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Cite as: [2013] ScotCS CSOH_, [2013] ScotCS CSOH_0

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OUTER HOUSE, COURT OF SESSION

 

 

[2013] CSOH 200

 

P326/13

 

OPINION OF LADY WISE

 

in the Petition of

 

BILLY JOHN BROWN

 

Petitioner;

 

for

 

Judicial Review of a decision of the Parole Board for Scotland and Others

 

Respondents;

 

________________

 

 

Petitioner: Bain, Q.C. & Leighton; Drummond Miller LLP

First Respondent: Dunlop, Q.C.; Anderson Strathern LLP

Second Respondents: D Ross, Advocate; Scottish Government Legal Directorate

 

31 December 2013

 

Background
[1] The petitioner was convicted of culpable homicide in January 2006 and given an extended sentence of ten years, comprising a custodial term of 7 years and an extension period of 3 years. The index offence involved him approaching his victim, with whom he had previously had a minor dispute, armed with a flick-knife. When the victim left but returned armed with a metal pole with which he struck the petitioner, the petitioner reacted by stabbing him in the chest, penetrating his heart. While the petitioner had been charged with murder, a plea of culpable homicide was accepted by the Crown on the second day of the trial. The petitioner had previous convictions for carrying knives and other offensive weapons. On 1 April 2010, he was released on licence. A few months later, on 18 August 2010, he stole a motor vehicle whilst intoxicated. That led to him being recalled to custody on 28 September 2010 and his licence being revoked. He was subsequently sentenced to 40 days imprisonment in respect of the new offence to be served concurrently with the sentence for the index offence.

[2] This petition seeks review of a decision of the first respondent, the Parole Board for Scotland, to refuse to order the petitioner's release on 6 December 2012. That was the third occasion on which the Board had considered the question of his re-release, the previous hearings having been on 8 December 2010 and 6 December 2011. While initially only the Parole Board was called to respond to the petition, by minute of amendment the petitioner introduced a case against the Scottish Ministers. Ultimately, that case was restricted to declarator that the petitioner's convention rights have been breached by the second respondents' failure to provide certain necessary courses for the petitioner's benefit whilst in prison, for damages and for a declarator of incompatibility.

 

Relevant statutory provisions and ECHR
[3] The extended sentence imposed on the petitioner was passed under and in terms of section 210A of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). Such a sentence is available to a sentencing judge where he or she considers that the period in respect of which the offender would be subject to licence would not be adequate for the purpose of protecting the public from serious harm from the offender. In the case of a violent offence, the statutory provision provides that the extension period shall not exceed a period of 10 years.

[4] The petitioner's current incarceration and the test for re-release are governed by the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"). Section 26A of the 1993 Act provides, inter alia, as follows:

"(2) Subject to the provisions of this section, this Part of this Act, except section 1A, shall apply in relation to extended sentences as if any reference to a sentence or term of imprisonment was a reference to the custodial term of an extended sentence.

 

(3) Where a prisoner subject to an extended sentence is released on licence under this Part the licence shall, subject to any revocation under section 17 of this Act, remain in force until the end of the extension period.

 

(7) For the purposes of sections 12(3) and 17(1) of this Act, and subject to subsection (8) below, the question whether a prisoner is a long-term or short-term prisoner shall be determined by reference to the extended sentence."

 

[5] In terms of section 27 of the 1993 Act, the petitioner was a long-term prisoner, being a person serving a sentence of imprisonment for a term of 4 years or more. Section 1(2) of the 1993 Act provides that as soon as a long-term prisoner has served two thirds of his sentence, the Secretary of State shall release him on licence. Where a licence is revoked under section 17(1) of the 1993 Act, the case is referred to the Parole Board by the Scottish Ministers - section 17(3). Further, section 17(5) provides that:

"On the revocation of the licence of any person under the foregoing provisions of this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."

 

The question of a prisoner's re‑release is governed by section 3A of the 1993 Act. The test, contained in section 3A(4) is in the following terms:

"...the Board shall, if it is satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined (but not otherwise), direct that he should be released."

 

Section 3A(2) of the 1993 Act empowers a prisoner to insist upon a consideration of the issue of his release by the Parole Board once per annum.

[6] Article 5(1) of the European Convention on Human Rights ("ECHR") begins:

"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;

.........."

 

Article 5(4) provides:

 

"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."

 

The decision letter
[7] The decision letter complained of in the petition is produced as number 6/4 of process. It is dated 18 December 2012 and addressed direct to the petitioner. It sets out the decision made, preliminary matters and the general background. The letter goes on to summarise the submissions made on the petitioner's behalf to the Board. The passages of the letter scrutinized in the arguments before me are contained at pages 3 and 4 of the letter and are in the following terms:

"Reasons for decision

The Tribunal considered that it is necessary for the protection of the public from serious harm that you should continue to be confined. In reaching its decision the Tribunal took into account the index offence; your recall to custody after a short period on licence for new offending in which alcohol abuse and your choice of associates were factors; the assessments that you pose a high risk of re-offending and causing serious harm; and the outstanding offence-focused work.

 

You breached your licence conditions and re-offended within about four months of release from a significant period in custody, which raised concerns about your commitment to comply with supervision measures designed to manage your risk in the community. You accepted that the behaviour associated with the recall offence had displayed poor decision-making and choice of associates, and involved the abuse of alcohol. You admitted that you had been drunk on four occasions while on licence and minimised the potential risk of your excessive alcohol use by stating that you had only got into trouble once.

 

The Tribunal accepted that your behaviour has improved and the number of misconduct reports has decreased. However, you incurred five reports in an eight-month period, including one for assault. You have developed some coping strategies, which have helped you to moderate and control your behaviour. However, you admitted the assault in January 2012 happened as you gave into impulsivity and anger. The Tribunal concluded that you should complete the identified offence-focused work as this should reinforce the skills you have and may provide new strategies to mitigate the high risks you pose.

 

The Tribunal determined that you should remain in custody and progress in terms of the management plan. It accepted that similar plans were presented in 2010 and 2011 and little progress has been made, partly as you have been unable to access the programme work. The Tribunal expects that in the next 12 months you will be given the opportunities, detailed by the ERLO, to complete the identified programmes. However, the Tribunal also noted that you have incurred five misconduct reports in 2012 which would have been taken into account in consideration of a decision about your suitability to progress. The responsibility for these Governor's reports lies with you. Indeed, you accepted that it is only you who can use the strategies to manage your impulsivity and improve your decision-making. The Tribunal would encourage you to engage with the management plan and to demonstrate and maintain good behaviour, without adverse reports, for a sustained period so that you may be able to offer evidence to a future Tribunal that your risk is manageable in the community.

 

Basis of decision

The Tribunal considered all the information in the dossier, including the late papers, the evidence provided by the ERLO and the case presented on your behalf, including the answers you gave to questions. Before reaching a decision, the Tribunal considered the preliminary motion that it might adjourn to allow the suggested accommodation at Crane Services to be investigated. However, it concluded that it had sufficient evidence before it to make a decision."

 

Submissions for the petitioner
[8] Senior counsel for the petitioner submitted that, given the stage that had been reached in the sentence imposed upon the petitioner by the court, his continued detention was being determined by the Parole Board and was accordingly subject to a lawfulness challenge in terms of article 5(4) ECHR. Reference was made in this context to R (Black) v Secretary of State for Justice [2009] 1 AC 949 at paras 42-50; R (Giles) v Parole Board & Another [2004] 1 AC 1 and Van Droogenbroeck v Belgium (1982) 4 EHRR 443 at para 64. As the test for re-release of a prisoner such as the petitioner was solely the protection of the public from serious harm, no element of punishment or other rationale in the sentence being served could be identified at this stage. Accordingly, it was suggested that in a case such as the petitioner's, decisions about the length of sentence passed from the sentencing court to the Parole Board.

[9] The primary argument for the petitioner was based upon the decision of the Strasbourg Court in the case of James Wells & Lee v United Kingdom (2013) 56 EHRR 12. In essence, in that case, the Strasbourg Court held that, as the justification for detention after the expiry of a tariff of imprisonment was protection of the public, the authorities must give an opportunity for rehabilitation. If they fail to do so, detention would be unlawful. In the three cases taken, there had been delays of between 8 months and 2 years in the provision of appropriate rehabilitative courses. The court concluded that in the absence of the provision of a real opportunity for rehabilitation after the expiry of the tariff, the detention must be considered to be arbitrary and in violation of article 5(1). It was submitted that although the decision in the case of James Wells & Lee v United Kingdom related to sentences of imprisonment for public protection of indeterminate length, the ratio of the decision was directly applicable to the petitioner's case. It was said that the critical question was not whether the sentence is determinate or not, it is the underlying purpose of the sentence and where the responsibility lies for ordering the prisoner's release. In R (Giles) v The Parole Board & Another, under reference to Van Droogenbroeck, Lord Hope had drawn a distinction between detention for a period whose length is embodied in the sentence of the court on the one hand and the transfer of decisions about the prisoner's release or re-detention to the executive on the other. Where the decision about the length of the period of detention is made by a court at the close of judicial proceedings, the requirements of article 5(1) ECHR are satisfied and the supervision required by article 5(4) ECHR, is incorporated in the decision itself. However, it was contended that where the responsibility for decisions about the length of the period of detention is passed by the court to the executive, the lawfulness of the detention requires a process which enables the basis for it to be reviewed judicially at reasonable intervals. Again under reference to R (Giles) v The Parole Board & Another it was submitted that the ability to challenge through judicial review was necessary and there was a risk that the decisions taken by the executive would be arbitrary. That risk is absent where the length of the period of detention is fixed as part of its original decision by the court. Senior counsel submitted that the lawful detention flowing from the authority of the petitioner's original sentence expired at the time he had served two thirds of his sentence. His subsequent detention for public protection was one which required the authorities to provide him with an opportunity for rehabilitation failing which his detention would be arbitrary and unlawful.

[10] Reference was also made to the subsequent case of Faulkner v Secretary of State for Justice [2013] 2 WLR 1157. In that case, a prisoner who had served the tariff part of his sentence was not considered for release by the Parole Board timeously. The UK Supreme Court heard the case after the decision of the Strasbourg Court in James Wells & Lee v United Kingdom. The Supreme Court distinguished James Wells & Lee v United Kingdom on the basis that Faulkner was not about access to rehabilitation courses but concerned only delay. Further, the awards made in the James Wells & Lee v United Kingdom case were not for the loss of liberty but for feelings of distress and frustration resulting from continued detention without access to relevant courses. The decision in Faulkner was that the delays in his case had been the result of errors by administrative staff of a kind which occur from time to time in any system vulnerable to human error. Such delays, resulting as they did in the prolongation of Mr Faulkner's detention, were not of such a character and the delay was not of such a degree that warranted a conclusion that there was violation of article 5(1) - per Lord Reed at para 86.

[11] Counsel argued that the case of James Wells & Lee v United Kingdom was in point and could be used to support the petitioner's argument. Under reference to Kay & Others v Lambeth London Borourgh Council [2006] 2 AC 645 at paras 40-45, it was submitted that the system of domestic precedent would not apply in this case as the domestic approach had been squarely rejected by Strasbourg. In R (Ullah) v Special Adjudicator [2004] 2 AC 323, at para 20, the duties of a domestic court in applying Strasberg jurisprudence were emphasized. As the Strasbourg ruling in James Wells & Lee v United Kingdom was clear and easily understood, this court should not regard itself as bound by the earlier House of Lords ruling. It was acknowledged that in the case of R (Kaiyam) v Secretary of State for Justice (2013) EWHC 1340, Supperstone J recorded a concession that an article 5 ECHR claim by a prisoner serving an indeterminate sentence required to be dismissed in domestic law because of the binding precedent of the House of Lords decision in James Wells & Lee v United Kingdom. However, counsel in that case had not argued that the Strasbourg decision was clear cut and should have been followed and Supperstone J was said to have misdirected himself in his reading of Faulkner as requiring exceptional circumstances to be present when considering whether there was a breach of article 5.

[12] It was submitted that James Wells & Lee v United Kingdom was equally applicable to the petitioner's circumstances notwithstanding that his was a determinate sentence. The critical question was the underlying purpose of the sentence and where responsibility for release lay. On three occasions the Parole Board had refused to direct the petitioner's release as they concluded that he was still a danger to the public. However, in the absence of a proper opportunity to assess risk, following the necessary course work being undertaken, the Parole Board's decision was said to be an empty exercise. Senior counsel directed my attention to numbers 6/1 and 6/2 of process which were the earlier decisions of the Parole Board relating to the petitioner. The conclusion in December 2011 had been that the petitioner should progress to the Open Estate for the opportunity to demonstrate that he was able to comply with licence conditions and could be gradually reintegrated into the community. Between then and December 2012, it was said that reports were made available which made clear that the petitioner was suitable for rehabilitative courses but, through no fault of his own, these were not made available to him. Reference was made to the substantial dossier of the Parole Board relating to the decision of 6 December 2012. This is lodged as number 7/1 of process. Senior counsel identified various documents within that in support of her arguments. In particular, she referred to a report by Ian Murray, a prison based social worker dated 30 August 2012. That report referred to six guilty decisions on prison misdemeanors by the petitioner but recorded that he had been free of Governor's reports for several months. It was clear from the report that the petitioner presented a high level of risk and that he would require to undertake courses before he could progress to the Open Estate. By September 2012, the petitioner was complaining that he had been trying to embark on a particular course, said to be necessary, for about 2 years. A report by a Garry Chambers, dated 5 December 2012, provided for the Parole Board's use was also referred to. It indicated that the petitioner had been the subject of five recent misconduct reports. It records also that a "Constructs" course was due to start in November 2012 but had not started due to changes in the intervention team and that this was no fault of the petitioner. The report sets a time line for the proposed courses to be undertaken followed by progress to open conditions. It was argued that the Parole Board should have taken into account that the lack of provision of courses was no fault of the petitioner's.

[13] Turning to the decision letter number 6/4 of process, two main criticisms were made. First it was said that the first respondent had given inadequate reasons for its' decision. Secondly, it was submitted that they it made material errors of fact. The second argument was addressed first. The Board's letter stated that little progress in terms of the petitioner's management plan had been made "partly" as he had been unable to access the programmed work. The failure to progress was said to be the result of both the lack of access to programmed work and misconduct on the petitioner's part. It was said that the Board had misdirected itself because the petitioner's lack of progress was wholly attributable to his inability to access the course work. The series of reasons given by the Board included the nature of the index offence, the circumstances of the recall to custody, the high risk of reoffending and the outstanding offence focused work. In addressing the misconduct reports about the petitioner during 2012, the Board concluded that these "would have been taken into account in consideration of a decision about your suitability to progress". Senior counsel submitted that progress in that context meant progress in terms of the management plan, namely progress to undertaking the course work. In short, the decision letter pointed to more than one reason for the petitioner's lack of progress when in fact there was only one. The Parole Board's dossier, number 7/1 of process, confirmed that the last Governor's report relating to the petitioner had been more than 3 months before submissions made in December 2012. It was also suggested that a statement in the letter encouraging the petitioner to engage with the management plan inferred that he had not done so to date.

[14] The test for an error of fact giving rise to unfairness and thus being a basis for judicial review was referred to. This had been set down in E v Secretary of State for the Home Department [2004] EWCA Civ 49 and reproduced in Henry v The Parole Board [2011] EWHC 2081 (Admin). In essence there must have been a mistake as to an existing fact, that fact must have been established, uncontentious or objectively verifiable, the appellant must not be responsible and the mistake must have played a material though not necessarily decisive part in the Tribunal's reasoning. Counsel submitted that this test was satisfied. It was said that the petitioner had received four, not five, misconduct reports. He had engaged with the management plan, the lack of progress was wholly as a result of an inability through no fault of his own to access the course work. That combination of factors demonstrated that the Board had erred in facts that were a material part of it's reasoning.

[15] So far as the inadequacy of reasons was concerned, this related to the article 5 ECHR arguments. There was no reference at all to the article 5 argument in the Board's decision. It was submitted that this should have been properly addressed. The course work argument was dealt with in the decision letter generally but not under reference to article 5. That underlined the argument about material error. In all the circumstances a reduction of the first respondent's decision letter was sought.

[16] So far as the Scottish Ministers were concerned the petitioner's submission was that they had breached the petitioner's article 5 ECHR rights by their failures to provide rehabilitative courses and to release him. The declarator that his convention rights had been breached was accordingly sought. Despite the fact that the Parole Board had made recommendations about the necessity of the petitioner undertaking course work, the second respondents did nothing until January 2013 to implement those recommendations. As the sole purpose of the petitioner's detention was now public protection, this rendered that detention arbitrary and unlawful. When the petitioner renewed attempts to undertake course work in May 2012, he was advised that there was a backlog. Overall there was effectively a period of over 2 years when nothing was done to assist the petitioner in this regard.

[17] The second respondents' position appeared to be that the petitioner had been assessed as unsuitable for the Violence Prevention Programme ("VPP") in about February 2012. The petitioner disputed that characterization although agreed that undertaking the VPP was removed as an outstanding need at that time. The courses that the petitioner required to complete were "Constructs" and "CARE". The petitioner did undertake and complete the Constructs course in April 2013. He commenced the "CARE" course in May 2013. It was wrong of the second respondents to contend that the lack of a move of the petitioner to open conditions was due to his being on Governor's reports. In any event, the purpose of course work was to assist with his behaviour and he could not progress to open conditions without it. His misconduct in prison was understandable in light of the lack of availability of course work to improve his behaviour. The second respondents had failed to explain why there had been a 2 year period of delay in the provision of that course work. Accordingly, declarator that the petitioner's convention rights have been breached was justified. So far as damages were concerned, a payment of 5,000 from the second respondents was sought. This fitted, in broad terms, with the awards made in James Wells & Lee v United Kingdom.

[18] Senior counsel also argued that section 3A(4) of the 1993 Act concerning the re-release of prisoners serving extended sentences was incompatible with ECHR. The provision did not permit the Parole Board to take into account in reaching its decision that a prisoner was being detained arbitrarily. On that basis alone the legislation was incompatible and couldn't be read down in a way which made it compatible with the petitioner's convention rights. Reference was made to section 3(1) and 4(4) of the Human Rights Act 1998. If the legislation allowed the Parole Board to look beyond public protection, i.e. if arbitrary detention was one of two considerations to be looked at by the Parole Board that would be convention compliant. However, it would not be possible to read all of that into the legislation as it stood. If the Parole Board had been put in a position by the legislation where an unlawful detention had to be continued, then the provision itself must be unlawful.

 

Submissions for the first respondent
[19] The motion made by senior counsel for the Parole Board was to sustain the third and fourth pleas in law for the first respondent and refuse the petition insofar as directed against the Parole Board. He identified that three grounds of challenge had effectively been made. First there were the ECHR issues, including compatibility of section 3A(4) of the 1993 Act. Secondly there was a merits challenge and thirdly there was a claim of inadequacy of reasons given. It should be understood that the first respondent was not responsible for any rehabilitative courses and could not act other than within the strictures of the 1993 Act. By moving for a declarator of incompatibility, it was said that senior counsel for the petitioner must logically be conceding that the Board could not have acted otherwise. It was noteworthy that in the James litigations the Parole Board was not a party although intervened. It was perhaps better recognised there that ECHR complaints of this nature had nothing to do with the Board, who must not release of an extended sentence prisoner unless his detention was no longer necessary on public protection grounds. The Board is a public authority for the purposes of section 6 of the Human Rights Act 1998. This was a case where, in terms of section 6(2)(a), the Board could not have acted differently as a result of the provisions of primary legislation. Accordingly the Board's acts could not be said to be unlawful. As Lord Hope opined in the case of R v Lambert [2002] 2 AC 545 at para 79, the Human Rights Act does not give power to judges to overrule decisions which the language of the statute shows have been taken on the very point at issue by the legislator. To grant the declarator sought by the petitioner would be "judicial vandalism". Reference was made to the House of Lords decision in James Wells & Lee v Secretary of State for Justice [2010] 1 AC 553. Lord Hope, at para 9 thereof, made clear that the terms of the equivalent English legislation meant that despite the Secretary of State's failure to provide the means by which the claimants could demonstrate to the Parole Board that their continued detention was no longer necessary, it could not be said that the Secretary of State was acting unlawfully in not releasing them until directed to do so by the Parole Board. Further, the court, for its part, would not be acting unlawfully if it also declined to order release until the Parole Board was satisfied that it was no longer necessary for the protection of the public. His Lordship made clear that section 6(2)(a) of the 1998 Act led inevitably to those conclusions. Accordingly, it simply could not be argued that the decision of the first respondent was unlawful. The petitioner was bound to fail in that argument. However, Mr Dunlop made a number of additional points in relation to the ECHR arguments presented. It could not be disputed that there was a tension between the House of Lords decision in James Wells & Lee v United Kingdom and the decision of the Strasbourg Court. It was important that a concession had been made in James Wells & Lee v United Kingdom that there had been systemic failures to provide course work to the claimant. It was because of those systemic failures that the article 5 point was raised, albeit rejected by the House of Lords. In this case, counsel for the petitioner had conceded that this was not a systemic failure case. The House of Lords at the earlier stages of the James Wells & Lee v United Kingdom case had rejected an argument that continued detention became unlawful. There were systemic failures on the executive's part that led to delays in a decision about release. Continued detention could only become unlawful when the Board decides that it is no longer necessary for the protection of the public that the prisoner should be confined and there is still a failure to release - per Lord Hope at para 20. All domestic courts are of course bound by decisions of the House of Lords. The Scottish courts are equally bound given that James, although an English appeal, was on a UK statute - see Dalgleish v Glasgow Corporation 1976 SC 32. That principle remained good notwithstanding the Human Rights Act - Kay & Others v Lambert London Borough Council [2006] 2 AC 465 per Lord Bingham at paras 43 - 44. There is of course a partial exception to the system of domestic precedent in very extreme circumstances. However, in this case, there is clear House of Lords authority on a very similar point to that being argued by the petitioner. All lower courts were accordingly bound by the House of Lords decision in James. In any event, the petitioner's case was different on the facts to James and could be distinguished. First, the complete breakdown of the Parole Board's ability to make decisions because of the delays in James did not apply to this case. Secondly, there was a concession in the James case of systemic breakdown after the introduction in England of IPP sentences. There was no systemic failure in this case, thus a different decision to that made in James, could be made here. Accordingly, even allowing for the Strasbourg decision in James v United Kingdom the petitioner still failed. The correct course where there is perceived tension between a binding domestic authority and a decision of the Strasbourg Court is either to follow the binding authority of the domestic court or while doing so to give leave to appeal to a higher court for a view on that binding authority. Supperstone J in the case of Kaiyam v Secretary of State [2013] EWHC 1340 had taken the correct course. He had not misdirected himself in relation to Faulkner. The point was that the exceptional circumstances being referred to in Faulkner were the type of systemic failures in James which did not apply to the petitioner's case. The petitioner's case was not one where the Parole Board had indicated it couldn't make a decision. It had sufficient evidence to make a decision and did so. The domestic authority of James v Secretary of State for Justice was accordingly binding.

[20] It was also argued that the indeterminate nature of the sentence was emphasised by the Strasbourg Court in James v United Kingdom and the arbitrariness of the detention arose in that context. Reference was made in particular to paragraphs 203 -209 of the decision of the Strasbourg Court. It was only where the causal link was lost between the reasons for the original sentence and the detention that it could become arbitrary. In this case the petitioner had been released on licence and recalled to serve the rest of a determinate sentence. The terms of the 1993 Act protected against arbitrary detention. For long term prisoners, the first two thirds of the sentence of imprisonment imposed could never be said to be an arbitrary detention. If a prisoner was not released after serving two thirds of the term of imprisonment, the detention would be arbitrary. The requirement when a licence is revoked is that a speedy determination be made about whether or not a prisoner should remain in prison. That occurred in this case in December 2010. Annual reviews were provided, which the petitioner was able to demand in terms of section 3A(2). On one view that provision goes further than article 5 ECHR requires. There were two separate distinctions to be made, one between discretionary and mandatory imprisonment and also between determinate or indeterminate sentences. The fundamental point to take from R (Giles) v Parole Board [2004] 1 AC 1 was that the protection from arbitrariness is provided by the court fixing the term of the sentence. For that reason, determinate sentences do not have the capacity to become arbitrary. It is well known that the sentence imposed by a trial judge will, in all likelihood, not be served in full. What could not be ignored, however, was that the total sentence was the whole term imposed. The length of sentence never passes to the executive; it is fixed by the judge of first instance.

[21] Senior counsel for the first respondent referred also to R (Black) v Secretary of State for Justice [2009] where the House of Lords made clear that the Strasbourg jurisprudence drew a distinction between sentences of imprisonment for a determinate and indeterminate period. In Dempsey v Parole Board 2004 SLT 1107 at 1136-1137, Lord Brodie had confirmed that when a prisoner was released on licence the term of that licence is part of the sentence determined by the court. That case involved a recall of licence and although there was an issue about the part of the decision that indicates that there may be no real need for a hearing on a recall, the decision was sound in relation to the characterization of the licence. Mr Dunlop,Q.C. submitted that the petitioner's argument of these matters involved a misunderstanding of the legislation and the case law. In particular, it was wrong to say that the petitioner has an entitlement to be released now (para 9 of the petitioner's note of argument). Section 17(5) read with section 26A of the 1993 Act makes clear that when a licence is revoked, the person involved is being detained "in pursuance of his sentence". That sentence does not expire until the end of the extension period. Secondly, the reference in the petitioner's note of argument at para 9 to the length of sentence passing to the Parole Board was clearly erroneous. What the Parole Board does on an annual basis is decide whether or not the petitioner should continue to be incarcerated. The Parole Board is a judicial body for the purposes of the 1998 Act. It is for that reason that there can be no award of damages against it. Thirdly, the provisions of article 5(4) ECHR were engaged and complied with on the petitioner's recall to custody. There had been the initial hearing in December 2010 as required. Fourthly, unless the petitioner could show that there was something arbitrary about the petitioner's detention, it could not be said that an opportunity for rehabilitation was a requirement. The contention that detention becomes arbitrary in the absence of any such opportunity for rehabilitation flew in the face of the House of Lords decision in James Lee & Wells v Secretary of State for Justice [2010] 1 AC 553. For these reasons it was clear that the further references in paragraph 11 of the petitioner's note of argument to the role of the executive were misconceived. The petitioner's incarceration was closely linked to the sentence imposed by the trial judge. The only operative intervention with that was by the first respondent which is the court for the purposes of articles 5(1) and 5(4) ECHR.

[22] It was submitted that, esto there had been any period of arbitrariness in the petitioner's incarceration, it must have ended when the course work eventually started. In order to achieve the declarator sought, the petitioner would have to show that there was continuing arbitrariness and on his own avernments there was not. The Strasbourg decision in James v United Kingdom supported that suggestion - see para 244 of James v United Kingdom. It should be noted also that the damages awarded in that case were not for the prisoner's loss of liberty but for the distress and inconvenience during the period of delay. It was difficult to see what the purpose of a bare declarator would be in this particular case.

[23] Turning to the merits challenge counsel referred to Henry v The Parole Board 2011 EWHC 2081 (Admin) where the test for an error of fact giving rise to unfairness in E v Secretary of State for the Home Department 2004 EWCA Civ 49 was reiterated and had been relied upon by the petitioner. It was accepted that the test was correctly enunciated there. The issue was whether the test for an error of fact giving rise to unfairness was met in this case. It was clear from the decision in McCall v Council of the Law Society 1987 SLT 524 at 527 that is was necessary to look at the decision of the Tribunal in question as a whole. The first respondent was a domestic Tribunal and would not be required to provide the same level of reasoning as a member of the judiciary. Further, as the Parole Board was a specialist or expert tribunal, the court should start from the premise that it's decision is likely to be correct and the court should be cautious in overturning it - see AH (Sudan) 2008 1 AC 678 at 691 and Eba v Advocate General 2011 UK SC 1 at paras 45 and 47. The test in relation to errors of fact must be read in conjunction with these authorities. The ratio of the decision complained of starts at the foot of page 3 of the relevant letter (number 6/4 of process). A number of statements are given there that are factually correct. The first "mistake" founded upon by the petitioners was said to lie in the statement that little progress had been made in terms of the plans presented in 2010 and 2011, partly because the petitioner had been unable to access the programme work. The petitioner's argument placed more weight on this sentence than it could bear. It was quite clear from the context of the passage in the letter that the first respondents were confirming two things; first that there had been little progress in terms of the management plan and secondly that the lack of progress was partly due to the petitioner's inability to access programme work. There was no suggestion that the petitioner had not undertaken the necessary course work because of the Governor's reports. The expression "progress" in the letter clearly meant progress in terms of the management plan which was for a transfer to open conditions. The first respondent's dossier at pages 1.17, 1.18 and 1.19 confirmed that there were two key areas to the plan. First was the outstanding need for the petitioner to undertake the programs in question and secondly the issue of the transfer to open conditions. The petitioner's misconduct was clearly highly relevant to the decision about whether he could progress to open conditions. That is the context in which the remarks in the decision letter appear. Other parts of the dossier were referred to which showed clearly that a drug and misconduct free lifestyle was always part of the requirements of the plan to progress to open conditions. There was a table of misconduct reports at pages 1.13-1.35 of the dossier. The petitioner's own submissions to the Board, number 6/5 of process, reflected an acceptance on his part that he would require to be report free for a period of three months before he could progress to open conditions. It was not a tenable reading of the first respondent's decision that the board was somehow indicating that the petitioner's misconduct report would prevent his access to courses. The overall concern of the first respondents was whether or not they could release the petitioner. Without the necessary progress they could not do so. The first respondent had in a sense accepted the petitioner's contention that he had been unable to progress due to being unable to access the offence focused work. However, in light of his misconduct, they were clear that he could not progress at this stage to open conditions in any event. The second "mistake" founded upon by the petitioner was that it was contended there had been only four misconduct reports in 2012 and not five as stated in the decision letter. However, Mr Dunlop, Q.C. pointed out that there had been five reports, albeit that one was ultimately dismissed. The first respondent did not indicate that five reports had been sustained, simply that five had been incurred. As a move to open conditions would always be suspended pending the investigation on a Governor's report, it was perfectly acceptable for all five to be referred to. There was nothing to suggest that the Parole Board thought that there had been five guilty findings and the facts were accurately stated. The third "mistake" founded upon by the petitioner was that it was claimed the petitioner had been report free for three months by the time of the hearing. In fact the last guilty finding on a Governor's report was 9 September 2012 and the Tribunal Hearing was on 6 December 2012. The petitioner had accurately told the tribunal that he had been report free for nearly three months, which was accurate and was taken into account. The only other issue raised under this head was the statement in the decision letter encouraging the petitioner to engage with the management plan. Notwithstanding the petitioner's contentions there was nothing sinister in that statement. It clearly related to the petitioner's conduct issues, not to the question of courses being undertaken. In all the circumstances, no mistake of fact could be identified on the part of the first respondent. This was not a case in which there was any mistake, far less that there was anything objectively verifiable. Even had there been a mistake, there was nothing material to the decision. All of the important facts stated in the body of the decision letter were unchallengeable. Accordingly there could be no merits challenge to the decision.

[24] So far as the reasons challenge was concerned, reference was made to Safeway Stores v National Appeal Panel 1996 SC 37 at 40 where the well-known passage from Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 was reproduced. It was indisputable that the decision of the first respondent required to explain the reasons for that decision in an intelligible way. However, under reference to South Bucks District Council & Another v Porter 2004 1 WLR 1953 at 1964, it was clear that only the main issues arising for decision had to be referred to. A reasons challenge could only succeed if substantial prejudice occurred by the failure of the Tribunal in question to give adequate reasons. Further, it was not sufficient that a different board might have expressed it more fully or taken a different view - Laidlaw v Parole Board 2007 SCLR 51 at 57. The only question before the respondents in this case was whether, in terms of section 3A(4) of the 1993 Act it continued to be necessary for the protection of the public from serious harm that the petitioner should be confined. The first respondent had answered that question and gave full reasons for it at pages 3-4 of their decision letter number 6/4 of process. The reasons challenge appears to centre on the absence of any reference to the ECHR argument in the decision. The logical flaw with that was that if the arguments made on behalf of the first respondent in relation to the convention argument were correct, then there was no prejudice to the petitioner because he would have failed in his application. If the first respondent was wrong on the ECHR point then the petitioner would succeed anyway. More substantively, the petitioner could not be in any real and substantial doubt as to why his release was not ordered. The reasons given in the decision letter were not opaque. The letter makes clear that the first respondent was not satisfied that the petitioner's risk could be managed in the community at this stage. Mr Dunlop, Q.C. submitted that for all these reasons, the petition fell to be refused as against the Parole Board, which failing, any reduction should be followed by a remit to the first respondent for further consideration.

 

Submissions for the second respondents
[25] Counsel for the Scottish Ministers, Mr Ross, moved for dismissal of the petition in so far as directed at the second respondents. It was clear that the argument against the second respondents was now restricted to the declarator of a breach of article 5 ECHR, an award of damages in that respect and the declarator of incompatibility of section 3A(4). Mr Ross formally adopted his note of argument in relation to those matters. Further, he adopted the submissions made on behalf of the first respondent particularly in relation to James v United Kingdom and to the authoritative status of the House of Lords decision in James v Secretary of State for Justice.

[26] Mr Ross made some additional submissions in relation to the article 5 ECHR argument. First, he suggested that in considering those arguments it was important to keep in perspective the relevance of the course work that the petitioner was to undertake. Recommendations made by the Tribunal in that respect were simply recommendations and there was no statutory requirement that such courses be undertaken. An assessment as to suitable courses may vary over time. The petitioner's progress to the Open Estate and ultimate release would depend on several other factors. In other words, even had the petitioner completed all relevant course work, he still would not proceed to open conditions if he was not of good behaviour. It could not be disputed that his conduct left much to be desired. Secondly, it was difficult to see how the petitioner's detention could be characterised as arbitrary when he was incarcerated pursuant to an indisputably lawful sentence. His recall to prison after release on licence was lawful because he committed an offence whilst at liberty. He was not deprived of any hearings as the Parole Board had considered annually whether he should be released.

[27] There were two important differences between the petitioner's case and situations that arose in the James cases. First, the petitioner was not serving an indeterminate sentence and secondly his case throws up no systemic failures of the type ultimately conceded in the James cases. In any event, the Strasberg decision in James v United Kingdom did not support a contention that the petitioner's article 5 rights had been breached. All that occurred in James v United Kingdom was that the fourth section of the European Court of Human Rights concluded in the particular circumstances before it that there had been a violation of article 5. In particular, the court found (at para 209), contrary to the view of the House of Lords, that rehabilitation of the particular applicants in question was an objective of their sentences after the expiry of the tariff at period in respect of each of them. The delay in question was a delay in transferring them to prisons where they could demonstrate a reduction in their risk to the public. The consequence was that time passed before they could make any progress. For the particular period following the expiry of the tariff and until steps were taken in relation to courses, the detention of the three applicants was arbitrary and therefore unlawful as contrary to article 5(1). As soon as the transfer to the new prison was affected, the detention ceased to be arbitrary. None of that assisted this particular petitioner. The facts were different. The petitioner will be released in 2015 or earlier. He had undertaken a number of courses during his original imprisonment. He had been released on licence. His recall and continuing detention were a result of the offence committed while on licence. The Strasbourg Court in James v United Kingdom was not concerned with reviewing the appropriateness of courses or specifying the means by which the claimants might otherwise be provided with opportunities to reduce their risk of offending. In the petition (statement of fact 19) the petitioner seems to say that a very specific course requires to be provided, namely the Violence Prevention Programme (VPP) although as the petitioner had been deemed unsuitable for it, that part of the claim had been dropped. The petitioner had been assessed as suitable for a "Constructs" course and a "CARE" course. The former had been undertaken and completed by April 2013 and the care course was ongoing and would be completed shortly. The Strasbourg decision in James v United Kingdom did not support to the proposition that a delay in the provision of course work gave rise to a breach of the petitioner's convention rights.

[28] Mr Ross referred to a recent decision of Lord Bannatyne in S M Petitioner [2013] CSOH 112. That was a case involving an indeterminate sentence where there had been delays in a prisoner transferring to open conditions. There was also an argument about a failure to provide real opportunities for rehabilitation. Reliance was placed on the requirement for exceptional circumstances to warrant the conclusion that a petitioner's imprisonment had become arbitrary for the purposes of article 5. It was clear that delays did not usually amount to exceptional circumstances. Counsel for the second respondents argued that in any event, James v Secretary of State for Justice was a binding House of Lords authority. He agreed with and adopted Mr Dunlop's submissions in relation to that. The petitioner's claim could not succeed given the emphatic and unqualified decision of the House of Lords that a prisoner's article 5(1) rights were not violated by a delay in transfer to first stage life prisons where they would be offered access to courses. Only in exceptional circumstances could there be such a breach. The petitioner's case was clearly weaker than what the House of Lords were dealing with in the James cases. Reference was made to paras 22, 51, 86 and 124-128 of the House of Lords decision. If the UK Supreme Court had thought it appropriate to depart from the House of Lords decision in James, it could have done so in the Faulkner case but did not. The case of Faulkner was clear authority for the contention that only in exceptional circumstances would delay lead to an article 5(1) breach. Detention pursuant to a lawful sentence of imprisonment would only be unlawful if it was no longer necessary for the protection of the public. The petitioner's claim was bound to fail in light of the House of Lords decision in James reinforced by Faulkner.

[29] As a fallback position, Mr Ross contended that there were further reasons why the Strasbourg decision in James should not be followed in this case. Section 2(1)(a) of the Human Rights Act 1988 requires the court to take into account any decision of the Strasbourg Court where it was relevant. It did not mean that domestic courts were bound by all decisions of Strasbourg. They must simply be taken into account. Of course domestic courts could not, without good reason, depart from the principles laid down in a carefully considered judgment of the Grand Chamber. There were, however, four reasons why the Strasbourg decision in James should not be followed. First it was inconsistent with the House of Lords decision. Secondly, it proceeded upon a misunderstanding of domestic law. Thirdly, it was itself contrary to a decision of the Grand Chamber and fourthly it was unclear and unsound. The misunderstanding of domestic law referred to was said to be that the Strasbourg decision recorded that one of the purposes of the applicant's detention was rehabilitation. However, as a matter of domestic law that was wrong. The sole purpose post tariff of the sentences in question was to protect the public; that is the statutory purpose of an indeterminate sentence. So far as the inconsistency with another Grand Chamber decision was concerned, reference was made to Saadi v United Kingdom (2008) 47 EHRR 17. It was clear from that case that so far as article 5(1)(a) ECHR was concerned, in the absence of bad faith or a lack of purpose of a term of imprisonment, the length of a sentence was one for the national authorities. It was important that only article 5(1)(a) related to a post-conviction detention. The proportionality ground relied on in James v United Kingdom had no application in the context of article 5(1)(a). The contention that the Strasbourg decision in James was otherwise unclear and unsound was based upon Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 at para 18. Taken at its highest the Strasbourg decision in James seemed to envisage "periodic arbitrariness". That would require the courts having to consider releasing dangerous prisoners or making awards of damages where a prisoner objectively assessed as being dangerous to the public simply because he had at one time had no access to intervention work. That was unsound in principle. In all the circumstances there was no foundation for any finding that the second respondents had acted in breach of the petitioner's article 5 rights. The declarator ought to be refused. In any event, as any arbitrariness proved ceased when the course work was provided the alleged breach belonged in the past.

[30] Turning to the issue of damages, the petitioner sought payment of 5,000. This could be characterised as "just satisfaction" damages. All that was said was that the petitioner had experienced feelings of frustration and reliance had been placed on the awards made in the James case. The matter of damages should be held over to see whether the breach was established and if so, what the nature of that breach was. A useful discussion to the approach to just satisfaction damages could be found in the Faulkner case - per Lord Reed at para 13. It was important to note that damages were not for the loss of a chance of early release. Where it was only a question of feelings of frustration, it may be that the damage was insufficiently severe to warrant an award. However, it was accepted that if the delay was of more than three months that would be unlikely. The basis of the awards made in James v United Kingdom is not explained by the court. The present case is complicated by the fact that there was no real basis for concluding that the petitioner would have been released earlier had the course work been provided.

[31] So far as the petitioner's arguments for a declarator of incompatibility in relation to section 3A(4) of the 1993 Act were concerned, Mr Ross contended that the petitioner's argument seemed to be that if the petitioner's detention was arbitrary it was unlawful and he therefore had to be released. If the first respondent could not do that because it was confined by the terms of section 3A(4) then there must be incompatibility. It was suggested that allowing the first respondent to consider whether detention was arbitrary was an easy legislative fix. However, as the second respondents contended that there had been no breach of convention rights, then the question of compatibility did not arise. Reference was made to Reid & Murdoch Human Rights in Scotland (3rd ed.) at para 1.45 and the case of R (Nasseri) v Secretary of State for the Home Department [2010] 1 AC 1 quoted therein. Lord Hoffmann had there explained that a declaration of incompatibility should be the last resort in a process of enquiry. The first stage was asking whether a public authority was acting in a way which was incompatible with a convention right. If the answer was no, that should normally be the end of the case. There was no need to answer a hypothetical question of whether a statutory provision would have been incompatible with a convention right if the public authority had been infringing it. However, even if a public authority was acting in a way which was incompatible with a convention right, the next question was whether it "could not have acted differently" or was acting "so as to give effect to or enforce" primary legislation - section 6(2) 1998 Act. If the answer was yes, then the public authority would not be acting unlawfully. The Parole Board was a creature of statute with limited, albeit important, responsibilities. Its principal function was to assess the risk of harm to the public if a prisoner is released. It was not for the petitioner to try to extend the legislative remit of the first respondent. It could not be said that the petitioner was without a remedy. He could always seek to judicially review decisions of the first respondent as he has in this case. The court has power to grant remedies where there has been a breach of his convention rights. There was no basis for concluding that section 3A was incompatible with those rights and declarator should be refused.

 

Reply for the petitioner
[32] Senior counsel for the petitioner reiterated that the critical question was whether the decision on release had passed to another body. If it had then article 5 was engaged. Rehabilitation had to be offered or detention became arbitrary. It was irrelevant whether the original sentence was determinate or indeterminate. While the petitioner's note of argument might have referred to the executive rather than the Parole Board at times, the oral submissions had been clear that the argument related to the decision on release being passed to the Parole Board. So far as the VPP Programme was concerned, the petitioner and his agents had been unaware that the petitioner had been deemed unsuitable for that programme when the petition was drafted. It was no longer necessary to insist upon it. The issue was access to appropriate rehabilitation generally. Further reference was made to the case of Faulkner v Secretary of State for Justice [2013] 2 WLR 1157 which, unlike James v United Kingdom, related to a loss of liberty. While there was no violation of article 5(1) in Faulkner, that did not affect the petitioner's argument in this case as basis on which the petitioner's detention was said to be arbitrary and thus unlawful was the authority of the Strasbourg court in James v United Kingdom.

 

Discussion
[33] In considering the various submissions made, I will follow the format used by both counsel for the petitioner and for the first respondent, namely to discuss first the ECHR points, secondly the merits challenge and thirdly and finally the reasons challenge.

 

ECHR
[34] In my view the starting point in understanding the nature of the petitioner's detention is the sentence imposed by the trial judge in 2006. At that time the total sentence imposed on the petitioner was a 10 year sentence backdated to August 2005. The sentence imposed was an extended sentence which was broken down into a custodial term of seven years and an extension period of three years. However, the length of the sentence was a total of 10 years. I do not consider that decisions about the length of the petitioner's sentence have ever passed from the sentencing court to another body, whether the Executive or the Parole Board. The length of the sentence was fixed at the time it was made. Accordingly, the petitioner continues to be detained because, having been released at the appropriate time when he had served two thirds of the custodial part of his sentence, he did not comply with the conditions of his release. In accordance with the relevant provisions of the 1993 Act, he cannot now be re-released until there is no need on public protection grounds to continue to imprison him. That said, given that his sentence is a determinate sentence, he has a "long stop"date on which he will finally be released in 2015 when his sentence will be fully served. The role of the first respondent, which considered the petitioner's case at the end of 2010, 2011 and 2012, was on each occasion to make an important decision about whether a point had been reached at which the petitioner could safely be released. Those were not decisions about the length of his sentence, they were decisions about whether he should be released prior to the end of the extension period. The importance of this point is clear from the decision of R(Giles) v The Parole Board and another [2004] 1 AC 1. There, Lord Hope of Craighead, having considered the relevant Strasbourg jurisprudence including the case of Van Droogenbroeck v Belgium (1982) 4 EHRR 443 concluded as follows:

"The critical distinction is that which the European court has made between cases where the length of detention is fixed by the court and those where decisions about its length are left to the executive. It is in the latter case only that new issues of lawfulness may arise in the course of the detention which were not incorporated in the original decision by the court."

 

Despite the reference to "detention" rather than "sentence", in my view the dicta in that case is of no assistance to the petitioner because his incarceration at any point during the 10 year period was necessarily envisaged by the court. In other words, the trial judge knew, in fixing the period of imprisonment and the period of extension that, were the petitioner released but reoffended, his licence would in all likelihood be revoked and any further release during the extension period would be a matter for the Parole Board. In Dempsey v Parole Board for Scotland 2004 SLT 1107 Lord Brodie, in the context of a discussion about the requirements of Article 5 ECHR, expressed the view ( at page 1137) that the recall of a prisoner to custody on the breaching of a licence condition is something done in implementation of the original sentence imposed by the court. Thus the deprivation of liberty that follows such recall flows from and is authorised by the original sentence. I agree with that view. Its application to the present case is that the petitioner's continued imprisonment is taking place by virtue of a determinate sentence imposed by the trial judge. It is in no sense being imposed by the first respondent. The necessary link with the court imposed sentence is what is required to avoid arbitrariness of detention and that has been present throughout the petitioner's detention. That link is put beyond doubt by section 17(5) of the 1993 Act which describes detention following recall of a licence as being "in pursuance of " the sentence imposed by the court. Even if it could be said that decisions about the current period of detention are being taken by the Executive, all that is required to avoid arbitrariness of the detention is a review judicially at reasonable intervals per Lord Hope in R (Giles) v Parole Board at para 40. The Parole Board is of course a judicial body for that purpose.

[35] The main focus of the petitioner's argument that his continued detention was now arbitrary and unlawful was based upon the decision of a section of the Strasbourg court in James Wells & Lee v United Kingdom(2013) 56 EHRR 12. There are a number of differences between the James Wells & Lee cases and the situation of the petitioner. First, those cases all related to prisoners who were serving indeterminate sentences. Secondly, it was conceded in James that there had been systemic failures in the provision of necessary rehabilatitive course work to the claimants. Those failures had led to delays in decisions being made about their transfer to open conditions.

[36] Nevertheless, the decision was argued to be in point because the underlying purpose of the detention in the James cases was the same as in the petitioner's case, namely the protection of the public. It has to be acknowledged that there is a clear tension between the House of Lords decision in James Lee & Wells v Secretary of State for Justice [2010] 1 AC 553 and the subsequent Strasbourg decision. However, in light of the distinctions between the factual background in James Wells & Lee compared with that of the petitioner, I do not consider that the Strasbourg decision causes any difficulties in deciding the case before me. The issue of the circumstances in which a prisoner's detention can become arbitrary in an ECHR sense have been considered again, authoritatively, subsequent to the Strasbourg decision in James v United Kingdom. In the cases of R(Faulkner) v Secretary of State for Justice and R(Sturnhan) v Parole Board and another [2013] 2 WLR 1157 the UK Supreme Court considered the case of a prisoner whose detention was prolonged as a result of a delay in the consideration of his case by the Parole Board. A violation of article 5.1 and 5.4 ECHR was claimed. The UK Supreme Court found that the case of James v United Kingdom was distinguishable from a situation where administrative errors resulted in a delay that was not of such a character and degree that detention became arbitrary. Lord Reed provided a 14 point summary of the conclusions he had reached in the case, the relevant parts of which are in the following terms:

"1. A prisoner whose detention is prolonged as a result of a delay in the consideration of his case by the board, in violation of article 5.4 of the Convention, is not the victim of false imprisonment.

 

2. Nor is he ordinarily the victim of a violation of article 5.1 of the Convention; such a violation would require exceptional circumstances warranting the conclusion that the prisoners continued detention had become arbitrary.

 

...

 

5. Courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so.

 

6. Where it is established on a balance of probabilities that a violation of article 5.4 has resulted in the detention of a prisoner beyond the date when he would otherwise have been released, damages should ordinarily be awarded as compensation for the resultant detention."

 

The basis on which the James cases were distinguished in Faulkner was, of course primarily that the Supreme Court was dealing with the issue solely of delay and not with a lack of access to rehabilitation courses. However, what I take from Lord Reed's summary of conclusions is that it would only be in exceptional circumstances that one could conclude that a prisoner's continued detention had become arbitrary such that there had been a violation of article 5.1 of the Convention. More importantly when applied to the present case, it is clear that only if a prisoner can prove, on balance, that a violation of Article 5.4 has resulted in his continuing detention after a date on which he should have been released, will damages ordinarily be awarded.

[37] Taking the James cases and the more recent case of Faulkner together and applying them to the facts of the petitioner's case, it seems to me that, taken at its highest, the petitioner's claim is that there was administrative delay in his being provided with rehabilitative course work of the correct type. For reasons I will explain in considering the merits of the first respondent's decision, I have concluded that there is no issue in this case of the petitioner's detention being prolonged purely as a result of those delays. The delays were a factor, but for other reasons the petitioner could not satisfy the test of it no longer being necessary for public protection that he be detained. Accordingly, cannot be said that delays in providing courses in this case or of a type that would warrant a conclusion that there has been a violation of article 5 ECHR. The requirements of Article 5.4 were met by the speedy determination of the lawfulness of the petitioner's recall to custody being decided by the first respondent in December 2010. The provision of annual reviews thereafter is arguably unnecessary as the detention will only become unlawful if the petitioner continues to be detained after his sentence is fully served in 2015. However, it is a further appropriate safeguard of the domestic system. It is worthy of note that even had the petitioner's detention somehow became arbitrary as a result of delays in the provision of appropriate courses, that issue was resolved by the commencement of courses prior to the raising of this petition. There could not be said to be any "continuing arbitrariness" thereafter.

[38] For the reasons stated, I do not consider there is any real merit in the ECHR arguments presented on behalf of the petitioner. Had I concluded that the case of James Wells & Lee v United Kingdom was in point, I would in any event have regarded myself as bound by the decision of the House of Lords. I agree with senior counsel for the first respondent that Supperstone J in the case of Kaiyam v Secretary of State [2013] EWHC 1340 took the correct course in this respect. Further, I have reached the view that the ECHR arguments were not properly directed against the first respondent. The Parole Board is clearly a public authority for the purposes of section 6 of the Human Rights Act 1998. There was no real dispute that the Board could not have acted differently in this case as a result of the provisions of primary legislation. Had it been otherwise, the petitioner could not logically argue for a declarator of incompatibility. It seems to me that the petitioner's arguments in relation to article 5 ECHR could be properly directed only at the second respondents.

[39] Turning to the declarator of incompatibility sought, the provisions in section 3A(4) of the 1993 Act were said to be incompatible with the Convention because they did not allow the first respondent to release a prisoner on the grounds that his detention was arbitrary. However, in light of the decision I have reached there has been no breach of Convention rights in this case, I do not consider that the question of compatibility of the provision with the Convention arises. Following Lord Hoffman's approach in R(Nasseri) v Secretary of State for the Home Department [2010] 1 AC 1the first stage is to ask whether a public authority had acted in a way which was incompatible with a Convention right. As I have answered that in the negative there is no need to address the more hypothetical question of whether the statutory provision in question would have been incompatible with a Convention right if either of the respondents had been infringing it. However, even moving to the second stage, it is clear that the first respondent could not have acted differently and was simply giving effect to primary legislation in terms of section 6(2) of the 1998 Act. Accordingly, the first respondent was not acting unlawfully and no issue of compatibility arises. As counsel for the second respondents pointed out, the petitioner is never without a remedy when decisions of this sort are taken. He can and has sought to judicially review the decision made. For all these reasons, I reject the contention that there is any need to embark further down the route of attempting to read down this legislation, which failing to pronounce declarator.

 

Merits challenge
[40] The challenges to the first respondent's decision making are of course properly directed against them. I consider first the substantive arguments that the first respondent made a series of errors of fact giving rise to unfairness. It was agreed that the test to be applied in relation to this type of error had been set down in E v Secretary of State for the Home Department [2004] EWCA Civ 49 and reproduced in Henry v Parole Board [2011] EWHC 2081 (admin). In order to succeed the petitioner would have to meet the following requirements:

1. there must be a mistake as to an existing fact

2. that fact must have been established, or be uncontentious or objectively verifiable

 

3. the petitioner must not be responsible for the mistake

 

4. the mistake must have played a material though not necessarily decisive part in the tribunal's reasoning.

 

Dealing with the most significant alleged error, this centred on the following passage from the first respondent's letter:

"The tribunal determined that you should remain in custody and progress in terms of the management plan. It accepted that similar plans were presented in 2010 and 2011 and little progress has been made, partly as you have been unable to access the programme work. ...the tribunal also noted that you have incurred five misconduct reports in 2012 which would have been taken into account in consideration of a decision about your ability to progress. The responsibility for these governor's reports lies with you."

 

In my view it is clear on the face of that passage that there are two reasons why the petitioner has been unable to progress. First is the delay in the programme work, through no fault of his own. Secondly, his misconduct during 2012 had to be taken into account as a further factor I do not consider that the board fell into any error in characterising the matter that way. The misconduct reports are a matter of recorded fact. The progress being described in the letter is plainly progress in terms of the management plan, involving a transfer to open conditions before release. There is nothing in the full dossier provided by the first respondent (number 7/1 of process) or in the Tribunal's letter that suggests that "progress" refers to progress to undertaking the course work. The interpretation put upon the passage quoted above by senior counsel for the petitioner does not stand up to scrutiny. The passage is clearly explaining to the petitioner that however many courses had been available to and completed by him, he would not have progressed to the open estate as a stepping stone to release without being of good behaviour for a reasonable period. So far as the delay in the provision of the appropriate course work was concerned, the reason for that delay was clearly of an administrative nature. There were issues about the identification of which course or courses were suitable and required to be undertaken and thereafter a problem with availability of the identified courses at the petitioner's location. The "constructs" course was due to commence in November 2012 but was delayed due to changes in the team providing it. There is no relationship between those issues and the petitioner's misconduct. Nothing in the first respondent's stated reasons indicates that the courses had been delayed as a result of misconduct.

[41] In relation to the other alleged errors, as senior counsel for the first respondent pointed out, all of the other facts stated in the letter are correct. There had been five misconduct reports in the relevant period. The fact that only four of them had led to findings of guilty does not in any way affect the accuracy of the statement made. Further, while the petitioner had been almost three months clear of governor's reports by the time of the submissions before the Board, he was a few days short of the necessary three month period. For these reasons, I do not consider that the petitioner's arguments in relation to there being material errors of fact passes even the first of the requirements set out in E v Secretary of State for the Home Department. Insofar as the facts relied on are verifiable, that verification is consistent with the first respondent's position. The only other alleged error claimed was that a statement in the decision letter encouraging the petitioner to engage with the management plan wrongly suggested that he had not done so hitherto. However, in the context of the letter as a whole, that statement can only relate to the conduct issues leading to the governor's reports rather than the necessary coursework to be undertaken. The material parts of the first respondent's decision are in my view clearly set out. There is an acknowledgement of delay in the provision of courses but at the same time a clear message to the petitioner that there were two elements he required to fulfil before he could progress to the open estate namely the completion of course work and a lengthier period of good behaviour. The letter explains to him that the first respondent would not be in position to release him unless or until both of those requirements were satisfied.

 

Reasons challenge
[42] This aspect of the petitioner's claim focussed on the absence of a reference to the ECHR argument in the decision letter. It was not in dispute that the petitioner had, through his representative, made certain submissions about article 5 and the lawfulness of his detention to the tribunal. There is of course a relationship between the arguments being run for the petitioner in relation to article 5 and this part of the challenge. Regardless of whether the first respondent chose to mention the Convention in it's decision letter, if the petitioner was being detained arbitrarily and thus unlawfully for the purposes of the Convention he would have succeeded in his claim that his convention rights were being breached. The first respondent has, quite properly, expressed it's decision in the language of the applicable legislation, namely section 3A(4) of the 1993 Act. The focus of the first respondent must always be what is necessary for the protection of the public from serious harm if the petitioner is released. Alleged arbitrary detention does not fall within the test that the first respondent must apply. The letter number 6/4 of process sets out clearly the reasons why the petitioner cannot be released after application of that test. In all the circumstances, I do not consider that the petitioner could be left in any real doubt as to the reasons for the decision not to release him in December 2012. I do not consider that the first respondent has erred in any respect or failed to give reasons for their decision. That decision was lawful and adequately justified and explained. The petitioner's criticisms fall well short of what would be required before the court would intervene with the decision of a specialist tribunal of this type.

[43] I have found it unnecessary to consider the issue of damages given the decision I have reached in relation to the argument for declarator. Had I decided differently, I would have followed the guidance on damages in such cases set out by Lord Reed in the Faulkner case at paragraph 13. Similarly, it has not been necessary for the purposes of my decision to reach any view on the second respondents' contention that the decision in James v United Kingdom is unsound. For the reasons already given, I consider that the decision of the Strasbourg court in James v United Kingdom is not directly in point in this case.

 

Decision
[44] It follows from the views I have expressed that my decision is to sustain the first respondent's third and fourth pleas in law and the second respondents' fourth and sixth pleas in law and refuse the prayer of the petition. I will reserve meantime any questions of expenses.


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