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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> THE PAROLE BOARD FOR SCOTLAND AGAINST DAVID DOLAN [2023] ScotCS CSIH_26 (29 June 2023
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSIH_26.html
Cite as: 2023 SLT 1037, [2023] CSIH 26, [2023] ScotCS CSIH_26, 2023 GWD 27-227

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2023] CSIH 26
P1025/22
Lord Justice Clerk
Lord Turnbull
Lord Matthews
OPINION OF THE COURT
delivered by LORD TURNBULL
in the Reclaiming Motion
in the Petition by
DAVID DOLAN
Petitioner & Respondent
for
Judicial Review of a Decision of the Parole Board for Scotland dated 6 September 2022
against
THE PAROLE BOARD FOR SCOTLAND
Respondents & Reclaimers
Petitioner & Respondent; Pirie KC, Crabb; Drummond Miller LLP (for McGreevy & Co., Glasgow)
Respondents and Reclaimers: Dean of Faculty; Anderson Strathern
___________________
30 June 2023
[1]
In this reclaiming motion the Parole Board for Scotland seeks to challenge the
decision of the Lord Ordinary in the judicial review brought by the prisoner petitioner
David Dolan. In June 1996, when aged 16, he was convicted of murder and sentenced to
2
detention without limit of time. The punishment part of that sentence imposed in terms of
section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 was subsequently
fixed at a period of 10 years, to date from 4 March 1996. The murder took place on 3 March
1996 whilst the petitioner was on bail granted to him in June of 1995. In May of 1995 he was
convicted in the High Court of an offence of assault and robbery carried out at a
newsagent's shop by presenting a meat cleaver. On that occasion the sentencing judge
imposed a probation order with a requirement to perform community service. The
petitioner breached both of these orders prior to the commission of the murder.
[2]
On 6 September 2022 a Tribunal of the Board refused to direct the petitioner's release
and ordered that a further review of his suitability for release on licence should take place in
12 months. By his decision dated 21 April 2023 the Lord Ordinary held that the Tribunal
had acted unfairly and unlawfully in reaching its decision. He therefore ordered that the
decision be reduced and directed that a differently constituted Tribunal of the Board should
reconsider the petitioner's application for release.
The background
[3]
The petitioner has a lengthy history of being released and returned to custody. He
was first released in March 2010 but quickly breached his licence conditions and was
returned to custody only a few weeks later. He was next released on 26 April 2019 but
similarly returned to custody a short time later on 10 June, again having breached licence
conditions, including breach of his electronic monitoring condition, association with known
drug users and using illicit drugs. He was next released on 8 October 2019 and returned to
custody the following month on 23 November, having disclosed to his supervising officer
that he was misusing street Valium and cannabis. This was against a background of having
3
attended for various meetings apparently under the influence of drugs and as a consequence
of concerns which his behaviour had caused to the staff supervising his accommodation
arrangements.
The Tribunal's decision
[4]
At the hearing on 6 September 2022 the Tribunal had available to it all of the
documentation in the petitioner's dossier and up-to-date reports from Mr Smith, his prison-
based social worker and Ms O'Hara his community-based social worker. Both also gave
oral evidence to the Tribunal. Further evidence was given by Ms Lennox from a support
agency known as Hope Connections and by the petitioner himself. The information before
the Tribunal disclosed that he had been bullied and assaulted over the years whilst in prison
and had latterly been kept in the prison's protection hall for vulnerable prisoners. He had
been diagnosed as having general anxiety disorder including situational anxiety and
ruminative worry and as having difficulties suggestive of complex post-traumatic stress
disorder. He had not committed any acts of violence nor manifested any tendency towards
violence since being imprisoned. The psychological assessments which he had undergone
had not suggested that his mental health condition represented a risk to others.
[5]
The Tribunal accepted that the petitioner presented a high level of risks and needs
using the LS/CMI (Level of Service / Case Management Inventory) assessment tool. His
identified risk factors included employment/education, companions and alcohol/drug
problems. The Tribunal accepted that he was assessed as presenting a low risk of serious
harm with this risk not currently considered imminent but accepted the community-based
social worker's assessment that his risk of causing serious harm increased to medium on
release.
4
[6]
The Tribunal accepted Ms O'Hara's evidence that the petitioner's lack of proper
engagement with the supervision process increased his risk of reoffending. It also accepted
her assessment that his risk of using violence could not be discounted given the
circumstances of the index offence and his previous violent offence involving a weapon.
The Tribunal accepted that a return to substance misuse was not necessarily indicative of a
risk of violence in his case but it considered that the degree to which he was misusing
substances in the community made it impossible for him to engage with supervision to
allow his risks to be monitored and assessed.
The Lord Ordinary's decision
[7]
In reaching his decision the Lord Ordinary noted that the petitioner had committed
no act of violence in the past 26 years, whether in custody or during his several months at
liberty and engaging in drug misuse. He observed that this might be thought to be a
powerful indication of the absence of material risk to the public to which the Tribunal might
have been expected to accord rather greater weight than it apparently did. However, having
regard to the need to accord due deference to the Tribunal's assessment of the evidence
before it, he accepted that the Tribunal had concluded that the petitioner's release would
pose a material risk of harm to the public and that it was justified in coming to that view on
the basis of the evidence before it.
[8]
In the view of the Lord Ordinary these findings were insufficient to entitle the
Tribunal to refuse to direct his release. The statutory test which the Tribunal was bound to
apply was set out in section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993
and prohibited the Tribunal from directing the petitioner's release on licence unless it was
satisfied that it was no longer necessary for the protection of the public that he should be
5
confined. The Lord Ordinary held that before the Tribunal could decide whether this test
was met it required to address itself to "the question of whether whatever potential risk
might be posed by the release of the petitioner was proportionate with his continued
detention" (para [20] of his opinion).
[9]
In the Lord Ordinary's opinion, this exercise required the Tribunal to form a view on
what the nature of any such risk was and, at least in general terms, on the likelihood of its
eventuation. In his view, the Tribunal had proceeded on the incorrect assumption that any
material risk of violence of whatever kind justified the continued detention of the petitioner.
He concluded that the Tribunal's determination failed to disclose any appreciation of the
correct test which fell to be applied along with any consideration of the matters which
thereby required to be assessed. For these reasons the Lord Ordinary concluded that the
Tribunal had proceeded upon an error of law, or had at least failed to express the nature of
its reasoning at a standard acceptable in public law.
Submissions for the Parole Board
[10]
The Dean of Faculty submitted that the twin findings set out by the Lord Ordinary
exhausted the statutory test provided for by section 2(5)(b) of the 1993 Act. Having
acknowledged that the Tribunal's determination was that the petitioner's release would
pose a material risk of harm to the public, and that it was justified in coming to that view,
the Lord Ordinary should have appreciated that the Tribunal was then directed to the only
outcome available, namely that it remained necessary for the protection of the public that he
should be confined.
[11]
The Lord Ordinary erred in concluding that the Tribunal had applied the wrong test
or had failed to appreciate the correct test. The degree of risk which would justify continued
6
detention long after the expiry of the punishment part was a substantial risk of serious harm
to the public, sometimes known as the "life and limb" test. It was obvious that this was the
test which the Tribunal had in mind given the petitioner's background history of violent
conduct. The evidence accepted by the Tribunal led it to conclude that it was impossible to
assess and monitor the petitioner's risk in the community. If the risk which he posed could
not be managed in the community it was impossible for the Tribunal to be satisfied that it
was no longer necessary for the protection of the public that he should be confined. The
decision reached had been correct and ought not to have been interfered with.
[12]
The Lord Ordinary was also wrong to hold that a proportionality test of the sort
which he described required to be applied by the Tribunal. An awareness of the
consequences of continued detention for the petitioner was part of the overall assessment, or
balancing exercise, which the Tribunal required to perform in coming to a decision as to
whether the statutory test was met. It was not a separate consideration which fell to be
weighed after the assessment of the overall level of risk posed had been made. The Dean of
Faculty submitted that the approach which he contended for was supported by the analysis
set out by this court in the case of Ryan v Parole Board for Scotland 2022 SLT 1319 and by the
United Kingdom Supreme Court in R(Pearce) v Parole Board [2023] 2 WLR 839.
[13]
Furthermore, the reasoning which had led the Tribunal to its decision had been
stated entirely adequately. The informed reader would have no difficulty in understanding
the reasons for the decision or the material considerations taken into account in reaching it.
When it was understood that the Tribunal had concluded that the petitioner was currently
incapable of engaging in supervision in the community, and that it was therefore impossible
for his risk to be monitored, it would be obvious that this made it impossible to grant his
release. Given what the Lord Ordinary went on to say at paragraph [21] of his opinion, to
7
the effect that the release of the petitioner in his current circumstances would likely lead to a
rapid revocation of his licence and recall to prison, it was obvious to the Lord Ordinary
himself what the Tribunal's reasons had been.
Submissions for the respondent
[14]
Mr Pirie KC submitted that the correct approach to determining whether the
statutory test for release was met is described in the case of Ryan at paragraphs [14] to [17].
That approach included applying the following propositions, as outlined at paragraph [14]
of the decision:
(i)
"the court must adopt anxious scrutiny of the decision;
(ii)
it can interfere if the reasoning falls below an acceptable standard in
public law;
(iii)
the duty to give reasons is heightened if expert evidence is being
rejected;
(iv)
the longer the prisoner serves beyond the tariff "the clearer should be
the Parole Board's perception of public risk to justify the continued
deprivation of liberty involved";
(v)
while a cautious approach is appropriate when public protection is an
issue, as time passes it is not only legitimate but necessary for there to
be appropriate appreciation of the impact of confinement well beyond
tariff and;
8
(vi)
the decision maker should ensure that it is apparent that this approach
has been adopted and its reasoning should provide clarity as to why
confinement remains necessary in the public interest."
[15]
The decision in the case of R(Pearce) had emphasised that the consequences for a
prisoner remaining in custody after serving the punishment part of his sentence are relevant
and necessary components of the evaluation which the Tribunal is mandated to make. It
would therefore be a failure to take account of a relevant consideration for the Tribunal not
to give due consideration to the adverse consequences of a decision not to direct release ­
paragraphs 42, 69-70 and 87.
[16]
In arriving at its decision the Tribunal had only taken account of the risk that it
considered the petitioner posed. It had failed to take account of the consequences for him of
continued detention. This could be seen from the fact that there was no consideration in the
decision Minute of these consequences. At paragraph 110 of the Minute the Tribunal listed
the matters which it took into account without mentioning the consequences for the
petitioner. The decision of the Tribunal had not complied with the requirements of
paragraph [14] sub-paragraphs (v) and (vi) of the decision in Ryan.
[17]
Had the Tribunal followed the approach set out in these subparagraphs it would
have taken account of the prejudice to the petitioner of remaining in custody and weighed
that against the assessment of risk posed before deciding whether or not to grant release.
The decision of the Supreme Court in R(Pearce) supported the proposition that this was a
necessary step. In the petitioner's case that prejudice included the failure to progress the
psychological treatment designed to address his complex difficulties. Dr Kreis, Principal
Clinical Psychologist, who had given evidence at an earlier Tribunal hearing, had explained
9
that the trauma processing phase of his treatment could only be provided outwith the prison
environment.
[18]
The second line of argument advanced was that the Lord Ordinary had in any event
been correct to conclude that the Tribunal's decision had not been lawfully made. There
was a logical gap between the conclusions which it arrived at on the evidence before it and
the decision that it remained necessary for the protection of the public for the petitioner to
be confined. At paragraph 111 of the Minute the Tribunal set out its findings on the risk of
harm being caused. It accepted the evidence of Ms O'Hara that the petitioner's risk of using
violence could not be discounted. That was an inadequate basis upon which to conclude
that he posed a substantial risk of serious harm. There was no assessment of the type of
conduct which he might engage in or the likelihood of him doing so.
[19]
The final submission, as set out in the written Note of Argument which was adopted,
was that the reasoning of the Tribunal was inadequate. The reasons given were comparable
to those which were found to be inadequate in the case of Crawford v Parole Board for Scotland
2021 SLT 822.
Decision and reasons
[20]
The Parole Board for Scotland is the statutory body whose functions include
directing the release on licence of prisoners subject to an order for indefinite detention. A
Tribunal of the Board acts as an independent and impartial judicial body and can only
properly direct the release on licence of a prisoner subject to indefinite detention if it is
satisfied that it is no longer necessary for the protection of the public that the prisoner in
question should be confined. This is the statutory test contained within section 2(5)(b) of the
1993 Act which the Tribunal must apply.
10
[21]
In directing itself to its function the Parole Board operates as a specialist Tribunal
and the weight which it gives to the evidence available to it is a matter for it alone. The task
with which it is entrusted is a sensitive one (per the Lord Justice Clerk in delivering the
opinion of the court in Ryan at paragraph [15]) and judging whether it is necessary for the
protection of the public that a prisoner be confined is often no easy matter; it is not a black
and white test (per Lord Phillips of Worth Matravers delivering the judgment of the court in
R(Brooke) v Parole Board [2008] 1 WLR 1950 at para 53). For an individual serving an
indefinite sentence that sentence "lasts until it is safe to release the prisoner" (per
Lords Hodge and Hughes in delivering the judgement of the Supreme Court in R(Pearce) at
para 9).
[22]
In approaching its task the Parole Board will often have a voluminous quantity of
material available to it, comprising all of the various reports prepared in relation to the
prisoner, from the original trial judge's report and pre-sentence social enquiry report
onwards, through the various reports prepared by prison staff and by the prison-based and
community-based social workers entrusted with reporting on the prisoner's background,
circumstances and progress. As in the present case, medical reports and reports from
clinical psychologists and psychiatrists are also often available. Various of these reports
may set out risk assessments conducted by the use of acknowledged risk assessment tools or
by professional assessment.
[23]
The particular Tribunal hearing an application for release of a prisoner will also have
available to it the detailed Minutes setting out the reasons for any previous Tribunal
decisions. These will include a summary of any relevant evidence heard by that Tribunal
and its assessment of that evidence along with the Tribunal's view as to why it is no longer
necessary for the prisoner to remain confined, or how he should progress towards release.
11
In the present case the Tribunal hearing the application on 6 September 2022 had the benefit
of a very detailed Minute, running to over 200 paragraphs, concerning the previous hearing
which took place over 8 December 2020 and 17 February 2021.
[24]
In addition, it had available to it the reasons provided by the Tribunals which
granted the petitioner's release on the three occasions mentioned and the reasons provided
by the Tribunals on the other 13 occasions, from March 2006 onwards, on which release was
refused. These documents provided a comprehensive history of the petitioner's progress
within custody and whilst at liberty during the whole period of his sentence.
[25]
The submission that the 6 September Tribunal failed to give consideration to the
consequences of its decision for the prisoner falls to be assessed in the context of the whole
information available to it in the dossier. The detailed decision-making set out in the Minute
of the Tribunal which refused to direct the petitioner's release in February 2021 is of
relevance and importance. In its decision Minute that Tribunal noted (at paragraph 116) that
the petitioner's illicit substance abuse was a feature in both the index offence and the earlier
assault and robbery. It also accepted that the general link between involvement in illicit
substances and criminality including risk of violence is well documented and it was satisfied
that the petitioner's high level of substance misuse was a significant factor in its assessment
of risk. At paragraph 118 of its decision Minute that Tribunal noted that the evidence
available to it was that the petitioner's complex posttraumatic stress disorder could have
been a trigger to the index offence and could also remain a relevant and persistent risk
factor. The lack of immediate treatment in the community to address that risk was therefore
a matter of concern for that Tribunal. In light of all of the information available to it that
Tribunal concluded that a review in 12 months would be appropriate to allow the petitioner
to progress to the National Top End, to begin a gradual reintegration into the community
12
and to build relationships with his supervising officer and other supports in the community.
By the time the hearing of 6 September 2022 took place that progression to the National Top
End had not occurred and the petitioner's reintegration into the community had not
commenced.
[26]
The submission that the 6 September Tribunal failed to give consideration to the
consequences for the petitioner of its decision has no force. Seen in the context of the many
years over which various Tribunals of the Parole Board have been giving detailed
consideration to the level of risk which he posed, and his inability to cope with what were
deemed necessary management and monitoring conditions, it is obvious that the Tribunal
must have been acutely aware of his history and the reasons for his continued detention. At
paragraph 12 of its decision the Tribunal refers to the Minutes of the Board's previous
consideration of the case being included within the dossier and at paragraph 110 it explains
that it took account of all relevant information in that dossier. Both Mr Smith and Ms
O'Hara continued to recommend that the petitioner should proceed to the National Top End
in order to gain experience of gradual reintegration to the community. The Tribunal gave
effect to this recommendation at paragraph 115 of its decision Minute and set a further
review in 12 months. The statement made in this paragraph of itself reflects the Tribunal's
awareness of the consequences of its decision for the petitioner.
[27]
The consequences for any prisoner of remaining in custody, and the hardship of
requiring him to do so many years after the expiry of the punishment part, are components
of the whole picture which the Tribunal has to assess in determining whether or not the
statutory test is met. Counsel for the petitioner argued that there should be a balancing
exercise in which hardship was weighed against risk, with the potential that even where risk
to the public was identified the hardship for the prisoner of continued incarceration might
13
direct the Tribunal towards his release. The foundation for this argument was the reference
to the Parole Board carrying out a balancing exercise made by this court in the case of Ryan
and by the Court of Appeal for England and Wales in the case of R v Parole Board, Ex p
Watson [1996] 1 WLR 906. The submission advanced clashes head on with the statement
made by Taylor LJ, with whom the other judges agreed, in the case of R v Parole Board, Ex p
Wilson [1992] QB 740 at page 747 (referring to a passage in the decision in the earlier case of
R v Parole Board, Ex p Bradley [1991] 1 WLR 134):
"If that passage means only that the longer a prisoner has remained in custody the
more anxiously the Parole Board should scrutinise whether the risk of releasing him
is at the unacceptable level, then I would entirely agree with it. .... However,
Mr Fitzgerald argued the passage meant that the longer a prisoner has been detained
the greater would the risk to the public need to be in order to justify his continued
detention. This would import a sliding scale whereby the protection of the public
would diminish and taper off in proportion to the length of the prisoner's detention.
In my judgment that cannot be right. The level of risk to the public which the Parole
Board regards as unacceptable cannot properly be varied to accommodate the release
of a prisoner even if he was jailed in his twenties and has been detained for many
years."
[28]
A statement to the same effect can be found in the judgement of Lord Dyson MR in
the case of R(King) v Parole Board [2016] 1 WLR 1947 at paragraph 31:
"... [A]s a matter of ordinary language, the words `necessary for the protection of
the public' do not entail a balancing exercise in which the risk to the public is to be
weighed against the benefits of release to the prisoner or the public. The concept of
`protecting the public' does not involve any kind of balancing exercise. It simply
involves safeguarding the public from the danger posed by the prisoner. .... If the
board concludes that confinement is necessary because there will be a (more than
minimal) risk of harm if the prisoner is released, then confinement of the prisoner
will be required to avoid that risk."
[29]
With the benefit of the focus which the submissions in the present case brought, the
court agrees with the statement made at paragraph 69 of the decision in the case of R(Pearce)
that it may not be helpful to describe the function of the Tribunal as a "balancing exercise".
It is certainly not an exercise of the sort conducted as part of a proportionality assessment
14
when considering a European Convention based argument. Nor is it the sort of balancing
exercise which may take place in determining how to exercise a discretionary power.
[30]
Unless a Tribunal can be satisfied that it is no longer necessary for the protection of
the public that the prisoner should be confined, even if many years have passed since the
expiry of his punishment part, then the statutory obligation is to refuse to release that
prisoner on licence. This duty cannot be outweighed by the hardship caused to the prisoner
by his continued incarceration. What is necessary is that there be an appropriate
appreciation of the impact of confinement and that the decision maker's reasoning should
provide clarity as to why confinement remains necessary in the public interest (Brown v
Parole Board for Scotland 2021 SLT 687 Lord Malcolm delivering the opinion of the court at
paragraph [37]). The approach to be taken by the Tribunal is perhaps better described as an
holistic exercise in which the Tribunal evaluates all of the material before it in its assessment
of risk (see R(Pearce) at paragraph 46), or as a 360° view taking account of all relevant factors
(see Ryan at paragraph [15]).
[31]
In the present case, at paragraph 108 and 109 of its decision Minute, the Tribunal
identified that the petitioner presented a high level of risk and needs using the LS/CMI risk
tool and a low risk of serious harm which was assessed by the community based social
worker as increasing to medium on release. It is artificial to suggest that in these paragraphs
the Tribunal is doing no more than mentioning the evidence led before it. This is the
evidence which the Tribunal accepted.
[32]
In so far as the Tribunal was invited to take account of the evidence previously given
by Dr Kreis it is important to bear in mind that she stressed she had not conducted a risk
assessment. Her report also made plain that when the petitioner had previously been
released she had been unable to complete sessions of trauma focused work with him as
15
planned because of his lack of engagement and attending under the influence of substances
(see decision Minute for the hearing of 22 November 2019 paragraph 11). Despite not
having conducted a risk assessment, Dr Kreis expressed the view in her report of 2 August
2019 that the risk which the petitioner posed in the community was manageable but with the
qualification that this would require "robust care, support and risk management".
[33]
Although it is correct to note that the petitioner had not been involved in any violent
conduct since being incarcerated, the murder offence was committed at a time when he had
been drinking and was consuming cannabis daily and taking hallucinogenic drugs on a
regular basis. He had never been able to explain why he acted as he did on that occasion.
He claimed to have committed the assault and robbery in order to pay back a debt in the
context of regular drug abuse. In his own evidence before the Tribunal the petitioner had
said that he found it hard to explain what happened with his three recalls to custody and
what he could change (decision Minute paragraph 90).
[34]
In applying itself to the question of whether it was satisfied that it was no longer
necessary for the protection of the public that the petitioner should be confined the Tribunal
had in mind the level of risk which had been identified. The concern which it held was
around the degree to which the petitioner had abused substances in the community. This
was a quite different picture from the level of substance abuse which he had engaged in
whilst in prison. He did not present as an uncontrollable figure within the prison
environment, whereas in the community his substance abuse had made it impossible for
him to engage with supervision to allow his risks to be monitored and assessed. This is the
conclusion of the Tribunal as set out at paragraph 114 of the decision Minute. Because of the
level of risk assessed and the impossibility of managing this within the community the
Tribunal concluded that the statutory test was not met.
16
[35]
We do not agree with the Lord Ordinary's view that the Tribunal failed to show any
appreciation of the correct test to be applied. It referred directly to the statutory test at
paragraph 2 of the decision Minute. Nor do we agree that the Tribunal was required to
embark upon an assessment of the nature of the risk posed if, as Mr Pirie suggested, that
meant identifying the type of conduct involved and the likelihood of it occurring. The level
of risk required to justify continued detention post tariff has been described in different
ways. The test described in R v Parole Board, Ex p Bradley was:
"that the risk must indeed be `substantial' ... but this can mean no more than that it
is not merely perceptible or minimal."
[36]
As noted at paragraph [28] above, what was said to be necessary to justify continued
detention in the case of R(King) was a more than minimal risk of harm. However, in the
Supreme Court's decision in the case of R(Sturnham) v Parole Board [2013] UKSC 47 at
paragraph 29 Lord Mance, with whom the other judges agreed, stated that it was preferable
to concentrate on the statutory language and not to paraphrase. The same point was made
by the Lord Justice Clerk in delivering the opinion in Ryan at paragraph [15] when she
observed that:
"Whilst the use of a shorthand, such as `life and limb', may be useful this should not
obscure or embellish the statutory test."
[37]
That is the approach which the Tribunal adopted in the present case. It did not
proceed upon the view that any material risk of violence justified continued detention. The
Tribunal addressed itself to the question of whether it was satisfied that it was no longer
necessary for the protection of the public that the petitioner should be confined. In the
context of his posing a medium risk of causing serious harm if released, with risk factors
including companions and alcohol/drug problems, it concluded that it could not be so
satisfied because his risk could not be assessed and monitored in the community. Accepting
17
that the Tribunal had an appropriate appreciation of the ongoing impact of confinement on
the petitioner, the reasoning set out in paragraph 114 of its decision Minute provides
adequate clarity as to why confinement remains necessary in the public interest. There was
no need for the Tribunal to approach the matter in any other fashion.
[38]
It follows that the court rejects both of the principal submissions advanced on behalf
of the petitioner. To the extent that the inadequate reasons point was maintained it has no
substance. The informed reader would have no difficulty in understanding why the Board
came to the decision that the statutory test was not met. The reasons given in the present
case bear no valid comparison with the reasons which were found to be inadequate in the
case of Crawford v Parole Board for Scotland.
[39]
The decision of the court is therefore that the reclaiming motion will be allowed, the
Lord Ordinary's interlocutor of 21 April 2023 will be recalled and the petition will be
refused.
Post Script
[40]
In his interlocutor of 27 April 2023 the Lord Ordinary, ex proprio motu, made an
interim reporting restriction in terms of section 11 of the Contempt of Court Act 1981 and
granted the petitioner anonymity, anonymising his name to "DD" on the basis "the petition
raises and requires consideration of serious mental health issues affecting the petitioner,
publication of the details of which in conjunction with his name would not be in the interests
of justice". We are of the view that there is no basis for granting anonymity nor a contempt
of court order, taking into account the importance of the principle of open justice in
facilitating public confidence in the civil justice system (MH v Mental Health Tribunal for
Scotland 2019 SC 432 and Anwar v Secretary Of State For Business, Energy And Industrial
18
Strategy 2020 SC 95). The court will also recall the Lord Ordinary's interlocutor dated
27 April 2023.


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