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Cite as: [2016] ScotCS CSOH_125

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OUTER HOUSE, COURT OF SESSION

[2016] CSOH 125

 

P640/15

P641/15

OPINION OF LORD CLARKE

In the petitions of

JOHN MACKIE and KENNETH FRASER

Petitioners;

for

Judicial Review of a failure by the Scottish Ministers to provide the petitioner with a reasonable opportunity to rehabilitate himself

Petitioners:  McLean;  Balfour + Manson LLP (for Messrs Taylor & Kelly, Solicitors)
Respondents:  Ross;  Scottish Government

 

23 August 2016

[1]        In these two petitions the petitioners, who are presently serving sentences of life imprisonment in Scotland, seek various orders, including three declarators and an order for payment of damages, which are in identical terms in each petition.  Before me, at the first hearing of the petitions, the petitioners sought to have the court grant declarators in terms of the third declarator sought in each petition, which is in the following terms:

“Declarator that the respondents have violated, or that, in the event that the SPS gives effect to its expressed intention regard (sic) the future management of the petitioners’ imprisonment, they will violate, the petitioners’ rights under the European Convention on Human Rights by failing, in breach of their duty to do so arising by necessary implication from their express duties under article 5 of that Convention, to provide the petitioner with an opportunity, reasonable in all the circumstances, to rehabilitate himself and to demonstrate, by the time of the expiry of the punishment part of his sentence, or shortly thereafter, that he no longer represents an unacceptable danger to the public”.

 [2]        Counsel appearing for both petitioners, did not now seek to argue that the first and second declarators sought in the petitions should be granted.  The first of these is based on an alleged systemic breach of a public law duty to provide systems and resources to prisoners such as the petitioners which are sufficient to afford them an opportunity to show that they are no longer a danger to the public.  The second relates to an alleged breach of the said public law duty.  The fourth order sought seeks payment of damages.  It was accepted by counsel for the petitioners that the fourth order could not be dealt with until the issue of whether the third declarator sought should be granted was determined.

[3]        The submissions in support for the motion to grant the third declarator, in each case, were identical, apart from reference to the different factual situations of the two petitioners to which it was contended that the law in question fell to be applied.

[4]        It is convenient for me to set out the facts and circumstances averred in relation to each of the petitioners about which there was no material dispute.

 

John Mackie (Petitioner in case P641/15)

[5]        This petitioner is currently a prisoner at HM Prison, Glenochil.  He was born on 10 April 1973.  He has been convicted of numerous offences since the age of 16 and has served a number of custodial sentences.  On 17 August 2007 the petitioner was convicted of murder.  He was sentenced to life imprisonment.  The punishment part of his sentence was originally fixed at 18 years but that was reduced to 13 years on appeal.  The sentence was backdated to 16 August 2006, being the date when he was initially remanded.  Accordingly the punishment part of the petitioner’s sentence will expire on 15 August 2019 which will be seen is described, in the context of the present proceedings as “the critical date”.

 

Kenneth Fraser (Petitioner in case P640/15)

[6]        This petitioner is currently a prisoner at HM Prison, Glenochil.  In, or about, June 2005 he was convicted of murder, which had been committed on 19 November 2004.  He was 16 years of age at the time of the offence and 17 years of age at the time of his conviction.  In or about July 2005 the second named petitioner was sentenced to detention without limit of time with a punishment part of 20 years.  His sentence was backdated to November 2004 and the punishment part of his sentence was reduced to 15 years on appeal.  The punishment part of his sentence will accordingly expire in November 2019.  The murder committed by this petitioner had a sexual element.

[7]        It is common ground that in the cases of both petitioners any period of detention beyond the punishment part period is justified only insofar as it is considered necessary for the protection of the public. 

[8]        The petitioners aver, in some detail, what steps have so far been taken within the prison system to prepare the petitioners to be in a position to seek release after the end of the punishment part on the basis that they would not pose any risk to the public.  In this connection it is averred, in similar terms in relation to both petitioners that:

“A life prisoner who has served the punishment part of his sentence will be released by the respondents if his release is recommended by the Parole Board.  However, sec 2 of the 1993 Act provides that the Parole Board shall not direct the release of such a prisoner unless it is satisfied that it is no longer necessary for the protection of the public that he should be confined.  In order for a prisoner to satisfy the Parole Board that his continued detention is no longer necessary for protection of the public, it is, as a matter of practical reality, usually necessary for him to undertake coursework identified as being suitable for him, and thereafter to move from the ‘closed’ system into conditions of reduced security”.

 

As regards the steps taken to prepare the petitioner in P641/15 for release it is averred in article 9 of his petition as follows:

“That on 21 November 2011 and 4 October 2012 Integrated Case Management (‘ICM’) Case Conferences were held in respect of the petitioner.  At the ICM Case Conference on November 2011 it was noted that the petitioner’s progression date was ‘PPED minus 4 years’.  That is, it was noted that the petitioner was eligible to progress to conditions of reduced security four years prior to the date on which his punishment part expired.  A number of risk factors were noted, and it was concluded that it was necessary to carry out a generic assessment into which courses might be appropriate for the petitioner to undertake to address those risks.  At the ICM Case Conference on 4 October 2012 it was noted that the petitioner’s progression date was ‘PQD minus 2 years’.  That is, it was noted that the petitioner was eligible to progress to conditions of reduced security two years prior to his parole qualifying date (again being the date on which his punishment part expired).  As with the earlier Case Conference, a number of risk factors were noted, and it was again concluded that it was necessary to await the outcome of a generic assessment into which courses might be appropriate for the petitioner”.

 

In Answer 9 for the respondents it is stated:

“Explained and averred that the reference to ‘PQD minus 2 years’ in the record of the ICM Case Conference held on 4 October 2012 is a clerical error.  It should have read ‘PPED – 4 years’.  As a life sentence prisoner, the petitioner does not have a PQD”.

 

In Article 10 it is further averred on behalf of this petitioner:

 “That a Programme Case Management Board (‘PCMB’) Meeting took place on 23 November 2012 at which the petitioner’s case was discussed.  The PCMB recorded that the petitioner was noted to have been under the influence of cocaine and heroin prior to the offence in respect of which he was sentenced to imprisonment for life.  The PCMB also noted that factors which had led to his previous offending included excessive alcohol use and a failure to think of the consequences of his actions.  The PCMB noted that the petitioner had completed an Alcohol Awareness course in 2008.  In light of that background, the PCMB recommended that the petitioner should participate initially, in the Substance Related Offending Behaviour Programme (‘SROBP’), and then in the Violence Prevention Programme (‘VPP’)”.

 

In Article 11 this petitioner’s averments continue as follows:

 

“That a further ICM Case Conference was held in respect of the petitioner on 2 October 2013.  At that ICM Case Conference it was again noted that the petitioner’s progression date was ‘PQD minus 2 years’.  That is, it was noted that the petitioner was eligible to progress to conditions of reduced security 2 years prior to his parole qualifying date (being the date on which his punishment part expired).  It was noted that following the PCMB meeting on 23 November 2012 the petitioner had been listed for the SROBP and VPP courses.  As with the previous ICM Case Conferences, a number of risk factors were identified.  The conclusions were that the petitioner was listed for the SROBP and VPP courses and that he should continue with his positive response to custody.  Since the petitioner was originally listed for these courses, the VPP course has been replaced by the Self Change Programme (‘SCP’).”

Once more in Answer 11 it is explained and averred on behalf of the respondents that the reference to “PQD minus 2 years” in the minute of the ICM Case Conference held on 2 October 2013 is a clerical error and that it should have read “PPED – 4 years” since the petitioner as a life sentence prisoner does not have a PQD.  In Article 12 of his petition this petitioner goes on to aver that since the ICM conferences and the PCMB meeting on 23 November 2013 he has not been able to access either of the courses identified as suitable for him.  He refers to a letter dated 21 October 2013 in which the Scottish Prison Service (SPS) wrote to his then solicitors as follows:

“4492 JOHN THOMAS MACKIE

 

Thank you for your letter dated 19 September 2013.

 

I can confirm that Mr Mackie’s offending behaviour intervention needs were considered by a Programmes Case Management Board (PCMB) on 23 November 2012.  The recommendation of the multi-disciplinary group was that your client participates in the Substance Related Offending Behaviour Programme (SROBP) and the Violence Prevention Programme (VPP), and that these interventions should be sequenced as listed.  As Glenochil does not deliver the VPP your client will be required to move to a prison which delivers the programme in order to address this need.

 

I reiterate the information provided to your client in the response to his complaint that access to offending behaviour programmes is considered in line with an offender’s critical date, with each group being afforded equal priority.  This system of utilising critical dates is a fair and transparent system and does not prioritise one sentence type over another”.

 

The letter then later continued:

“In respect of the ‘waiting list’ you refer to, I can confirm that Mr Mackie is currently listed to participate in both groups.  In this regard access will be strictly by critical date and in line with the sequencing as determined by the PCMB, which is ultimately in line with SPS national policy”. 

 

The SPS had restated the position most recently by a letter dated 21 May 2014 in which it was said:

“4492 JOHN MACKIE

 

Thank you for your letter dated 22 April 2014.

 

As stated in my letter dated 15 April 2014, I can confirm that Mr Mackie was recommended to complete SROBP and SCP (formerly VPP). 

 

It was recommended by the Programmes Case Management Board that your client complete SROBP first prior to starting SCP.  I can also confirm that within HMP Glenochil we deliver SROBP and this programme is available for both population groups.  Mr Mackie is currently listed for SROBP in line with SPS policy which states that prisoners will be listed sequentially and spaces are offered as and when they become available.  Therefore, your client is listed per his critical date which is 15 August 2019”.

 

[9]        This petitioner then proceeds, in his petition to aver in articles 13 and 14 the alleged consequences of all of this.  In article 13 he avers:

“The SROBP course usually takes about two to three months to complete.  Following completion of the course, a post-programme report would have to be prepared in order to assess the petitioner’s response to it and to confirm his further needs.  Preparation of a post-programme report generally takes at least eight weeks, often longer.  The SCP course generally takes longer to complete than the SROBP course.  Again, following completion of the course, a post-programme report would have to be prepared in order to assess the petitioner’s response to the course and his further needs.  Preparation of the post-programme report would be likely to take at least eight weeks.  Since the petitioner has been assessed as requiring to undertake the SROBP and SCP courses in sequence, even if there were no delays at any stage, it is likely that it would take about a year for him to complete the courses.  Thereafter, depending on the assessment in the post-programme report, the petitioner might be allowed to progress to conditions of reduced security.  A life prisoner who has been moved to conditions of reduced security can expect to spend 24 months in National Top End Conditions (in which prisoners have keys to cells and enjoy greater freedom in the cell block and may go on work placements) and 24 months in the Open Estate (where there is no secure perimeter to the prison and in which the prisoner may be allowed out on home leave) prior to release on licence”.

 

[10]      In Answer 13 the respondents aver, inter alia:

“Explained and averred that the SROBP and SCP are ‘rolling’ programmes.  The length of time which individual prisoners require to spend on them varies.  Post-programme reports are completed for all participants, generally within eight weeks of the end of the programme.  Reports on some participants will be completed much sooner”.

 

[11]      This petitioner in article 14 of his petition avers as follows:

“That, if the petitioner is afforded access to offending behaviour treatment programmes ‘strictly by critical date’, then the practical result is that it is likely to be at least five years after the expiry of his punishment part that he would have any realistic possibility of persuading the Parole Board that it was no longer necessary for the protection of the public that he should be confined.  That is, the practical result is likely to be that he will have to serve a minimum of 18 years prior to being released, precisely the period which the High Court of Justiciary held on appeal to be an excessive minimum period, the imposition of which amounted to a miscarriage of justice”.

 

[12]      In Answer 14 the respondents reply:

“Explained and averred that access to programmes ‘strictly by critical date’ means that prisoners are prioritised by reference to their critical date.  It does not mean that they will not undertake such programmes until their critical dates”.

 

[13]      I understood counsel for the petitioners not now to contradict that being the position, and that, therefore, the reference to the petitioner in P641/15 not being in position to satisfy the Parole Board he is no longer a risk to the public until 5 years after the expiry of the punishment part is based on a misunderstanding of the terms of certain SPS documents.

[14]      In the respect of the petitioner in case P640/15 the averments regarding facilities provided to whom so far for preparing him for release are as follows.  In article 9 of his petition it is averred:

“That while he was detained in HM YOI at Polmont, the petitioner completed certain offending behaviour programmes, including Cognitive Skills, Alcohol Awareness, and the Core STOP.  Following his transfer to HM Prison, Peterhead, the petitioner was told that he would access the ‘Good Lives’ programmes.  The ‘Good Lives’ course was a cognitive behaviour programme designed to address sexual offending behaviour.  The ‘Good Lives’ programme has now been replaced with a course known as ‘Moving Forward: Making Changes’.  It is believed and averred that the reason the petitioner was told that he would access that course in accordance with the 2011 guidance was to enable him to commence on the 4 year preparation for release programme in sufficient time to enable him to have a realistic prospect of release by November 2019.  However, he was not subsequently offered, and has not been offered, a place on that course, or on Moving Forward:  Making Changes, either during his time at HM Prison Peterhead or while he has been detained at HM Prison Glenochil”.

 

His averments continue in article 10 as follows:

“That concerns were raised by the petitioner, and on his behalf by his family and by his agents about the failure to provide him with access to suitable offending behaviour programmes”. 

 

By letter dated 24 October 2014 the SPS wrote to the petitioner’s agents in the following terms:

“88803 KENNETH FRASER

 

Thank you for your letter dated 2 October 2014.

 

I can confirm that Mr Fraser has been identified as requiring to participate in the Moving Forward: Making Changes (MFMC) offending behaviour programme, and further that he is listed to do so.

 

I also note that your client and family members have equally expressed concern and frustration regarding his current access to programmes and more specifically the current SPS process for the allocation of a prisoner space on an offending behaviour treatment programme.

 

I can confirm the critical date for Mr Fraser under the terms of this policy is his punishment part expiry date, however, I will also highlight the policy states,

 

‘In the case of long-term prisoners and Lifers, every effort will be made to offer programme spaces prior to progression dates in order to allow prisoners the opportunity to prepare for progression.  However this cannot be guaranteed due to the length and dynamic nature of the waiting lists.

 

The management plan in place for Mr Fraser involves him continuing to engage positively in the custodial environment and with the ICM process, and further that he will be managed in line with his critical dates and will be allocated to programmes to coincide with these dates’.”

 

The averments continue as follows:

 

“It is believed and averred that the approach to management of the petitioners’ imprisonment as reflected in the letter dated 24 October 2014 has been changed as a result of the Amendment Notice”.

[15]      In answer 10 for the respondents it is explained and averred:

“that management in line with critical dates means that prisoners are prioritised for programmes by reference to their critical dates.  It does not mean that they will not undertake such programmes until their critical dates”.

 

Again, my understanding was that counsel for the petitioners now accepts that that is a true reflection of the position.

[16]      The petitioner in P640/15 proceeds to aver what are the consequences of the extent of provision by the respondents to him of means for preparing for release.  He avers in article 11 of his petition:

“That offending treatment behaviour programmes such as Moving Forward: Making Changes are accessed by prisoners such as the petitioner whilst in closed conditions.  Such offending behaviour treatment courses generally take a number of weeks or months to complete.  Following completion of such an offending behaviour treatment programme, a post-programme report has to be prepared in order to assess the prisoner’s response to the programme and his further needs.  Such post-programme reports generally take at least eight weeks to prepare, often longer.  Even if the petitioner were to be allowed to access the Moving Forward: Making Changes course immediately, it is unlikely that he would have completed it and that the post-programme report would be available in sufficient time to allow him to commence the 4-year preparation for release programme by November this year.  In any event, following completion of the course, the petitioner might be assessed as requiring to undertake further offending treatment programmes prior to being allowed to progress to conditions of reduced security.  If the petitioner were to be allowed to move to conditions of reduced security, a life prisoner who has been moved to such conditions can expect to spend 24 months in National Top End Conditions (in which prisoners have keys to cells and enjoy greater freedom in the cell block and may go on work placements) and 24 months in the Open Estate (where there is no secure perimeter to the prison and in which the prisoner may be allowed out on home leave) prior to release on licence”.

 

[17]      In answer 11 the respondents explain and aver “that post-programme reports are completed for all participants, generally within eight weeks of the end of the programme.  Reports on some participants will be completed much sooner”.  The likely ultimate result of what has happened to date, in relation to his position, is averred by this petitioner in article 12 as follows:

“That, if the petitioner is allocated a place on the Moving Forward:  Making Changes programme to coincide with the expiry of the punishment part of his sentence, the practical result is that it is likely to be materially more than four years after the expiry of his punishment part that he would have any realistic possibility of persuading the Parole Board that it was no longer necessary for the protection of the public that he should be confined.  That is, the practical result is likely to be that he will have to serve a minimum term of around 20 years prior to being released, which is the period which the High Court of Justiciary held on appeal to be an excessive minimum period in the petitioner’s case, the imposition of which amounted to a miscarriage of justice”.

 

Again, as previously noted in relation to the case of P641/15, it was accepted by the petitioner’s counsel that those averments were based on a misunderstanding of the SPS written advice and guidance.

[18]      In any event, on behalf of both of the petitioners it was submitted that their averments in relation to what had been provided to them until now to prepare for release, insofar as these matters were not materially denied by the respondents, demonstrated that the respondents were in breach of the duty set out in the third declarator, or at least, would be in the future in breach of that duty.  The submissions, in that respect, relied on the formulation of the relevant duty by the Supreme Court in the case of R (Kaiyam) v Secretary of State for Justice [2015] AC 1344 – otherwise referred to as “Haney”.  That duty and its application has been considered in some recent Scottish cases – Quinn v Scottish Ministers [2015] CSOH 110, Quinn v Scottish Ministers (No.2) [2016] CSOH 67 and Beattie v Scottish Ministers [2016] CSOH 57.  The duty, in its authoritative formulation in Haney, by the Supreme Court, is the outcome of a problem which arose in the penal system of England and Wales which required to be addressed both by the courts in England and Wales, including the House of Lords, and by the European Court of Human Rights.  The particular problem in question it seems, had not arisen in Scotland.  It is important, I believe, to have some regard to that context.  As Lord Tyre in Quinn (No.1) at paragraph [26] of his opinion noted the context is fully explained in the speeches of Lord Brown and Lord Judge in R (James) v Secretary of State for Justice (Parole Board Intervening) [2010] 1 AC 553 at paragraphs 24-28 and 118-122 respectively.  Lord Tyre proceeded to summarise what the problem had been and I gratefully adopt his remarks in that regard where he stated, at paragraph [26] of his opinion:

“Briefly, the introduction of IPPs swamped the English prison system with increasing numbers of indeterminate sentence prisoners, many with short tariffs.  There were neither the systems nor the resources available to undertake the required assessments, identification of risk factors and provision of rehabilitative coursework before expiry of the tariffs.  The consequence was that many prisoners reached their tariff expiry date without having had the opportunity to undergo coursework which they had been assessed as requiring before the risk of their release could be considered.  Against that factual background, it was a matter of admission by the Secretary of State that during the period of systemic failure to make reasonable provision to enable IPP prisoners to demonstrate to the Parole Board their safety for release, he had been in breach of his public law duty”. 

 

Although in previous Scottish cases, and in the present petitions, as pled, there were complaints made on behalf of prisoners, that there was a similar systemic failure in the Scottish Prison Service, with regard to the provision of facilities for prisoners and/or the quantity or quality of those facilities, as a generality, counsel for the petitioners, in submissions before me, made it clear that he did not now make any submissions in support of such propositions.  Moreover he did not seek to rely on the breach of any public law duty arising from domestic legislation.  The whole basis of seeking the declarators in question was an alleged breach of what has been described as an “ancillary” duty arising, by necessary implication, from article 5 of ECHR, as explained and expanded upon by the Supreme Court in Haney.  Article 5 of the Convention reads:

“1.       Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:  (a) the lawful detention of a person after conviction by a competent court;  (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;  (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;  (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;  (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, or persons of unsound mind, alcoholics or drug addicts or vagrants;  (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition….

 

4.         Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

 

5.         Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation”.

 

In Haney, the Supreme Court, in the joint judgment of Lord Mance and Lord Hughes JJSC, with whom the rest of the court agreed at paragraph 36 said:

“We also consider that the Supreme Court can and should accept as implicit in the scheme of article 5 that the State is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public”.

 

[19]      Their Lordships went on to provide that the duty did not arise from any of the express language of article 5 and its sub-paragraphs but that “such a duty can readily be implied as part of the overall scheme of article 5 and read as a whole”.  Their Lordships went on to set out in more detail the contents of the duty at paragraph 48 of the judgment and expanded on the previous formulation in the following terms:

“This ancillary obligation clearly exists throughout the prisoner’s detention, and is separate from any obligation to release, whether under domestic law or the Convention.  It is geared towards the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period.  A failure before tariff expiry may thus constitute a breach if it remains uncorrected so that he is deprived of such reasonable opportunity, which he ought to have had.  Such a breach may sound in modest damages if the impact on the prisoner warrants it”.

 

It might be noted that the words “reasonable time” did not appear within the formulation of the duty at paragraph 36.  Their Lordships continued, at paragraph 48, to observe that any breach of the duty in question could of itself not

“give rise to a duty to release, for whilst the prisoner remains unsafe to the public, there is ample justification under article 5.1(a) for his continued detention.  The question is accordingly this:  ‘was Haney afforded a reasonable opportunity to reform himself and (crucially in his case) to demonstrate that he no longer presented an unacceptable risk to the public?’” 

 

It was on those passages that counsel for the petitioners’ submissions could be seen to be substantially founded.  What the petitioners were seeking to have declared is that, at this point in time, some years before the expiry, in both of their cases, of the punishment part of their sentence, the respondents are presently in breach of the ancillary duty, or alternatively, that it can be stated that they will be in breach of the ancillary duty at some unspecified time in the future.

[20]      It has to be kept in mind, in my opinion, that there is no complaint by the petitioners as to any systemic failure by the respondents in the provision of facilities to enable prisoners such as the petitioners to demonstrate that they no longer pose a risk to the public.  There is no complaint about the quality and nature of those facilities.  There is, in particular, no complaint about the suitability of courses which the petitioners have averred it is planned that they should be placed upon.  The complaint is that, having regard to the alleged delay in progressing matters, it can be said that the petitioners will not be in a position to satisfy the Parole Board at, or shortly after, the expiry of the punishment part of their sentences that they have been rehabilitated.  In short, what the petitioners complain of is an alleged delay in placing them on courses for which they have been identified as being suitable candidates.  They say, in effect, that this is unacceptable.  It should, in that connection, be noted that in the judgment delivered by Lord Hughes in Haney at paragraph 91 it was stated under reference to a complaint that a prisoner had not been put on a particular course that:

“There is no legal obligation to provide an ESOTP course in the first place.  It is simply one possible way of tackling recalcitrant attitudes in some prisoners and a welcome arrow in the quiver for the case of those who prove very difficult to change.  To hold that a delay (including an unacceptable delay) in providing it constitutes a breach of article 5, via the ancillary duty recognised, would be likely to have the perverse effect of discouraging the prison service from providing it at all, and/or of discouraging recommendations for courses unless and until they are known to be shortly available, and/or of discouraging the prison service from devising and suggesting new forms of programmes, especially if they are extremely expensive, as clearly the ESOTP is.  All these effects would be an impediment to individualised prisoner assessment and management, and to eventual rehabilitation of those for whom it is possible” (emphasis added).

 

The expression “reasonable time” is one which takes its meaning from its context and requires to be qualified, in my view, by the words “in the circumstances”.  The authorities cannot, in my view, be read to mean that in every case where a prisoner can demonstrate that he will not be, or will not be likely, be in a position to demonstrate rehabilitation at the time of the expiry of his punishment part, or shortly thereafter, because the provision of courses selected for them by the authorities to enable him to do as will have not be completed by the critical date, is entitled to claim a breach of the ancillary duty.  The fallacy of any such proposition can be demonstrated by simply considering the very great differences that obtain between individual prisoners, having regard to the nature of their offending, their personalities and their own capabilities for responding to facilities designed to reform and rehabilitate them.  An illustration raised in discussion before me was of the elderly life prisoner sentenced for the murder of an elderly partner, or relative, in a fit of temper, with no previous history of violence, on the one hand, and, on the other hand, a life repeat offender prisoner, sentenced for the sadistic murder of young women, with a sexual element being present.  In the former case, it may not take the pursuer too long, on the expiry of the punishment part, to satisfy the Parole Board that he is safe to be released.  In the second case it may well be some quite significant time before the Parole Board will be able to come to a conclusion that release is appropriate, no matter how many courses etc., the offender may have attended.  All of this, in my view, is reflected in paragraph 92 of the majority judgment in Haney where it is said:

 “Coursework is important and may succeed, but it holds no guarantees.  In order for Robinson’s article 5 ancillary duty claim to succeed, that duty would have to go beyond the duty to afford an indeterminate prisoner a reasonable opportunity to reform himself and to demonstrate, by or within a reasonable time after tariff expiry, that he is no longer a danger.  It would have to be a duty to provide, or at least to take reasonable steps to provide, within such time frame, any specific coursework for which the prisoner had been judged eligible.  This is not the content of the duty”.

 

 

[21]      The approach, advanced on behalf of the petitioners before me, has been considered in certain recent Scottish cases.  In Quinn v Scottish Ministers (No.2) cited supra the petitioner, a prisoner serving a sentence of life imprisonment for murder had had his punishment part of his sentence fixed at 18 years, imposed with effect from 22 May 2001.  He would, therefore, be eligible to apply to the Parole Board for release from 22 May 2019.  The petitioner sought a declarator that as at 2015-2016, the respondents were in breach of their ancillary duty under article 5.  The case came before the court for a second hearing in which the Lord Ordinary, Lord Glennie, was provided with written statements and affidavits for the petitioner and representatives of the respondents and he heard evidence from certain witnesses from the respondents and a former member of the Parole Board.

[22]      The Lord Ordinary dismissed the petition.  Before doing so he noted that representatives of the respondents, Mr Logan, the Case Management Unit Manager at HMP Glenochil and Mr McAlpine, a principal psychologist at SPS gave evidence, which the judge, apparently, accepted, that the participation in courses by prisoners did not, in itself, provide assurance that the prisoner had suitably responded.  He noted that the likelihood of a prisoner successfully completing courses assigned to him would depend very much on his motivation and self-discipline.  Many do not succeed.  In some cases prisoners may have to undertake a programme again.   Lord Glennie was satisfied, on the evidence before him, that the petitioner would not be in a position, at the end of the punishment part of his sentence to establish that he was no longer a risk to the public.  Nevertheless his Lordship rejected an argument, on behalf of the petitioner, in that case, that that was sufficient in itself to demonstrate a breach of the Haney duty.  The argument had relied on what is said at paragraph 48 of Haney where the justices said that the ancillary obligation was “geared towards the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period”.  Counsel for the petitioner, before Lord Glennie, had contended that that dictum fixed the time by reference to which the duty is owed.  In the case of a life prisoner, the submission went on, everything could be geared towards the prisoner achieving that position by that time.  There was no need for any flexibility in the target date.  If the prisoner started his courses sufficiently far in advance, he would get there in time, provided that he engages and co-operates.  There was no excuse for any slippage on the part of the SPS. 

[23]      These submissions were rejected by his Lordship for two reasons which he expressed in the following terms at paragraphs 80-81 of his opinion:

“First, because other passages in the judgments in Haney make it clear that resources and the demands of other prisoners are a factor to be taken into account.  And secondly because in this case there is no live challenge based on systemic failure nor any live challenge to the prioritisation policy according to which prisoners are placed on the waiting list for rehabilitative courses.  The Haney duty, as I have called it, is best articulated in para 36 of the judgment of Lords Mance and Hughes (with which the other members of the court agreed) in Haney;

‘[It is] implicit in the scheme of article 5 that the state is under a duty to provide an opportunity reasonable in all the circumstances for [a life] prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public’.

 

I emphasise the words ‘reasonable in all the circumstances’.  As is made clear in Haney at para 42

 

‘The ECtHR does not however insist at the international level on standards of perfection that would be unrealistic, bearing in mind the numbers of prisoners involved and the limits on courses, facilities and resources in the prison system.  Nor should domestic courts do so’.

 

That paragraph goes on to say that ‘no system is likely to be able to avoid some periods of waiting and delay’.  Whether there has been a breach of the duty is a highly fact-sensitive question in any particular case.  The same point is made in para 60 of that judgment where, dealing with the case of Mr Kaiyam, the justices specifically mention the competing needs of other prisoners and the resources available, as well as in para 91 of the separate judgment of Lord Hughes, with whom the other justices apart from Lord Mance agreed, where Lord Hughes recognises the ‘availability of limited resources’ as a relevant factor to be taken into account”. 

 

At paragraph [82] of his judgment Lord Glennie concluded that “Those passages make it clear that one cannot just say that in the case of life prisoners the prison authorities have had ample opportunity of working towards a prisoner’s earliest release date, they are in breach of the article 5 ancillary duty whenever they miss their target or even miss it by a wide margin”. 

[24]      In the present cases, while the petitioners have lodged certain affidavits and witness statements, it was agreed before me, by both sides of the bar, that these petitions should be capable of being resolved on their merits without proof.  Counsel for the petitioners did say that if the court found that it could not determine the petitions without some evidence, as for example as to the likely earliest dates based on progress to date, when the petitioners would be likely to have completed the courses and procedures required to enable them to demonstrate that they were no longer a risk to the public, then the court should fix a continued hearing.  Counsel for the petitioners was content, in the first place, however, to submit that the present position, as agreed between the parties, as to the petitioners’ progression through the system should allow the court to consider that it was unlikely that they would be in a position, within a reasonable time of the expiry of their punishment parts of their sentences, to demonstrate that they would no longer pose a risk to the public.  In this respect he founded on a dictum of Cranston J at paragraph 50 of his decision in R (On the application of Weddle) v Secretary of State for Justice [2013] EWHC 2323 (Admin).  The petitioners also relied on the guidance given in the document entitled Risk Management and Progression Guidance issued in 2011 (“the Guidance”) and Governors and Managers Action Notices including a Managers Action Notice dated May 2013 concerning “Allocation of a Prisoner Space on an Offending Behaviour Treatment Programme”.  (“The Amendment Notice”).  The Guidance describes a 4 year preparation for release phase and refers to life prisoners spending time in the National Top End (“NTE”) and the Open Estate.  As counsel for the respondents pointed out, and I accept his position in this respect, the 4 year preparation for release phase is, properly understood, not a minimum period which a prisoner must spend in the NTE and Open Estate.  As is stated in paragraph 4.4 of the Guidance this phase “can commence no earlier than 4 years before the expiry of the punishment part” (emphasis added).  The 4 year period is, as was explained by counsel for the respondents “population management rule”.  The length of time which a prisoner spends in each part of the preparation for release placement is determined on the  individual merits of the individual case, having regard to the particular risk, or risks, which the prisoner presents.  The critical date referred to in the said documents is the earliest date upon which the prisoner becomes eligible for release.  For lifers such as the petitioners the critical date is, as previously noted, the punishment part expiry date.  Prioritisation according to these critical dates does not mean that prisoners will not undertake treatment programmes until those dates.  It means that prisoners are listed for such programmes in accordance with their critical dates.  Counsel for the respondents submitted, by way of example, that this meant that if prisoner A had a critical date of December 2019 and prisoner B had a critical date of February 2020 and both are assessed to require a particular programme, prisoner A will ordinarily be placed above prisoner B on the waiting list for that programme.  Counsel for the respondents emphasised that as the petitioners’ positions had developed they were no longer complaining of any systemic failure on the part of the respondents or a failure in the adequacy of the rehabilitation programmes that are in place.   In both cases their complaint is that the rate at which they are progressing through the process is not as speedy as they consider it should be.

[25]      The foundation of the petitioners’ cases ultimately seems to me to depend on a misunderstanding of the effect of the expression “reasonable time” in the dicta from the joint judgments of Lord Hughes and Lord Mance in Haney.  I note, in this connection, that Lord Brown in R(James) v Secretary of State for Justice (Parole Board Intervening) [2010] 1 AC 553, in describing the equivalent public duty as that now said to exist in terms of ECHR article 5, at paragraph 36 said it is a “duty to provide such courses as would enable IPP prisoners to demonstrate their safety for release and, to some extent at least, courses enabling them to reduce the risk they pose”.  He made no express reference to the time within which material ought to be available for the prisoners to be able to demonstrate that they are safe for release.  In M v The Scottish Ministers 2013 SLT 875 a case which pre-dated Haney, Lord Bannatyne in dealing with a complaint by a prisoner about the lack of reasonable opportunities being provided to him for his rehabilitation said this at paragraphs 103-104 of his opinion:

“What in reality the petitioner is complaining of here is not the failure to give him a real opportunity for rehabilitation.  Rather his complaint is that the rate at which he is proceeding, through the rehabilitation process, to what is hoped will be the final stage, namely:  a period in open conditions has not been as speedy as he hoped and not as speedy as the respondents have on occasions believed that it might be.

 

In my opinion the rate at which the petitioner proceeds through the rehabilitation process within the prison system is very much a matter of judgement for the prison authorities.  It would in my view be only in the most exceptional circumstances that the decision as regards this could be regarded as irrational.  I am not satisfied that such exceptional circumstances exist in this case”.

 

His Lordship, of course, did not have before him the dicta of the justices in the Haney case which included the words “reasonable time” and he was dealing with matters on the basis of irrationality but, in my judgment, his approach is not necessarily seriously undermined by those considerations.  The expression “reasonable time” may be defined as being the amount of time which is fairly necessary, conveniently to do whatever is required to be done as soon as circumstances permit.  In R (Weddle) v Secretary of State for Justice [2016] EWCA Civ 38 Underhill LJ in giving the judgment of the Court of Appeal noted at paragraph 31(1):

“Lord Mance and Lord Hughes make it clear that in principle a claim for breach of the article 5 ancillary duty can be brought prior to the expiry of the tariff period:  see paras.39 (P1370 C-D) and 48 (P.1373D).  (Indeed Haney’s claim, which was allowed, was brought almost a year before his tariff expiry date).  Mr Weisselberg submitted that in such a case damages should not be awarded unless by the date of judgment the tariff had expired and the claimant continued to be detained.  For reasons which will appear, I need not express a concluded view about that submission.  I am doubtful whether it is correct in principle, but I can certainly accept that claims brought long in advance of the tariff expiry date are likely to face serious difficulties as regards both liability and remedy:  we were referred to the recent decision of Dove J in R (Dunn) v Governor of HMP Frankland [2015] EWHC 858 (Admin)”.

 

[26]      It seems to me that the fallacy in the petitioners’ cases is to suggest that the use of the phrase “reasonable time” should be held as meaning that virtually every prisoner should be provided with courses etc which will be completed and sufficient to show that he is capable of being released within a short period after the terms of the critical date, which in the case of life prisoners is the end of the punishment period.  To interpret the phrase as rigidly as that would be to advance a counsel of perfection which the Supreme Court and the European Court of Human Rights has expressly said, as has been noted above, is inappropriate.  Moreover, such an approach, as to the meaning of reasonable time ignores context which was emphasised in the approach of Lord Hughes, with which the majority of the Justices agreed in Haney at paragraph 89.  The Supreme Court were considering four cases which included the Haney case itself.  In respect of one of the other cases, that of the prisoner Robinson, Lord Hughes at paragraph 89 said:

“The strongest part of Robinson’s claim under article 5 is no doubt the passage of time after the psychologist’s report of July 2008 before the ESOTP was begun in July 2013.  But given that his tariff was not due to expire until December 2012, there could have been very little complaint before at least the Secretary of State recognised the course as an objective in August 2010, and perhaps not until well after that.  Moreover in the meantime, in March 2011, still well before the expiry of his tariff, there had been the further detailed PCL-R session.  These were of course principally assessment rather than therapy, but they provided ample opportunity over nine hours to demonstrate that there had been a change, or at least encouraging understanding of the true nature of what he had done.  Sadly, what those sessions revealed was that he still saw himself as the victim, denied his principal offences, believed that he had not harmed any of the children and remained manipulative.  There could be no clearer demonstration of the risk he continued to present.  There has certainly been considerably greater delay in putting him on to the even more intensive ESOTP than one would choose to see in an ideal prison management system, but that is not the same as saying that he has not had a fair opportunity to reform himself or to demonstrate that he is no longer a danger”.

 

That passage, in my opinion, amply demonstrates that greater delay than one would wish to see in an ideal prison management system is not the same as saying that a prisoner has not had a fair opportunity to reform himself.  One does well, in my view, to remind oneself what the Justices in Haney said at paragraphs 42 and 43 of the joint judgment as cited previously:

“The European Court does not however insist at the international level on standards of perfection that would be unrealistic bearing in mind the numbers of prisoners involved and the limits on courses, facilities and resources in the prison system.  Nor should domestic courts do so”, as cited previously.

 

The Justices went on to refer to the decision of the European Court in the case of Hall v United Kingdom (Application No.24712/12) (unreported) and observed “the European Court was therefore prepared to look at the matter overall and to accept that no system is likely to be able to avoid some periods of waiting and delay especially for a highly intensive course such as the ESOTP”.  In conclusion on this aspect of the matter the Justices, at paragraph 43, said “Whether there has been a breach of a duty is a highly fact-sensitive question in each case”. 

[27]      I do, of course, accept, on the basis of authority, that it may be possible, on the strength of compelling evidence to determine that a breach of the article 5 duty has taken place, or will take place, prior to the critical date, sufficient to establish what is described in the authorities as “legitimate frustration” on the part of the prisoner, sounding in damages.  In Haney’s case, the prisoner Haney had his claim allowed where it had been brought a year before his tariff expiry date.  But that decision was based on a complete systemic failure by the prison service in making provision for the prisoner to have any opportunity to establish his rehabilitation, (see particularly paragraph 49 of the joint judgment).  That decision is to be contrasted with the majority decision regarding the pursuer’s claim in the Robinson case.

[28]      In the present petitions in P641/15 the petitioner’s punishment part, as has been seen, will not expire until 15 August 2019.  In P640/15 the petitioner’s punishment part expires in November 2019.  I agree with counsel for the respondents that what is said in the averments in the petitions, taken together with what was submitted on their behalf, amounted to a complaint that matters were not being progressed as fast as the petitioners would like, there being no complaint based on a systemic failure to provide facilities within the prison system or courses of an adequate quality.  What is more there is no averment, or evidence, at this stage, before me that, standing the fact that both petitioners have been assessed for apparently appropriate courses, and are awaiting placement on these courses, that would enable me, at this stage, to say, with confidence, that there is already a breach of the article 5 duty, some 3 years before the critical dates, on the part of the respondents, which may sound in damages.  There is, furthermore, in my view, quite insufficient material available to enable the court to determine at this stage that in some time (unspecified) in the future there will be a breach of the article 5 duty.  I see no good reason, in that respect, for distinguishing between the position of the respective petitioners.  I agree also with counsel for the respondents that on any view of matters pronouncement of the declarator sought, in each case, would, in the circumstances, be premature. 

[29]      In reaching the decision I have arrived at, I have adopted, to a significant extent, the reasoning of Lord Glennie in Quinn (2) whose approach to matters I note has recently been followed by Lord Armstrong in Beattie v Scottish Ministers [2016] CSOH 57.  The quite unacceptable absence of any provision of any rehabilitation courses and procedure, which formed the basis of the decision in James, and the backdrop to the Haney claim, did not, apparently, exist in the Scottish prison system.  The demands for these facilities will vary from time to time, given the numbers of prisoners and the nature and prevalence of particular offending conduct.  As the cases have now made clear the carrying out of the relevant duty under article 5 has to take into account the particular circumstances of the particular prisoner.  Some prisoners may need little in the way of rehabilitation training.  Others may need a great deal, even after the critical date.  The allocation and timetabling of these resources is quintessentially a matter for the experience and expertise of the prison authorities and those specialists employed by them to put into effect their application.  These are not matters, in my judgment, in respect of which the courts should be over-zealous to set out a timetabling which does not, and cannot, adequately have regard to the foregoing considerations.

[30]      For all the foregoing reasons I dismiss both petitions.


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