Review of significant caselaw

Prisoners Beggs v Scottish Ministers

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Beggs v Scottish Ministers [2015] CSOH 98; 2015 S.L.T. 178
A prisoner's rights under the ECHR art.8 A prisoner (B) petitioned for judicial review of actions of the Scottish Prison Service (S), on behalf of the Scottish Ministers (M), in relation to his mail. B claimed that his mail from the Information Commissioner's Office (O) had been opened on 14 January 2013, other confidential mail addressed to him had been opened in August, September, November, and December 2013, and he had suffered delayed receipt of mail of a confidential nature in April and August 2014 and January 2015; there was no efficient system of delivery of mail, leading to delay, and there was no efficient system of sorting privileged mail from other mail. M conceded that changes had been made to their policies and procedures in relation to prison correspondence since B's petition had been initiated. B submitted that (1) he was a victim for the purposes of the Human Rights Act 1998 the Scotland Act 1998 s. 100 and his rights under the ECHR art.8 had been breached, and the actions referred to were in breach of M's own mail handling policy; (2) he had raised petitions in the past to vindicate his rights concerning his correspondence, M had given an undertaking in 2003 not to open his correspondence unlawfully, which had been breached in December 2004, and subsequent petitions had been raised for judicial review in 2005 and 2006, and the context in which B made his complaints was that of there having been an earlier breakdown of the mail delivery system.
Held: Case put out by order. B's mail from O had not been recognised as privileged because S had not made its appearance sufficiently clear to the officers distributing the mail, which was best described as a failure in implementation of a policy. Moreover, there had been an implementation failure where a prison officer had not known what would result from a double envelope system, despite S regarding that as the best system and the one which they encouraged. (2) A prisoner was not entitled to expect or demand a perfect mail delivery system; S accepted that they required to have a system of delivering mail on the day it was received in the prison but that had to be subject to operational requirements which occasionally necessitated delay, all systems were vulnerable to the occasional failure due to human error, and there had been nothing other than those types of failure, X v Federal Republic of Germany (8383/78), considered . (3) B had made complaints in the past which had resulted in court action, he had frequently alerted S to difficulties with his mail, that history was a relevant consideration, and the repeated failure to recognise O's return address was relevant, Francis v Home Office [2006] EWHC 3021 (QB), considered . (4) B's rights under art.8 had been breached, although nothing had been done deliberately or maliciously; S had been well aware of B's concern about his mail over a period of approximately 12 years, they had failed in the implementation of policies to conform to the rules in respect of the opening of privileged mail; they had taken too long to instruct the mail handling officers on O's address and had also failed to instruct the persons handing out the mail on the appearance of mail from a double envelope, or failed to stamp the envelope when it was removed from the outer envelope, and those failures were such as to show that the system put in place during the time relevant to the complaints relating to privileged correspondence had been insufficient in its actual working to enable B's right to respect for his correspondence to be upheld. (5) The court had not been addressed on the remedy which ought to be available to B were he found to be a victim, and it wished to be addressed on the necessity of a declarator or any other remedy.
Quinn v Scottish Ministers [2015] CSOH 110

A prisoner (Q) serving a sentence of life imprisonment for murder petitioned for judicial review of an alleged failure by the Scottish Ministers (M) to provide him with rehabilitation and of M's prioritisation policy for rehabilitative courses. Q would have become eligible to apply for release on licence from May 2019. Q was assessed as requiring various coursework, including a self -change programme and a substance related offending behaviour programme. The Scottish Prison Service issued a guidance notice to prison governors and managers which stated that spaces on programmes were allocated according to critical dates based upon earliest possible release dates, and that no prisoner type was prioritised over another. Q submitted that (1) delays at all stages of progression through the prison system were such that life prisoners were unlikely to be in a position to demonstrate to the Parole Board for Scotland (P), at tariff expiry date, that the risk of release had reduced sufficiently that their detention was no longer necessary, indeterminate sentence prisoners had not been provided with reasonable opportunities for rehabilitation, and although they had been assessed as requiring rehabilitative coursework, they had not been provided timeously with the chance to undertake it; (2) M had behaved irrationally in not providing him timeously with the required coursework and were in breach of their public law duty to provide him with a reasonable opportunity to demonstrate at tariff expiry that he no longer required to be detained; (3) M's compliance with Q's rights under the ECHR had to be determined under reference to the duty, implicit in the scheme of ECHR art.5 and enunciated in R. (on the application of Kaiyam) v Secretary of State for Justice [2014] UKSC 66, [2015] 2 W.L.R. 76, and such rights existed regardless of whether the failure occurred before or after the tariff expiry date; (4) it was not rational to prioritise access to rehabilitative coursework by reference to earliest possible release date, which discriminated irrationally against certain categories of prisoner; (5) M's prioritisation policy did not provide adequate protection against arbitrariness in the detention of life prisoners and as such was in breach of art.5, and the policy was unfair because it failed to take account of different categories of prisoner; (6) the prioritisation policy was in the ambit of art.5 so as to bring the art.14 duty of non-discrimination into play, differences between prisoner categories amounted to "other status" for the purposes thereof, and the policy discriminated between different categories of prisoners to the detriment of life prisoners.

Held: Petition put out by order. (1) Q had not provided a relevant basis for his averment that M had failed to provide him and other indeterminate sentence prisoners with reasonable opportunities for rehabilitation, and no relevant case had been made that there was systemic failure by M to enable life prisoners generally to demonstrate to P by the end of their punishment part that it was no longer necessary to detain them for public protection, and the petition would be dismissed to that extent. (2) The public law duty acknowledged in R. (on the application of Wells) v Parole Board for England and Wales [2009] UKHL 22, [2010] 1 A.C. 553 was to make reasonable provision to enable indeterminate sentence prisoners to demonstrate their safety for release and the same duty applied with regard to a life prisoner. Q was not entitled, as a matter of law, to either an order in terms that M had acted unlawfully in failing to provide him with means to demonstrate to P by the end of his punishment part that it was no longer necessary for the protection of the public that he continued to be detained, or a proof on the question whether M were in breach of a duty formulated in such terms, where the terms thereof omitted any reference to reasonable provision of systems and resources. Q had sufficient averments to entitle him to proof as to whether M were in breach of such duty, and if the orders sought were framed in satisfactory terms, the court would fix a proof before answer on Q's complaints both under domestic law and the ECHR regarding his own treatment, R (on the application of Wells) , considered . (3) The fact that it might not be possible to state with certainty that Q's art.5 right would have been breached at the time of his tariff expiry did not prevent him from raising the matter prior to expiry. It was appropriate for the court to have regard to the various matters listed in Kaiyam , and the possibility that Q might satisfy the court that there had been a failure to provide him with such an opportunity should not have been ruled out without enquiry. (4) Where Q had sought an order that M provide him with a reasonable opportunity for rehabilitation and to demonstrate to P that he no longer presented an unacceptable danger to the public by expiry of his punishment part, it was not competent to grant an order ad factum praestandum in such vague and unspecific terms as it afforded M no indication as to how to comply therewith. (5) The test of irrationality was a high one, the discretion afforded to M and to those tasked with administration of the prison service was a broad one with which the court should be slow to interfere, and the prioritisation policy could not be said to lie outwith the range reasonably open to M. Q had failed to make a relevant case under domestic law that he was entitled to any order with regard to the prioritisation policy, or that the court should make an order reducing the notice to prison governors and managers. (6) It was clear from the Strasbourg case law discussed in Kaiyam that arbitrariness had a more confined meaning than a general notion of unfairness. If unfairness meant a failure to take account of different categories of prisoner, then the argument effectively became one of discrimination and Q's argument based on art.5 alone had to be rejected, Kaiyam , considered . (7) Q had a personal interest in being afforded the opportunity to undertake the coursework, which was sufficiently close to the core of his art.5 right to fall within the ambit of art.5, and therefore the non-discrimination duty under art.14 was engaged. (8) The fact that some prisoners had determinate sentences and some had indeterminate sentences was neither a relevant difference nor an inequality which required correction, nor did it render their situations significantly different so as to require differential treatment in order to avoid a breach of the Convention right of any particular category, and Q's argument founded upon arts 5 and 14 together would be rejected, and his petition would be dismissed to that extent. (9) The petition would be put out by order for the court to be addressed on Q's amendment, if so advised, of the terms of the orders sought, if appropriate, the fixing and scope of a second hearing, and any other matters.

Brown v Parole Board for Scotland [2015] CSIH 59; 2015 S.L.T. 568
A prisoner (B), convicted in January 2006 of culpable homicide and sentenced to an extended sentence of 10 years, reclaimed against a decision of Lord Ordinary refusing his petition for judicial review of the refusal of the Parole Board for Scotland (P) to order his release (Brown v Parole Board for Scotland [2013] CSOH 200, 2014 G.W.D. 2-36). B had been released on licence in April 2010 but was recalled to custody in September after stealing a motor vehicle whilst intoxicated. P's decision was given on the basis that B's continued confinement was necessary to protect the public from harm. Thereafter B completed several courses in prison, and P's extended sentence prisoner tribunal regularly reviewed B's confinement and decided on each occasion not to direct his release. B sought declarator that his rights under the ECHR art.5 had been breached by P's alleged failure and delay in the provision of courses as relevant to his progress towards release, and sought damages in just satisfaction. B submitted inter alia that (1) there was a compelling analogy between his circumstances and those of a prisoner serving a life sentence, after the stage of the expiry of the punishment part, or of a prisoner subject to lifelong restriction after serving the custodial element; (2) from 18 October 2010, decision making with regard to B's continued imprisonment had passed from the original sentencing court to P and the justification for his continued imprisonment was based only on the requirement of protection of the public, thus from that date he had been entitled to rely on the art.5 implied ancillary duty recognised in R. (on the application of Kaiyam) v Secretary of State for Justice [2014] UKSC 66, [2015] 2 W.L.R. 76 to facilitate his progress towards his release; (3) there was no logical distinction to be made between B and the appellant in Kaiyam , and on a proper analysis, the art.5 implied ancillary duty was capable of applying to a case such as the present; (4) the art.5 implied ancillary duty had been breached; there had been a significant delay from November 2010 to January 2013 to provide the courses which P considered necessary to advance B's rehabilitation, and it had caused B frustration and distress and held back his progress and his opportunity to be tested in more open prison conditions; (5) having regard to the circumstances of the prisoners in Kaiyam , a sum in damages of approximately £600 per year might be an appropriate award to represent just satisfaction in damages.
Held: Appeal refused. (1) On a proper analysis of the legislation, an extended sentence was a determinate sentence; it was an essential element of an extended sentence that the court specified both the custodial element and the period of extension, and, critically, at the end of the extended period, the prisoner had to be released. (2) It was instructive, in considering whether the distinction between determinate and indeterminate sentences were relevant to art.5, to consider the approach taken by the European Court of Human Rights, and the clear reasoning apparent in Brown v United Kingdom (986/04, 26/10/04) to explain why it considered that a different approach was justified when considering the effect of art.5(1) in relation to determinate and indeterminate sentences, and although the Supreme Court in Kaiyam did not agree therewith in James v United Kingdom (25119/09) (2013) 56 E.H.R.R. 12, the reasoning and conclusions of the justices were based on a recognition of the important features of indeterminate sentences; it was well settled that where a judge imposed a determinate sentence after conviction, the case fell within art.5(1)(a) and there was no breach of the ECHR, Brown , James and Kaiyam , considered . Opinion, had the implied art.5 duty been breached, B had had access to some rehabilitative work both before and after his mandatory release, nevertheless, there had been delay in providing additional rehabilitative courses recommended by P for B and looking at the matter broadly, a period of 18 months might be taken as the relevant period of delay and £500 would have been an appropriate award to represent just satisfaction in damages.
Duncan v Scottish Ministers [2014] CSOH 24

A prisoner (D), convicted of rape and murder, lodged a petition for judicial review contending that he had been deprived of any real opportunity within the prison environment for rehabilitation, with the result that he had been unable to address his offending behaviour and the risk it posed, and unable to satisfy the Parole Board for Scotland (P) that he no longer presented a danger to the public and was therefore suitable for release. He sought declarator that the Scottish Ministers (M), as responsible for the acts and omissions of the Scottish Prison Service (S), were responsible for that failure, which was incompatible with his rights under the ECHR art.5, and damages.

Held: case put out by order. (1) It was not for the court to make any assessment of whether or not D continued to present a risk to the public, rendering his release unsuitable; that decision was for P and on the material put before it at the various periodic reviews, P had reached the only decision open to it. (2) The fact that, following successful completion of a course, D remained in a position where he was unable to satisfy P that he was suitable for release was irrelevant to his complaint, namely that the process which followed such completion was not taken forward when it should have been. (3) The periods in which D had suffered setbacks in his desire for release due to his own conduct were not relevant to a consideration of the complaint about S’s failures to put in place the appropriate programmes, courses and tests. (4) S and P’s failure to agree in May 2004 at a review before P’s life prisoners tribunal (T), whereby P had recommended that D should be returned to top end conditions and then sent to an open estate and S had considered that D should engage in a sex offender treatment programme at a different prison, which had led to D’s refusal to participate in the programme, was regrettable but the decision on treatment was primarily for S, and D had shown no relevant failure thereby in that regard. (5) D’s case was one of the exceptional cases contemplated in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 A.C. 465, where an inferior court should follow the later decision of the Strasbourg court in James v United Kingdom (25119/09) (2013) 56 E.H.R.R. 12 in preference to the decision of the House of Lords in R. (on the application of Wells) v Parole Board [2009] UKHL 22; [2010] 1 A.C. 553, and the applicable law could be stated simply: a prisoner’s detention beyond the tariff period would be considered arbitrary and therefore unlawful if and for so long as the prisoner was not provided with courses giving him an opportunity for rehabilitation, James and Kay, followed and Wells, considered. (6) D’s complaints regarding periods between reviews of April 2007 and a review fixed for July 2013 appeared to have considerable force and he had shown a prima facie case that there had been a breach of art.5(1) in respect thereof: in April 2007, a healthy sexual functioning course had been withdrawn before D could be placed on it with no alternative arrangements made, a decision made in July 2009, to give him access to additional modules on a sex offender treatment programme, was only implemented in 2011 and was accordingly too late to enable a report of his performance to be put before T at the March 2011 review, and the management plan proposed thereat, involving D being transferred to top end conditions, was departed from without any explanation. These circumstances had the result that there was no proper opportunity of access to any rehabilitation programmes in a period of some six years. (7) The appropriate course was to appoint the petition to a second hearing as no evidence had been heard in explanation of why things had gone wrong, and there might be matters which M would wish to put before the court before a final view on the matter was reached. (8) D’s petition was not time barred; it was true that many of the actions and omissions complained of occurred more than a year before the petition was raised but the complaints were cumulative thus it was equitable to fix the period as being one enabling the whole history of the matter to be taken into account, and similarly M’s plea of mora, taciturnity and acquiescence had to fail.

Shahid v Scottish Ministers [2014] CSIH 18; 2014 S.L.T. 335

A convicted prisoner (S) reclaimed against a decision of the Lord Ordinary dismissing his petition for judicial review of a decision of the Scottish Ministers (M) to segregate him during his imprisonment (Shahid v Scottish Ministers [2011] CSOH 192; 2012 S.L.T. 178). S submitted that (1) on various occasions, the time limits for segregation set down in the Prisons and Young Offenders Institutions (Scotland) Rules 2006 r.94 had been exceeded, rendering subsequent segregation unlawful; (2) his rights under the ECHR 1950 art.3 and art.8 had been infringed by his continuing segregation.

Held: Reclaiming motion refused. (1) Provided that regular review was maintained as a matter of substance, failure to observe a time limit by a small margin should not invalidate continued segregation. The failures to observe time limits were by small margins in relation to the duration of segregation that had been permitted, and if delays of that magnitude had the effect of invalidating further segregation the consequences could be serious; the critical point was that segregation orders were made for grave reasons and it could not have been the intention underlying r.94 that short delays in renewal would have such an effect. (2) Adequate grounds existed for S’s continued segregation: the intelligence founded on was described as known to be true without reservation, the highest grading in terms of reliability, and the reports made it clear that intelligence was being received on a frequent basis to the effect that S would be seriously attacked if released into mainstream conditions. Further, there were reports of an attack carried out on another prisoner by S and threats made thereby. (3) The manner in which the intelligence reports had been acted upon appeared from the orders made to segregate S under r.94, which made clear that proper consideration was given to the conditions specified in r.94(1). Moreover, the decisions that were made late had not caused any prejudice to S. (4) S’s art.3 claim was manifestly unfounded; S’s segregation was imposed in the interests of his own safety, and the case of Ramirez Sanchez v France (59450/00) (2007) 45 E.H.R.R. 49 was a clear indication that the actings of the prison authorities in S’s case were well short of the threshold for any infringement of art.3, Sanchez, considered and Onoufriou v Cyprus [2010] ECHR 24406/04, Razvyazkin v Russia [2012] ECHR 13579/09, Glowacki v Poland, [2010] ECHR 1608/08 and Borodin v Russia, ECHR, 6 November 2012, Application No.41867/04, distinguished. There was a proper purpose for S’s segregation and it was a proportionate response to the threat to his safety and the secondary threat to discipline within the prison. (5) S’s extended segregation did not involve an unjustified and disproportionate interference with his right to a family life: the involvement of the Executive Committee for the Management of Difficult Prisoners in no way subverted the legal position, the measures taken were clearly proportionate, and the legal regime under the 2006 Rules provided full protection from arbitrariness.

Shahid was more successful in the Supreme Court as follows. The decision can be found at [2015] UKSC 58. The Supreme Court held that (1) Authority for segregation under r.94(5) could not be granted late. On a natural reading of r.94(5) and r.94(6), there had to be a seamless sequence of authorisations: the governor's order under r.94(1), effective for the first 72 hours, and the Scottish Ministers' authority, granted before the expiry of that period and effective for the succeeding month. That reading of the legislation was consistent with its purpose of providing a safeguard for the protection of prisoners. The three authorisations were therefore invalid and, as such, incapable of renewal. The consequence was that S's segregation during periods totalling about 14 months lacked authorisation under the Rules (see paras 17-18, 28 of judgment). (2) S's treatment did not attain the minimum level of severity required for a violation of art.3. The fact that his segregation was imposed in the interests of his own safety was relevant. Moreover, the isolation which he experienced was partial and relative: for example, he was permitted to associate with other prisoners at times, he could exercise for an hour each day and he was entitled to receive visitors (paras 33, 37). (3) It had been accepted that segregation was an interference with the right to respect for private life guaranteed by art.8(1) and that it therefore had to be justified under art.8(2). There was no doubt that segregation pursued a legitimate aim, namely the protection of S's safety. However, it had not been "in accordance with the law" or proportionate. As to the former issue, it had already been held that there were periods during which S was held in segregation without valid authorisation. Further, a statutory power of decision-making had to be exercised by the person on whom the power had been conferred; in S's case, local management had deferred, at least on some occasions, to the Executive Committee for the Management of Difficult Prisoners when making decisions concerning S's segregation. As to proportionality, a meaningful plan for S's integration into the mainstream prison population had not been put in place until he had been in segregation for 55 months. The absence of any evidence that serious steps were taken to address the issues arising from his segregation meant that his segregation for such a long period had been disproportionate (paras 39-41, 68, 72, 84, 86). (4) It was appropriate to declare that S had been segregated without lawful authority during the relevant periods and that the circumstances of his segregation violated his rights under art.8 (para.91).

Main v Scottish Ministers [2015] CSIH 41
A former prisoner (M) reclaimed against a decision of the Lord Ordinary that the notification requirements under the Sexual Offences Act 2003 were a proportionate interference with his right under the ECHR art.8(1) (Main v Scottish Ministers [2013] CSOH 103, 2013 S.L.T. 805). Following the decision in R. (on the application of F) v Secretary of State for the Home Department [2010] UKSC 17, [2011] 1 A.C. 331, that indefinite notification requirements, without the possibility of review, constituted a disproportionate interference with the art.8.1 right, the Scottish Government had introduced an emergency measure, namely the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011, to remove that incompatibility, with the review period selected as 15 years for adult offenders in terms of s.88(1)(a) of the 2003 Act. M contended that the absence of a right of review until 15 years after his release from prison was incompatible with his right in terms of art.8.1; s.82(1), under which the notification requirements were imposed for an indefinite period, was incompatible with his art.8 right in the absence of a more extensive review facility, therefore it was ultra vires of S to bring it into force by virtue of the Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004 without greater provision for review than that subsequently created by the 2011 Order. The Lord Ordinary had observed that whilst the notification requirements were capable of causing significant interference with M's art.8.1. right, there was a positive obligation on the Scottish Ministers (S) to take steps to reduce the risk to the general public from further offending by convicted sex offenders, and had concluded that S had struck a fair balance between the rights of convicted sex offenders and the interests of the public by selecting a period which was lengthy but was based upon a consideration of all available evidence related to the risk of reoffending.

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