Life prisoner refused release at beginning of pandemic loses Parole Board decision challenge

Court of Session Outer House
Court of Session Outer House

A life prisoner who had progressed to community access in the parole process before being returned to closed conditions has failed to challenge a decision of the Parole Board for Scotland not to direct his release.

Brian Hands, who was sentenced to life imprisonment with a punishment part of 11 years and 6 months in February 1999 for robbery and murder, argued that the respondent’s life prisoner tribunal had imposed a condition on his release that he could not comply with due to the pandemic.

The petition was heard by Lady Carmichael. The petitioner was represented by Templeton, advocate, and the respondent by Lindsay QC.

No movement during pandemic

The petition detailed that the respondent had previously considered the question of the petitioner’s release in 2011, 2013, and 2015, and on each of those occasions determined that he should not be released. He was moved from national top end conditions to the open estate in June 2019, and then progressed to phased community access and full community access. During community leave he resided at his mother’s address.

On 22 October 2019, the petitioner was subject to a search, and tablets were found in his cell. He averred that he had been losing weight and was afraid he had cancer; that he had sought medical assistance but not been given medication; and that he had then obtained steroids to try to supplement his food intake and stem his weight loss. He was returned to closed conditions. The tablets were found to obtain no illegal substances, and no criminal charges were brought.

In March 2020, the Parole Board’s life prisoner tribunal refused to direct the petitioner’s release and set a review period of 12 months. The tribunal considered that the period he had spent in the open estate was not sufficient to allow adequate testing as to whether the risk the petitioner posed could be managed satisfactorily in a community setting, and that the incident in October 2019 demonstrated poor problem solving and consequential thinking.

It was submitted for the petitioner that at the time the respondent made its decision it knew that no movement of prisoners was taking placed because of the Covid pandemic. Therefore, he could not comply with the condition imposed on his release. Furthermore, the condition was incompatible with his rights under Article 3 of the ECHR to have the possibility of his sentence being reduced.

Counsel for the respondent submitted that the court might only reduce the decision if the decision were so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. The tribunal had considered matters at the beginning of the pandemic and could not have known fully how matters would have progressed at that stage. Therefore, its decision had been reasonable on the basis of the information available at the time.

No condition imposed

In her opinion, Lady Carmichael said of the tribunal’s decision: “I do not accept as correct the petitioner’s analysis that the decision of the respondent’s tribunal on 31 March 2020, or that decision read with earlier decisions relating to the petitioner, imposed a condition that he spend a particular length of time in national top end or open conditions. What the tribunal required to consider on 31 March 2020 was whether or not it was satisfied that it was no longer necessary for the protection of the public that the prisoner remain confined.”

On the information that the tribunal had concerning future movement of prisoners, she said: “The information before the tribunal when it made the decision was that progression might normally be expected to happen by August 2020. It also knew that the Life Liaison Officer was unable to provide a timescale for progression. The position, therefore, was one in which the tribunal did not know whether or when the petitioner might come to be able to access open conditions again.”

She continued: “It is incorrect to say that the tribunal knew that the petitioner could not achieve a sustained period in open conditions by the next review. The tribunal recognised that the matter was uncertain, and it was possible that he would not have achieved that. A fortiori it is wrong to say that the tribunal knew that the petitioner could never achieve a sustained period in open conditions, with the result that he, in effect, faced custody for an indefinite period.”

Addressing the ECHR argument, Lady Carmichael said: “The situation is not one in which the sentence is de facto incapable of reduction in the way described by the Strasbourg court. In Murray v Netherlands (2017), the applicant was assessed before sentence as needing treatment. There was no treatment or assessment of his treatment needs after sentence, with the result that there was no chance of a favourable outcome on the only periodic review that had taken place in his case. That is not the situation here.”

She concluded: “The tribunal was not obliged to give more weight to the possibility of release on licence because of the uncertainty with which it was faced as to the timing of the petitioner’s progression. The single question for the tribunal was that encapsulated in the statutory test. Had the tribunal directed release because of that uncertainty in circumstances where it was not satisfied that the petitioner no longer required to be confined for the protection of the public, it would have acted unlawfully.”

For these reasons, the petition was refused.

© Scottish Legal News Ltd 2021

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