate detention for the public protection can be justified under Article 5.1(a), it cannot be allowed to open the door to arbitrary detention. As the court has indicated above, in circumstances where a government seek to rely solely on the risk posed by offenders to the public in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders."

[25]      In Haney the UK Supreme Court accepted the conclusion of the Fourth Section in James.  It considered that the Supreme Court could and should accept as implicit in the scheme of Article 5 that the state is under a duty to provide an opportunity, reasonable in all the circumstances, for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.  This duty could not be found in the express language of either Article 5.1(a) or 5.4, but should be implied as an ancillary duty to facilitate release which did not affect the lawfulness of the detention, but sounded in damages if breached.  The court stated that such a duty could readily be implied as part of the overall scheme of Article 5, read as a whole.

[26]      It follows from the analysis in James and Haney that the duty is imposed on the state.  The state has the power to detain the prisoner relying on Article 5.1(a).  Implicit in the overall scheme of Article 5 is the duty on the state, which is responsible for the detention of the prisoner, to provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.  In the case of a prisoner serving a life sentence in Scotland, detention after the expiry of the punishment part is justified solely by reference to public protection.  The Scottish Ministers detained and continue to detain the petitioner after the expiry of his punishment part.  The provision of an opportunity for rehabilitation is a necessary element of detention justified solely by reference to public protection.  The duty to provide that opportunity (described in Haney as a “duty to facilitate release” (para 38)) is inextricably linked to the reliance on public protection to justify the detention. Thus, as the Scottish Ministers accept, the duty is incumbent on them.

[27]      In our view the Lord Ordinary was correct to hold that the local authority is in a different position.  It is not responsible for the detention or release of the prisoner.  It is not required to justify the continued detention for public protection reasons.  The role of the local authority is to provide assistance in certain areas of the rehabilitation process before and after release.  In carrying out its role in relation to rehabilitation of a prisoner the local authority operated on behalf of the Scottish Ministers, as noted in the National Objectives for Social Work Services in the Criminal Justice System:  Standards – Throughcare (2004) at paragraph 5:

“Local authority social work departments exercise responsibilities on behalf of the Secretary of State in respect of prisoners eligible for release on licence.”

The Scottish Ministers accept that they have a duty in terms of Haney to the petitioner. Thus, in this judicial review the petitioner has the opportunity for recourse against the Scottish Ministers. In these circumstances no question of a duty gap arises.  Indeed, in answer to a question from the court counsel for the petitioner stated that the Scottish Ministers would be jointly responsible and liable for any proven relevant failings on the part of the respondents.  It is difficult to reconcile this with the submission that, absent a Haney  duty incumbent on the local authority, the petitioner would be without an effective remedy.

[28]      It is common ground that the first respondents constitute a public authority for the purposes of section 6 of the Human Rights Act 1998 and are bound to act in accordance with the Convention.  We agree with the submission advanced on behalf of the first respondents that in itself this does not create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances in which the first respondents are not responsible for his imprisonment or release.

[29]      We reject the submission advanced on behalf of the petitioner that the various statutory responsibilities of the first respondents should be interpreted in such a way as to create an obligation on the first respondents to provide reasonable opportunities for rehabilitation as required in Haney.  If and when appropriate it might be open to a prisoner to challenge a failure on the part of a local authority to fulfil its statutory responsibilities but the petitioner has not gone down this route in this judicial review.  It is not open to him to attempt to convert a breach of a specific statutory provision into a breach of a Haney Article 5 ECHR duty.  The local authority having no responsibility for the decision to continue the detention of the petitioner, there is no basis for reading into Article 5 an implied duty incumbent on it to facilitate his release.

[30]      In the result the reclaiming motion is refused, for essentially the same reasons as those expressed by the Lord Ordinary.