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BRIAN MORRICE AGAINST THE SCOTTISH MINISTERS [2022] ScotCS CSOH_77 (13 October 2022)
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[2022] ScotCS CSOH_77,
[2022] CSOH 77
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 77
P313/22
OPINION OF LORD WEIR
In the petition
BRIAN MORRICE
Petitioner
against
THE SCOTTISH MINISTERS
Respondents
Petitioner: Leighton; Drummond Miller LLP
Respondents: Way; Scottish Government Legal Directorate
13 October 2022
Introduction
[1]
The petitioner is a convicted life sentence prisoner. On 18 February 1974, when he
was 17 years old, the petitioner was convicted of the murder of a 9 year old boy. The
punishment part of the petitioner's sentence was fixed at 13 years and his sentence was
backdated to 5 November 1973. The petitioner remains in custody. He has served in excess
of 48 years in custody. The respondents are the Scottish Ministers. They are convened as
respondents on the basis that they have responsibility for the management of the petitioner
in custody.
2
[2]
By this petition the petitioner challenges what he contends amounts to excessive
delay in determining his application for a First Grant of Temporary Release ("FGTR") as a
necessary precursor to his temporary release into the community. The petitioner seeks
(a) declarator that the respondents have acted unlawfully by failing to make a decision in
relation to his application for FGTR; (b) declarator that the respondents' failure to make such
a decision breaches Article 5 of the ECHR, and (c) payment by way of just satisfaction for the
delay that has ensued.
The legal framework
[3]
Rule 134 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011
(SSI 2011/331) is concerned with the eligibility of prisoners for temporary release. So far as
relevant to the present proceedings it provides as follows:
"134. Eligibility of prisoners for temporary release
(1)
In this part "temporary release" means any of the forms of temporary release
defined in rule 136.
(4) Subject to paragraph (5), a life prisoner is disqualified from obtaining temporary
release unless the Governor has obtained prior consent of the Scottish Ministers.
(5) Any consent granted by the Scottish Ministers under paragraph (4)
(a)
will apply to the first grant of temporary release and any further grants of
temporary release; but
(b)
will cease to have effect if the prisoner is subsequently assigned a supervision
level other than low supervision level."
Rule 136 describes the various different forms of temporary release, which include home
leave, unescorted day release, temporary release for work and regular unescorted day
release.
3
Background
[4]
The circumstances giving rise to this petition are, at first sight, striking. The
punishment part of the petitioner's sentence expired in 1986. The petitioner has been in
prison for over 48 years. He is currently imprisoned within the National Top End ("NTE")
facility at HMP Greenock. NTE is a facility for longer term prisoners to facilitate their
progression to the more open conditions of the Open Estate. In the normal course a life
prisoner would be expected to transfer from closed conditions to NTE and thence to the
Open Estate before being released. In order to be considered for a work placement as part of
his rehabilitation into the community the petitioner would require an FGTR. On 3 August
2020, an application for an FGTR in respect of the petitioner was submitted from HMP
Greenock to the headquarters of the Scottish Prison Service. The petitioner avers that, so far
as he is aware, that application remains outstanding.
[5]
In their answers, and note of arguments, the respondents provided a factual
exposition of the circumstances of the application for FGTR submitted in respect of the
petitioner. Since its accuracy was not challenged it would be expedient to narrate what was
said. Thus:
"...An application for FGTR was made in respect of the petitioner via the Risk
Management Team (`RMT') at HMP Greenock. The application was received by the
Scottish Prison Service (`SPS') headquarters on or about 3 August 2020. The
application includes a risk assessment (`RA') and a risk management plan (`RMP').
The RA and RMP have to be agreed between the RMT and SPS HQ. The RMP also
requires to be agreed between Prison Based Social Work (`PBSW') and Community
Based Social Work ("CBSW"). When the application was first received by SPS HQ,
various clarifications were sought on aspects of the RMP and RA. On the third
occasion that the application was passed back to SPS HQ (around 16 June 2021), the
petitioner's RA had been increased to `high risk'. This prompted SPS HQ to check on
22 June 2021 that the RMP had been agreed with CBSW. It had not been and so the
input and agreement of CBSW was sought. The application was reviewed in May
2022 by the Director of Strategy and Stakeholder Engagement (`DSSE'). Had the
4
DSSE been satisfied with the application, they would have referred it to the Minister
for Community Safety and Legal Affairs (`the Minister') for their consideration. In
the event, the DSSE was not satisfied. The application has been returned to HMP
Greenock for further work to ensure that a sufficiently robust RA and RMP is [sic.]
prepared to manage the complex risks that the petitioner poses and to have the RMP
considered and approved by the RMT. Work on the RMP remains ongoing. It will
be completed as soon as practicable. Once completed, assuming the RMT is content
that the petitioner's risks are manageable on a temporary release licence, the
application will be returned to SPS HQ to review. If satisfied, SPS HQ will submit
the application to the DSSE, who will in turn, if satisfied, refer the application to the
Minister with a positive recommendation. It will then be a matter for the Minister to
decide."
[6]
On 12 January 2022 the petitioner's case was considered by the Parole Board for
Scotland. The Parole Board determined that the petitioner remained "an unacceptable risk".
It was not satisfied that it was no longer necessary for the protection of the public that the
petitioner should remain confined, and did not direct the petitioner's release. The
determination of the Parole Board is not the subject of challenge in this petition. That said,
the Parole Board is recorded as having described the delay in considering FGTR as
"excessive" and "concerning".
Submissions for the petitioner
[7]
In an address which was at once concise and candid, counsel for the petitioner relied
on a number of grounds in support of the relief sought. He submitted, first of all, that
inordinate delay constituted a stand-alone ground for review. He noted that one of the
principles of good administration adopted by the UK Parliamentary Ombudsman was that
decisions should be taken promptly. The Scottish Parliamentary Ombudsman too listed
delay as one possible basis upon which maladministration might be considered to arise. By
apparently refusing to make any decision the respondents had made de facto a decision to
5
refuse FGTR which was incapable of appeal. The rule of law was undermined if bodies
could avoid a challenge to a decision simply by not making it.
[8]
Counsel presented a separate and distinct argument that the failure to take a decision
on FGTR timeously was procedurally unfair, and the continuing delay a breach of natural
justice. Although rationality was one way in which the issue of delay could be approached
decision makers required to act rationally and fairly in any context (Osborn v Parole Board
[2014] AC 1115, paragraph [65]) fairness or natural justice was a continuously evolving
standard (R v H&C [2004] 2 AC 134, paragraph [11]). What was fair in any particular case,
or what natural justice required, would vary. In the instant case, the petitioner was a life
prisoner who was substantially "post-tariff". He had been in prison since he was 17 years
old. The decision being delayed was one which would have particularly important
consequences (cf. R v Parole Board, ex parte Bradley [1991] 1 WLR 134). In all the
circumstances the procedure adopted by the respondents relative to the application for
FGTR was unfair.
[9]
The provision of rehabilitative opportunities to post-tariff life prisoners engaged
ECHR, Article 5. Article 5 required that any interference was lawful and in compliance with
domestic law. If the delay was unlawful as a matter of domestic law, which it was, then it
was unlawful for the purposes of Article 5. To the extent that Article 5 required that
detention be not arbitrary, the petitioner required to be given a real opportunity to
rehabilitate himself through community access (Brown v Parole Board for Scotland
2018 SC (UKSC) 49). No issue of resourcing arose in the petitioner's case. Any opportunity to
rehabilitate was being undermined by the continuing failure of the respondents to take a
decision which they intend to take. The effect of the consequent delay was to render the
petitioner's detention arbitrary (Brown v Parole Board for Scotland, paragraphs [33], [45]).
6
[10]
Finally, counsel submitted that a finding that the respondents were in breach of
Article 5 was of itself insufficient and that the petitioner was entitled to the award of a
monetary payment as just satisfaction for that breach under reference to the level of award
Submissions for the respondents
[11]
In his reply counsel for the respondents expanded on the timeline so far as relating to
the application for FGTR. In doing so he acknowledged that between August 2020 and
January 2021 there was period where it appeared that the application was not being
advanced. However, on 15 January 2021 SPS HQ returned the application to HMP Greenock
for further information to be provided before it could be taken further. The application was
resubmitted to SPS HQ on 5 March 2021 and reviewed internally on 5 April 2021. On
20 May 2021 the application was referred back for further feedback from the RMT which
was duly provided on 16 June 2021. On 26 June 2021 the application was again referred
back to HMP Greenock for clarification of the Multi-Agency Public Protection Arrangements
("MAPPA") for the petitioner and a query as to whether his RMP had been agreed with
CBSW. This was in the context of the petitioner's risk of serious harm assessment having
been raised to "high". There was then further communication between SPS HQ and HMP
Greenock from July through until December 2021. In May 2022 the DSSE considered the
application and it was again returned to HMP Greenock for further work. The situation at
present was that a revised RMP had been prepared and was awaiting sign-off. An RMT
would be convened as soon as practicable thereafter with a view to the application being
reconsidered by the DSSE and placed before the Minister.
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[12]
Dealing with the petitioner's submission that inordinate delay provided a stand-
alone ground of review, counsel submitted that where a person only has a claim to a right,
as opposed to an established right, then delay will only be unlawful if it is shown to result
from actions or inactions which can be regarded as irrational (R(O) v Secretary of State for the
respondents' action (or inaction) was irrational. The time taken to address the petitioner's
case was not, in any event, irrational and his first plea-in-law should be repelled.
[13]
Turning to the submission that the respondents' treatment of the petitioner's case
was procedurally unfair, counsel submitted that it was not sufficient simply to assert
unfairness. No particular aspect of the procedure was asserted to be unfair aside from the
length of time taken to grant the application for FGTR. The requirement of fairness was an
objective question for the court, and what fairness required was context dependent
(R (Citizens UK) v Secretary of State for the Home Department [2018] 4 WLR 123). Law and
guidance provided no timescale for consideration of an FGTR application. The process of
consideration could, in theory, be straightforward; it could also be complicated and iterative.
The serious and complex risks posed by the petitioner have required an iterative process
involving HMP Greenock, SPS HQ and other agencies including social work. The process
was intended to ensure that all relevant risk-related information was considered so that a
proper decision could be taken as to whether it was safe for the petitioner to be granted
FGTR. The petitioner recognised that the respondents' internal procedure was a matter for
them. He had been kept informed of progress. The complexity of the process was
recognised by the fact that the Parole Board had noted, as recently as January 2022, that the
petitioner did not recognise the risk he still posed.
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[14]
Counsel acknowledged that a number of factors, including the Covid-19 pandemic,
had meant that consideration of the petitioner's case had taken longer than usual. However,
any delay was explicable and rational. The procedure adopted by the respondents was not
unfair. It was designed to ensure that, in due course, the Minister would be able to make an
informed decision on FGTR. Accordingly, the petitioner's second plea-in-law should be
repelled.
[15]
The key purpose of ECHR, Article 5, was to prevent arbitrary or unjustified
deprivation of liberty (McKay v United Kingdom (2007) 44 EHRR 41). To establish a violation
of Article 5 required the petitioner to surmount a high threshold, involving the
demonstration of exceptional circumstances which warranted the conclusion that his
detention had become arbitrary (Brown v Parole Board for Scotland). The circumstances of the
petitioner's application for FGTR did not come close to justifying the conclusion that his
detention had become arbitrary. The lawfulness of the petitioner's detention was considered
and approved by the Parole Board in January 2022. There were sound reasons for why a
decision in favour of FGTR had not yet been taken. Accordingly, the petitioner's pleas-in-
law anent breach of convention rights and payment of damages by way of just satisfaction
should also be refused.
Analysis and decision
[16]
The issue raised by the petitioner in this case is whether the delay in determining the
petitioner's application for FGTR is unlawful.
[17]
Dealing with the petitioner's argument that inordinate delay constituted a stand-
alone ground of review, I did not understand counsel for the respondents to argue that
delay simpliciter could never found a basis for review. Rather, his submission was to the
9
effect that, since the petitioner's complaint of delay arose not out of an established right to
be granted FGTR but a claim to a right, delay is unlawful only if it is shown to result from
action or inaction which can be regarded as irrational. He referred to the case of R(O) v
Secretary of State for the Home Department in which Garnham J considered the authorities on
unlawful delay in the context of claims made in respect of victims of human trafficking. The
court drew from those authorities the following principles:
"[89]...
(i)
Delay may be unlawful when the right in question arises as a matter of
established status and the delay causes hardship (Phansopkar).
(ii)
An authority acts unlawfully if it fails to have regard to the fact that what is
in issue is an established right rather than the claim to a right (Mersin).
(iii)
Delay is also unlawful if it is shown to result from actions or inactions which
can be regarded as irrational. However, a failure merely to reach the best
standards is not unlawful (FH).
(iv)
The court will not generally involve itself in questions concerning the internal
management of a government department (Inland Revenue Commissioners v
National Federation of Self -Employed and Small Businesses and Arbab).
(v)
The provision of inadequate resources by Government may be relevant to a
charge of systematically unlawful delay, but the Courts will be wary of
deciding questions that turn on the allocation of scarce resources (Arbab)."
[18]
In the instant case the petitioner does not have a settled or established right to be
granted FGTR. As is apparent from the terms of the affidavits submitted on behalf of the
respondents, whether an application for FGTR is granted to a prisoner in the position of the
petitioner will depend on variety of considerations arising from an assessment of the risk
still posed by him were he to be released into the community. The relevant Minister might
grant an application, or refuse one. The DSSE may (as here) decline to place an application
before the Minister without further consideration being given to that risk by the RMT, and
10
both PBSW and CBSW, and how it could be properly be managed. In these circumstances,
as with the applicant for asylum in AS v Advocate General for Scotland, the test to be applied
to determine if the delay in determining the application relating to the petitioner for FGTR is
unlawful is one of irrationality (cf. AS, paragraphs [12]-[13]).
[19]
Counsel for the petitioner contended for what he characterised as a broader
approach to the question of delay in respect that it was an element of procedural unfairness.
In considering the domestic principles of procedural unfairness in the context of decisions
by the Parole Board, the Supreme Court did not mention delay as an aspect of procedural
fairness (R(Osborn) v Parole Board, paragraphs [68]-[84]). It is not, in any event, clear to me in
the particular circumstances of this case, what an argument based on procedural fairness,
would add to the test which I find to apply based on irrationality especially if any delay in
the application process is capable of rational explanation. I did not understand the
petitioner to argue that the procedure by which FGTR applications were determined was
systemically flawed. Indeed, given the risk management issues involved, it is difficult to
decern any basis for such criticism even if it were made. Rather the petitioner's complaint is
that the respondents are taking too long to work through the procedure which is in place
(with FGTR as the petitioner's next step).
[20]
I turn then to consider whether it can properly be said that the passage of time in
considering the application for FGTR is "irrational". In addressing that question it is again
important to bear in mind that the petitioner's complaint lies with the respondents'
processing of the application. The legality of the Parole Board's determination in 12 January
2022 that the petitioner remains an "unacceptable risk", and its conclusion that it could not
be satisfied that it was no longer necessary for the protection of the public that the petitioner
should be confined, are not challenged. I have also taken into account the contents of the
11
affidavits by (i) Angela Holmes, Head of Psychology for SPS; (ii) Greig Knox, Head of Risk
for SPS, and (iii) Gerry Watt, Deputy Governor of Greenock Prison.
[21]
Ms Holmes explained how the details of the petitioner's offence presented highly
disturbing features which meant that there was even now a lack of understanding for the
motivation underlying it. The petitioner had very complex and enduring personality
functioning problems and there remained an inconsistent understanding of what risks he
presented. SPS could not honestly and justifiably say that his risk could currently be
managed at lesser levels of security. These difficulties fed into the reasons why the
petitioner's application was taking longer than would ordinarily be expected. At a practical
level, Ms Holmes also commented that the impact of the Covid-19 pandemic had caused
delays in routine SPS work, and this included FGTR applications.
[22]
Mr Knox explained that the petitioner's risk of serious harm assessment was
evaluated as high in June 2021, as was his MAPPA risk level. In practical terms that meant
that there were identifiable indicators of a risk of serious harm; a potential event could
happen at any time and the impact could be serious. There were a number of factors which
may have elongated the application for FGTR in the petitioner's case, and which were also
picked up on in Mr Watt's affidavit. These included (i) the complexity of his case; (ii) the
introduction of quality assurance standards to the assessment process in January 2021;
(iii) the requirement that any application be reviewed by a review panel, comprising senior
SPS managers, before it is signed off for submission to the DSSE; this would commonly
involve and, in the petitioner's case, has involved - the application being sent back to the
prison establishment for further information or clarification, and (iv) the practical impact on
a backlog of applications of the pandemic. The re-assessment of the petitioner's risk of
12
serious harm in June 2021 had resulted in delay because of the consequential requirement
for PBSW, in collaboration with CBSW, to prepare a RMP for the RMT.
[23]
Counsel for the petitioner fairly acknowledged, even before further detail was
provided in the respondents' reply, that the period of delay which was contended to be
unlawful could not be measured by the whole period from August 2020 to date. He
recognised that there was evidence of progress having been made with the application after
May 2021. However, the absence of any apparent activity prior to May 2021 remained
unexplained and was, in the circumstances in which it arose, unlawful. As will be apparent
from the narrative presented by the respondents that contention is disputed. It appears that,
after initial consideration at SPS HQ, the application was returned to HMP Greenock in
January 2021 and resubmitted in March of that year.
[24]
In these circumstances it is difficult to identify with precision the period or periods of
time over which it is contended that there was unlawful delay. Neither party scrutinised in
detail the precise factual circumstances of the application's submission to SPS HQ and
return to prison on the occasions when that occurred. I do not criticise the absence of such
scrutiny. It was common ground that the respondents' internal procedure was a matter
entirely for them (R(O) v SSHD, supra.). The respondents acknowledged that there was a
period of time between August 2020 and January 2021 where it was not apparent that the
petitioner's application for FGTR was being progressed. Standing the length of time in
which he has been incarcerated that is not to be taken lightly. However, measured against
the well-known context of a global pandemic whose impact has been felt in so many
different contexts (not least in the prosecution of serious crime), and recognising that the
petitioner's application is not the only application for which the respondents have ultimate
13
responsibility, the period of time concerned might be regarded as regrettable in a general
sense, but I am unable to characterise the delay as irrational.
[25]
Equally, I am satisfied that the complexity of the petitioner's presentation can largely
be seen as responsible for the passage of time that has elapsed since early 2021. In that
respect, counsel for the petitioner criticised the affidavits relied on by the respondent s as
being short on detail. However, the common theme arising from them is that the
circumstances of the original offence, and the petitioner's attitude to it and the risk he
presents, are such that it is difficult to measure the extent of the risk he wou ld present in a
community setting. The point of the process now under criticism is to ensure that the
relevant Minister reaches a properly informed decision of FGTR. The fact that the Parole
Board, as recently as January 2022, concluded that the petition er continued to present an
unacceptable risk may be thought to add weight to the contention that the petitioner's
application presents difficulties which have not yet been resolved in favour of a positive
recommendation by the DSSE to the Minister.
[26]
In summary, I do not consider that the petitioner has established, on any of the
common law grounds advanced, that there has been unlawful delay in progressing the
application made on his behalf, for FGTR.
[27]
In relation to the petitioner's contention that the delay in determining the application
for FGTR breached his rights under ECHR, I did not understand counsel for the respondents
to dispute that the opportunity for rehabilitation was an aspect of Article 5. However, the
key purpose of Article 5 is the prevention of arbitrary or unjustified deprivations of liberty
(McKay v United Kingdom, paragraph [30]; Brown v Parole Board for Scotland, paragraph [2]).
Moreover, in Brown, the Supreme Court emphasised the "high threshold" which has to be
surmounted in order to establish a violation of an Article 5 obligation, in this case to provide
14
such an opportunity for rehabilitation. In the present case I do not consider that it can
sensibly be contended that the petitioner has been deprived of a real opportunity to
rehabilitate. Indeed, it is telling that, in Kaiyam and others v United Kingdom
[2016] ECHR 1151, the ECHR, in providing a summary of its reasoning in the earlier case of James v
United Kingdom and in subsequent case law observed:
"...[70] It is clear from the court's case-law in this area that cases in which it is
prepared to find that a period of post-tariff detention has failed to comply with the
requirements of Article 5(1)(a) on account of a delay in access to rehabilitative
courses will be rare. In particular, it is not for this court to second-guess the
decisions of the qualified national authorities as regards the appropriate sentence
plan...Any delays encountered in the provision of specific courses must be assessed
in the context of the gravity of the offence and the amount of offending-behaviour
work therefore required, and against the backdrop of the range of rehabilitative
courses already accessed by the applicant."
[28]
That passage seems to me to be most apposite to the circumstances of the petitioner's
application for FGTR. I have already explained why I do not consider the delay in this case
to have been unlawful at common law. The right to progression is not absolute and, in
circumstances where the Parole Board did not direct release in January 2022, nothing in the
process by which the petitioner's application for FGTR has been considered seems to me to
constitute a denial of the opportunity to rehabilitate.
[29]
There being no breach of Article 5, no issue of payment of damages for just
satisfaction arises.
Conclusion
[30]
In the foregoing circumstances I shall sustain the respondents' fourth, fifth and sixth
pleas-in-law and refuse the petition. I shall reserve meantime all questions of expenses.
