Determinate sentence prisoner refused permission for judicial review as petition had ‘no real prospects of success’

A judge in the Court of Session refused permission for the petition to proceed after ruling that the case had no “real prospects of success”.

Lord Boyd of Duncansby heard that the petition by Alex Keenan proceeded on both European Convention on Human Rights (ECHR) grounds and common law grounds.

The petitioner, who is serving a determinate sentence of nine years seven months, argued that the respondents, the Scottish Ministers, have failed to provide the petitioner with a means by which he could demonstrate to the Parole Board for Scotland that he no longer poses a risk to the public and therefore be eligible for release.

So far as the ECHR case was concerned, the petitioner accepted that this ground was predicated on a challenge to last year’s Inner House decision inBrown v The Scottish Ministers, which he argued was “wrongly decided”.

However, the judge explained that that case was “binding” on him and accordingly he could not hold that on that ground the petition had real prospects of success.

The petitioner also averred that the respondents were under a common law duty to provide courses which promote rehabilitation.

The respondents accepted that they were bound to act “reasonably and rationally” - the Wednesbury test - but did not accept that there was any special duty in relation to determinate prisoners.

The 2015 Outer House case of Quinn v The Scottish Ministers and the 2013 English case of Weddle v The Secretary of State for Justice were both cases concerning indeterminate prisoners and no authority was cited for the proposition that the duty extended to determinate prisoners.

“If the petitioner is correct that there is a common law duty then it must both predate the duty under article 5 of the ECHR and be more extensive than the ECHR duty,” Lord Boyd said.

He added: “I can see no hint of the courts recognising the existence of such an extensive common law duty in Quinn, Weddle or the Supreme Court case ofKaiyam v The Secretary of State for Justice.”

The judge observed that the submission was based on the “supposed parallels” between long term determinate prisoners and those serving indeterminate sentences.

He explained: “In particular he attempts to equiparate the stage at which long term determinate prisoners may go before the Parole Board at the half way point of their sentence with that which occurs with indeterminate prisoners who have completed the punishment part of their sentence.”

However, in a written opinion, Lord Boyd of Duncansby said: “I am not persuaded that there are such parallels or, if there are, it gives rise to similar duties on behalf of the respondents. Accordingly I do not consider that there are real prospects of success and I shall refuse permission for this petition to proceed.”