Indian citizen serving prison sentence in Scotland fails in challenge of parole decision



Court of Session Outer House
Court of Session Outer House

An Indian citizen serving a long-term prison sentence for an offence under the Sexual Offences (Scotland) Act 2009 has been unsuccessful in his challenge of a decision of the Scottish Ministers not to release him on licence.

Harpreet Singh, who had a live Deportation Order made against him, was sentenced to seven years and six months in prison for an offence committed against a vulnerable young person in August 2016. He argued that the respondents had erred in considering the risk he posed both in the UK and India when considering whether he should be released.

The petition was considered by Lady Carmichael in the Outer House of the Court of Session. The petitioner was represented by Leighton, advocate, and the respondents by Byrne, advocate.

Nationalist or globalist view

The respondents made the decision not to release the petitioner on 17 September 2020. Under section 9 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as it applied at the time the respondents made their decision, a long-term prisoner could be released on licence by the Scottish Ministers after serving half of their sentence.

These provisions were amended with effect from 20 October 2020, with the effect that decisions taken after that date required a recommendation from the Parole Board for Scotland in order for the respondents to make that decision. In August 2020, the Parole Board had declined to recommend the petitioner’s release as it was not satisfied that the risk he posed could be managed in the community, rejecting his submissions to the effect that they should only consider the risk he posed in the UK.

The petitioner’s solicitor submitted representations to the respondents to the effect that they should take a nationalist view rather than a globalist view when considering the risks he posed to the community. He had previously indicated that he would voluntarily leave the UK if released, and there was no benefit to keeping him in custody in the UK when he should in fact be deported.

It was also noted by the petitioner’s solicitor that the equivalent provisions in English law allowed for prisoners to be deported directly from prison when they first became eligible for release. Counsel submitted to the Outer House that the respondents had acted unlawfully in failing to exercise their discretion to release the petitioner, having regard to the power the Scottish Ministers had at the time to act independently of the Parole Board’s recommendation and the policy of the UK Government in this matter.

Discretion not fettered

In her opinion, Lady Carmichael said of the pre-amendment construction of the 1993 Act: “The respondents were entitled to take into account considerations other than those that the Board took into account. Contrary to the petitioner’s submission, it does not follow that the respondents were obliged to do so. There is nothing in the language of the provision to suggest that they were. The discretion is not fettered or qualified by the words of the subsection.”

Addressing whether the Scottish Government was able to deviate from the UK Government approach in this matter, she said: “The power to release prisoners is vested in the respondents. The respondents have not made any statement of policy about early release of prisoners for the purposes of deportation, or about the desirability of achieving the early deportation of foreign national prisoners.”

On whether the reasons given by the respondents were adequate, Lady Carmichael explained: “The respondents’ decision letter stated that they were not releasing him because his risk was not considered to be manageable in the community. It is therefore clear to the informed reader why the respondents declined to release the petitioner, and the matters that they took into account in reaching their decision.”

She continued: “There is no obligation on the respondents to adopt a system for the early release of foreign national prisoners. They are entitled to choose not to have a system of the sort for which provision is made in the Criminal Justice Act 2003. There is nothing obviously irrational in choosing to determine release on the basis of whether the risk posed by an offender is manageable in the community, or by considering that risk in relation to any community in which the offender comes to live at the point of his release.”

Lady Carmichael concluded, in light of a letter from the Home Office stating there was no timescale regarding the petitioner’s removal from the UK: “Had the respondents been minded to disregard the risk that the petitioner posed elsewhere than in the UK, they would not in any event have been certain on the basis of this information that he would never be at liberty in the UK while on licence.”

For these reasons, the petition was refused.

© Scottish Legal News Ltd 2021



Other judgments by Lady Carmichael