Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 61

P499/16

OPINION OF LADY CARMICHAEL

In the Petition

JAMES HAGGERTY

Petitioner

for judicial review of a failure to provide him with access to rehabilitation by

THE SCOTTISH MINISTERS

Respondents

Petitioner:  Leighton;  Drummond Miller LLP

Respondents:  Paul Reid;  SGLD

7 April 2017

Background
[1]        On 3 June 2011 the petitioner was made subject to an order for lifelong restriction (“OLR”), backdated to 23 April 2010, with a punishment part of 5 years.  He complains that he has not been given a reasonable opportunity to demonstrate to the Parole Board for Scotland that his continued imprisonment is no longer necessary for the protection of the public.  His particular complaint is in relation to the level of security in which he is confined.  He cannot, he says, make progress towards satisfying the Parole Board for Scotland while he remains incarcerated in HMP Shotts.

[2]        In order to make progress, he needs to progress either to a national top end (“NTE”) facility or to the open prison estate.  That is because from those facilities he can be tested under temporary licence conditions.  He cannot be tested in that way from HMP Shotts, which is part of the closed estate.  NTE facilities exist at HMP Greenock and HMP Barlinnie.  NTE is a term used to describe an interim stage in a long term prisoner’s journey, between leaving the closed estate, where there is no community access, and the open estate, where there is full access to the community.  In NTE prisoners have their own cell keys and can access restricted communal areas during patrol and nightshift periods.  They have access to the community on special escorted leaves, community work placements and unescorted leave.  Prisoners subject to OLRs may progress either to NTE or directly to the open estate.

[3]        None of that is disputed.  The petitioner’s case was considered by a Lifelong Restriction Prisoner Tribunal of the Parole Board for Scotland on 15 February 2016.  The Scottish Ministers were represented at that hearing by a Lifer Liaison Officer, Mr Rooney, who has provided an affidavit.  Mr Rooney confirmed to the Tribunal that the petitioner was ready to be tested in conditions of greater freedom, and the petitioner was willing to progress either to the NTE or to the open estate.

[4]        The Tribunal made the following finding in its decision letter of 29 February 2016: 

“In the judgement of the Tribunal it is essential that you spend a significant period being tested under temporary licence conditions before you can be considered suitable for release.  This will permit a future Tribunal to consider a body of evidence upon which a decision on whether your level of risk can be managed in the community may be based.”

[5]        The petitioner’s case is that it is since 29 February 2016 that a breach of his Convention right under Article 5 has occurred by reason of what he says is a failure to move him to NTE or open conditions.  The petitioner makes no criticism of any act or omission before 29 February 2016.  He seeks declarator that his Convention rights have been breached and just satisfaction damages.

[6]        On the face of the pleadings at the beginning of the hearing there was an absence of consensus about what had happened since February 2016 (see Statement of Fact 14 and Answer 14).  Counsel however refined their positions in the course of the hearing.  Mr Reid helpfully produced a table containing certain of his factual propositions and how they were vouched.  He produced a Minute of Amendment (No 28 of process) and moved that the Answers be amended in terms thereof, to render them consistent with the information provided in tabular form.  That motion was not opposed, and the petitioner did not seek to answer the Minute of Amendment.  I allowed the pleadings to be amended accordingly.  Mr Leighton stated at the Bar that he did not dispute the factual position as set out in the table, subject to two matters which he said he could deal with by way of submission, which are set out more fully below.

[7]        Before the Risk Management Team (“RMT”) considered the petitioner’s case, a police report and a home background report were obtained.  Home background reports were requested on 14 April 2016.  Those reports typically take not less than six weeks.  The home background report was received on 10 June.  The petitioner’s case was considered at a meeting of the RMT on 7 July.  The RMT considered whether the petitioner should progress directly to the open estate, but concluded that that a gradual period of testing via the NTE was preferable.  The RMT noted that before that could occur, a revised risk management plan (“RMP”) had to be completed, presented to the RMT and then to the Risk Management Authority (“RMA”).  The revised RMP took 11 weeks, that is until late September 2016, to complete.  The RMT approved it on 29 September 2016.  It was submitted to the RMA.  The RMA approved it on 17 October 2016.   

[8]        These factual matters are not now disputed.   Mr Leighton accepted the contents of the table and amended Answer 14, subject to two comments.  First, he indicated that he was not in a position to concede that it was necessary that the preparation of the RMP take that whole period of time, although it had as a matter of fact taken 11 weeks.  He noted that it was apparent from the correspondence produced by the respondents (No 6/18 of process) that its completion was slowed down by reason of leave taken and training undertaken by its author during summer 2016.  The second qualification stated by Mr Leighton was that, he said, the RMT did not have to be involved in the decision-making about the petitioner.  The process was entirely in the hands of the respondents.  He did, however, accept that the involvement of the RMT in decision‑making about the petitioner was in line with the respondents’ established policy, and that the petition did not involve any challenge to the lawfulness of that policy.  I took the reference to the published policy to be a reference to No 6/1 of process, the Scottish Prison Service Risk Management and Progression Guidance. 

[9]        As that Guidance makes clear at paragraph 3.1, the respondents have determined that the RMT is the decision making body that considers prisoners for progression to less secure conditions and/or community access.  It is said to be a multidisciplinary group of professionals representing a range of agencies involved in the management of offenders.  As the petitioner conceded that the respondents were acting in accordance with their established policy in this respect, and did not challenge to that policy, I did not regard Mr Leighton’s submission that the involvement of the RMT was not necessary as one which bore on the lawfulness of the decision-making as to the progression of the petitioner. 

[10]      The RMT approved the revised RMP on about 29 September 2016.  It was submitted to the RMA, and the RMA approved it on 17 October 2016.  As at the first day of the hearing, 19 January 2017, the petitioner had not been moved to NTE, but I was told that it was expected that he would make that transition on 20 January 2017.

[11]      Mr Owen McDade is the manager of Chriswell House, the NTE facility at HMP Greenock.  In his affidavit, the content of which is not disputed, he explains that there is considerable pressure to accommodate admissions from the closed estate.  Spaces become available either as a result of prisoners progressing to the Open Estate, or being downgraded and returned to the closed estate.  There is, more often than not, a waiting list.  As at 9 December 2016, the waiting list for the facility at Greenock had 30 names on it, and the waiting time was about five months.  The waiting time fluctuates, and earlier in 2016 it was three months.

[12]      Parties were content that the affidavits of the petitioner, Mr Rooney and Mr McDade be treated as the evidence of each. 

[13]      It is not contended that any of the steps taken since 29 February 2016 should have been taken before that date.  The petitioner argues that, save for the necessity of the RMA’s approving a revised RMP, all other steps are steps which are within the power of the respondents.  The approval of the revised RMP, once it was sent to the RMA, accounts for very little of the period between 29 February 2016 and January 2017.  The remainder of the period is one which is said by the petitioner to be unreasonable, given the positive assertion by the respondent’s representative at the Tribunal hearing that the petitioner was ready to move on. 

The law
[14]      The starting point in considering domestic jurisprudence after James v United Kingdom (2012) 56 EHRR 399 is R(Kaiyam) v Secretary of State for Justice [2015] AC 1344.  It is not disputed that a prisoner subject to an OLR is to be equated for present purposes with an IPP prisoner in England and Wales.

[15]      It is implicit in the scheme of Article 5 ECHR that the state is under a duty to provide an opportunity reasonable in all the circumstances for a life or IPP/OLR prisoner to rehabilitate himself and to demonstrate that he longer presents an unacceptable risk to the public (Kaiyam, paragraph 36).  A duty to facilitate release is implied as an ancillary duty which does not affect the lawfulness of detention, but which sounds in damages if breached.  Damages fall to be assessed in relation to legitimate frustration and anxiety experienced by a prisoner where those can properly be inferred to result from such a breach.  (Kaiyam, paragraphs 38 and 39).   

[16]      Liability for breach of Article 5 is not limited to situations where there is complaint as to any systemic failure, or a failure to make reasonable provision for an individual so egregious as to satisfy the Wednesbury standard of unreasonableness, or a failure to apply established policy.  The ancillary right already referred to is a right in favour of each individual prisoner, and its satisfaction or otherwise depends on the particular circumstances of the individual case. 

[17]      Neither the Strasbourg court nor domestic courts insist on standards of perfection that would be unrealistic, bearing in mind the numbers of prisoners involved and the limits on courses, facilities and the resources in the prison system.  No system is likely to be able to avoid some periods of waiting and delay (Kaiyam paragraph 42). 

[18]      Delays of less than three months are ordinarily unlikely to be regarded as of sufficient severity to sound in damages, where the delay is in review of a prisoner’s case by the Parole Board: R (Sturnham) v Parole Board (Nos 1 and 2) [2013] 2 AC 254, Lord Reed at paragraph 65.

[19]      This is not a case in which there is any dispute about what the petitioner was ready for, or what, broadly speaking, he needed in order to let him progress.  Accordingly, cases which deal with situations where there is some dispute as to whether a particular course or treatment should be made available, or in which it has taken time to identify a particular course as suitable, are of relatively little assistance:  eg (in Kaiyam) Kaiyam; Reid v Scottish Ministers [2015] CSOH 84.

Discussion
[20]      Of the cases considered in Kaiyam, Haney is the most closely analogous to this petition.  In June 2011 the Secretary of State wrote to Mr Haney formally approving a transfer to an open prison.  He was accepted in principle for transfer to a suitable open prison in the summer of 2011.  The transfer did not take place because of a very severe undersupply of places.  There was a delay of about a year.  Although Haney’s case arose because of what was regarded as a systemic failure, that does not of itself undermine the analogy.  As in the case of the petitioner, the only opportunity which could be afforded to Mr Haney to demonstrate that he was no longer a danger was a transfer to less secure conditions.  The Supreme Court found that the delay was a breach of the duty to facilitate release, sounding in damages. 

[21]      The respective positions of parties became quite focused in the course of the hearing.  Mr Leighton drew a parallel with the situation of Mr Haney.  The petitioner was ready in February 2016 to progress to less secure conditions.  That was acknowledged on 15 February by a representative of the Scottish Ministers, Mr Rooney.  The Parole Board’s decision of 29 February made it clear that in order to demonstrate that he no longer represented a danger, the petitioner would have to be tested on temporary licence conditions.  Nearly a year had since passed, a period comparable to the delay in Haney’s case. 

[22]      Mr Reid submitted that a number of necessary steps required to be taken after 29 February 2016.  No complaint was made in relation to any earlier period.  The period since 29 February was fully accounted for, and none of the periods during which the individual steps taken had involved unlawful delay.  The true equivalent of the Secretary of State’s letter to Mr Haney was the decision of the RMA in October 2017.  Until the RMA had approved the revised RMP, there was a barrier to progression. 

[23]      I considered whether I should treat the representation made to the tribunal by Mr Rooney on 15 February 2016 as directly analogous to the letter to Mr Haney in June 2011.  That is not, in my view, however, the correct analysis.  What Mr Rooney submitted to the Tribunal was that the petitioner was ready to be tested in conditions of greater freedom.  Whether that testing was to be from NTE or from the Open Estate had not been determined at that point.  It was not Mr Rooney’s role to make that determination.  That was for the RMT to determine, and until it had met, and decided that matter, no revised RMP could be prepared. 

[24]      In Massey, which involved the provision of courses, a period of a year between assessment for the course and availability of the course would not have involved a breach of Article 5, but a period of a further year thereafter before the course was provided did involve such a breach.  The way in which the Court approached Massey involved distinguishing between parts of the overall period which were attributable to acceptable waiting periods and those which were not.  Massey was assessed for the ESOTP course in Spring 2011.  There was no place on it for him until May 2013.  The Supreme Court noted, at paragraph 69: 

“If there had been a plentiful supply of places he might have been on [the course] by about Autumn of [2011], but no real complaint could have been made merely because this kind of course was not immediately available; if it had been provided in or about Spring 2012, there would we conclude have been no breach.   There is thus an unacceptable delay of about a year, and all post-tariff.” 

[25]      It is therefore in my view legitimate to look at the overall period which has elapsed and to consider how it is accounted for.  It is necessary to consider in particular whether it is accounted for in whole or in part by taking steps which are necessary precursors to a transfer;  whether those steps have been taken without unreasonable delay;  and/or whether it is accounted for by periods which represent acceptable periods of waiting for a place to become available. 

Period from 29 February 2016 to 17 October 2017
[26]      I have already referred to Mr Leighton’s submission that the involvement of the RMT was not necessary.  There is no basis for me to conclude that the steps taken were anything other than lawful and necessary precursors to progression.  In taking the steps set out at paragraph 8 the respondents were following their own published policy.  The question is whether there has been unlawful delay in taking these steps.

[27]      The first period is from 29 February (the date of the Parole Board decision letter) to 14 April 2016 (when home background reports were requested).  It is a period of just over six weeks.

[28]      The second period is from 14 April to 10 June 2016, around eight weeks, for the preparation and provision of the home background reports.  It is not disputed that the reports typically take not less than six weeks. 

[29]      The third period is from 10 June to 7 July 2016, just under four weeks, between the provision of the home background reports and the RMT’s meeting. 

[30]      A fourth period, of about 11 weeks, between 7 July and late September 2016, elapsed during which the revised RMP was completed. 

[31]      No criticism is made of the RMA in relation to the period during which the revised plan was in their hands, between 29 September and 17 October 2016.

[32]      The periods for which no particular explanation is proffered (the first and third) amount in total to about 10 weeks.  There is no information to indicate whether they were in excess of what was required, or, if so, by how much.  They are not particularly lengthy periods, and in the absence of any basis for finding that they were in excess of what was required, I am not prepared to conclude that they were periods of unlawful delay.  Taken together, but in isolation from any other periods, even if they were regarded in their entirety periods of unlawful delay, they would not sound in damages. 

[33]      So far as the second period is concerned, a period of eight weeks is not obviously exceptionable where the normal period for the process concerned is six weeks. 

[34]      As to the third period, while Mr Leighton did not concede that 11 weeks was actually necessary for the preparation of the RMP, there is, again, no information which would allow me to conclude that that period was materially in excess of what was reasonably required for the RMP’s completion, or, if it was, by how much.  In the absence of information of that sort, I am not prepared to regard any part of that 11 week period as representing unlawful delay. 

Period from 17 October 2016 to date of hearing
[35]      It is difficult to know at what point the waiting list period would reach a point at which it could be said to be of such duration as to violate the Article 5 rights of a prisoner who was agreed at all hands to be ready for transfer to NTE.  The Supreme Court was careful to recognise that there may well be periods of waiting or delay in respect of which no criticism can be levelled.  When dealing with Haney, the Justices regarded a delay of a year in transfer to less secure conditions as giving rise to a breach of article 5.  When dealing with Massey, a waiting period of one year for the ESOTP course was to be expected, but a further delay of a year thereafter was unlawful and sounded in damages. 

[36]      The period in this case is very slightly more than three months, and significantly less than the waiting list period identified as obtaining as at December 2016.  There is nothing to cause me to conclude that it is anything other than the sort of waiting period contemplated by the Supreme Court in Kaiyam at paragraph 42.

Disposal
[37]      The petitioner has not established that the respondents have failed to provide him with an opportunity reasonable in all the circumstances for him to rehabilitate himself and to demonstrate that he longer presents an unacceptable risk to the public.  I therefore repel the pleas in law for the petitioner, sustain the first plea in law for the respondents, and dismiss the petition.