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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PETITION OF THOMAS O'LEARY FOR JUDICIAL REVIEW [2020] ScotCS CSOH_81 (02 September 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_81.html
Cite as: [2020] CSOH 81, [2020] ScotCS CSOH_81, 2020 GWD 30-387
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OUTER HOUSE, COURT OF SESSION
2020 CSOH 81
P561/20
OPINION OF LORD BRAID
In the petition of
THOMAS O’LEARY
Petitioner
for Judicial Review
of the failure to conduct a risk assessment of him by Scottish Ministers and Glasgow City
Council
Petitioner: Leighton; Drummond Miller LLP
First Respondents: Byrne; Scottish Government
Second Respondents: Fraser; Morton Fraser LLP
Third Interested Parties (Parole Board for Scotland): Lindsay, QC; Anderson Strathern
Sixth Interested Parties (RMA): Welsh, Harper MacLeod LLP
2 September 2020
Introduction
[1] The petitioner, a convicted prisoner detained at HMP Barlinnie, is subject to an order
for lifelong restriction (“OLR”) imposed on 19 August 2014. The punishment part was five
years, backdated to 31 August 2012. The petitioner has therefore been eligible to be
considered for parole since the expiry of that part on 30 August 2017. However, the Parole
Board for Scotland (“the Board”) may not direct his release unless satisfied that it is no
longer necessary for the protection of the public that the petitioner should be confined. The
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2
petitioner contends that the Board is unlikely to be so satisfied unless and until the Scottish
Ministers (the first respondents) prepare what the petition describes as a community facing
risk management plan; failing which, until Glasgow City Council (the second respondents)
prepare, again adopting the terminology of the petition, a robust risk management plan;
and that the continuing failure of those bodies to produce such plans is unlawful, and a
breach of his rights in terms of articles 5 and 14 of the European Convention of Human
Rights. He seeks various orders (set out more fully at paragraph [28] below) in redress. The
petition is opposed by the first respondents, the basis of their opposition being, in summary,
that the risk management plan which has been prepared in respect of the petitioner complies
with the law; that neither the court, nor the Board, can dictate the content of the plan; that no
further plans need, or should, be produced; and that none of the petitioner’s complaints of
unlawfulness or unfairness is well founded. The second respondents also oppose the
petition, in their case principally on the ground that they owe no duties to the petitioner.
The Board and the Risk Management Authority (the “RMA”) have also lodged answers to
the petition, as third and sixth interested parties respectively. A substantive hearing took
place before me on 17 August 2020 by Webex video link. No evidence was led, although
reference was made during the hearing, without objection, to an affidavit by Deirdre
O’Reilly, of the second respondents, the terms of which were not disputed by the petitioner.
Background
[2] The petitioner was convicted in the sheriff court of assault to severe injury and
danger of life; assault to injury (x 4); and assault to injury and danger of life. The assaults
were committed against two former partners. His record of previous convictions included
two assaults in respect of which he had been the subject of an extended sentence totalling
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eight years. The gravity of the offences on this occasion was such that the case was remitted
to the High Court for sentence, resulting in the imposition of the OLR. The opinion of the
risk assessor was that the risk to the safety of the public at large of the petitioner being at
liberty was high.
[3] On 6 December 2019, the Board directed the petitioner’s release. The minutes of the
Tribunal Hearing which took place on that date state that the Board was satisfied that it was
no longer necessary for the protection of the public that the petitioner should be confined.
Various licence conditions were attached. The petitioner was released on 9 December 2019.
[4] His freedom was short-lived. The Board’s decision appears to have taken other
agencies by surprise, to say the least, and a so-called breach report (although the petitioner
had not in fact breached his licence conditions) dated 9 December 2019 was submitted to the
Board by the second respondents, requesting the Board to consider recall. In section 6 of the
breach report, under the heading “Circumstances and details of the breach and licence
conditions that have been broken”, it was stated that the petitioner had been released:
“…without a forward facing community risk management plan being in place to
adequately meet critical elements of Supervision, Monitoring, Intervention and
Victim Safety Planning.”
The report went on to state:
“until this plan is compiled and approved by the [RMA] – it is assessed that he
currently poses an unmanageable risk in the community.”
A panel of the Board considered the breach report on 12 December 2019. The minute of the
resultant decision noted, at paragraph 13, the terms of the report. The minute further
recorded, at paragraph 14, that the Board had received intelligence on the petitioner in terms
of rule 6 of the Parole Board (Scotland) Rules 2001 that may impact upon his risk. The Board
went on to recommend recall because, on this occasion, it was not satisfied that such risk as
the petitioner posed could be safely managed in the community. In reaching that decision,
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the panel of the Board made clear that the decision was based not on the proposition in the
breach report that the petitioner was unmanageable in the community (paragraph 27), but
on the rule 6 intelligence (paragraph 29). The first respondents subsequently revoked the
petitioner’s licence and he remains in custody. The petitioner does not challenge the Board’s
decision of 12 December 2019 and accepts that his release falls to be considered again de
novo.
The statutory framework
[5] At this stage it is helpful to note the various statutory provisions which are relevant
to the petitioner’s situation.
Section 210F of the Criminal Procedure (Scotland) Act 1995
[6] The OLR was imposed on the petitioner in terms of section 210F of the Criminal
Procedure (Scotland) Act 1995. Such an order constitutes a sentence of imprisonment (or
detention) for an indeterminate period: section 210F(2). The High Court must make an OLR
where on the balance of probabilities the risk criteria are met: section 210F(1). The risk criteria
are defined in section 210E as being that the nature of, or the circumstances of the
commission of, the offence of which the convicted person has been found guilty either in
themselves or as part of a pattern of behaviour are such as to demonstrate that there is a
likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological
well-being, of members of the public at large. Those criteria were satisfied in relation to the
petitioner.
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5
The Criminal Justice (Scotland) Act 2003
[7] Where a prisoner is subject to an OLR, various provisions in Part 1 of the Criminal
Justice (Scotland) Act 2003 (“the 2003 Act”) apply. In particular, he must be the subject of a
risk management plan. Section 6, insofar as it is material to this case, provides:
“6 Risk management plans
(1) A plan (a “risk management plan”) must be prepared in respect of—
(a) any offender who is subject to an order for lifelong restriction made under
section 210F (order for lifelong restriction) of the 1995 Act; and
(b) …
(2) …
(3) The risk management plan must—
(a) set out an assessment of risk;
(b) set out the measures to be taken for the minimisation of risk, and how
such measures are to be co-ordinated; and
(c) be in such form as is specified under subsection (5).
(4) The risk management plan may provide for any person who may reasonably be
expected to assist in the minimisation of risk to have functions in relation to the
implementation of the plan.”
[8] The RMA is established under section 3 of the 2003 Act for the purpose of ensuring
the effective assessment and minimisation of risk in terms of section 6(3). It has a statutory
duty under section 4 of the 2003 Act to monitor and keep under review information,
research and development in relation to the assessment and minimisation of risk. Section 5
of the 2003 Act requires the RMA to prepare and issue guidelines as to the assessment and
minimisation of risk and standards to which measures are to be judged. It has duly issued
standards and guidelines in the published document Standards & Guidelines for Risk
Management 2016. This document contains detailed guidance as to what is expected of a risk
management plan, the considerations to be taken into account in assessing risk and how
proportionate measures to manage the risk should be identified.
[9] The preparation of a risk management plan, where an offender is serving a sentence
of imprisonment, is carried out by the Scottish Ministers in accordance with section 7(1) of
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the 2003 Act. When the offender’s imprisonment comes to an end, the risk management
plan becomes the responsibility of the local authority in whose area the offender resides, in
accordance with section 7(3). For the purposes of the 2003 Act, the authority who is
responsible from time to time for the risk management plan is referred to as the lead
authority. Thus, in the present case, the first respondents are the lead authority, and they
currently have responsibility for the risk management plan. If and when the petitioner is
released, but not before then, the second respondents will become the lead authority.
[10] When the risk management plan has been prepared by the lead authority it must be
submitted to the RMA under section 8(4) of the 2003 Act. The RMA must then consider the
risk management plan and either approve it, or reject it if it does not comply with the
requirements of section 6(3) or if it disregards any guidance or standard published by the
RMA. If a plan is rejected, the lead authority must revise it and resubmit it to the RMA
under section 8(5). Where the RMA is still not satisfied with the risk management plan, it is
able to direct the person responsible for the plan (or those with functions under the plan),
and those directions must be complied with in accordance with section 8(6) (subject to a
right of appeal to the sheriff).
The Prisoners and Criminal Proceedings (Scotland) Act 1993
[11] The release of a prisoner subject to an OLR is regulated by section 2 of the Prisoners
and Criminal Proceedings (Scotland) Act 1993 (“the 1993 Act”), which, insofar as material,
provides:
“2.— Duty to release discretionary life prisoners.
(1) In this Part of this Act “life prisoner” except where the context otherwise requires,
means a person—
…
(ab) who is subject to an order for lifelong restriction in respect of an offence;
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…
and in respect of whom the court which sentenced him for that offence made
the order mentioned in subsection (2) below.
…
(2) The order referred to in subsection (1) above is an order that subsections (4)
and (6) below shall apply to the life prisoner as soon as he has served such part of his
sentence (“the punishment part]”) as is specified in the order, being such part as the
court considers appropriate to satisfy the requirements for retribution and deterrence
taking into account—
(a) the seriousness of the offence, or of the offence combined with other
offences of which the life prisoner is convicted on the same indictment as that
offence;
(b) any previous conviction of the life prisoner;
…
(4) Where this subsection applies, the Secretary of State shall, if directed to do so by
the Parole Board, release a life prisoner on licence.
(5) The Parole Board shall not give a direction under subsection (4) above unless—
(a) the Secretary of State has referred the prisoner's case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the
public that the prisoner should be confined.”
[12] Section 26B of the 1993 Act further provides that the Board shall, whenever it is
considering the case of a person in respect of whom there is a risk management plan, have
regard to that plan.
Social Work (Scotland) Act 1968
[13] Section 27(1) of the Social Work (Scotland) Act 1968 (“the 1968 Act”), insofar as
material, provides:
“27.— Supervision and care of persons put on probation or released from prisons
etc
(1) It shall be a function of every local authority under this Part of this Act to
provide a service for the following purposes, that is to say—
…
(ac) the provision of advice, guidance and assistance for persons who are in prison
or subject to any form of detention and who -
(i) resided in their area immediately prior to such imprisonment or
detention; or
(ii) intend to reside in their area on release from such imprisonment or
detention,
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and who on release…, it appears to the local authority, will be required to
be under supervision…
…
(ae) making available to the Scottish Ministers such background and other reports
as the Scottish Ministers may request in relation to the exercise of their functions
under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993..;”
[14] Thus, section 27(1)(ae) requires the second respondents to provide the first
respondents with such background and other reports as the first respondents may request.
The petitioner’s risk management plan
[15] A risk management plan has been prepared by the first respondents in respect of the
petitioner, as required by section 6 of the 2003 Act. It is reviewed from time to time, the
most recent plan being dated 17 April 2020. That plan was approved by the RMA on
23 April 2020. The plan assesses the petitioner as being a medium risk of offending whilst in
custody, and a high risk of committing violence if released to the community without
appropriate community testing or risk management plans in place. It also assesses him as a
medium risk of committing further intimate partner violence whilst in custody and a high
risk of recidivism in this area should he be released to the community without appropriate
testing and in the absence of a release risk management plan in place. The plan observes
that there is no such plan in place as neither the lead authority nor CBSW (Community
Based Social Work) believe the petitioner’s risk to be currently manageable in the
community on release and have recommended a staged and gradual approach to increased
community access. The lead authority and CBSW also agree that a period of three months
would be required to amend the current plan for strategies to be identified and implemented
that would sufficiently mitigate the risks should he be released. The plan sets out numerous
activities to be undertaken to manage the petitioner’s risk, all within a custodial setting. As
regards contingency planning should the petitioner be released, the plan states that an
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emergency MAPPA meeting should be held to identify interim strategies, whilst social work
liaise with the RMA to agree a time-frame for the creation of an amended community risk
management plan.
The Parole Board for Scotland
[16] The Board is a Tribunal non-departmental public body which exists under the
provisions of the Prisons (Scotland) Act 1989, the 1993 Act, the Convention Rights
(Compliance) (Scotland) Act 2001 and the 2003 Act. It is a judicial body which is
independent of the Scottish Government and impartial in its duties: see Brown v Parole Board
[17] Tribunals of the Board are Article 6 compliant by virtue of the Convention Rights
(Compliance) (Scotland) Act 2001, the Prisoners & Criminal Proceedings (Scotland) Act 1993,
as amended, and the Parole Board (Scotland) Rules 2001 (“the Rules”).
[18] As has been seen from section 2(5)(b) of the 1993 Act, the Board will grant parole to a
prisoner subject to an OLR if it considers that it is no longer necessary for the protection of
the public that the prisoner should be confined.
The Parole Board (Scotland) Rules 2001
[19] The Rules, as amended, set out the matters which may be taken into account by the
Board in considering references by the Scottish Ministers. Rule 5 provides, insofar as
material:
“5.— Scottish Ministers' dossier
(1) Subject to paragraph (2) and rule 6 … the Scottish Ministers shall send to the
Board and to the person concerned a dossier containing any information in writing or
documents which they consider to be relevant to the case, including, wherever
practicable, the information and documents specified in the Schedule to these Rules.”
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10
Paragraph 7 of the Schedule specifies:
“Up to date reports by those involved in supervising, caring for, or counselling the
prisoner on the prisoner’s circumstances (including home background) and
behaviour and on his or her suitability for release, or as the case may be, re-release on
licence.”
[20] Rule 8 provides that the Board may take into account any matter which it considers
to be relevant, including any of the following matters:
“(a) the nature and circumstances of any offence of which that person has been
convicted or found guilty by a court;
(b) that person’s conduct since the date of his or her current sentence or sentences;
(c) the risk of that person committing any offence or causing harm to any other
person if he or she were to be released on licence, remain on licence or to be re-
released on licence as the case may be; and
(d) what that person intends to do if he or she were to be released on licence, remain
on licence or be re-released on licence, as the case may be, and the likelihood of that
person fulfilling those intentions.”
[21] Rule 19 provides for a tribunal of the Board to regulate its own procedure for dealing
with a case. Rule 19(2) permits the chairman of the tribunal to give directions in respect of,
among other things, the submission of evidence.
[22] Rule 24 provides that the chairman of the tribunal may require any person to attend
to give evidence or to produce any books or other document.
The Board decisions
[23] The salient parts of the Board’s decision to recall the petitioner are set out at
paragraphs [25] to [30] of the Board’s decision minute of 12 December 2019, as follows:
“25. The Board having considered all of the above information is of the view the risks
posed by [the petitioner] cannot be managed safely in the community.
26. The Tribunal which sat on 6 December 2019 took account all of (sic) the
information before it in deciding that [the petitioner’s] risk could be safely managed
in the community. The Board must make it clear that this Panel is not reviewing that
decision.
27. Criminal Justice Services, in consultation with MAPPA, have submitted a Breach
Report stating that [the petitioner’s] risk is not manageable in the community
without a comprehensive risk management plan that has been developed and
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subsequently approved by the RMA. The Board wish to make clear that its decision
to recall is not based on this proposition.
28. It is incumbent on agencies to ensure that all relevant information is available to
Tribunals who are tasked with assessing risk and making decisions about release. It
is unacceptable that agencies who are to assess and manage offenders in the
community are unprepared for the offender’s release when they are aware that this is
a potential outcome of the Tribunal.
29. Subsequent to [the petitioner’s] release the Board have been provided with two
items of information, submitted in terms of Rule 6 of [the Rules], that may affect his
risk level. This information does not seem to have been available to the Tribunal
which directed release. This information is significant, and has led the Board to
conclude that [the petitioner’s] risk cannot be managed safely in the community.
30. The Board would observe that it is unclear why this information was not
provided in advance of the Tribunal which directed release. All agencies should
ensure that information which bears on risk and public protection are available to the
judicial body tasked with making these decisions, before any decision is made.
However, the Board have to have regard to this information, and its responsibilities
to protect the public, and accordingly recommend revocation of [the petitioner’s]
licence and his immediate recall to custody.”
[24] A Preliminary hearing of a Tribunal of the Board took place on 27 April 2020 when
evidence was led from Alistair Findlay, community based social worker, as to what
community-based support would be available for the petitioner should he be released. The
hearing was adjourned until June 2020, the Minute of 27 April also recording that:
“The Board also require an updated Risk Management Plan which refers to how [the
petitioner’s] risks can be managed in the community.”
[25] The next significant hearing took place on 13 July 2020, at which the petitioner’s
solicitor moved the Board to make a direction that the first respondents should produce a
community facing risk management plan. In support of this motion, the solicitor relied
upon rules 19(2)(d) and 19(3)(b) of the Rules. The Board held that rule 19(2) should be
interpreted in the ordinary sense of producing documents already in existence or that would
be expected to be in existence. The Board noted that it had heard from witnesses who were
consistent in their view that a community facing risk plan could not be prepared.
Accordingly the Board declined to make the order sought by the petitioner. That decision is
not the subject of challenge.
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[26] The petitioner’s solicitor then wrote to the Board by letter dated 27 July 2020, posing
various questions as to how the Board might be willing to proceed. In response, the Board
stated in an email dated 29 July 2020:
“Given that [the petitioner is an OLR] prisoner, the Board would prefer to see a
community facing risk management plan in place prior to consideration of [his]
release. However, in the event that this is not available, the Board would expect to
see a robust risk management plan produced which outlines in detail how all
identified areas of risk will be managed in the community.”
[27] Yet another hearing took place before the Board on 10 August 2020, when the
petitioner’s solicitor moved the Tribunal to direct the second respondents to produce a
robust risk management plan outlining in detail how all identified areas of risk will be
managed in the community. That request was made in terms of rule 19(2)(d) and 19(3)(b) of
the 2001 Rules. That motion has been continued until 8 September 2020 and remains
outstanding. The panel of the Board stated in its decision that it required to hear evidence
from Deirdre O’Reilly of the second respondents as to whether such a management plan can
be produced and the format of such a plan.
The orders sought
[28] The petitioner seeks the following orders against the first respondents: (a) reduction
of the decision of 17 April 2020 insofar as it refused to commission a “community-facing”
risk management plan; (b) declarator that the first respondents are acting unlawfully by
failing to commission such a plan; (c) declarator that the first respondents’ failure to
commission such a plan is a breach of the petitioner’s rights in terms of article 5 et separatim
article 5 taken with 14 of the European Convention of Human Rights; and (d) an order
ordaining the first respondents to commission a “community-facing” risk management plan.
In the event that none of the foregoing orders is granted, he seeks the following orders
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against the second respondents (retaining the lettering in the petition): (e) declarator that the
second respondents are acting unlawfully by failing to create a robust risk management
plan; (f) declarator that the second respondents’ failure to create such a plan is a breach of
the petitioner’s rights in terms of articles 5 et separatim articles 5 and 14; and (g) an order
ordaining the second respondents to create such a plan in the terms provided for in the
email from the Parole Board of Scotland dated 29 July 2020.
Parties’ submissions
[29] Counsel for each party adopted the full written notes of argument which had been
lodged in process prior to the substantive hearing. These were amplified at the oral Webex
hearing. The parties’ submissions were as follows.
Petitioner
[30] The overall tenor of the petitioner’s submission was that for the petitioner to have a
fair chance of release, the Board required to have contingent information about how his risk
could be managed in the community in the event of release, and they were not being
provided with information which they were requesting. The contingency planning
currently in the risk management plan was inadequate. The continuing refusal of the first
respondents, whom failing the second respondents, to provide the information which the
Board required was unfair and unlawful.
[31] Insofar as the case against the first respondents was concerned, six distinct grounds
were advanced.
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(a) Breach of implied obligation / legitimate expectation
[32] It was an implicit representation within the second respondents’ breach report,
which contained the first mention in this case of a community facing risk management plan,
that such a plan would be forthcoming, giving rise to a legitimate expectation: cf Re
Finucane’s application for Judicial Review (Northern Ireland) [2019] HRLR 7 187, paragraphs 55
and 58. Fairness required the preparation of such a plan now.
(b) Breach of Parole Board Rules
[33] Rule 5 of the rules, read with paragraph 7 of the schedule, required up to date
reports. A community-facing risk management plan would be such a report. The failure to
produce it, when it was reasonably practicable to do so, was a breach of the Rules.
(c) Failure to comply with a requirement of Parole Board
[34] It was incumbent upon the first respondents to comply with the Board’s decision of
27 April 2020 which had required a community facing risk management plan.
(d) Procedural unfairness
[35] Procedural fairness required the commission of a community facing risk
management plan. Procedural fairness was particularly important in relation to the parole
H and Others [2004] 2 AC 134, paragraphs 11 and 13. Everyone involved in the process had a
duty to act fairly. The first respondents were in a position to produce a community-facing
risk assessment and the petitioner was not. The petitioner was being unfairly deprived of
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the opportunity that the Board have the full picture. Reference was also made to E v SSHD
[2004] QB 1044 at paragraph 66.
(e) ECHR – Article 5
[36] Article 5(4) of ECHR was engaged. It required equality of arms, which was a
paragraph 13(c). Circumstances where one party was at a significant disadvantage vis-à-vis
the presentation of evidence was a breach of the equality of arms guarantee: Ocalan v Turkey
[2005] 41 EHRR 45. The whole process was not an ordinary adversarial one. Failure to
produce the relevant evidence undermined the effectiveness of the dependence of the Board.
(f) Breach of article 5 with article 14
[37] The Supreme Court case of R (Steinfeld & another) v Secretary of State for International
Development [2020] AC 1 paragraphs 19-20 and 41-42 illustrated the correct approach. There
was a difference in treatment on the basis of status, in that different information was
provided in relation to contingency planning depending on the attitude of the first
respondents to release. OLR prisoners had a different status from other prisoners: Clift v UK
analogous situation to other prisoners seeking release on licence, including other OLR
prisoners who were considered manageable in the community. The difference in treatment
was not justified. Public policy pointed the other way. The failure to provide a community-
facing plan was a failure to treat different cases dissimilarly, resulting in discrimination.
Entirely standard home circumstance reports had been prepared anent the risks of the
petitioner which might sometimes be adequate, but, standing the particular risks assessed as
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being posed by OLR prisoners in general and the petitioner in particular, such an approach
was inadequate in the present case.
[38] Turning to the case against the second respondents, it was contingent on the case
against the first respondents failing. The second respondents had a statutory duty to
produce a robust risk management plan, by virtue of section 27 of the 1968 Act, having
regard also to the views which the Board had expressed. The existing reports had been
prepared in an unfair manner. As regards article 5 of the ECHR, counsel acknowledged that
it could be distinguished since that case concerned rehabilitation rather than release. The
second respondents were on an equal footing with the first respondents in that latter regard.
[39] Dealing with the criticisms made by the respondents of the orders sought, counsel
submitted that the orders were sufficiently precise. Neither respondents could have any
doubt as to what was meant by either a community-facing risk management plan or a robust
one. The orders sought were not futile nor were they incompetent. It should not be
assumed that the RMA would not approve a revised plan. The petitioner was not looking to
fetter the first respondents’ discretion; he simply sought information in order to have a fair
hearing before the Board. He did not need to reduce the risk management plan. The
2003 Act, properly construed, did not require that a risk management plan could not deal
with the possibility of release even where the prisoner was assessed as a high risk of harm in
the community.
First respondents
[40] Counsel for the first respondents referred in detail to the provisions of the 2003 Act.
The thrust of his submission was that the Act provides a coherent, comprehensive and fair
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system for the assessment and management of risk, which should not be undermined by the
provision of the type of satellite reports sought by the petitioner. The lawfulness, fairness,
and ECHR compatibility of the Act, the sentencing regime of OLRs and the risk
management plan itself were not challenged by the petitioner. The first respondents had a
statutory duty to apply their own specialist judgment in preparing a risk management plan
under section 6 of the 2003 Act. Their assessment of risk, and of the measures necessary to
minimise it, could not be fettered in the manner proposed, either by the Board or by the
court. The measures to minimise risk must be proportionate, that is, neither unreasonably
restrictive nor unduly lax. The plan for the petitioner had been approved by the RMA and
so by definition it was a proportionate assessment of risk. A plan which at the same time
assessed the petitioner’s risk as being unmanageable in the community, and contained
measures to manage him there, would not be one which the first respondents could properly
prepare having regard to the Act and to the guidance published by the RMA thereunder. It
was absurd to expect the first respondents to state measures to minimise the risk which they
had already ruled out as being inadequate. In any event, such a plan would not be
approved by the RMA. Accordingly the orders sought against the first respondents were
futile, and incompetent to the extent that the petitioner sought to fetter the first respondent’s
discretion. The first respondents’ conclusion that he could not be managed in the
community was unchallenged. The phrase “community-facing risk management plan” was
not one which appeared in the legislation and its meaning was unclear. Any order to
produce such a plan would be too imprecise to be enforced, even if competent.
[41] Counsel then addressed the various grounds of unlawfulness relied upon by the
petitioner, as follows.
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Legitimate expectation
[42] There had been no clear and unambiguous undertaking by the first respondents. The
only legitimate expectation the petitioner could have of the first respondents was that they
would produce a risk management plan in accordance with the 2003 Act, as they had done.
An expectation could not be legitimate if it required a public authority not to comply with
its statutory duty. The public interest did not require the production of a plan which
conflicted with the assessment of risk.
Breach of Parole Board Rules
[43] The Rules, properly construed, had not been breached. The first respondents had a
discretion as to what documents to produce, which could be impugned only on Wednesbury
grounds. No such challenge was made.
Breach of Parole Board decision of 27 April 2010
[44] On no legitimate view could paragraph 19 of the minute of 27 April 2020 be
construed as a coercive order against the first respondents to produce a community-facing
risk management plan. Any such order would be ultra vires. In any event, the Board did
not regard itself as having made a coercive order, as its minutes of 13 July 2020 and 15 July
2020 showed.
Procedural unfairness
[45] Fairness was context specific. The balance of fairness to the petitioner was struck by
the legislation under which the first respondents had to act. Their role was to produce a risk
management plan. The Board must then act fairly in its determination of the petitioner’s
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case. The Board had extensive powers, including the power under rule 24(2) to compel the
attendance of witnesses. It could accept or reject the evidence before it but the content of
that evidence was left to the integrity of the professionals presenting it. There was no
procedural unfairness.
Articles 5 and 14
[46] The petitioner’s imprisonment satisfied article 5. He was serving a sentence issued
by a competent court. He did not challenge the ECHR compatibility of a system which
withheld his release until his risk could be adequately managed in the community. The
Parole Board was entitled to reject the first respondents’ conclusion that his risk could be
managed and minimised only in prison, and to reach a contrary conclusion. There was no
discrimination. The petitioner was not in a comparable position to an individual who was
not subject to an OLR and therefore different treatment was not discriminatory: R (on the
60 and 61. Nor was the petitioner in an analogous situation to non-OLR prisoners:
Stott, supra at 155, 180, 181, 186-195 and 219. He represented a high risk of reoffending
which other prisoners did not. If the petitioner had been treated differently from someone
to whom he was in an analogous situation, then that difference was justified by the
production of a risk management plan which complied with the 2003 Act and which
identified him as posing an enhanced risk. He did not rely on a core characteristic but on
“other status”, and the further away one got from core characteristics the less justification
that was required to justify the difference in treatment. Having been identified, it was
justifiable to treat him differently from other prisoners.
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Second respondents
[47] Counsel for the second respondents submitted that the second respondents had no
power or statutory duty regarding the preparation of a risk management plan, robust or
otherwise. There was therefore no act or omission falling within the supervisory jurisdiction
of the court. An order such as the one contended for would undermine the statutory regime
governing the petitioner. In terms of section 27(1)(ae) of the 1968 Act, the second
respondents merely had a duty to produce such background and other reports as the first
respondents may request. This they had done by producing home background reports. No
obligation had been created by the email of 29 July 2020, which had not even been sent to the
second respondents. The Board could not order production of a report which did not exist
and which the prospective author said could not be prepared. A robust plan was not a
document which had any basis in statute, nor was it one which one would expect to be in
existence. In any event, how was it to be judged whether any report produced was
sufficiently robust? The second respondents’ view was that any plan that was produced
which involved the petitioner being in the community would not be a robust plan. If the
Parole Board decision was to release the petitioner, the Board could defer release for eight
weeks to give time for a revised risk management plan to be prepared.
[48] As regards procedural unfairness, no procedural unfairness flowed from the actions
of the second respondents.
[49] As regards the article 5 and article 14 grounds, article 5 was not engaged as far as the
second respondents were concerned. Even if it was engaged there was no breach of the
petitioner’s rights in terms thereof by the second respondents and no breach of his article 14
rights. Any duty to ensure equality of arms which arose did not apply to the second
respondents. They were not the arm of the state responsible for depriving the petitioner of
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liberty or reviewing his detention. Reference was made to Ansari, supra, paragraph 27.
Although that case concerned rehabilitation it was indistinguishable from the present case.
If, contrary to the foregoing submission, the second respondents did owe the petitioner a
duty, any difference in treatment was justified.
The Board
[50] Senior Counsel for the Board stressed that the Board adopted a neutral stance in
these proceedings. His submission was limited to explaining the Board’s statutory functions
and its decision making processes in connection with the petitioner. To that extent his
submission forms the basis of paragraphs [16] to [22] above, no part of which is disputed by
the petitioner. He refuted the suggestion by the second respondents that the Board had the
power to direct release but to suspend it. The Board had no such statutory power. Rather it
had to make a binary decision: was it necessary for the protection of the public that the
petitioner be confined, or not? In coming to that decision it was necessary for all the risk
assessment information to be available. After the Board had directed release, the first
respondents had a duty, in terms of section 17(4) of the 1993 Act, to implement that decision.
The Board had to act as an impartial judicial body. Its main aim was to ensure that those
prisoners who were no longer regarded as presenting a risk to public safety may serve the
remainder of their sentence in the community on licence under the supervision of a
supervising officer. It was not the responsibility of the Board to consider questions of
punishment and general deterrence. The 2001 Rules set out the matters which may be taken
into account by the Board when considering references by the Scottish Ministers. There
were no restrictions (beyond those of fairness) on the form of evidence which the Board
could consider. In addition to having regard to the statutory risk management plan it could
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have regard to oral evidence. Rule 24 gave the Board power to summon witnesses. The risk
management plan was not the only means by which risk could be assessed. The Board had
to evaluate the material placed before it and reach its own objective judicial decision: Osborn
inquisitorial. The Board was obliged to undertake a proactive role. It was not bound to
accept the first respondents’ approach. The individual members of a panel, through their
training and experience, possess or have acquired particular skills and expertise in the
Leveson P at [117] to [121]. The Board granted release only in cases where the level and
nature of risk was deemed to be manageable. This decision was informed by the evaluation
of risk assessments. The type of sentence imposed would determine both at which point in
the sentence the Parole Board will consider release and under what procedures the review
will take place. In relation to OLR prisoners, the role exercised by the Board was explained
at [94].
[51] Turning to the Board’s decisions in this case, senior counsel submitted that the
minute of 27 April 2020 could not be read as having any coercive effect. It was simply a
statement of what the tribunal required. That was reinforced by a reading of its subsequent
minutes of 13 and 15 July 2020, which made clear that no decision had been made by the
tribunal to order the Scottish Ministers to produce any particular document. The email of
29 July 2020 was likewise not an order but was also simply a statement of the information
that the Board required. If an order had been made on 27 April having coercive effect, the
entire discussion before the tribunal in July would have been otiose. In particular the
petitioner’s solicitor would not have made the motion which he did. Finally turning to the
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Board’s minute of 10 August 2020 no decision had been made as to whether the Board
would make any order directed against the second respondents. That matter has been
continued.
Risk Management Authority
[52] The essence of the submission of counsel for the RMA was that a risk management
plan was a creature of statue with a specific purpose and with specific requirements placed
upon those responsible for its creation. There was no basis in law for a so-called
community-facing risk management plan as a discrete form of risk management plan. The
Board had no power or authority to order that a risk management plan be created on any
particular basis. The content of the risk management plan was a matter entirely for the lead
authority and its risk management team, subject to the standards and guidelines published
by the RMA, and the statutory approval of the RMA. The robustness or otherwise of a risk
management plan was exclusively a matter for the RMA in the exercise of its statutory
function to consider and either approve or reject risk management plans in terms of
section 8(4) of the 2003 Act. There was no basis to suggest that a risk management plan
required (or was even permitted) to be produced which misrepresented as manageable in
the community risks which had been assessed to be unmanageable there. Counsel referred
to the terms of the 2003 Act set out above. He further referred to the Standards and Guidelines
for Risk Management 2016. These provided for a holistic and consistent approach to be taken
to the assessment of risk and the management of risk. Any measures taken had to be
proportionate. The Board was required by section 26B of the 1993 Act to have regard to the
risk management plan where one had been prepared. The phrase “have regard to” had been
judicially considered as involving a greater degree of consideration than an obligation
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simply to consult; it did not mean follow or slavishly obey, but where a decision maker
decided to depart from guidance or other material to which he was to “have regard”, clear
reasons must be given for choosing to do so: R (Governing Body of the London Oratory School)
particularly at 58. There were three distinct stages in a risk management plan. The lead
authority was responsible for assessing risk, and producing the plan. The RMA reviewed
the plan. The Board then had regard to the plan. What the petitioner sought to do was
subvert those rules and to take part of one body’s role and give it to another. There was no
basis in law for doing that. The plan did in fact contain, at page 32, a measure catering for
the possibility that the petitioner might be released, namely, to hold an emergency MAPPA
meeting. There was no lacuna. Satellite reports were not to be encouraged. They would
undermine the fully informed approach inherent in the statutory scheme. There would be a
risk of a satellite plan wrongly assessing the risk, because the author would not have access
to a full body of information. The appropriate way of assessing risk was through the
creation of a risk management plan produced in terms of the statutory scheme.
Decision
[53] Since the petitioner’s principal complaint centres on the first respondents’ continuing
failure to prepare a community-facing risk management plan, it is appropriate, as counsel
for the first respondents submitted, to begin by asking: what is a community-facing risk
management plan? That is not a term which appears in the legislation. For its genesis in the
present case one must look to the second respondents’ breach report dated 12 December
2019 which stated that the petitioner:
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“has been released without a forward facing community risk management plan
being in place to adequately meet critical elements of Supervision, Monitoring,
Intervention and Victim Safety Planning.”
The report went on to state that “[g]iven the absence of a comprehensive community facing
risk management plan for [the petitioner]”, the petitioner presented as a very high risk to
potential partners, prior victims and males both known and unknown, and that until “this
plan is compiled and approved by the Risk Management Authority – it is assessed that he
currently poses an unmanageable risk in the community.” I will revert to what one might
legitimately take from those passages later in this opinion but meantime, since the phrase
first appeared in a report by the second respondents, it is appropriate now to turn to the
affidavit of Deirdre O’Reilly, referred to above. She manages the second respondents’
community-based justice teams. Ms O’Reilly described a “community-facing plan” simply
as one which indicates that someone could be released into the community. Since the
petitioner’s risk management plan, dated 17 April 2020, states in terms that his risk of
reoffending is such that he is not currently manageable in the community, the petitioner’s
case appears, at first sight, to fail to get off the starting blocks, in the absence of any
challenge to the legality of the risk management plan itself, since he appears to be seeking an
order for a plan which, by definition, he is not ready for.
[54] Nevertheless, the background to the case is unusual, in as much as in December
2019, the Board did reach the view that the test for release was met, notwithstanding the
terms of the risk management plan as it then stood, which, as did the most recent version,
assessed the petitioner as unmanageable in the community; and setting to one side for the
moment what precisely is meant by a community-facing risk management plan, the Board
has since then made several pronouncements to the general effect that it would like to see
more information than there is currently available as to precisely how the petitioner’s risk
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would be managed in the community were he once again to be released. The first
respondents, for their part, have resolutely set their face against providing any further
information, at least in the context of a risk management plan, and there is an apparent
tension between the role of the first respondents, as lead authority, in assessing risk in a risk
management plan, on the one hand; and that of the Board, which also has to assess risk in
considering release, or re-release, on the other. The first respondents say that they cannot
state what measures in the community would mitigate risk when their view is that no such
measures would mitigate risk to a safe level. The Board has approached the problem from
the other end, as it were, by asking a slightly different question, namely: if the petitioner
were in the community, what measures could be taken to mitigate his risk? It is also true to
say that it is the Board, not the first respondents, who are the ultimate arbiters as to whether
or not the petitioner should be released.
[55] However, it does not follow that the petitioner is entitled to the orders sought.
Before considering the specific grounds relied upon by the petitioner, it is germane to
remind ourselves that the lawfulness and fairness of his continued detention are
determined, and assured, by the statutory provisions set out above. The OLR to which he is
subject was imposed in order to protect the public from the high risk which he posed. In
terms of section 210F, the court had no option other than to impose that sentence once the
risk criteria were met. The risk management plan to which he is subject was drawn up, and
is regularly reviewed, under the 2003 Act having regard to the risk management principles
and guidance devised by the RMA. The most recent version has been approved, as previous
versions have been, by the RMA. It assesses that the petitioner’s risk cannot safely be
managed in the community. The measurements to address his risk, including his
continuing imprisonment, must be considered to be proportionate by the first respondent
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and the RMA. His continued imprisonment is reviewed by the Board, which must have
regard to the risk management plan. While they are not obliged to follow it, they must give
reasons should they choose to depart from it: R (Governing Body of the London Oratory School)
element in the statutory regime for managing the petitioner’s risk and protecting the public.
In the performance of its role in considering the petitioner’s risk, and the requirement to
have regard to the plan, the Board has extensive powers to compel evidence to be led before
it and to question witnesses. However, the Board has no power to specify what the plan
should contain, and such a power would run counter to the statutory regime. Neither the
foregoing system, nor any decision of the Board to date, nor the risk management plan itself,
is challenged by the petitioner. This is the prism through which the grounds upon which
this petition is based, particularly those of legitimate expectation, unfairness and
contravention of his ECHR rights, fall to be considered. I therefore now turn to consider
those various grounds.
Legitimate expectation
[56] The authorities on legitimate expectation, and when such an expectation may arise,
were considered by Lord Kerr in Finucane, supra, at para [62]:
“From [the] authorities it can be deduced that where a clear and unambiguous
undertaking has been made, the authority giving the undertaking will not be
allowed to depart from it unless it is shown that it is fair to do so. The court is the
arbiter of fairness in this context. And a matter sounding on the question of fairness
is whether the alteration in policy frustrates any reliance which the person or group
has placed on it.”
Lord Kerr went on to add that it was not a prerequisite of a substantive legitimate
expectation claim that the person relying on it must show that they had suffered detriment.
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[57] Applying that to the present case, the questions which arise are: first, has there been
a clear and unambiguous undertaking by the first respondents that a community-facing risk
assessment will be prepared? Second, if so, is it fair to allow them to depart from it? Third,
does the first respondents’ refusal to prepare a community-facing risk management plan
frustrate any reliance which the petitioner may have placed on any undertaking given?
[58] None of these questions fall to be answered in the petitioner’s favour. Not only can
the first respondents, as lead authority responsible for the creation of the risk management
plan, not be held bound by any undertaking given by the second respondents, nothing in the
breach report submitted by the second respondents can be regarded as a clear and
unambiguous undertaking that a community-facing risk management plan (or a
community-facing risk assessment) would be produced. Read as a whole, the report does
not so much state that a community-facing risk assessment should now be produced, but
that the petitioner should not be released until such time as the risk management plan is
“community-facing” – that is, until such time as the risk management plan assesses that the
petitioner can safely be managed in the community. That stage has not yet been reached.
[59] Turning to the meaning of the breach report, the first section of that report, set out in
paragraph [4] above, simply records as a fact that the petitioner had been released without a
community-facing risk management plan being in place; and the second part appears after a
section making clear that the petitioner’s risk should continue to be addressed, in the
immediate future, in a custodial setting. Since the breach report also refers to the need for
the plan to be approved by the RMA, the only legitimate expectation that could be taken
from it is that the petitioner’s risk management plan would continue to be reviewed in
accordance with statutory procedures and guidance. That being so, there is no question of
any unfairness. There is nothing unfair about the petitioner’s release being considered by
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the Board having regard (as it must) to the terms of a risk management plan which has been
drawn up and reviewed in line with procedures which are not themselves challenged as
being unfair and which are designed to ensure that all measures which are taken to address
the risk which the petitioner (admittedly) poses are proportionate, that is, neither
unreasonably restrictive nor unduly lax. Finally, there can in any event have been no
reliance by the petitioner on the terms of the breach report since the Board, in
recommending his recall, made clear that their decision in that regard was not based on the
absence of a community-facing risk management plan.
[60] The petitioner’s challenge on this ground must therefore fail.
Breach of Parole Board Rules
[61] This ground can be disposed of shortly. Rule 5 requires the preparation of a dossier
containing, read short, any information which the first respondents consider to be relevant,
including, where practicable, the information and documents specified in the schedule.
Paragraph 7 of the schedule specifies up to date reports by those involved in supervising,
caring for, or counselling, the prisoner on the prisoner’s circumstances (including home
background) and on his behaviour and on his or her suitability for release. As counsel for
the first respondents submitted, that leaves the question of what is to be included in the
dossier for the discretion of the first respondents and there is no challenge to the exercise of
that discretion on Wednesbury grounds. There is a further qualification conferred by the
words “wherever practicable” but in any event, the first respondents have provided up to
date reports which do comment on the petitioner’s suitability for release, the comment being
that he is unsuitable. It would be absurd were the Rules to provide that a report must state
that a prisoner is suitable for release when, in the opinion of the author of the report, he is
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not; and the Rules do not so provide. The petitioner argued that a community-facing risk
management plan would be a report in the terms specified in the rule, and so it would, but
so equally is a plan which states that the petitioner is not safe to be released into the
community.
[62] Accordingly, I reject the argument that the Rules have been breached because of the
fact that the plan does not assess the petitioner’s risk in the community, when he is assessed
as unsuitable for release. The petitioner’s challenge on this ground must also fail.
Breach of an order of the Parole Board
[63] The only pronouncement, to use a neutral term, of the Board which might
conceivably be construed as an order having coercive effect, is that of 27 April 2020, when
the Board stated that it “required” an updated risk management plan setting out how the
petitioner’s risks might be managed in the community. Senior counsel for the Board
submitted that this was not so much a coercive order as a statement of what the Board
required, although that submission might be thought to give rise to the conundrum: when is
a requirement not a requirement? If the Board was merely making a request for
information, it is perhaps unfortunate that a word implying some sort of coercion was used.
I am also not persuaded by the further submission for the Board that an order can properly
be construed by having regard to subsequent minutes, nor for that matter by the fact that the
petitioner’s solicitor made a subsequent motion which he would not have had to do had
there already been a coercive order in place: it is not uncommon for motions to be refused as
unnecessary. Nonetheless, while the meaning of the minute of 27 April 2020 may be
shrouded, if not in mystery, then in a degree of uncertainty, I have concluded that it did not
have the effect of obliging the first respondents to prepare a community facing risk
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management plan. I reach that view for a number of reasons. First, no motion for a coercive
order had been made on that occasion. Second, had the Board intended to ordain the first
respondents to produce an amended plan, one might expect to have seen that expressed
more clearly rather than in what almost appears as a throw-away remark after a sentence
stating when the next hearing should be. Third, and most compellingly, it is clear from the
scheme of the legislative provisions and from what I have said earlier, that the Board has no
input to the content of a risk management plan. That is not its function. It may query the
plan, but it cannot insist upon a revised plan. I do not consider that the Board would have
intended to make an order which it had no power to make; but even if it did, such an order
would be ultra vires.
[64] The petitioner’s challenge on this ground also fails.
Procedural unfairness
[65] Counsel for the first respondents described this ground as delphic but as the
argument came to be developed, I understand it to be as follows. Procedural fairness is
integral to the parole process. It is incumbent upon all parties involved, including the first
respondents, to ensure that the process is fair. The first respondents’ decision not to
produce a community-facing risk management plan is unfair because (a) it reduces the
chances of the petitioner being released and (b) the petitioner is not in a position himself to
commission such an assessment.
[66] It is of course a given that the Board’s proceedings and procedure must be fair.
relevance to the present case are the first two of three preliminary matters regarding
procedural fairness which Lord Reed dealt with at paragraphs 64-72. The first is that it is for
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the courts, not the Board, to determine whether the procedure followed was fair.
Accordingly, this court would be entitled to intervene should it conclude that the procedure
has been unfair. However, the second is that the purpose of procedurally fair decision
making is, first, that it is liable to result in better decisions by ensuring that the decision
maker receives all relevant information and that it is properly tested (paragraph 67). Two
other important values are also engaged, viz., first, the avoidance of the sense of injustice
which the person who is the subject of the decision will otherwise feel and, second, the rule
of law: procedural requirements that the decision maker should listen to persons who have
something relevant to say promote congruence between the actions of the decision maker
and the law which should govern their actions.
[67] At paragraph 90 Lord Reed also observed that it was fundamental to procedural
fairness that the Board must be, and appear to be, independent and impartial. Its function is
to evaluate the material placed before it and reach its own objective judicial decisions with
no predisposition to favour the official view of events or the official risk assessment over the
case advanced by the prisoner.
[68] It may indeed be, as counsel for the petitioner submitted, that fairness is an
may change over time, although it is hard to see how that truism assists the petitioner in this
case, since practices which were fair in the past may equally continue to be fair by modern
standards. I can also accept the petitioner’s submission that all those involved in the process
must act fairly in a procedural sense.
[69] That said, I confess that it is not clear to me how the petitioner’s case could ever be
one of procedural unfairness. One can easily see how, in different circumstances, procedural
unfairness might arise from a plan not being disclosed, or inadequate opportunity being
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given to challenge it, but that is a far cry from saying that procedural unfairness can arise
from the content of a plan with which the petitioner happens to disagree. Nonetheless, one
any unfairness may give rise to a ground for a decision to be overturned, and in that case the
Court of Appeal held that a mistake as to an existing fact could give rise to unfairness if the
mistake were uncontentious and instantly verifiable, at least in a situation where the parties
shared an interest in co-operating to achieve the correct result, as is the case here.
[70] That said, there is no question of the risk management plan in this case giving rise to
unfairness in that sense either, since it is not alleged that the plan contains any mistakes.
However, out of deference to the petitioner’s argument, rather than getting caught up in a
debate as to whether any unfairness is procedural or not, I will simply address the broader
question of whether there has been unfairness at all (bearing in mind Lord Reed’s comments
that the overall purpose of fairness is to ensure better decision making).
[71] Even on this wider approach, it is impossible to identify any unfairness. Not only
has nothing been said to impugn the fairness of the Board’s procedure in any way, but the
premise underlying the petition, that the petitioner’s chances of release are diminished by
the absence of a community-facing risk management plan, does not bear scrutiny, standing
the requirement on the Board to act impartially and without any predisposition towards the
plan. The Board has already shown that it is not prepared simply to take the plan at face
value and that it wishes further information as to how the petitioner would be managed in
the community were he to be released. That is information which the Board is well able to
seek outwith the confines of a risk management plan, and its rules permit it to obtain such
evidence. As I have said, the petitioner’s complaint at heart is that he disagrees with the
content of the risk management plan insofar as it does not contain a community-facing risk
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management assessment, but in no sense can that be said to be unfair. On the contrary, the
plan having been prepared in accordance with the 2003 Act and been approved by the RMA
and being kept under constant review, is quintessentially fair not only to the petitioner but
to the public. There is nothing in the Rules or the guidance which requires a risk
management plan to contain measures which, in the view of the lead authority, are
inadequate to mitigate the prisoner’s risk. Again, it is pertinent to note that the petitioner
does not challenge the conclusion of the plan that he continues to present a high risk of
violent offending, which risk cannot be managed in the community. That being the honest
view of the authority responsible for preparing the plan, it simply cannot be said that the
plan, as it stands, is likely to lead to a less good decision than if the further plan desiderated
by the petitioner were available. On the contrary, it might well be said, as the first
respondents, and sixth interested party do say, that to provide a satellite plan would
undermine the decision making process since such plans would not be prepared in
accordance with the guidelines and would not be based on the full information which of
necessity goes into the preparation of the statutory risk management plan. Stated shortly, a
community facing risk management plan would not in the circumstances of this case result
in the Board having better information, but might result in its having less reliable
information which conflicted with the risk management plan. The petitioner cannot
properly feel any sense of injustice if no community facing risk assessment is produced. A
sense of injustice cannot be conflated with disagreement with, or a sense of grievance caused
by, the conclusions of a risk management plan prepared in accordance with the law. Finally,
I stress that while it is relevant for the Board to know, and have regard to, the first
respondents’ view of risk as it is expressed in the risk management plan, they are not bound
to follow that view. The Board not only has the power, but has a duty, to act impartially and
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35
independently of the first respondents, to question the plan and to seek such further
information as it deems appropriate. It may cite such witnesses as it deems necessary to
enable it to discharge its duties. There is no reason to suppose that the Board will fail in that
duty. Indeed, its various pronouncements since April would strongly suggest the opposite.
For all these reasons, I have concluded that there has been no unfairness, procedural or
otherwise, and this ground of challenge must also fail.
Articles 5 and 14 of ECHE
[72] It is convenient to deal with these grounds together. There is no dispute that article 5
is engaged. It provides, insofar as material:
“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.”
[73] Article 14 provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Dealing swiftly with the petitioner’s case that article 5 standing alone has been breached, he
has not shown any relevant grounds in support of that assertion. The alleged lack of
equality of arms is essentially founded on the same factors as were prayed in aid in support
of the procedural unfairness ground and must fail for the same reasons. There is no
inequality of arms. Such inequality cannot arise from the submission of a plan with which
the petitioner disagrees. The process is not adversarial but, as already noted, the Board has
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36
the power to compel witnesses to attend and to give evidence. Such witnesses may be
questioned by the petitioner. The petitioner’s continued detention is in accordance with
procedures prescribed by law and which are article 5 compliant. There is no stand-alone
breach of article 5.
[74] However, the article 14 argument deserves closer scrutiny. The correct approach to
an article 14 claim was described by Lady Black at paragraph 8 of her judgment in R (on the
treatment to amount to a breach of article 14 it is necessary to establish four elements, viz:
(1) the circumstances must fall within the ambit of a convention right; (2) the difference in
treatment must have been on the ground of one of the characteristics listed in article 14, or
“other status”; (3) the claimant and the person who has been treated differently must be in
analogous situations; and (4) objective justification for the different treatment will be
lacking. As Lady Black observed, it is not always easy to keep the third and the fourth
elements entirely separate. In some cases the court may focus on whether the situations are
analogous; in others, upon the question of justification.
[75] Here, there is no dispute as to ambit, nor does there appear to be any dispute that the
petitioner is treated differently from other classes of prisoner, although whether that
difference can properly be described as “a failure to provide evidence about possible
release” as the petitioner does in his note of argument, or is more properly described as
being subjected to a regime whereby he may be released only when he is deemed to be
manageable in the community, is perhaps a moot point. Be that as it may, there is no
dispute, either, that the difference in treatment, however it is described, is due to the
two issues which are in dispute are whether the petitioner can be said to be in an analogous
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position to other prisoners, and whether the difference in treatment can be justified. The
petitioner argues that as an OLR prisoner he can be compared to other classes of prisoner, or
to other classes of indeterminate sentence prisoners or to other classes of prisoner who
require to be considered by the Parole Board before release, or even to other OLR prisoners
who are considered manageable in the community.
[76] The short answer to that last proposed comparator group is that even if they are
treated differently, they do not have a different status from the petitioner, and even if they
did, the difference could easily be justified on the self-evident basis that the one group was
manageable in the community and the other group not. In relation to the other suggested
comparators, while the point in issue in this case is not the same as that which arose for
decision in Stott, the same principle applies, namely that prisoners serving sentences under
different sentencing regimes are not in an analogous situation. Prisoners who are serving an
OLR are subject to a different sentencing regime from each of the proposed classes of
prisoner suggested by the petitioner and accordingly are not in an analogous situation.
Even if they could be regarded as analogous, the non-provision of information regarding
management in the community is justified by having regard to the need for public safety
and the prevention of disorder and crime.
[77] This ground must therefore also fail.
[78] For completeness, even had I found in favour of the petitioner in respect of any of the
grounds advanced in relation to his case against the first respondents, I would not have
granted an order ordaining the first respondents to commission a community-facing risk
management plan as craved, since I agree with counsel for the first respondents that such an
order would amount to an unlawful fettering of the first respondents’ discretion as to the
content of a risk management plan. If I had detected any error in the first respondents’
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approach, the appropriate course would have been to remit the matter to them for
reconsideration. However, I would not have accepted that any order would necessarily
have been futile or provided no practical purpose since I do not consider that it could be
assumed at this stage, as was argued by counsel for the first respondents, that the Risk
Management Authority would necessarily have rejected any amended plan which might
have been submitted to them for approval. As regards specification, although the term does
not feature in the legislation, all parties appear agreed as to what a community-facing risk
management plan is, and it is not lack of specification which dissuades me from granting the
orders sought against the first respondent.
[79] However that leads on to the case against the second respondents, to which I must
now turn.
[80] The first and most obvious difficulty is that, in contrast to the term
community-facing risk management plan, the term “robust risk management plan” is utterly
devoid of specification. It would be impossible for the second respondents or indeed the
court to know whether a plan was sufficiently robust to meet the requirements of an order to
produce one. Further, such an order would arguably be futile since the second respondents
are of the view that a robust risk management plan, as desiderated by the petitioner, is one
which involves the petitioner remaining in custody.
[81] The case against the second respondents was advanced only upon receipt of the
Board’s email of 29 July 2020. However as counsel for the second respondents submitted,
that did not give rise to any enforceable obligation vis-à-vis the second respondents, not
least as it is neither a decision of the Board nor was it communicated directly to the second
respondents. Moreover the orders sought against the second respondents are
fundamentally misconceived in so far as they seek the creation of a risk management plan.
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For the reason submitted by the Risk Management Authority such a plan would undermine
the legislative purpose of the 2003 Act as regards the creation, approval and review of a risk
management plan for an OLR prisoner. It is a function of the first respondents as lead
authority to prepare a risk management plan; the function of the RMA to approve or reject
the plan; and for the Board to then have regard to it. The creation of a separate plan by a
local authority would serve only to confuse, and potentially undermine, the risk
management plan, which is an integral part of the statutory regime.
[82] The 1968 Act cannot be construed as imposing an obligation on the second
respondents to prepare or provide a risk management plan. Their sole obligation in terms of
the provision of information is to provide the first respondents with such background and
other reports as the first respondents may request, in terms of section 27(1)(ae), which the
second respondents have done. The petition, insofar as it is founded upon breach of duty by
the second respondent, is therefore irrelevant. It is unnecessary to deal again with
procedural fairness, but for completeness the reasons for rejecting that argument insofar as it
is relied upon in relation to the first respondents apply with at least equal force in relation to
the case against the second respondents.
[83] As regards the human rights aspect of the orders sought against the second
in all material respects from the present case. Although that case concerned rehabilitation,
there, as here, it was the Scottish Ministers on whom the duty to rehabilitate was incumbent,
the corresponding duty here being to prepare a risk management plan. Even if obligations
were incumbent on the second respondents by virtue of article 5 and 14, the case against
them on those grounds would fall to be rejected for the reasons set out above in paragraphs
[72] to [76].
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Conclusion
[84] I will therefore repel the petitioner’s pleas-in-law. I will sustain the first respondents’
first and third pleas-in-law; the second respondents’ first plea-in-law; and the sixth
interested party’s first plea-in-law. Since the third interested party professed to be seeking
no particular order, I will neither sustain nor repel its plea in law. Thereafter, I will refuse
the petition. Expenses were not mentioned by any party and I will simply reserve all
questions of expenses.