PETITION OF STUART QUINN (AP) FOR JUDICIAL REVIEW OF A FAILURE BY THE SCOTTISH MINISTERS
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 67
P625/14
OPINION OF LORD GLENNIE
In the Petition of
STUART QUINN (AP)
Petitioner;
for
Judicial Review of a failure by the Scottish Ministers to provide him with rehabilitation and their associated policy
Petitioner: Leighton; Drummond Miller LLP
Respondents: D Ross; Scottish Government Legal Directorate
19 May 2016
Introduction
[1] The petitioner is serving a sentence of life imprisonment for murder. The punishment part of his sentence (or “tariff”) is 18 years, imposed with effect from 22 May 2001. He will therefore become eligible to apply to the Life Prisoner Tribunal (“LPT”) of the Parole Board for Scotland for release on licence from 22 May 2019.
[2] In this petition, lodged in June 2014, he complains that the respondents, the Scottish Ministers acting through the Scottish Prison Service (“SPS”), have failed to provide him with a reasonable opportunity to rehabilitate himself and to demonstrate to the Parole Board at or about the time his tariff expires that he no longer presents an unacceptable risk to the public: c.f. R (Haney and others) v Secretary of State for Justice [2015] 1 AC 1344 (“Haney”). That is now the only live issue in this case.
[3] In addition, there is a complaint in the petition of a “systemic failure” in the provision of measures to enable life prisoners to demonstrate at their tariff expiry date that they might safely be released; and, separately, a complaint about the policy which the SPS applies in deciding how to prioritise prisoners for rehabilitation courses (the “prioritisation policy”). These complaints have been dismissed as irrelevant, and are not now live, at least before me. However, it is important to understand their scope and the reasons for their rejection, since the rejection of these complaints helps define the limits of the outstanding live issue and provides the context for its resolution.
The first hearing
[4] The matter came before Lord Tyre at a first hearing in May 2015. In his Opinion ([2015] CSOH 110) issued in August 2015, as noted above, he dismissed as irrelevant the petitioner’s complaint of systemic failure and his challenge to the respondents’ prioritisation policy. He indicated that, subject to further amendment of the petition, he was minded to allow a proof before answer on the petitioner’s complaint that the Scottish Ministers had failed to provide him with a reasonable opportunity to rehabilitate himself and to demonstrate to the Parole Board at or about the time his tariff expires that he no longer presents an unacceptable risk to the public. The issue of the Opinion was followed by sundry amendment procedure, after which an interlocutor of 21 October 2015 “[allowed] to parties a second hearing on the averments of the parties in the petition and answers”. Despite the unqualified terms of the interlocutor, it is clear that the ambit of the second hearing was not to include the petitioner’s complaints about systemic failure or the prioritisation policy. At the hearing before me it was accepted that neither of these matters was live.
The second hearing – scope and procedure
[5] The second (evidential) hearing came before me in January 2016. In accordance with the interlocutor of October 2015, evidence in chief was given largely by signed witness statements and/or affidavits. Parties required some but not all of the witnesses to attend for cross-examination. In the event I heard oral evidence only from three witnesses, namely: Douglas Thomson, a solicitor advocate with great experience of the prison regime who served as a legal member of the Parole Board from October 2001 until the end of December 2007; Owen McDade, who is employed by the SPS at HMP Greenock, managing the National Top End (“NTE”) facility there, compiling management plans for life sentence prisoners, participating in Risk Management Team (“RMT”) meetings, and also acting as the Lifer Liaison Officer (“LLO”), providing reports and presentations to the Parole Board and representing the SPS at Tribunals; and Stuart Logan, who is employed by the SPS as the Case Management Unit Manager at HMP Glenochil. Witness statements from the petitioner himself, from Stephan McAlpine (a Principle Psychologist at the SPS) and from Jacqueline Clinton (who is employed by the SPS as Governor of Castle Huntly Open Prison and before that was Deputy Governor at HMP Perth) were accepted as evidence without the need for the witnesses to appear.
[6] Since the decision of the Supreme Court in Haney, a number of petitions for judicial review raising similar questions have come before the courts in Scotland for a first hearing. However, as far as I am aware, none have so far progressed to a second hearing. This is the first time that the courts in Scotland have heard evidence on these matters. In those circumstances I shall set out in more detail than I might otherwise have done the evidence relating to the management of life prisoners in the Scottish prison regime.
[7] Before doing so, however, I should summarise the petitioner’s case as set out in the petition so as to provide a context in which such evidence should be examined.
The petitioner’s case in outline
[8] I take the following summary of the petitioner’s case from the petition and from the Opinion of Lord Tyre, as amplified by the petitioner’s affidavit evidence.
[9] The petitioner avers that progress through the prison estate towards release of a prisoner serving a sentence of life imprisonment follows a general pattern. First, the prisoner must undertake and complete necessary rehabilitative coursework. If and only if he achieves that, he may advance to the National Top End (“NTE”), where he will embark upon a programme of escorted leave before applying for a first grant of temporary release (“FGTR”). He will then obtain a work placement and progress to unescorted leave. From the NTE he will advance to the Open Estate. This procedure takes a number of years. In making its assessment of the risk of releasing a prisoner on licence, the Parole Board will have regard to his successful progression through the prison estate. In general the Parole Board will only consider a life prisoner for release on licence if he has spent a substantial amount of time in the Open Estate.
[10] The petitioner avers that in order to have a reasonable chance of release at his tariff expiry date, he requires to have completed his rehabilitative coursework by a date not later than three or (more realistically in his case) four years before tariff expiry. This is because, as already noted, the rehabilitative coursework has to be completed satisfactorily before he can advance to the NTE. Thereafter, prisoners will normally spend two years in the NTE and a further two years in the Open Estate, although some will spend less time in one or other or both. In the petitioner’s case, the circumstances of his offence and the absence of a stable environment into which he could be released mean that he will have to spend at least four years in the preparation for release phase. Accordingly, if he is to have completed four years on the NTE and Open Estate in time for his progress to be assessed and laid before the LPT, as a means of demonstrating to the Parole Board at or about the time his tariff expires in May 2019 that he no longer presents an unacceptable risk to the public, he ought to have completed his coursework and moved into the NTE by at latest about May 2015.
[11] This has not happened. He has been assessed as requiring coursework of various sorts. In the petition it is said that he completed the Constructs Course. That is not in fact correct; in his affidavit sworn on 2 October 2015 he says that he was assessed as requiring to complete the Constructs Course but was subsequently re-assessed and does not now require to complete it, an account which is consistent with the minute of the meeting of the Self Change Programme (“SCP”) Selection Board in September 2014. The next step is to undertake the SCP. That may take between nine and 15 months to complete depending upon availability of the modules in which he has to participate. Thereafter a report will have to be prepared. Depending upon how he performs, as evidenced by that report, the Programmes Case Management Board (“PCMB”) may require him to participate in the Substance Related Offending Behaviour Programme (“SROBP”). That programme would take about three to four months. Time will be required for the preparation of a post-programme report before decisions can be made by the PCMB as to what, if any, further courses are required. Finally, he will require to be presented to the Risk Management Team (“RMT”) for a decision as to whether he can move into the NTE, with a view to eventual progress to the Open Estate.
[12] So there is a lot still to happen even before he can be considered eligible to progress to the NTE. Putting together all these various stages and the likely time required for each, the petitioner’s case adds up to this: allowing some nine to 15 months for the SCP, a further three or four months for the SROBP (if he is required to participate in it), and, say, three months after each course for preparation of reports and the making of decisions as to how to progress, it will be a minimum of one year (nine months SCP plus three months for report and decision) and possibly more than two years (25 months, comprising 15 months for SCP, three months for report and decision, four months for SROBP and a further three months for report and decision) before he will be considered eligible to progress to the NTE, always assuming he is not assessed as requiring to complete some further programme before that. Taking that as being the position as at mid to late January 2016, when the second hearing took place before me, that means, on the petitioner’s case, that he will not be eligible to move to the NTE until at earliest January 2017 and possibly not until February 2018. Even then, so the petitioner contends, transfer to the NTE would not happen immediately upon his being assessed as suitable. He understands there to be a waiting list for transfer to the NTE. On that basis, and the same point is made even without this additional factor, the petitioner says that it is wholly unrealistic to contemplate that he could pass through the NTE and the Open Estate in time to be assessed by the LPT in May 2019 with a fair opportunity of persuading them that he no longer presents an unacceptable risk to the public and is suitable for release.
The complaints held to be irrelevant: systemic failure and the prioritisation policy
[13] I should refer briefly to these complaints, despite them having been held to be irrelevant because, on the petitioner’s case, they are said to be factors contributing to the delay in providing relevant coursework to the petitioner to enable him to make progress towards rehabilitation; and, therefore, a contributing cause of SPS’s failure to provide him with a reasonable opportunity to demonstrate to the LPT at the time of the expiry of his tariff that he no longer presents an unacceptable risk to the public.
Systemic failure
[14] The complaint of systemic failure was a complaint that the SPS had failed in the provision of measures to enable life prisoners to demonstrate at tariff expiry date that they may safely be released because it had failed to respond appropriately, i.e. by increasing the resources available for it, to the increased need for rehabilitative coursework caused by, amongst other things, the addition of Orders for Lifelong Restriction (“OLRs”) as a sentencing option and the introduction into the prison regime of wide-ranging Generic Assessment of prisoners’ need of and suitability for such coursework. Lord Tyre’s reasons for rejecting this part of the petitioner’s complaint are set out at para [27] of his opinion. In short, no relevant basis for this complaint was put forward. There were no factual averments underpinning the “believed and averred” assertions in the petition. It was pure speculation.
The prioritisation policy
[15] SPS’s prioritisation policy determines the time at which a life prisoner such as the petitioner is likely to start the process of participating on offending behaviour treatment programmes such as SCP. The policy, set out in its current version in the Governors and Managers Notice GMA 21A/13, is described by Lord Tyre in para [5]. In summary the position is as follows (using the paragraph numbering in the Notice):
1.1 Once a prisoner has been deemed suitable for an offending behaviour treatment programme, and is motivated and able to participate in it, then he is placed on the waiting list.
1.2 Spaces on such programmes are then allocated according to “critical dates”.
1.3 No prisoner type is prioritised over another. Regardless of the sentence he is serving (short or long term, life, OLR or recalled) the critical date, ascertained according to a table set out in para 1.4, is listed sequentially and spaces are offered as and when they become available.
1.4 According to the table, the critical date for both short term and long-term prisoners is the halfway point of the sentence. For life and OLR prisoners it is the date when the punishment part expires.
1.5 In the case of long term and life prisoners every effort will be made to offer programme spaces prior to “progression dates” (as set out in the RMT guidelines document) so as to allow prisoners the opportunity to prepare for progression, but this cannot be guaranteed due to the length and dynamic nature of the waiting lists.
[16] The petitioner’s complaint about this policy was that the availability of a place on the relevant offending behaviour programme depended solely upon the prisoner’s earliest release date, despite the fact that, unlike short term and even long term prisoners, life prisoners required to spend four more years in prison after completion of relevant coursework before they would realistically be considered for release. Prioritisation of access to rehabilitative coursework by reference to the earliest release date was therefore not rationale. It discriminated irrationally against certain categories of prisoners, including lifers. In rejecting the petitioner’s argument at paras [34] – [40], Lord Tyre did not reject the possibility that that prioritisation policy might have the effect of life prisoners having access to rehabilitative courses later than would be desired if they were to have a reasonable opportunity of rehabilitating themselves and, by their earliest release date, satisfying the Parole Board that they no longer presented a danger to the public. He simply concluded (at para [35]) that that policy could not be said to lie outwith the range of prioritisation policies reasonably open to the Scottish Ministers. No policies were going to be perfect. An alternative policy, such as one which placed life prisoners on waiting lists by reference to a date four years before tariff expiry would be prejudicial to other categories of prisoners and “a likely effect would be that some determinate sentence prisoners would be released without completing courses which they had been assessed as requiring”.
The respondents’ evidence
[17] I begin with a summary of the evidence led by the Scottish Ministers, since this gives a detailed account of programmes available for prisoners within the prison estate and the possibilities for progression through preparation for release phase up to the time their case comes before the LPT for review at their earliest release date. There was no attack on the credibility or reliability of the witnesses and I accept what they said in evidence. That leaves, of course, the question of where the petitioner fits within this regime and what are his prospects of having completed whatever is required of him by the time he is eligible to come before the Parole Board at the end of his punishment part seeking to demonstrate that he no longer presents a danger to the public. It is convenient to summarise the evidence by topic.
The Self Change Programme (“SCP”)
[18] The petitioner is currently at HMP Glenochil. He is on the waiting list for the SCP. The SCP Selection Board meeting of 5 September 2014, minutes of which were referred to in evidence, confirmed his suitability for SCP and placed him on the waiting list to access a place when one became available. According to the minutes, the Selection Board noted the discussion at the previous month’s PCMB meeting of the petitioner’s “significant history of violent behaviour” and the fact that he had incurred a number of misconduct reports for violent behaviour within custody. Its own assessment was as follows:
“From the available information, there is a clear pattern that is pervasive over time. [The petitioner] has evidenced violence both outwith custody, and whilst incarcerated. There are 74 previous offences, and he has incurred 85 misconduct reports whilst in custody. There is evidence of pro-violence attitudes and a general pattern of anti-social behaviour. His last misconduct report for violence was in 2013. It was agreed that he is a suitable candidate for the Self Change programme.”
[19] Evidence about the SCP came from Mr Logan, the Case Management Unit Manager at HMP Glenochil, and Mr McAlpine, a principal psychologist at SPS who was significantly involved in the introduction of the SCP into the SPS in about August 2013. Mr McAlpine described the SCP as a “high-intensity programme which is resource intensive”. As a result, it is only provided by two prisons, HMP Low Moss and HMP Shotts. There is a “delivery team” of four people, consisting of three facilitators and a Treatment Manager. The maximum group size for SCP is eight prisoners. The programme can take between six and nine months to complete, the variation in the completion time resulting from the fact that the programme is delivered in a “rolling format”, running throughout the year with the prisoner participating in the particular sessions or modules suitable to his needs. When a prisoner completes depends to a large extent upon the point at which he joins and the modules considered necessary for him to undertake.
[20] As with other programmes, there tends to be a waiting list for participation on the SCP. However, unlike other programmes, the SCP is considered to be the national programme, with a national database where prisoners, wherever they are held, are put on the waiting list by reference to their critical dates rather than by reference to the prison they are based in.
[21] Mr McAlpine explained that the system for preparing reports about the prisoner’s participation in the SCP differs from the system for reports for other programmes. Every prisoner participating in the SCP has a Planning and Progress Log which is updated throughout the programme by one of the facilitators, who may be a psychologist or a programmes officer. The Log should be completed within 30 days after the core phase of the programme has ended for that prisoner. The prisoner is provided with a copy, and there is then a post-programme meeting with the prisoner to discuss the Log. As I understood Mr McAlpine’s evidence, the Log is then placed before the Programme Case Management Board (“PCMB”) who will decide on where to go next. In his evidence Mr Logan did not mention the Planning and Progress Log but thought that a post programme report would be completed detailing the prisoner’s participation in the programme and his progress towards addressing the identified treatment needs. He thought that that report would be fed back to the prisoner and then reviewed by the PCMB. They may be describing the same process in different words or the difference may simply reflect the way in which the practice has developed since the initial introduction of the SCP. In either case it is of no materiality.
[22] PCMB meetings are scheduled weekly so that cases are dealt with promptly. A PCMB would be arranged soon after the Log had been finalised and/or after the post programme report had been prepared.
[23] Mr Logan explained that the PCMB is a multi-disciplinary team. A decision would be made at that stage as to whether the prisoner’s treatment needs had been met by his participation on the SCP. They would assess or re-assess his suitability for the Substance Related Offending Behaviour Programme (“SROBP”) and consider whether he had any other outstanding treatment needs. The PCMB can refer a prisoner to other courses, confirm that no further courses are required or identify the need for top up or “one-to-one” work.
[24] Mr Logan rightly sought to emphasise that, although a prisoner’s progress will depend upon his participation on the course, participation does not in itself provide assurance that treatment needs have been sufficiently addressed:
“Programmes are not a tick box exercise. You cannot mitigate risk by simply attending an offending behaviour programme.”
The likelihood of a prisoner successfully completing courses assigned to him will depend very much on his motivation and self-discipline. Many do not succeed. In some cases prisoners may have to undertake a programme again. But in certain cases, e.g. where the PCMB cannot identify an appropriate treatment plan to manage and mitigate the individual’s outstanding risk, where significant resources are required, or where the outstanding treatment needs cannot be addressed in offending behaviour treatment programmes within the custodial environment, the PCMB may refer the case to the Risk Management Team (“RMT”).
The Substance Related Offending Behaviour Programme (“SROBP”)
[25] The SROBP is offered at 10 sites within SPS, including HMP Glenochil. It is a rolling programme which is offered all year round. There is no national waiting list – each “delivery site”, i.e. each prison at which the programme is offered, has its own waiting list. The number of prisoners on the waiting list changes regularly but as at October 2015, the date of Mr Logan’s witness statement, there were fewer than 20 prisoners on the waiting list for SROBP at HMP Glenochil.
[26] Two SROBP courses are run in tandem at HMP Glenochil: one for mainstream offenders and one for sex offenders. Mr Logan thought that there were eight spaces on each course (Mr McAlpine thought that it might be as high as 10, but the difference is immaterial). The course was administered by two facilitators and a supervisor, their work being overseen by a Treatment Manager.
[27] Typically a prisoner will complete the SROBP within three to five months. The precise time will depend on the formulation of the treatment needs for the particular prisoner, which will determine which optional modules that prisoners should complete within SROBP. Each prisoner’s needs and response rates are different. For example, some prisoners cannot read or write well and that may affect their progress.
[28] Upon completion of the programme, a post programme report (“PPR”) is completed detailing the prisoner’s participation in the programme and assessing his progress towards addressing the identified treatment needs. The report has to be completed within eight weeks of the prisoner completing the course. The report will be made available to the prisoner and reviewed by the PCMB, usually at the prison where he completes the programme.
[29] Not every prisoner completes the SROBP. Some will “self-deselect”, i.e. they will decide not to continue with the course. Others will be “deselected”, i.e. removed from the course, because of their conduct. In all such cases the matter is put before the PCMB to consider the next appropriate step in the treatment plan for that prisoner.
Other courses or programmes
[30] There are, of course, other courses offered to prisoners as part of the rehabilitation process. These include the Constructs and Care courses which were mentioned in the petition and in the evidence. I need not say any more about these for present purposes.
The preparation for release phase
[31] After successfully completing the SCP and any other programmes considered necessary and appropriate, the prisoner can expect to progress to the preparation for release phase in less secure conditions.
[32] So far as concerns the time at which a prisoner might progress to the preparation for release phase, Mr Logan said this:
“There is a misconception by some life sentence prisoners that they should be able to progress to less secure conditions 4 years before their punishment part expiry date in light of the terms of the Risk Management and Progression Guidance dated November 2011. This is not the case. The guidance provides that the preparation for release phase can commence no earlier than 4 years before the expiry of their punishment part. It also provides that this is the best case scenario and other factors including the prisoner’s supervision level, their drug test results and participation in programmes may affect the timing of the release phase.”
Mr McAlpine made a similar point in his witness statement.
[33] Progression from closed conditions to and through the preparation for release phase varies from prisoner to prisoner. It will be influenced by the category in which he falls (short-term, long-term, indeterminate, life, OLR, etc.), the nature of the offence and his conduct during his time in prison and through the various rehabilitation courses.
[34] The preparation for release phase consists of the NTE and the Open Estate. Typically life prisoners progress from closed conditions to the NTE and then to the Open Estate before they are released. Whereas other categories of prisoner may go straight to the Open Estate, it is only exceptionally that a life prisoner will skip the NTE and go straight to the Open Estate: see para 10 of Mr McDade’s witness statement.
National Top End (“NTE”)
[35] Detailed evidence about the NTE was given by Owen McDade, who manages the NTE facility at Chrisswell House at HMP Greenock, one of two prisons having NTE facilities (the other being Letham Hall at HMP Barlinnie). He explained the process by which a prisoner progresses to the NTE. It is the Risk Management Team (“RMT”) at the prison where the prisoner is based which decides whether and when a prisoner is ready to progress to the NTE. The prison itself is responsible for ensuring that all the progression criteria have been met and evidencing that the prisoner is a suitable candidate for NTE. The system is “essentially a ‘push through’ process by the closed estate”. Unless there is a specific request by the sending establishment to prioritise a case, NTE will admit prisoners on a first come first served basis. There is more often than not a waiting list for places in the NTE. Mr McDade said that the NTE at HMP Greenock is invariably full. There are 64 spaces and there was always considerable pressure to accommodate new prisoners from the closed estate. Spaces only become available on the NTE either when prisoners are transferred on to the Open Estate or, on occasion, if prisoners are sent back to closed conditions because of adverse developments.
[36] Mr McDade explained what the NTE was in these terms (using the paragraph numbers from his Witness Statement):
“2. National Top End (NTE) is the term used to describe an interim stage in a long term prisoner’s journey. This stage comes after leaving the Closed Estate (no community access), and before moving to the Open Estate (full community access). …
3. A significant difference between NTE and closed conditions in terms of the prisoner’s sentence progression is that it is about providing support rather than direct supervision. Prisoners at NTE have their own cell door key and can access restricted communal areas during patrol and nightshift periods while prisoners in the closed estate would be confined to their cells. The major benefit of being at NTE is the opportunity to access the community via Special Escorted Leave (SELs), community work placement and the unescorted leave scheme. Prisoners are encouraged to take ownership of their progression and contribute to it in a positive manner.
…
6. … The NTE RMT [will] agree an individualised management plan which may or may not include SELs, community work placement, unescorted leave and engagement with relevant professionals and services depending on the needs of the prisoner. The length of time required to undertake the management plan [is] also set by the RMT.
…
11. The principal activities relevant to demonstrating safety for release undertaken at NTE are compliance with prison rules and licence conditions. A life sentence prisoner will require to successfully undertake a series of SELs, engage positively with staff and service providers, [and] address any substance misuse, mental health or other potential issues before being considered for a community work placement which will require FGTR.
12 If the RMT approve the application for FGTR a submission will be drafted and sent, after internal assurance checks, to the Strategy and Innovation Directorate at SPS HQ. The submission will be checked again before being endorsed by an SPS Director. It will then be sent to the Cabinet Secretary for Justice at Scottish Government for final authorisation.
13. Once FGTR is received the prisoner is allowed unsupervised access to the community. Attendance at a community based work placement will be built up on an incremental basis with the focus on a gradual, phased reintroduction to the community. Once the prisoner has evidenced several months of compliance with licence conditions and demonstrated a positive response to the work placement he will be considered for inclusion in the unescorted leave scheme. This is unsupervised visits to an appropriate address but does not include overnight stays.”
[37] Mr McDade explained that the management plan drawn up by the RMT upon the prisoner’s admission to the NTE (see para 6 of the quoted passage from his witness statement above) would work towards the prisoner’s punishment part expiry date as a potential release date, provided that this did not compromise on the risk the prisoner may pose.
The Open Estate (“OE”)
[38] In addition to Mr McDade’s evidence covering this aspect of the preparation for release phase, I had evidence in the form of a witness statement from Jacqueline Clinton, the Governor of Castle Huntly Open Prison.
[39] Mr McDade said that when the prisoner has completed a pre-determined period on placement his case for progression to the Open Estate will be considered by the RMT. If approved, a FGTR (Move to OE) will be drafted and sent, after internal assurance checks, to the Strategy and Innovation Directorate at SPS Headquarters. The submission will be checked again and endorsed by a SPS Director, but it does not require to be sent to the Scottish Government. This is known as the “Second Grant”. Once the Second Grant is received, the NTE will liaise with the Open Estate to facilitate the transfer. The decision as to whether a prisoner is ready to progress to the Open Estate is taken by the RMT as part of the “push through” process described above. Ms Clinton emphasised that this was a decision taken by the “sending establishment”: the Open Prison had no locus in that decision making process, though they might seek clarification or further information.
[40] There is no formal minimum period which a lifer has to serve at the NTE before progressing to the Open Estate. Each case is considered on an individual basis. The management plan is drafted to reflect the time required to be spent at each stage of the process. As a rule of thumb, if the RMT considers that the individual requires a full period of testing, then the prisoner will expect to spend two years within the NTE, comprising one year on SELs and one year on placement and unescorted leaves. However, if the RMT consider that the prisoner is suitable for transfer to the Open Estate in a shorter time, that can be done, provided that safety is not compromised. Any management plan deviating in a significant way from the “standard” one year on SELs and one year on placement/ unescorted leave will be discussed with core RMT members before being implemented. It is generally anticipated that a prisoner will have enough time left before his punishment part expires to allow for two years on the NTE and a significant time thereafter in the Open Estate. Should that not be achievable, a management plan will be implemented, subject to identified risks, with the aim of allowing the prisoner to be in the strongest possible position at the time of his hearing before the LPT at the expiry of the punishment part of his sentence. But it is not always possible to work towards the punishment part expiry date as a credible release date – a range of factors relevant to the particular prisoner may prevent this.
[41] Ms Clinton described the Open Estate in these terms (using the paragraph numbers of her witness statement of 7 October 2015):
“3. The Open Estate (OE) has a community work placement scheme and where a prisoner meets the criteria for community access they are able to go out of the prison every day and work in the community. Prisoners also have a home leave scheme in the OE and can spend up to 7 nights in every 28 day period at home. This essentially means a prisoner could spend 1 week at home every month.
4. There are no physical barriers in the OE by which I mean there are no bars or fences and there is free movement of prisoners for most of the day around the prison. Home Leave, community work placements and the lack of physical barriers are to enable prisoners to demonstrate that they can be trusted to be managed in the community and minimise risk to public safety.
5. National Top End (NTE) also offer community work placements but at the OE we have 140 different community work placements, In excess of 60-70 prisoners attend work placements each day whereas in contrast only a handful of prisoners attend work placements in NTE.
6. We have a 284 prisoner capacity and currently we have 240 prisoners. We do not have any pressure on spaces. If there was a backlog at some stage we are able to extend capacity by changing the cell occupancy arrangements: 4 prisoners would share 3 cells as one of the prisoners would be on home leave. This would allow us to increase the capacity by 25%. There is therefore no likelihood that prisoners would be prevented from coming here due to pressure on spaces.
7. We have approximately 12 short term prisoners in the OE at present and the rest are life sentence prisoners and long term determinate sentence prisoners. We are less likely to have short term prisoners as they also have access to home detention curfew (HDC). …
8. Prisoners are assessed for access to the community on a risk managed basis. We have close engagement with community based social work colleagues, addiction support agencies and housing and we work on a partnership basis to prepare prisoners for release. The relevant local authority has statutory responsibilities with SPS in managing long term prisoners, namely to provide throughcare services, and these are delivered by local authority social work departments and in particular community based social workers.
11. In the OE we conduct weekly multi-disciplinary risk management meetings where decisions are made about prisoners’ access to the community. Personal officers prepare reports monthly for the prisoners and their circumstances are also considered at Integrated Case Management (ICM) Case Conferences. Mental health or addiction teams may also contribute depending on the needs of that prisoner. Prison based social workers participate in this and represent Local Authorities.”
Hearing before the Life Prisoner Tribunal (“LPT”) of the Parole Board
[42] There is a parole hearing before the LPT at the expiry of the punishment part of the life sentence. A submission to the Parole Board on behalf of the SPS is made by the Life Liaison Officer (“LLO”). The function of the LLO is to provide the LPT with an overview of the prisoner’s response to custody and a plan for his onward management. Mr McDade, who acts as a LLO at HMP Greenock, explained that the LLO uses the management plans to inform his submission to the LPT. Where possible, the management plan is structured to work towards the potential release date or, if the prisoner has appeared before the LPT but not been released at his earliest release date, towards the next review date. He explained that each prisoner’s case must be considered at least every two years after the punishment part has expired.
[43] Mr McDade said that in his experience the Parole Board do not insist on the full implementation of a four year management plan within the NTE and Open Estate before they will consider recommending release of a life sentence prisoner. Most management plans will include 9-12 months at the Open Estate. In practice, if a life sentence prisoner were to arrive at the NTE up to three years before his punishment part expiry date, he would be expected to spend one year on SELs, one year on placement and one year at the Open Estate participating in the Home Leave scheme. Assuming there were no adverse developments, and housing and community concerns had been addressed, he would be a “credible candidate” for consideration for release by the Parole Board. If there were less than three years to the punishment part expiry date before his arrival at the NTE, then, if the LLO considered that the risk of reducing timescales was manageable, then it would generate discussion within the RMT as to whether a truncated management plan was possible. That would be a group decision “and there would have to be a defensible rationale underpinning it”. In other words, it would be an exceptional case.
[44] An overall assessment of the likely rate of progression through from closed conditions to the Open Estate and to a hearing before the LPT was given by Ms Clinton in paras 9, 10 and 12 of her Witness Statement:
“9. Often the progress of very high risk prisoners can be very slow. There is no formal minimum period which a life sentence prisoner has to serve in the Open Estate before he would be considered eligible for release. A prisoner is qualified to come to the OE 2 years prior to his PQD or Life Prisoner Tribunal, and they often arrive within a shorter time prior to this. Many arrive long after these dates have expired.
10. It is fairly unusual for prisoners to spend the maximum period in the OE. There is no rule of thumb how long a prisoner will spend in the OE prior to consideration for release. It will depend on their individual risk assessment. It is the role of the Parole Board or Life Prisoner Tribunal to consider whether a prisoner’s risks can safely be managed within the community.
…
12. A prisoner’s progression through the OE to release will entirely depend on the individual assessment of that prisoner, of their risk to public safety and this is a matter for the Parole Board or Life Prisoner Tribunal to consider. The matter of their progression to less secure conditions is decided at the closed establishment. Prisoners can be and are released from closed conditions. When prisoners complete courses that in itself is no guarantee they will qualify to be moved to less secure conditions. The post programme report may identify further needs. Prisoners may also demonstrate positive change through the development of protective factors such as links with pro-social family members and abstinence from substance misuse.”
[45] Mr McDade and Mr Logan were briefly cross-examined on their witness statements.
[46] Mr McDade accepted that the petitioner, with his track record, would be managed in a more conservative manner than many prisoners. He agreed that for life prisoners, who had already spent considerable time in custody, the NTE was their first experience of freedom for a long time and care had to be taken not to give them too much freedom too early. On arrival at the NTE, there was an eight week assessment period before the prisoner could start participating in the SELs. While in the past there had been a delay in the grant of FGTRs after the application had been sent off, that was no longer the case. He accepted that if the petitioner arrived at the NTE in the summer of 2017, he would expect him to leave the NTE and move into the Open Estate at about the expiry of the punishment part of his sentence, i.e. about May 2019. He did not know whether the petitioner would arrive by then. If he arrived at the NTE in January 2017, it was possible that he would be in the Open Estate by 2019, but even then he would have had only 4 to 6 months in the Open Estate before coming before the Parole Board.
The petitioner’s evidence
[47] Against this background I now turn to summarise the evidence led for the petitioner.
The petitioner
[48] The petitioner’s own evidence was given by way of Affidavit dated 2 October 2015. He explained that before his current sentence he had been involved in gang culture and had had a number of convictions for acts of violence, including one in the High Court in 1998 which resulted in a sentence of imprisonment of 2 years 8 months. Since the start of his current sentence in 2001 he had incurred a number of misconduct reports for behaviour of various types and had on several occasions been removed from association with other prisoners. However, he had never refused to participate in any offence focussed programmes. (He disputed the minutes of a PCMB meeting which states that he has refused in the past – I have insufficient evidence to resolve this dispute but for present purposes it does not matter.) He said that he had had significant difficulties with drugs over the years but had been subject to frequent drug testing regimes since 2014 and had not failed a drugs test during that time.
[49] The petitioner insisted that he would do all he could to be released on licence. He accepted that he would have to remain drug and report free, would require to complete all his offence focussed programmes and would require to transfer when ready to the NTE, where he would have to undertake SELs, a community work placement and unescorted leaves; all of that before any transfer to the Open Estate where he would have to undertake further community work placements and overnight home leaves before any successful application to the Parole Board.
[50] So far as concerned his progress through the system, the petitioner said that he was told by the prison at the start of his sentence that he would require to work towards what is known as the “four year window”, i.e. the period of four years prior to his parole qualifying date. He was told that he would complete offence focused programmes in time for the start of that period. He was told that, subject to him being of good behaviour, drug free and report free, he would be transferred at that point to the NTE where he would spend two years undertaking SELs and a community work placement. He would then transfer to the Open Estate where he would spend two years getting overnight home leaves.
[51] The nub of the petitioner’s complaint is set out in paragraphs 6, 7 and 8 of his Affidavit in the following terms (using the abbreviations used elsewhere in this Opinion):
“6. I am now 3 years and 8 months away from my parole qualifying date. I have yet to complete all my offence focused programmes. I have now entered my “four year window”. I should have been transferring to NTE. I am unfortunately unable to do this as I do not meet the criteria as I have yet to complete the offence focused programmes.
7. I was assessed as requiring the Constructs Course and the Violence Prevention Programme. The Violence Prevention Programme is no longer provided and has been replaced by the SCP. The SPS re-assessed me recently and confirmed that I do not require to complete Constructs. During this re-assessment process, it was indicated to me that I now require to complete the SCP and once I have completed that I will require to be re-assessed for the SROBP. The completion of these courses will take some time. I have been told that the SCP is a “rolling” Programme which comprises a variety of modules meaning that it runs continuously and prisoners participate in the modules relevant to them as and when those modules become available. I was told by a prison officer that the SCP can take anywhere between 9 and 15 months to complete depending on which modules I am assessed as requiring to complete. There will be a period of time after completion of the course where the course co-ordinators require to prepare a report. This report will then be presented to the PCMB for consideration as to whether I require to complete the SROBP. The SROBP can take somewhere in the region of 3 to 4 months to complete. I know this as I have discussed the course with other prisoners who have completed it and with staff in the prison. In the same way as the SCP, there will require to be a period of time where the course co-ordinators require to prepare their report. Once I have completed all of the courses identified for me I will require to be considered again by the PCMB to confirm that I do not require any more courses. I will then need to go to the RMT. I understand that in order to be presented to the RMT I will require to be drug-free and report free and to have completed all of my offence focused programmes. I do not fully understand the process but I do know from talking to others that all of this will take time. Once I have been assessed as suitable to transfer to NTE this will not happen immediately. It is my understanding that there is a waiting list for transfer to NTE at HM Prison Barlinnie and HM Prison Greenock. There are often delays in transfers to these establishments due to the length of the waiting lists. I know this from speaking to other prisoners.
8. I feel disappointed with the system. I feel let down. For 14 years I have been told by the SPS that everything will be done in time for my last four years. They now seem to have moved the goalposts. …”
Douglas Thomson
[52] Evidence on behalf of the petitioner was also given by Douglas Thomson, solicitor advocate, who has very great experience of the prison system both from his practice as a solicitor and from his time as a member of the Parole Board between 2001 and 2007, during which he chaired about 500 LPTs or their equivalent. In giving his evidence he recognised that there had been some changes to the practice of the Parole Board since he last sat in 2007, but those changes did not substantially affect his ability to speak with authority on the question of prisoner progression and Parole Board practice.
[53] In attempting to answer questions posed by the petitioners’ agents about the “normal” progression for life prisoners, Mr Thomson emphasised that there were vast differences between life sentence prisoners in respect of age, gender, previous offending history and physical and mental ability. There was no “normal”, though it was possible to talk about “desirable” or “standard” progression. He also stressed the importance of recognising that while it was easy to identify behaviour and attitudes militating against the grant of parole, it was considerably more difficult to identify behaviours that guaranteed, or made likely, a grant of release on licence. The duty of the Parole Board was to assess the risk posed by each individual prisoner, that a considerable proportion of prisoners failed to comply with the progression plan for a variety of reasons, and that experience and analysis of the reason for failure could inform future decision making. He stressed that last point in order to reiterate that his own knowledge of Parole Board practices in 2007 might not reflect the Board’s attitude to assessment of risk in 2015. He noted that the Parole Board did not involve itself in matters of prison management. One change which had occurred since he stopped sitting in 2007 was that the Parole Board no longer offered any recommendations as to how a prisoner should progress between LPT hearings.
[54] Mr Thomson said that in considering whether a prisoner should be released on licence, the Parole Board will inevitably look for strong evidence of positive compliance with the rules of increasingly less restrictive regimes before it can feel confident in directing release. A sustained period of poor behaviour in custody would have to be followed by a sustained period of good behaviour before a prisoner could realistically be considered suitable for release on licence. Each case would be considered on its own merits,
“… but a long history of misconducts of different types is likely to be of concern, especially if there is evidence of violence or drug misuse.”
He noted aspects of the petitioner’s disciplinary record referred to above.
[55] Mr Thomson classified information regarding the circumstances of the offence, the petitioner’s previous convictions and his history of drug use in the community prior to sentence as “static” risk factors which would remain part of a person’s history for all time. In the case of the petitioner, they tended to paint a picture of a man whose life prior to receiving his sentence demonstrated a high risk of serious offending and would always oblige prison management to adopt a conservative attitude in assessing future risk. A fourth factor, the lack of a pro-social peer group outside prison, might be regarded as a “dynamic” risk factor susceptible to change. There would have to be an assessment of whether a prisoner had demonstrated an ability to remain free from negative peer pressure while in custody to the extent that staff seeing him on a daily basis felt he could be trusted in conditions of increasing freedom within the establishment; and whether that trust was repaid by sustained good behaviour. And there would have to be an appraisal of whether the prisoner could avoid a reversion to past associations upon exposure to the temptations of life outside the prison walls.
[56] In attempting to estimate how long it was likely to take a prisoner in the situation of the petitioner to reach a point where release on parole was likely, Mr Thomson said that he had to assume for these purposes the absence of adverse developments or breaches of prison rules resulting in the petitioner being downgraded or losing his current supervision status. Since the introduction of the NTE system around 2002/2003, the optimum progression plan for life prisoners, assuming that they remained free from drug tests failures, misconduct reports and seriously adverse intelligence, had been for them to spend a year in NTE having access to the community by way of SELs, before spending a year on outside work placement, returning nightly to the establishment. Both SELs and outside work placements within the NTE are undertaken from “closed” establishments by prisoners who hold low supervision status and whose behaviour indicates that a level of trust can be placed in them. By this stage the prisoner would have been considered by both the Integrated Case Management (ICM) conference and by the RMT. In assessing a prisoner’s suitability for onward progression, consideration would all always be given to whether the prisoner had any outstanding needs in terms of case work which had to be provided in custody.
[57] Mr Thomson said that delays in progression could be an occasional problem within the NTE. There could be periods of stagnation, sometimes caused by an excess of suitable prisoners over available placements, sometimes by particular difficulties in finding suitable placements for the more notorious offenders and sometimes simply because of delay in Scottish Government approval of the FGTR, without which community access could not commence. It was dangerous to draw a parallel between individual cases, but he had had experience at the LPT of being told that a decision on FGTR was still awaited some two months after its submission. Progression could also be delayed within the NTE and some prisoners wait longer than others to obtain community access. However, after successful completion of around six SELs, and assuming that he remained drug-free, report free and had no outstanding programme needs, the prisoner should then commence an outside work or college placement.
[58] On the question of whether there was a certain amount of time which a life prisoner generally required to spend at the NTE and Open Estate before having a reasonable opportunity of release, Mr Thomson said that there had been a change in SPS policy since 2007, when he last sat on the Parole Board. When he was a chair of the LPT, the optimum progression plan was designed to conclude with a prisoner spending one year in the Open Estate and taking home leaves to his release address. That practice had changed and the SPS progression plan is now for two years in open conditions before the expiry of the punishment part of the sentence. The “four year window” referred to by the petitioner in his affidavit had lengthened from three years and had become somewhat more formal. It was unusual for a prisoner to be “fast-tracked” through the system. That tended only to happen when there were compelling medical reasons which would, for example, make the undertaking of an outside work placement impracticable.
[59] One of the key benefits of the NTE system is that prisoners are given a greater degree of autonomy and freedom of movement within the hall, while still subject to the restriction of being in a closed environment overnight. There are currently facilities for NTE in HMP Barlinnie and HMP Greenock, the others (at Shotts and Edinburgh) having closed. Mr Thomson described the move from wholly closed conditions to community access as one of the most important stages of progression.
After completion of a number of SELs, the prisoner will move to the stage of work placements. There can be delays before a placement commences. Placements generally start as one day per week and gradually increase to five days per week over the first two to three months. The prisoner is responsible for getting himself to and from the placement, but there are restrictions on how he travels, private cars and taxis not being permitted and the use of specific buses sometimes being required. Once a placement starts, the prisoner is swiftly given responsibility, subject to those restrictions, for arranging his journey from prison to placement and back again. What is being tested is the prisoner’s reliability, including his ability to relate to members of the public, to be punctual and polite, to avoid the temptations of public houses and off-licences, and to avoid contacting former associates on the drugs scene. A significant percentage of prisoners have their placements terminated for various forms of non-compliance. A period of about nine months on placements is regarded as a realistic period for testing the prisoner.
[60] Following successful completion of an outside work placement, the next step is progression to the Open Estate at HMP Castle Huntly. The prior consent of the Scottish Ministers is required before this move can be made. Because of justifiable public concern over the number of prisoners assessed as meeting the criteria for progression to open conditions who either abscond or commit serious offences while in the community, ministers are likely to adopt a cautious approach to granting consent. As a result, approval is likely to take some time, possibly up to eight weeks.
[61] The “four year window” mentioned by the petitioner contemplated two years within the NTE, undertaking SELs followed by work placements, and two years more in the Open Estate. Mr Thomson said that, as chair of LPT hearings during his time with the Parole Board, he seldom felt himself bound to keep strictly to that timescale. In the early years after 2001 persons were occasionally released after spending little or no time in the Open Estate, but they struggled sometimes to cope with the freedom which that gave them. As a result, the practice of the Parole Board in relation to curtailing the period within the Open Estate has become more cautious. However there were still cases where a prisoner was released after only seven or eight months within the Open Estate if there were no signs of concerning behaviour, no breaches of prison rules and no adverse intelligence reports. Experience showed that prisoners who failed to comply with the open prison regime tended to fail in the early months in the Open Estate. Furthermore, the preparation of a full dossier containing updated reports can take around four months, and the prisoner must be given four weeks to make representations on that dossier. A further three weeks must elapse before the Parole Board hearing date. Accordingly the prisoner will often have spent only 15 or 18 months in the Open Estate before being assessed for release.
[62] In his oral evidence, particularly in cross-examination, Mr Thomson readily accepted that the progress of any prisoner through the NTE and the Open Estate depended very much on the individual prisoner. There was flexibility in the system; predicting progress was difficult and involved a number of imponderables. Some prisoners did better than others. It was impossible to predict where the prisoner would be in two years’ time. He accepted the possibility of the petitioner being within the NTE towards the end of 2016, but said that he would be surprised if he had in fact reached it by them. Early 2017 would be his best (earliest) estimate.
Submissions
[63] Mr Leighton, who appeared for the petitioner, made it clear that he was not insisting on his case at common law. That case had been developed before Lord Tyre before the decision of the Supreme Court in Haney. It was no longer necessary. The petitioner’s case now proceeded only under the Convention.
[64] In terms of the Convention, he relied upon the “ancillary obligation” implicit in the scheme of Article 5: 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. At para 48 in Haney the Supreme Court emphasised that the ancillary obligation exists throughout the prisoner’s detention and 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. It followed that a failure before tariff expiry may constitute a breach of that ancillary obligation if it remains uncorrected and if, as a result of it, he is deprived of that reasonable opportunity.
[65] Mr Leighton emphasised three matters. First, the test was not one of Wednesbury unreasonableness. As with all points arising out of the Convention, the court should decide on balance of probabilities the question whether the prisoner had been provided with such an opportunity at the relevant time. Second, it was clear that a failure before expiry of the punishment part may constitute a breach if it remains uncorrected. It follows that a complaint can properly be made in legal proceedings before the expiry of the punishment part. Third, although with short-term prisoners or prisoners subject to an Order for Lifelong Restriction with only a short tariff there might be some reason why they could not be in a position to demonstrate their fitness for release on expiry of the tariff, therefore justifying the words “or reasonably soon thereafter” in the Haney judgments, in the case of a life prisoner there was absolutely no reason why the prisoner should not be entitled to an LPT hearing immediately upon the expiry of his punishment part, and there was no room for the imposition of a further “reasonable” time within which the prison authorities should meet their obligations: see per Cranston J in Weddle [2013] EWHC 2323 (Admin) at para 37. Haney involved four separate cases. Mr Haney himself was a life prisoner and no latitude for delay was afforded in his case (see paras 39, 50 and 69 of the judgment).
[66] Mr Leighton emphasised that he did not seek to challenge or second-guess the expert professional judgments of individuals involved in this case. For a long time the petitioner had been assessed as requiring to undertake coursework (in particular the SCP) followed by an appropriate period in pre-release conditions. That he had not been given the opportunity to do this had nothing to do with any expert professional opinion recommending that he should not undertake such coursework or progress into the NTE. There was no expert professional opinion to that effect. The SCP was a standard intervention which the petitioner was assessed as requiring to undertake. There was nothing extraordinary about it, nor any controversy about whether or not he needed to undertake it. He did. The simple fact was that the SPS had not placed him on the appropriate course in sufficient time to enable him to progress at the appropriate speed within the appropriate timescale.
[67] Mr Leighton summarised the effect of the evidence in the case. According to the evidence from Mr Thomson and from the respondents’ witnesses, it would be surprising if the petitioner was in a position to transfer to NTE before the beginning of 2017. It would probably be well after that by the time he had completed the SCP, whether or not he also required to undertake the SROBP. On that basis there will only be about two years, possibly much less, for him to complete both the NTE and the Open Estate before the expiry of the punishment part of his sentence. Whether or not the “four year window” was operated flexibly, it was impossible to conceive of the petitioner completing both parts of the pre-release phase (the NTE and the Open Estate) by that time if he was managed in the ordinary way. The petitioner is not being, and has not been, given the chance, reasonable in all the circumstances, to demonstrate come tariff expiry that he no longer presents an unacceptable risk to the public.
[68] Mr Leighton asked the court to pronounce declarator that the petitioner’s Convention rights have been breached and to award damages of £350, that being based upon the hypothesis that the petitioner should have been admitted to NTE at least three years before tariff expiry, whereas it appeared that the earliest he would be admitted to NTE would be January 2017, some eight months late. The amount awarded in Haney for a delay of 12 months was £500, and the £350 sought in this petition simply pro-rated that sum to reflect an eight month delay.
[69] Mr Ross, who appeared for the respondents, referred to the evidence in the case and submitted that there was no formal requirement for a prisoner to spend any time at all in NTE or the Open Estate before being recommended for release at a hearing of the LPT. Prisoners can be and sometimes are released from closed conditions. He quite properly acknowledged, however, that that would be unusual in the case of a life sentence prisoner. But he insisted that there were no minimum periods which a prisoner had to spend in either the NTE or the Open Estate prior to their being recommended for release. Their readiness for release was a matter for the Parole Board and the evidence was that the Parole Board did not insist on prisoners spending four years in the preparation for release phase. The one year for SELs and one year on work placements and unescorted leaves was no more than a rule of thumb, probably not even that. Each case will be worked out according to the needs of the prisoner, having regard to the punishment part expiry date. It was therefore extremely difficult if not impossible to say where within the prison system the petitioner would be two or three years from now.
[70] Turning to the law, Mr Ross pointed out that in Haney the leading judgment delivered by Lords Mance and Hughes, from para 36 of which the summary of the ancillary duty is normally taken, says nothing about the time at which the prisoner must be able to demonstrate that he no longer presents an unacceptable danger. There is no reference to tariff or punishment part expiry date. At para 60 it is emphasised that the opportunity afforded to the prisoner must be one which is reasonable in all the circumstances, taking into account among other things his history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use which has been made of such rehabilitative opportunity as there has been. Standards of perfection are not required: para 42. That would be unrealistic “bearing in mind the numbers of prisoners involved and the limits on courses, facilities and resources in the prison system.” In other words, there was no absolute obligation to afford the prisoner the opportunity at tariff expiry to demonstrate that he no longer presents an unacceptable danger to the public. It was “simplistic simply to point to the lapse of time … and ask the court to infer from that that there has been a breach of the duty to provide a reasonable opportunity for rehabilitation”: Reid v Scottish Ministers [2015] CSOH 84 at para [23].
[71] Mr Ross submitted that the petitioner’s position resulted from administrative policies, resources, pressure on places and so on. Yet Lord Tyre had rejected as irrelevant the petitioner’s complaint of systemic failure in the provision of measures to enable life prisoners to demonstrate by tariff expiry date that they might safely be released. In those circumstances, even if the court were to conclude that it was inevitable that the petitioner would not be in a position by tariff expiry date to persuade the Parole Board to direct his release, it did not follow that the respondents were in breach of the Haney duty. In what respect, he asked rhetorically, have the respondents failed in their duty? There was no suggestion that the respondents had wrongly assessed the petitioner as requiring coursework which was unsuitable or unnecessary for him. Any lapse of time in his undertaking the SCP is due to the pressure on that course. Many other prisoners have been assessed as requiring it, and there is a waiting list. Further, places are allocated by reference to critical dates, and the petitioners challenge to that prioritisation policy has been rejected.
[72] Mr Ross accepted that, if the court was against him on his primary submission, then it could issue a declarator in appropriate terms and make an award damages. He submitted that any damages awarded should be at a level lower than those awarded in Haney.
Discussion and decision
[73] As I indicated earlier, I have set out the evidence in greater detail than might otherwise have seemed either necessary or appropriate because this is the first case in which detailed evidence has been led of the rehabilitation system for life prisoners within the Scottish prison regime and the process by which a life prisoner may seek to persuade the Parole Board that he no longer presents a threat to the public and may safely be released. I have also set out the submissions relative to that evidence at some length. But having done that I can give my decision and reasons fairly briefly.
[74] I am satisfied on balance of probabilities that the petitioner will not be in a position to enter the preparation for release phase of his sentence (the NTE followed by the Open Estate) until at earliest January 2017 and probably much later than that. As at January of this year, the petitioner had not yet been given a place on the SCP. There is a waiting list for places on the programme. There was nothing in the evidence to suggest that enrolment on the SCP was imminent. Once a place is found for the petitioner, it is likely that the programme will take between six and nine months. The stage of completing the Log or post programme report, discussing this with the petitioner and forming a decision as to the future will take another two months or so. So to get to that point will take about eight to eleven months. I accept the evidence that the petitioner is likely to be treated cautiously at all stages. So it seems to me that on the best realistic case, even assuming he completes the SCP satisfactorily, the petitioner is unlikely to be recommended for a move into the NTE until about eleven months after enrolment on the programme. That assumes that he is not recommended for SROBP. If he is, then that will delay him further. Realistically, it is difficult to envisage him being recommended for the NTE before January 2017. Mid 2017 seems more likely. Then there is a waiting list for places on the NTE. On that basis, it seems optimistic to imagine that he will actually enter the NTE by January 2017. Mid 2017 appears to be the earliest realistic estimate.
[75] Whichever of those dates is correct, that would mean that he will enter the preparation for release phase of his sentence only about two years before the expiry of the punishment part of his sentence. This is well short of the four year window spoken about in evidence. I accept the evidence that it is not a strict requirement for release on licence that a life sentence prisoner must have served two years in the NTE followed by two years in the Open Estate. I also accept that it is theoretically possible for a life sentence prisoner to be recommended for release from closed conditions, or after only a short time in the preparation for release phase. But that is the exception. In reality the life sentence prisoner is likely to have to spend at least three years in the preparation for release phase, probably two years in the NTE followed by a year at least in the Open Estate. A prisoner with the petitioner’s background will be treated cautiously in terms of any recommendation for early release. His static risk factors require no less.
[76] It follows, therefore, that the petitioner will not be in a position at the end of the punishment part of his sentence to satisfy the LPT that he no longer presents a danger to the public and is suitable for release, even assuming full engagement and compliance on his part with the SCP and in the NTE and Open Estate – he could have no complaint if his prospects of release were set back by his own failures in this regard. He will not have completed the programmes and processes regarded as necessary for his own rehabilitation and deemed essential as a means of satisfying the LPT that he no longer presents an unacceptable risk.
[77] Mr Leighton argues, in effect, that this is sufficient to demonstrate a breach of the Haney duty. He founds in particular upon a passage in para 48 of Haney and upon remarks made by Cranston J in his decision in Weddle. I disagree.
[78] Dealing first with the case of Weddle, it is of some importance to note that the case was decided before Haney, the challenge being based on classic common law Wednesbury principles. It is therefore not directly in point on an Article 5 challenge. In addition, in the passage relied on at para 37, Cranston J was basing himself on the speeches in the House of Lords in the case of R (Walker) v Secretary of State for Justice [2010] 1 AC 553, in particular those of Lord Hope and Lord Brown. Lord Brown had spoken of a systemic failure in the provision of funding for rehabilitation. Lord Hope was to the same effect, without using that precise expression. It was on this basis that Cranston J understood Lord Hope to be referring to the position of prisoners “by the time of expiry of their tariff periods, or reasonably soon thereafter” and went on to question whether the qualification “or reasonably soon thereafter” was necessary in the case of life sentence prisoners with lengthy tariff periods in view of the systems and resources which should be in place to allow them to demonstrate that they are safe for release at or around the end of that tariff period. Although Cranston J says that he did not consider it necessary for there to be a systemic failure in order for there to be a breach of the public law duty, his focus on the resources that ought to be in place makes it clear that that is what that passage is about. On that basis, it does not help the petitioner here because the case based on systemic failure has been rejected by Lord Tyre and is not open before me. I should add, for what it is worth, that Cranston J’s judgment was reversed by the Court of Appeal just after the hearing before me, though without specific reference to that passage: see [2016] EWCA Civ 38.
[79] In para 48 of Haney the justices speak of the ancillary obligation being “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”. This, says Mr Leighton, fixes the time by reference to which the duty is owed. Adopting the reasoning of Cranston J above, he argues that with a life prisoner on a lengthy tariff everything can be geared towards the prisoner achieving that position by that time. There is no need for any flexibility in the target date. If he starts his courses sufficiently far in advance, he will get there in time, provided that he engages and cooperates. There is no excuse for any slippage on the part of the SPS.
[80] This is in many ways an attractive submission. But I am not persuaded that it is of any help to the petitioner in the present case. This is for two reasons. 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.
[81] 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 take into account.
[82] Those passages make it clear that one cannot just say that because 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. As I said in Reid at para [23], in a passage which has the approval of Lord Armstrong in Beattie v Scottish Ministers 2016 CSOH 57 at para [47], it is “simplistic simply to point to the lapse of time … and ask the court to infer from that that there has been a breach of the duty to provide a reasonable opportunity for rehabilitation”. The evidence in this case does not seek to attach blame to any particular decision made by the SPS in its handling of Mr Quinn’s case. The evidence appears to suggest that the prioritisation policy, by reference to which prisoners are first put on the waiting list for rehabilitative coursework, and the pressure on places on courses such as the SCP (and in time the waiting list for the NTE) will all play their part. The petitioner was recommended as suitable for the SCP in September 2014 and put on the waiting list then. Had he been put on the SCP immediately thereafter, and not had to take his place on the waiting list, all might have been well. But that may be a problem of resources. Had he been put on the waiting list earlier, again he might have been found a place on the SCP by now and again all might have been well. But that is a function of the prioritisation policy. As I have been at pains to point out, these are not matters which arise at this second hearing. Criticism of alleged systemic failures affecting the availability of rehabilitative coursework and of the respondents’ prioritisation policy have been rejected.
[83] For these reasons the petition must be refused.
Disposal
[84] I shall repel the petitioner’s pleas-in-law, sustain the respondents’ second, third and seventh pleas-in-law, and refuse the petition. Parties were agreed that in these circumstances I should award expenses against the petitioner as an assisted person and modify his contribution to nil.