Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_62.html
Cite as: [2019] ScotCS CSOH_62, 2019 GWD 28-444, [2019] CSOH 62

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P568/19

OUTER HOUSE, COURT OF SESSION

[2019] CSOH 62

OPINION OF LORD ERICHT

In the petition of

JOHN PATON

for

JUDICIAL REVIEW

Petitioner

2 August 2019

Petitioner: Leighton; Drummond Miller LLP

Respondent: Reid; Scottish Government

[1] The petitioner, a short term prisoner, applied for early release under Home Detention

Curfew under section 3AA of The Prisoners and Criminal Proceedings (Scotland) Act 1993.

His application was refused by the respondent’s Mr Roberts and his appeal against that

decision was refused by the respondent’s Mr Peat. The petitioner brought judicial review

proceedings. In view of the imminence of the petitioner’s original release date, the court

expedited the substantive hearing and I gave an oral ex tempore opinion on the day of the

hearing. The respondents have asked that the ex tempore opinion be made available in

writing.

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[2] The guidance for Home Detention Curfew provides for presumptions against

granting Home Detention Curfew in certain circumstances. Paragraph 25 states:

“There are certain categories of prisoner who are presumed, in normal circumstances,

to be unsuitable for HDC – that presumption can only be over-ridden where the

individual circumstances of the prisoner gives SPS just cause to do so. Prisoners

whose index offence involves an act of violence or the possession of a knife or

offensive weapon are presumed, in normal circumstances, to be unsuitable for HDC.”

[3] In his application the petitioner stated “I was on bail on a curfew between 8pm and

7am for over a year before being sentenced to 12 months without any problems.”

[4] In my opinion the point which the petitioner was making was that as he complied

with and did not offend during a period of home curfew for a period of a year, he might

reasonably be expected to behave on Home Detention Curfew.

[5] In other words, his point was that his individual circumstances gave just cause to

override the presumption, and that although the index offences involved both violence

and possession of a knife or offensive weapon, the previous trouble free curfew meant

that the circumstances were not such as to require the normal refusal of Home Detention

Curfew.

[6] By decision dated 23 April 2019 the respondent’s Mr Roberts refused the application.

I shall refer to this decision as the first instance decision. The following reasons were given:

“index offence is of a violent nature namely assault to injury and disfigurement

Index offence also includes convictions for carrying an offensive weapon

Index offence also includes a conviction for having in public place article with blade

or point.”

The decision and reasons made no reference at all to the petitioner’s trouble free previous

curfew and so did not specifically address the point made in the application. The petitioner

appealed.

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[7] Despite having appealed, the petitioner seeks reduction of both the first instance and

appeal decisions. In my opinion, it is not appropriate for me to reduce the first instance

decision. The judicial review jurisdiction of the court is concerned with the final decision of

an administrative body. Indeed, it would not have been competent for the petitioner to seek

judicial review of the first instance decision immediately after it had been made as he would

not have exhausted his appeal remedy.

[8] The appropriate decision for me to consider, and if I think fit reduce, is the appeal

decision. The effect of any reduction would be that the respondents would have to

reconsider the appeal and make a new decision on the appeal. So it is important that I now

turn to and consider the appeal decision.

[9] In so doing I will consider only the written decision and not what is said in Mr Peat’s

affidavit. There are matters in the affidavit which were not put forward prior to the

commencement of proceedings. I agree with Lord Reed and Stanley Burton J that reasons

put forward after the commencement of proceedings must be treated especially carefully.

(Chief Constable Lothian and Borders v Lothian and Borders Police Board 2005 SLT 315 at para

[65]).

[10] The appeal form contains a box headed “Please tell us why the decision is wrong”.

The petitioner filled in the box in detail. In particular he wrote:

“I am appealing this decision on the grounds that I was released on bail and on

curfew from 8pm to 7 am by judge [names a judge] from the date of my crime in early

Feb 2018 until Feb 27th 2019 which was over a year without any problems. So I feel

that since I have already proved that I can and will abide by all the rules [and then

goes on to give some other reasons] I don’t see how this doesn’t place me at the top of

the list as a prime candidate to be released on a tag.”

So we can see from that that the petitioner is again placing emphasis on the trouble free prior

curfew as an individual circumstance to override the presumption. The appeal form also

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mentioned other reasons in respect of him being a model prisoner, re-starting counselling

and debt for rent.

[11] The respondent’s Mr Peat decided the appeal on 9 May 2019 and gave the following

reasons:

“Thank you for the very comprehensive appeal which you have submitted which I

have investigated fully. However, in respect of your index offence, it triggers 3 of the

presumptions against release on HDC (listed above) [that is a reference to the violent

nature of the offence, offensive weapon and article with blade or point in a public

place].

These presumptions against release on HDC are in effect used as guidance in the

assessment of risk process, and will also include previous offending behaviour and

convictions in order to mitigate any risks identified to the lowest level. For these

reasons I am of the opinion that Mr Roberts was fair and correct in his decision to

refuse your release on HDC. “

Decision

[12] The editors of De Smith’s Judicial review (8th Edn at para 7.15) give an elegant and pithy

summary of the law which both parties agreed was accurate, and in so doing the editors

identified two core criteria:

“In short, the reasons must show that the decision maker successfully came to grips

with the main contentions advanced by the parties, and must tell the parties in broad

terms why they lost, or, as the case may be, won. Provided the reasons satisfy these

core criteria, they need not be lengthy.”

[13] In my opinion, both criteria have been satisfied in this case. The decision maker came

to grips with the petitioner’s point about the trouble free curfew. He refers to the appeal as

being “very comprehensive” and that is clearly a reference to the detailed handwritten

paragraph in the box on the first page of the appeal form, which includes the point about the

trouble free curfew. He states that he has investigated the appeal fully. When the appeal

decision is read as a whole, the reason why the petitioner lost is clear. The decision maker

has come to the view that the curfew point, and indeed the other points in the handwritten

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paragraph, are not of sufficient weight to displace the presumptions. Immediately after

referring to his consideration of the comprehensive appeal points the decision maker uses the

word “however” and goes on to find that despite the appeal points the presumptions still

apply.

[14] In so doing, Mr Peat has come to his own conclusions on the appeal. He has properly

considered the matters in the handwritten paragraph, some of which were not before the first

instance decision maker, and has not limited his decision to matters which were before the

first instance decision maker. Accordingly I reject the petitioner’s argument that Mr Peat did

not consider the appeal de novo.

[15] I sustain the respondent’s pleas in law numbers 1 to 4 and repel the petitioner’s pleas in

law numbers 1 to 4 and refuse the petition.