Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 10

 

P266/15

OPINION OF LORD BANNATYNE

In the cause

AG

Petitioner

against

THE SCOTTISH MINISTERS

Respondents

for

Judicial Review of a decision of the Scottish Ministers

Pursuer:  D Maclean;  Balfour + Manson LLP

Defender:  Martin-Brown;  Scottish Government Legal Directorate

24 January 2017

Introduction
[1]        The petitioner seeks judicial review in respect of an alleged failure of the Scottish Ministers (“the respondents”) to provide him with a reasonable opportunity to rehabilitate himself while serving an indeterminate sentence based on an Order for Lifelong Restriction imposed in 2008.  The punishment part was 4 years 3 months and obviously it has now expired.  The petitioner remains in prison because of decisions taken by the Parole Board that, for reasons of protection of the public, he cannot yet be released. 

 

The Issues and Agreed Legal Framework
[2]        It is argued that the failure to provide the petitioner with opportunities for rehabilitation constituted a breach by the respondent of the ancillary public law duty arising from Article 5 ECHR owed to him as identified by the Supreme Court in R (Kaiyam) v Secretary of State for Justice 2015 2 WLR 76 and a breach of the public law duty as described by the House of Lords in R (James) v Secretary of State for Justice (Parole Board intervening) 2010 1 AC 553.

[3]        It was not argued on behalf of the petitioner that there was a systemic breach of the above duties.  In Kaiyam the content of the ancillary duty is set out in the joint Judgment of Lord Mance and Lord Hughes at paragraph 41:

“On that basis the question arises in what precise terms and in particular at what precise level the duty should be put.  As a matter of domestic public law, complaint may be made in respect of any systemic failure, any failure to make reasonable provision for an individual prisoner so egregious as to satisfy the Wednesbury standard of unreasonableness or any failure to apply established policy.  The question is whether liability for breach of article 5 is similarly limited.  In our opinion, it is not.  The express rights conferred by article 5 are individual rights.  The ancillary right which we identify as existing under article 5 is also a right in favour of each individual prisoner and its satisfaction or otherwise depends upon the particular circumstances of the individual case.  Although the ECtHR was concerned in James v UK with circumstances in which there had been systemic failures in the United Kingdom, (its) decision was based on a careful individual analysis of each applicant’s prison history ...”

 

[4]        It is to be noted that the ancillary duty is not restricted by reference to Wednesbury principles of irrationality and unreasonableness.  Further, the court observed at paragraphs 42 and 43, by reference to the European Court of Human Rights decisions in Hall v United Kingdom and Black v United Kingdom (both unreported), that what was required was not a standard of perfection, and that each case is highly fact sensitive.  Finally, some further assistance as to the content of the duty is to be found at first, paragraph 48 where this is said:  the ancillary duty

“is geared towards the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period.”

 

[5]        Thereafter at paragraph 60 the following is stated:

“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.”

 

[6]        The content of the public law duty is as set out by Lord Hope of Craighead in James at paragraph 3:

“There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection (‘IPPs’) by section 225 of the Criminal Justice Act 2003.  He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention.  The Divisional Court ... granted a declaration to that effect on 31 July 2007 ..  Its decision was affirmed on 1 February 2008 by the Court of Appeal ...  The Secretary of State has not appealed against that declaration.  Very properly, he accepts that it was implicit in the statutory scheme of sections 224 and 225 of the 2003 Act that he would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released.  As Miss Lieven QC for the Secretary of State put it, the scheme was such that it was not rational for him to fail to do so.”

 

The Submissions on Behalf of the Petitioner
[7]        Counsel opened by advising that the focus of his submission would relate to a breach of the ancillary duty.  However, he did not abandon his case in terms of the breach of the public duty.

[8]        The petitioner’s complaint can be summarised as follows:  The essence of the petitioner’s complaint is that, more or less from the outset, it has been recognised that his cognitive functioning operates at a low level, with consequential implications for his rehabilitation and his ability to undertake group programmes and the like.  It also creates a need for more professional staff intensive work, sometimes described as 2 to 1.  The respondents, against that background, had failed to provide him with adequate opportunities to rehabilitate himself.

[9]        In development of that argument counsel sought to draw attention to a number of matters in the joint chronology of events which had been produced to the court by parties.

[10]      What counsel sought to emphasise within the chronology was this:  it was his position that the breach of the duty commenced as at November/December 2012.  However, because of the nature of the test, it was necessary to take into account how knowledge about the petitioner had built up on the part of the respondents over his period of incarceration from 2008 onwards.

[11]      The starting point was the report of Steven Evans, a Chartered Forensic Psychologist and Risk Assessor accredited by the Risk Management Authority who provided the risk assessment relative to the petitioner.  He observed this in his report:

“(The) assessment has highlighted (the) presence of cognitive impairment in (the petitioner) and points towards a diagnosis of a learning difficulty.  This is not pertinent to assessment of his risk but highlights that treatment and supervision will need to be modified to take account of his suspected disability.”

 

[12]      He also observed:

“(The petitioner) needs to be afforded the opportunity to undertake a structured treatment programme to address his deviant sexual attitudes and behaviour.  The format of this treatment programme needs to take account of cognitive impairments and literacy difficulties that will impair his ability to take on the information and change his behaviour.”

 

The next matter in the chronology to which counsel drew my attention was at June 2009 at which time the petitioner was assessed by a team supervised by Rachel Roper, Chartered Forensic Psychologist, in relation to the possible diagnosis of learning disability referred to in the above report.  The petitioner’s cognitive ability was assessed as being:

“within the lower part of the extremely low range of intellectual functioning.  That is to say approximately 99.7% of his peers would perform better than him on this assessment.”

 

The report further said:

“(The petitioner) finds himself at the very bottom of the population.  This raises concern that a possible diagnosis of cognitive deficits cannot be put aside lightly”.

 

So far as the issue of recommendations was concerned, the report concluded:

“Based on the findings of this assessment, it is believed that (the petitioner’s) level of functioning is so low that he will need a specialised environment in order to get the necessary support.  A highly structured environment will help him to be orientated and as a prison environment is such a structured environment, it can be expected that he will cope reasonably well within it.  However, he also needs exposure to pro-social modelling, an errorless learning approach, a high level of attention and patience from the same people who work with him, environmental management, adapted group work and adapted language.  Further assessment is recommended to determine if (the petitioner) meets the criteria to receive a diagnosis of learning disability and whether prison is the best environment for him.”

 

[13]      In light of the above in March and April 2010 the petitioner was assessed by Dr Lesley Malone in relation to his adaptive and social functioning in order to establish whether he meets the criteria for diagnosis of a learning disability.  Dr Malone noted that the petitioner’s intellectual functioning had previously been assessed as being in the lower part of the extremely low range.  She concluded that the petitioner had deficits in key areas of his adaptive functioning.  Counsel submitted, crucially, she noted that the petitioner’s difficulties commenced before the age of 18.  That being so, Dr Malone concluded that “this indicates that he met the criteria for the diagnosis of learning disability”.  Dr Malone did not provide any guidance to the SPS regarding the petitioner’s ongoing treatment.  Counsel submitted that the foregoing report and its conclusions were of some significance as a diagnosis of learning disability had been made.

[14]      In July 2010 further assessment was carried out.  The conclusion of that assessment by Dr Purcell was this:  first that further information was required before a firm diagnosis of learning disability could be made.  Specifically, the age of onset of difficulties would need to be known because for a learning disability that would require to be under the age of 18.  Counsel submitted that it was perhaps surprising that no reference was made to Dr Malone’s conclusions.  Secondly, the petitioner did not meet the criteria for admission to the State hospital.  Thirdly, however, the petitioner was functioning “at the lower range of cognitive abilities” and would benefit from undertaking the Adapted Sex Offender Treatment Programme (“ASOTP”).  Fourthly, the petitioner would also benefit from some intervention in relation to drugs and alcohol.  Dr Purcell did not provide any particular guidance to SPS regarding his ongoing treatment.

[15]      Between about August 2011 and about March 2012 the petitioner completed the ASOTP.  It is an SOTP specifically designed for sex offenders with cognitive difficulties.  At about the time the petitioner was completing the said programme a Programmes Case Management Board (“PCMB”) meeting held on 19 March 2012 recorded that the petitioner was a “lower functioning individual” and that “any treatment undertaken in the future would have to take this into consideration and be adapted to be sympathetic to his needs”.  That counsel submitted was in line with Mr Evans’ conclusions.  At that stage it also noted that the petitioner met the criteria for the “Constructs” programme.  Constructs is a general offending behaviour programme which is not specifically aimed at sex offenders.  The ASOTP post programme report contained inter alia the following within its executive summary:

“5.       (The petitioner’s) motivation to engage meaningfully in the programme was insufficient.  It is not entirely clear why he seemed reluctant to engage fully, although it seemed that he had difficulty in trusting facilitators.  He did not share much information and in general reported few problems in his life.  Overall he showed a lack of understanding about why he offended and seemed reluctant to consider exploring potential reasons for offending.  When he was asked pertinent questions he often noted that he could not remember a lot of the details.  When he was asked pertinent questions around his offending he became defensive and said that he thought group members were ‘picking on him’.  Due to his difficulty in sharing information his offence account is considered to be incomplete and the treatment team did not have a clear idea of why he offended.  In general he was very quiet in group, and did not get involved in discussions or in supporting other group members.  There were also times when (the petitioner) got into conflict with other group members ...

 

8.         (The petitioner) had difficulties engaging in the Adapted Programme.  However it is positive that he attended the majority of sessions and completed the programme, which is a step in the right direction with regards to him addressing his risk.  He is at the start of the work that he needs to do.”

 

[16]      Counsel under reference to the whole programme report and in particular paragraphs 5 and 8 of the executive summary submitted that the petitioner had struggled with group work.

[17]      The next significant event was a PCMB meeting on 20 June 2012.  It was noted:  that the petitioner’s “level of cognitive functioning has been assessed as extremely low” and that he “meets the criteria for the diagnosis of Learning Disability but further information about his developmental history ... would need to be known before a confident diagnosis of Learning Disability can be made”.  In so far as programme recommendations are concerned, the petitioner was:

“recommended for 2-1 work in relation to his Constructs referral and that this work be completed before he re-engages in sex offence focused work on the Good Lives programme.  A referral will be sent to the RMT to consider (the petitioner) for 2 to 1 work in relation to Constructs”.

 

[18]      Counsel submitted that what was envisaged at this meeting was of critical importance in considering the issues before the court.  The PCMB was clearly taking into account the petitioner’s particular circumstances, and if what had been envisaged at that meeting had been followed through, then there would have been no challenge to the respondents’ actings.  It was his position that what happened following upon that meeting is crucial in deciding whether there has been a breach of the ancillary duty.  The period thereafter is where matters went awry and the breach of the ancillary duty occurred.

[19]      The next significant event was this:  in 2012 Paul Cairney became the petitioner’s OLR case manager.  Mr Cairney was aware when he took over the petitioner’s case that the petitioner had been identified as someone suitable for the Constructs programme.  At that time the Constructs programme had not been re-written.  As Mr Cairney put it “the training guidelines for the previous version outlined that men with significant learning impairments would not be suitable for the programme”.  Mr Cairney advised the RMT that the petitioner could not be adequately supported on the Constructs programme.  In his view the petitioner “would not have been able to effectively engage in the Constructs programme and would have been at a disadvantage”.

[20]      Following this at an RMT meeting on 15 November 2012 it was noted that the petitioner had struggled on the ASOTP because of his cognitive issues.  The RMT discussed referring him for assessment as to whether he had a learning disability.  Again counsel drew to my attention that no reference was made at that stage to Dr Malone’s conclusion that he did have a learning disability.  The petitioner was subsequently referred to a learning disability nurse for assessment using a tool called the Hayes Ability Screening Index.  (“HASI”).  The assessment was carried out on 7 December 2012.  Mr Cairney explained that:

“The report provided to SPS after that assessment concluded that (the petitioner) had no concerns in completing the written and verbal tasks and the assessment results indicated no referral for further assessment was required”.

 

Counsel directed my attention to the report following the HASI assessment and to the fact that this was a one page document.  It recorded that the HASI assessment,

“Is a brief individual screening index of intellectual/learning disabilities, which provides a means of identifying whether an individual requires referral for further diagnostic testing.”

 

Thereafter it recorded that in the petitioner’s case the results indicated no such referral for further diagnostic testing was required.

[21]      At the next RMT meeting on 13 December 2012:

“discussion took place around (the petitioner’s) offending behaviour and what programme work was required for him.  We discussed the HASI assessment results and whether 2:1 work was needed for (the petitioner).  On the basis of the results of the HASI assessment, the RMT decided not to go down the road of 2:1 work at that time and concluded that (the petitioner) could be supported in a group setting.”

 

The note of the meeting went on to explain that, “the action plan agreed by the RMT was that (the petitioner) should complete Good Lives, with the dynamics within the group and his learning skills to be considered”.  At an RMT meeting on 4 April 2013 which took place at more or less the same time as the petitioner started on the “Good Lives” course, it was recorded that there was a “plan to respond to any particular learning needs presented”.

[22]      The petitioner participated in the Good Lives course.  The post programme report became available on 20 June 2014.  In a comment, which counsel submitted, was very reminiscent of comments in the post programme report prepared following the ASOTP, it was noted that the petitioner’s “attendance was excellent;  he was present for all sessions however his level of engagement was significantly limited.”  The petitioner, counsel submitted, had struggled with both the healthy sexual functioning module and the self-management module.  In so far as the healthy sexual functioning module was concerned the facilitators were:

“unclear as to whether his lack of progress was the result of lack of understanding due to cognitive difficulties and/or a function of unwillingness to disclose sexual thoughts”.

 

So far as the “self-management” module was concerned, the petitioner’s progress was limited in that he had “difficulty in retaining learning”.  The final paragraph of the post programme report summed up the position.  It was said that the petitioner:

“presented with significant responsivity issues during his time in the current programme, and this appeared to have an impact on his ability to make progress with identified treatment needs.  Therefore, it would be prudent for the Programme’s Case Management Board to consider his suitability to participate in group work interventions or how else he might best address his outstanding needs.  Also, it would be essential for professionals involved in his care in the future to be mindful of (the petitioner’s) responsivity needs.”

 

[23]      Counsel submitted that all that was said in the foregoing report regarding the petitioner’s cognitive abilities was known to the respondents well before the date of that report.

[24]      At a Parole Board hearing on 21 March 2014 it held that it was not satisfied that it was no longer necessary for the protection of the public that the petitioner should continue to be confined.  Counsel submitted against the whole background as above set out, this was hardly surprising.

[25]      In May 2014 Dr Steptoe concluded that the petitioner’s behavioural traits were more consistent with low cognitive functioning, the conclusion counsel submitted which had been reached several years before.  At an RMT meeting on 14 May 2014 it was decided to seek further advice on the question of learning disability.  Once more counsel directed my attention to the fact that no reference was made to Dr Malone’s report.

[26]      At a PCMB meeting on 15 July 2014 the petitioner’s case was referred to the Risk Management Team for a decision about how to address the difficulties caused by “his learning disability”.  In the meantime he was not recommended for participation in any further offending behaviour treatment courses.  At a further PCMB meeting on 9 December 2014 it was decided to refer the petitioner’s case to the RMT to consider one of a number of courses of action.  At a meeting of the RMT on 8 January 2015 it was concluded, that the petitioner might benefit from the input of a learning disability specialist to assist in planning a treatment pathway for him.  It was counsel’s position that this had been obvious for about 5 years.  At another RMT meeting on 19 February 2015 it was noted that the information on file suggested that the petitioner did satisfy the criteria for diagnosis of a learning disability.  Counsel submitted that it was significant that that conclusion was not reached because of any new report, it was reached because consideration had finally been given to “all collateral file information”.  On or about 2 April 2015 a report was produced by Dr Jan Green a speech and language therapist with the NHS, to whom the petitioner had been referred.  Miss Green concluded that the petitioner had severe impairments of communication.  She noted that he was able to mask his difficulties.  She opined that he “would require significant support on an individualised programme were he to be expected to take part meaningfully in any offending behaviour work”.  Counsel submitted that that conclusion would appear to accord with the conclusions reached in respect of the petitioner very early in the course of his imprisonment and perhaps even prior thereto.  At a case discussion on 12 June 2015 Miss Green said that in her opinion the petitioner was not suitable for group work and she recommended that he should undertake the Moving Forwards:  Making Changes (“MF: MC”) course on a 2 to 1 basis.  Counsel submitted that Miss Green’s recommendations bore more than a passing resemblance to the conclusion reached as early as June 2012.

[27]      The petitioner thereafter participated in the MF: MC between 26 October 2015 and 25 March 2016.  Said course is normally delivered in a group format basis however in the petitioner’s case it was delivered on a 2 to 1 basis.  The post-programme report indicated that the petitioner had made a lot of progress.  His case was then considered by the RMT at a meeting of 7 September 2016 and the result of that was that the petitioner ought to be allowed to progress to the national top end.

[28]      Counsel submitted that at the above point matters had got back on track.  Essentially the petitioner had responded to a 2 to 1 course.

[29]      It was against the above factual matrix that the petitioner claimed that the two duties as earlier set out and in particular the ancillary duty were breached.

 

The Petitioner’s Argument
[30]      At the time of the PCMB meeting in June 2012 the petitioner had been under the control of the respondents for about 3½ years.  He had undergone several assessments with various professionals and he had participated in the ASOTP.  Counsel accepted that though it could be subject to some criticism, broadly the petitioner’s treatment until June 2012 was satisfactory.  However, by June 2012 it was known that the petitioner had a significant cognitive impairment such that he would need a specialised environment in order to get the necessary support.  Several of the professionals involved in his care had indicated that he might meet the criteria for learning disability and in April 2010 Dr Malone confirmed that in her opinion he did meet the criteria for the diagnosis of learning disability.  In addition to all of that, it was clear from his participation in the ASOTP that the petitioner struggled in a group environment.  Having regard to that background the decision taken at the PCMB meeting of 20 June 2012 he submitted was appropriate.  However, what happened thereafter was, that the decision was reversed or at least materially altered.  The petitioner was assessed using the HASI assessment tool.  The reported outcome of that assessment was that there was no need for a referral for further assessment.  As a result, rather than undertaking 2:1 work prior to reengaging in sex offence focused work on the Good Lives programme, a decision was taken to put the petitioner on to the Good Lives course at that point.  Notwithstanding the fact that the Good Lives programme can either be delivered in a group work format or on a one to one basis, the petitioner was put on it in a group work format.  Unsurprisingly, counsel submitted, the petitioner found it very difficult to cope with the course and derived little benefit from it.  In that regard, he submitted that it was perhaps pertinent to note that the comments in the Good Lives post programme report bore, as he had highlighted earlier, a striking similarity to the comments in the ASOTP post programme report some two years before.

[31]      It was counsel’s position that the use of the HASI assessment tool was inappropriate and added nothing to the sum of the respondents’ knowledge about the petitioner’s case.  The HASI assessment tool was developed in Australia for use in the criminal justice system.  It was recognised, on the one hand, that people with intellectual impairment, including learning disability, are over represented in the criminal justice system.  On the other hand, it was recognised that there had to be efficient use of relatively scarce psychiatric and psychological resources and that it would be uneconomic to put each person through the full battery of tests for identifying the presence of a learning disability.  That being so, the HASI was developed as a 5-10 minute test capable of being administered by lay persons which could be used in order to identify who among the large population ought to be sent for further and detailed assessment.  The HASI assessment tool simply provided a binary outcome:  either the person was referred for further and detailed assessment or no referral was required.  The HASI assessment tool he submitted did not give and was not designed to give, any indication of a person’s treatment needs.  Nor did it purport to do so.

[32]      It was counsel’s position that given the significant amount of information which the respondents had regarding the petitioner’s cognitive function as at the point at which the matter was referred to a HASI assessment this was not an appropriate decision.

[33]      In development of the above he submitted that the use of the HASI assessment tool added nothing to the sum of the respondents’ knowledge about the petitioner’s case.

[34]      In the course of these proceedings the respondents had said that they had followed the advice of the professionals in the petitioner’s case.  While it was true that a number of the professionals involved in the petitioner’s case had said that further information was required in order to make a firm diagnosis of learning disability, in the main that further information related to whether the difficulties started before the age of 18.  The one professional who considered the information in that regard, Dr Malone, concluded that the petitioner met the criteria for diagnosis of learning disability.  At no time had the respondents said that they did not accept Dr Malone’s diagnosis, which subsequent events had shown to be correct.  They had certainly not given any reasons for not accepting it.  He submitted that it may even be that her report was forgotten about until the RMT meeting on 19 February 2015 when consideration was given to “all collateral file information”.  When consideration was given to that information it was found that “all file information suggests that (the petitioner) does meet the criteria for (learning disability)”.

[35]      The decision based on the HASI result also flew in the face of Dr Roper’s admonition that “a possible diagnosis of cognitive deficits cannot be put aside lightly”.  In these circumstances it was not rational to put aside several years’ worth of investigations into the petitioner’s case, including hours of interviews, assessments and group work, based on the results of the HASI assessment.  Dr Malone had expressed the opinion that the petitioner suffered from a learning disability.  Others had been more diffident, but only because they wanted more information about age of onset, a matter with which the HASI assessment provided no assistance.  Counsel submitted that the error in approach to the HASI assessment was perhaps most clearly revealed by Mr Cairney’s remark that he “felt the HASI assessment done in December 2012 had not identified all of (the petitioner’s) treatment needs”.  It did not identify any treatment needs because that was not what it was designed to do.  Moreover, it was plain from the report that it did not identify any treatment needs.

[36]      The crux of counsel’s argument was this:  the HASI test which takes only 5‑10 minutes was used as a basis by the respondents to set aside everything they had been told to that point.  The decision when viewed in that light is irrational.  To proceed simply on the basis of the HASI assessment was irrational given the background information available from professionals which formed the context of the decision at that point.  No decision maker applying themselves to all of the information available to them could have come to the decision that it was appropriate to proceed on the basis of the HASI assessment.  In the circumstances of the petitioner, where such a detailed background was known to the respondents, to make a decision entirely based on a ten minute test which reaches a conclusion contrary to all previous occasions was irrational.

[37]      Beyond that it was his submission that the respondents’ approach to the petitioner’s participation on the Good Lives course was also open to criticism.  At the RMT meeting on 13 December it was recorded that the petitioner should “complete Good Lives (dynamics within the group and learning skills to be considered)”, and at the RMT meeting on 4 April 2013 it was recorded that there was a “plan to respond to any particular learning needs presented”.  Counsel accepted that it appeared that there was some attempt to respond to the petitioner’s learning needs.  For example, he was provided with adapted worksheets.  However, one of the other adaptations he submitted called for explanation.  It would be recalled that the majority of the petitioner’s time on the programme was dedicated to completing the discovering needs module, with the result that he in fact only participated in two optional modules namely the healthy sexual functioning module and the self-management module.  The latter was then tailored to the petitioner’s needs to incorporate aspects of the Constructs programme.  However, there was nothing to suggest that that included the 2 to 1 work identified in June 2012, and there was no explanation as to why that was suitable when Mr Cairney’s view was that the Constructs programme was inappropriate for the petitioner.  That approach to the adaptations to the Good Lives course could be contrasted he submitted with the approach to adaptations to the MF: MC course, which the petitioner undertook between 26 October 2015 and 25 March 2016.

[38]      In conclusion it was counsel’s position that it was clear that as a result of the failings in the management of the petitioner’s case between approximately June 2012 and April 2015, the petitioner had not been afforded an opportunity reasonable in all the circumstances, to demonstrate that he no longer represented an unacceptable danger to the public.  While it was true that some of the medical professionals might be open to criticism for not having made clear recommendations, ultimately it was for the respondents to decide how to approach any given case, subject to complying with, inter alia:  the ancillary duty.  In reality, the petitioner had been provided with resources that were unsuited to his particular needs.  Similarly, he submitted that if the matter was approached in the way suggested in R (Gilbert), Secretary of State for Justice [2015] EWCA Civ 802 at paragraph 79:

“The Secretary of State has a duty to provide sufficient systems and resources to ensure that review by the Board whether the continued detention of the prisoner under such sentence is justified is an effective and meaningful one.”

 

It could be said that the respondents had failed to ensure that review by the Board as to whether the continued detention of the petitioner was an effective and meaningful one and therefore the breach of duty could be established.  Given the way his case was dealt with, the Parole Board was bound to say that the statutory duty was not met, but it had insufficient information to make the review effective and meaningful.  In those circumstances he submitted that a breach of the ancillary duty had occurred in the petitioner’s case.

[39]      Turning to the public law duty counsel submitted that the same circumstances that gave rise to the breach of the ancillary duty could, with little difficulty, be said to be irrational.  In particular, it was submitted that the failure surrounding the use of the HASI assessment could be described as a “failure to make reasonable provision for an individual prisoner so egregious as to satisfy the Wednesbury standard of unreasonableness”.

 

Reply on Behalf of the Respondents
[40]      The respondents’ position in summary was this:  the focus of the petitioner’s argument was the report by Dr Malone of 19 April 2010 and the HASI assessment of 30 November 2012.  It was counsel’s position that this was a somewhat selective approach.  It was she submitted not an appropriate approach and directed my attention to Knights and O’Brien v Parole Board of England and Wales 2015 EWHC 136 (Admin) where Mrs Justice Lang observed at paragraph 77 that:

“In assessing the reasonableness of an opportunity for rehabilitation, the court must take into account all the circumstances;  the prisoner’s history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use made of opportunities for rehabilitation.”

 

[41]      It was her position that taking into account all the circumstances in this case, rather than focusing on selective aspects, the respondents had complied with their duties.

[42]      Given the petitioner’s acceptance that the treatment he received in the main until 2012 was satisfactory counsel advised that she intended to concentrate on what had happened thereafter.

[43]      She began her review of that period by looking at the ASOTP post programme report from June 2012.  She particularly highlighted the following:  it indicated that the petitioner did not accept responsibility for his index offence and was reluctant to discuss it;  and with further exploration of his offences and further information, more treatment needs would be identified.  The above report she submitted highlighted two issues regarding the petitioner:  (a) his unwillingness to accept responsibility for the index offence and (b) his cognitive difficulties.  The PCMB on 20 June 2012 concluded that the petitioner might not be suitable for Constructs given his meeting the criteria for learning disability albeit without a formal diagnosis.  The RMT on 15 November 2012 noted that the petitioner had struggled on the ASOTP and thought that his learning disability should be revisited.  At that point the issue of his learning disability was followed up by his being referred to a specialist NHS health team for the carrying out of the HASI assessment.  He was referred to this for a specific assessment, namely:  learning disability.  This was unlike previous assessments which had not been directed to this single issue.  Their assessment concluded as follows:  the petitioner had no issues when completing the verbal and written tasks and therefore did not identify any issues that would prevent the petitioner from participating effectively in group work interventions.

[44]      Thereafter the RMT considered that Good Lives was a more appropriate course for the petitioner than Constructs.  Constructs was, at the time, a fast paced course with little time to support individual group members.  It was of relatively short duration of approximately ten weeks at a delivery rate of three sessions per week.  It was not recommended for offenders with significant mental health problems or learning difficulties that would impact on their ability to function in a group.

[45]      By contrast, Good Lives was more flexible than Constructs and facilitators had more time to spend with group members to encourage success.  It was delivered as a rolling group ie at any one time there would be individuals at the start, middle and end of the programme.  The programme consisted of essential and optional modules.  Essential modules must be completed by everyone.  Optional modules were identified for individuals that were relevant to their own particular needs.  There was also a re-entry module for those who had completed the programme before but had outstanding treatment needs.

[46]      Counsel submitted that the foregoing was a reasonable decision.  It was reasonable not to put the petitioner on a programme with little time for support and which was not suitable for those with learning difficulties.  Instead what was chosen was the more flexible course and therefore the course which was more suitable for the petitioner.  This could not be described as an irrational decision.

[47]      Looking overall at the opportunities offered to the petitioner by the respondents, these when viewed in the light of the whole circumstances, were reasonable.

[48]      While issues were identified with the cognitive functioning of the petitioner at an early stage, the respondents were not advised that group work was unsuitable for the petitioner until Jan Green’s report of 2 April 2015.  Thereafter, the respondents arranged for a modified MF: ML course for the petitioner.

[49]      Prior to Jan Green’s report of 2 April 2015 there was a dispute among the experts as to whether a formal diagnosis of learning disability was appropriate for the petitioner.  While the report of 19 April 2010 by Lesley Malone, indicated that the petitioner met the criteria for a diagnosis of learning disability, a subsequent report by Dr Purcell and Dr Dowds, considered that it was possible that the petitioner had cognitive deficits but this should be determined in conjunction with other behavioural evidence and their assessment should not be taken as the sole source of consideration.

[50]      Counsel submitted that what was relevant to the assessment of the reasonableness of the opportunities provided to the petitioner by the respondents was not the particular details and tests carried out by the various experts but the recommendations made by the experts to the respondents.

[51]      The respondents followed the recommendations of their experts and therefore acted in a reasonable fashion.

[52]      Counsel went on to submit this:  when considering the petitioner’s lack of progress at courses it was not solely cognitive difficulties that caused this.  In support of this submission she directed the court to the foregoing in the chronology:

• The petitioner participated in the Good Lives programme between 2 April 2013 and 3 December 2013.The post programme report of 20 June 2014 indicated that the petitioner’s level of engagement was significantly limited.The petitioner rarely contributed to discussions and often attended sessions without offering any input at all.The petitioner’s account of the violence used in the 1982 offence was inconsistent and he tended to minimise the extent of violence used.He also attributed some blame towards his victim.In terms of his 2008 offence, he minimised the impact of his actions upon his victim.
• In relation to healthy sexual functioning, the petitioner submitted four entries in a sexual thoughts diary.Of these, one entry involved sexual content that did not appear to be offence-related and the rest documented general thoughts unrelated to sexual arousal.Dr Jones, Psychologist, concluded that the petitioner’s ability to submit one entry evidenced understanding on a basic level and that it was therefore possible that the petitioner’s lack of progress was not simply due to cognitive difficulties but might also be a function of unwillingness to disclose sexual thoughts.
• At the Parole Board hearing of 19 March 2015, the petitioner accepted in response to questions from tribunal members that he had not wanted to disclose his sexual thoughts during the Good Lives programme, but thought that he would be more willing to do so in the future on the Moving Forward Making Changes programme.
• Under reference to the observations of Mrs Justice Lang in O’Brien v Parole Board of England and Wales counsel submitted that the use made of opportunities for rehabilitation is a factor to take into account in considering whether either of the duties had been breached.One of the reasons the petitioner did not get as much out of the Good Lives programme as might have been hoped for is that he did not want to disclose sexual thoughts, as acknowledged by the petitioner himself at his Parole Board hearing on 19 March 2015.
• By contrast, she submitted that, when the petitioner completed Moving Forward:Making Changes between 26 October 2015 and 25 March 2016, he engaged meaningfully throughout the duration of the programme and willingly explored the topics discussed mostly in an open and honest manner.Part of his success is no doubt due to the additional support he received however, his willingness to explore topics in an open and honest matter is also a factor.

[53]      In summary, the respondents tried to reduce the petitioner’s risk by providing him with access to three offending behaviour treatment programmes, namely:  (i) ASOTP in light of his low IQ;  (ii) a more flexible offending behaviour treatment programme targeted at offenders who have committed sexual offences (Good Lives) rather than a fast paced programme which was not recommended for offenders with significant learning difficulties (Constructs);  and (iii) a modified SOTP (Moving Forward:  Making Changes).  In addition, he completed alcohol awareness and literacy work.

 

Discussion
[54]      The questions for the court are these:

• whether the respondents have violated the petitioner’s rights under the European Convention on Human Rights by breaching the implied duty under Article 5 to provide the petitioner with an opportunity reasonable in all the circumstances to rehabilitate himself and demonstrate that he no longer presents an unacceptable danger to the public?
• whether the respondents have acted unreasonably and irrationally and therefore breached their public law duty to provide systems and resources to the petitioner which are sufficient to afford him the opportunity at or reasonably soon after the expiry of the punishment part of his sentence to show that there is no necessity to continue his detention on the ground of public protection.

[55]      I think it is helpful at the outset to set out certain observations which I have found of assistance in considering the general approach to the breach of the above duties:

[56]      Lord Clarke in Mackie & Fraser v Scottish Ministers 2016 CSOH 125 at paragraph 29 said this:

“...  As the cases have now made clear the carrying out of the relevant duty under Article 5 has to take into account the particular circumstances of the particular prisoner.  Some prisoners may need little in the way of rehabilitation training.  Others may need a great deal, even after the critical date.  The allocation and timetabling of these resources is quintessentially a matter for the experience and expertise if the prison authorities and those specialists employed by them to put into effect their application.  These are not matters, in my judgement, in respect of which the courts should be overzealous to set out a timetabling which does not, and cannot, adequately have regard to the foregoing considerations.”

 

[57]      Lord Glennie in Reid v Scottish Ministers 2015 CSOH 84 at paragraphs 23 and 24 observed:

“...  It is, to my mind, simplistic simply to point to the lapse of time before a particular step in the rehabilitation process is undertaken, or between one step and another, and ask the court to infer from that that there has been a breach of the duty to provide a reasonable opportunity for rehabilitation.  Still less is it permissible to point at a reassessment of what is required ... coming at a fairly late stage, and ask the court to infer that the failure to identify the necessity for this at an earlier stage demonstrates a breach of that duty ...

 

...  Experts and authorities are not infallible, but they are in a better position than the court to assess what is needed and when.  It is not a dereliction of duty on the part of the court to approach such matters on the basis that before it can be shown that any particular delay amounts to a failure to provide a reasonable opportunity of rehabilitation, it must be shown that the professional or administrative judgment which led to that delay was seriously flawed or, in the language of judicial review, irrational.”

 

[58]      The approach of Lord Glennie was adopted by Lord Clarke in Mackie and Fraser v The Scottish Ministers.

[59]      In addition there are the observations of Mrs Justice Lang in the Knights and O’Brien case earlier set out.

[60]      In approaching the issues before me I have to a significant extent adopted the approach of the judges in these three authorities.

[61]      The primary point made by counsel for the petitioner was this:  the decision of the RMT meeting of 13 December 2012 and what followed thereafter amounted to a failure to provide a reasonable opportunity of rehabilitation.  That decision he submitted was irrational.  It was irrational for this reason:  in relying on the HASI assessment and without having regard to the whole background knowledge regarding the petitioner’s learning disability.

[62]      I am persuaded that the decision made by the RMT on that occasion did provide a reasonable opportunity of rehabilitation and was a rational one in that:

• the position, as at the date of the decision, among the experts as to whether a formal diagnosis of learning disability could be made with respect to the petitioner was not an entirely clear one.Lesley Malone had said it could be made.However, Dr Purcell and Dr Dowds had later only said it was possible that the petitioner had a learning disability.Overall on a fair reading of all of the information before the respondents as at the date of the decision, the position regarding his learning disability was far less clear than submitted on behalf of the petitioner. I believe on a fair reading of the information before the respondents at that time there was a dispute as to whether a formal diagnosis of learning disability should be made in respect of the petitioner.
• Although there were concerns about the petitioner’s cognitive functions from as early as the report of Steven Evans, there were no recommendations made to the respondents that the petitioner was unsuitable for group work until Jan Green’s report of 2 April 2015.
• The HASI assessment, as is accepted by the petitioner, provides a means of identifying whether an individual requires referral for further diagnostic testing regarding intellectual/learning disability.The result of that test was that no referral for further diagnostic testing was required.That was the recommendation which was made to the RMT.The RMT were entitled in making their decision to be informed by the terms of that report.The HASI report did not stand out against a crystal clear background of expert opinion to the contrary effect.
• The HASI assessment as all others to that point did not highlight an inability on the part of the petitioner to carry out group work.
• The decision to be made by the RMT was not a straightforward one given the complicated background regarding the petitioner’s learning disability.
• Its decision, I am of the view, reflects the whole background knowledge available to it including the expert opinion provided to it.
• The decision is a careful, nuanced and reasonable one in light of the whole circumstances with respect to the petitioner and in particular his cognitive difficulties known at that time to the RMT:

(a)        It decided that the Good Lives course was the appropriate one for the petitioner rather than the Constructs course as suggested by the PCMB.

(b)        The reasons for that decision are reasonable and rational, namely:

• The Constructs course gave little time to support individual group members.
• The Constructs course was not recommended for those inter alia who had learning difficulties.
• The Good Lives course on the other hand was more flexible, with more time to spend with individuals.

• Accordingly the decision to prefer Good Lives to Constructs sought to take appropriate account of the background of the petitioner’s learning disabilities.

[63]      I am clearly of the view, that having regard to all of the background material before it, this was a reasonable decision.

[64]      The respondents balanced a situation where there was, a known background of learning disabilities, but no diagnosis of learning disability which would per se cause group work to be inappropriate and a recognition, having regard to the known background, that the petitioner would require extra support in order to progress properly.  The balance which was struck by the RMT at that time, having considered all the relevant information before it, was one it was entitled to reach.  By proceeding in the manner which it did at that time the respondents cannot be said to have failed to provide reasonable opportunities to rehabilitate.

[65]      When approached in terms of the observations made by Lord Glennie in Reid v Scottish Ministers the petitioner’s case fails as what in essence is being argued is this:  there is a breach of duty by the respondents in failing to place the petitioner on a course with 2:1 working, when the necessity for this only became clear in the report of Miss Green.  As at the time that the RMT made its decision no such clear recommendation was before it.

[66]      In addition I agree with the submission made by counsel for the respondent that what is relevant to the assessment of the reasonableness of the opportunities provided to the petitioner by the respondents is not the particular details and tests carried out by the various experts but the recommendations made by the experts to the respondents.

[67]      It is important to note that in Dr Malone’s report, to which considerable significance was attached by the petitioner, no recommendations were made in relation to the respondents relative to treatment.

[68]      Dr Purcell recommended the petitioner would benefit from an ASOTP on 9 July 2010 and the respondents arranged for the petitioner to complete that programme between August 2011 and March 2012.  The NHS Mental Health Team did not make any recommendations following the assessment of 30 November 2012.

[69]      Jan Green recommended at a case discussion on 12 June 2015 that the petitioner undertake Moving Forward:   Making Changes on a modified basis and the respondents arranged for the petitioner to complete such a programme between 26 October 2015 and 25 March 2016.

[70]      Thus having regard to the foregoing, overall the respondents sought to reduce the petitioner’s risk by providing him with access to behavioural treatment programmes as and when recommended, namely:  (1) ASOTP in light of his low IQ;  (2) a more flexible offending behaviour treatment programme targeted at offenders who have committed sexual offences (Good Lives) rather than a fast paced programme which was not recommended for offenders with significant learning difficulties (Constructs);  and (3) a modified SOTP (Moving Forward:  Making Changes).

[71]      Beyond the above I am satisfied that there is merit in the argument advanced by counsel for the respondents that one of the reasons that the petitioner did not get as much out of the Good Lives programmes as he might have done was his failure to engage properly in the programme by failing to disclose sexual thoughts.  The submissions put forward in support of that line by counsel for the respondents in my view have substantial cogency.  In assessing the reasonableness of the opportunities for rehabilitation one of the factors that must be taken into account is:  the use made of opportunities for rehabilitation.

[72]      In summary:  for the reasons I have set out the challenged decision of the RMT was not seriously flawed, that is irrational;  the petitioner was throughout offered reasonable opportunities to rehabilitate himself having regard to the whole circumstances of his case;  and the respondents therefore complied with the two duties incumbent upon them.

 

Decision
[73]      Accordingly I refuse the petition.  I reserve the position regarding expenses.