Prison escapee’s petition for judicial review of progression decision refused

A prisoner in HMP Glenochil serving nearly 20 years in custody has been refused permission for judicial review of a decision of the Scottish Ministers not to move him into less secure prison conditions.

Lee Brown, who would remain in prison until 2024 without early release, argued that he should have been permitted to attend the meeting of the Risk Management Team that decided not to recommend he was moved. Progression to less secure prison conditions was necessary in order for him to have a realistic chance of release.

The petition was heard in the Outer House of the Court of Session by Lord Tyre.

Presumption against former escapees

The petitioner was serving a number of sentences with a combined custodial period of 19 years, 8 months, and 125 days, as well as an extended sentence of two years. In 2008 he escaped from custody and spent three days at large before being returned to prison. In July 2016 he was released on non-parole licence but was recalled to prison in January 2017 for breach of licence conditions.

Scottish Prison Service guidelines require an application for progression to be referred to a Risk Management Team (RMT), described as “a multi-disciplinary team of professionals representing a range of agencies involved in the management of offenders”. In addition, the Chair of the RMT should consider the benefits, on a case by case basis, of a prisoner making his or her own representation by attending the meeting.

An offender seeking progression to less secure conditions is required to complete an application form stating the reason for the application and evidence that they meet progression criteria. The person responsible for the co-ordination of the RMT must then carry out a review of all available information pertinent to the offender, identify and request any necessary further investigations in specialist areas, and liaise with the Chair as to whether the offender should be invited to attend the meeting.

Where an offender has previously absconded or escaped, there is a presumption against progression unless it is in the public interest that the offender is allowed to be tested in less secure conditions. No mention of this presumption is made in the information leaflet produced by the RMT for prisoners, although there is reference to copies of the full guidance manual being available in the prison library.

The petitioner was unaware of the content of the guidance or the leaflet when he made his application for progression. At the meeting where his application was considered, it was deemed that the circumstances were not exceptional or critical to justify progression. The petitioner submitted a complaint to the prison’s internal complaints committee, stating that he was unable to discern from the RMT’s decision what, if anything, he could ever do in order to be considered for progression.

The petitioner argued that the RMT’s decision-making process would have benefitted from his presence. He was justifiably unaware of the test of exceptionality and thus did not address it in his application. He argued that some of his arguments would have been best presented personally, and that there was no difficulty in allowing him to be present at the meeting.

The respondent argued that the petitioner had failed to identify any way in which his personal attendance could have made a difference. There were no facts in dispute and no additional information that might affect the RMT’s assessment of risk. The petitioner’s situation was not distinguishable from that of any other previous absconder/escapee applying for progression.

Difficult to see what petitioner could have added

In his opinion, Lord Tyre considered that the petitioner’s personal attendance was not necessary, saying: “The participants at the RMT meeting included the individuals most closely familiar with the petitioner, including the prison-based social worker and cognitive behavioural therapist responsible for managing him and assessing his progress. The issue that the RMT had to determine, namely whether there were exceptional circumstances justifying a recommendation that the petitioner progress to less secure conditions, was one that fell to be resolved by specialist assessment.” He also noted that the decision had been made by “persons who knew the petitioner well and who were in regular direct contact with him.”

He continued: “There were no disputed issues of fact for the RMT to consider. It is difficult to see what the petitioner could have contributed to the meeting other than an assurance, from his personal perspective, that he was ready for progression. Such an assurance would not have added anything to the information provided by the petitioner in the application form which he had completed and which was before the RMT at its meeting.”

On the petitioner’s ignorance of the presumption against escapees, he said: “I am not entirely persuaded that his ignorance of the test should be regarded as wholly excusable: the application form that he completed included a reference to the leaflet which, in turn, referred to the guidance which was available had he sought it.”

He continued: “More importantly, it did not seem to me that counsel was able to identify any particular matter that the petitioner would or might have put forward as an additional argument to address the “presumption against” progression, had he been in attendance at the meeting. Nor, for my part, can I see any reason why his awareness of the test in the guidance could have made any difference to the presentation of his case to the RMT.”

Noting the petitioner’s complaint about the reasoning given to him by the RMT, he said: “It appears that that complaint was regarded by the internal complaints committee as having some merit. The petitioner can also derive some encouragement from the Parole Board’s suggestion that creativity be employed in testing him in a less secure environment. But there is nothing in the post-decision material to support the contention that in arriving at its decision without the petitioner’s personal attendance, the RMT acted unfairly.”

For these reasons, the petition was refused.