Prisoner recalled from community release on two previous occasions fails in challenge of decision not to release him on licence
A prisoner who challenged a decision of the Parole Board that he should not be released from prison on licence has had his petition for judicial review of the decision refused by the Outer House of the Court of Session.
Dean Ryan, who had previously been in closed prison conditions, argued that the Board had failed to assign appropriate weight to several aspects of his case, including his risk of re-offending and his completion of coursework designed to prepare him for release.
The petition was heard by Lord Summers. The petitioner was represented by Crabb, advocate, and the respondent by Lindsay QC.
Two previous recalls
The Parole Board met to discuss the petitioner’s progression on 10 December 2020. At this meeting, it decided that he should move to an open prison rather than to the community on licence. It considered that the petitioner, who had originally been imprisoned after being convicted of murder, continued to present a high level of risk.
The Board noted that the petitioner had been recalled on two previous occasions after being released into the community. The first recall had occurred after he committed a serious offence involving dishonesty and the second after being prosecuted, and later acquitted, for sexual offences against two women.
Evidence was given to the Board by two social workers as well as another party, Ms George, who would have been responsible for supervising the petitioner on release. While social workers indicated that the petitioner’s risk could be managed, Ms George had recommended that he progress to the open estate before being released into the community.
It was noted by the respondent that both of the petitioner’s previous recalls had taken place after he had completed coursework designed to provide him with the necessary skills to comply with his management in the community. It did not accept a proposition that progression to the open estate would not have a value even if supervised home leaves would have been possible.
Counsel for the petitioner submitted that the Board’s decision was irrational and that it had not given adequate reasoning for deciding he should not be released to the community. In particular, it had placed insufficient weight on the petitioner’s successful completion of Constructs Groupwork Programme and too much weight on his high risk of re-offending.
In his decision, Lord Summers said of the Board’s discussion of the petitioner’s previous recalls: “The Parole Board considered that his conduct exhibited ‘poor decision making’. The concluding line of the [relevant] paragraph acknowledges that his relapses could be explained by over confidence. But the Parole Board expresses the concern that whatever might be said in mitigation ‘bad decisions’ were ‘consciously made’.”
He continued: “When this paragraph is set in its context and the petitioner’s knowledge of how the system of release works is taken into account there can be no doubt why he was not permitted to move directly to the community. It is evident that the Parole Board thought that if his rehabilitation had failed after he had been supported in the open estate, it was not reasonable to think he would fare any better if he went directly back to the community.”
Examining the wording of the decision, he said: “If paragraph 45 is designed to explain why the petitioner’s history justified a more cautious and not less cautious strategy, paragraph 46 is designed to present a positive reason for moving to the open estate. I accept again that the minute could have been worded more clearly. The paragraph begins with a double negative. But again in context the Parole Board’s meaning is clear.”
Turning to the petitioner’s completion of the groupwork programme, Lord Summers noted: “While the petitioner is to be congratulated on his completion of the programme the final decision lies with the Parole Board. The option it chose was one that was reasonably open to it. The Parole Board is an expert body and was not bound to follow the social workers’ preference. Its decision rests on comprehensible and rational reasons. In essence it decided that to move the petitioner directly into the community was a more risky approach than moving him to the open estate.”
He went on to say: “It was not impressed by the fact that his previous relapses had taken place in the community even though support had been offered for that transition. In the Parole Board’s view the social workers’ approach entailed a more risky approach than the ones that had been tried before. Its decision was that the petitioner required a graduated route to release.”
Lord Summers concluded: “I acknowledge that the petitioner remains in prison long after the punitive element in his sentence has come to an end and such a state of affairs requires to be justified by the clearest possible considerations. Whether such a justification exists depends on the facts. In this case as the Parole Board acknowledges there is a compelling reason why he remains in prison so long after the punishment part for his murder conviction has expired. That reason is to be found in his conduct when previously released.”
© Scottish Legal News Ltd 2021