Prisoner serving life sentence fails to obtain judicial review of decision not to move him to lower security prison

The punishment part of William Beggs’ sentence expired on 27 December 2019. He complained that the Scottish Prison Service had failed to take adequate steps to consider his application for progression, and that it should have ordered a fresh Psychological Risk Assessment as to his condition.

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

Previous assessment not current

The petitioner was sentenced to life imprisonment for various sexual offences. He maintained throughout that he was innocent of the crimes committed and continued to maintain innocence during the punishment part of his sentence.

It was contended by the petitioner that the SPS had not sought to obtain a valid Psychological Risk Assessment for his April 2019 application for progression to less secure prison conditions, a previous assessment completed in 2015 being no longer “current”. After he raised a complaint through the prison’s internal complaints process in July 2019, he was informed that the SPS regarded the 2015 assessment as “valid and relevant”.

Dissatisfied with this response, in August 2019 the petitioner escalated his complaint to the prison’s Internal Complaints Committee. On 15 August 2019, the ICC refused to uphold the complaint, essentially for the same reasons as had already been provided. It was this decision for which judicial review was sought.

The 2015 PRA concluded that the petitioner presented a “high risk of harm to adult male strangers if he were in the community”, as he had not engaged with any forms of treatment during his time in custody. It was determined that it was in the petitioner’s own best interest to engage with professionals able to assess and address his treatment needs.

On 29 January 2020, the prison Risk Management Team discussed the Parole Board’s recommendations. It agreed to commission a PRA and was advised that the petitioner would be added to the national waiting list for PRAs. In July 2020, the petitioner began a series of interviews with a psychologist with a view to the latter producing a PRA.

It was submitted for the petitioner that the SPS had acted unreasonably by delaying providing him with key information regarding his ability to apply for progression. He had been told that he met the standard criteria on a number of occasions. He had challenged the delay through the prison’s complaints procedure. However, his progression application had not advanced, and he had lost the opportunity to progress prior to the expiry of the punishment part of his life sentence.

The respondents submitted that there was a “tension” between the petitioner’s wish for a speedy decision and his wish for a new PRA. A new PRA would have to be completed before the RMT could assess his suitability for progression. As a result, the current challenge was merely academic.

Reset the clock

In his opinion, Lord Harrower stated that he agreed with the respondents’ submissions, saying: “Conceivably, a public body might, in appropriate circumstances, be held responsible for causing a delay in the making of an application, for example, where it provided incorrect advice on which the applicant justifiably relied. However, no such case has been made out here, the ground of review being confined to an alleged delay in considering or advancing the petitioner’s application for progression made in April 2019.”

He continued: “No doubt there will be cases where such a scandalously long period of time has been allowed to elapse that one is bound to conclude, in the absence of any explanation, that there must have been unreasonable delay. I am unable to conclude that this is such a case. The petitioner provided no yardstick or measure by reference to which it might be said that there had been delay, let alone unreasonable delay, as distinct from the mere passage of time.”

Regarding the commission of a new PRA, he said: “I am persuaded by the respondents’ submission that the petitioner’s decision to engage with a new PRA has ‘reset the clock’. The practical reality is that the RMT will be unable to make any progress in their consideration of the petitioner’s application until the PRA has been completed.”

Lord Harrower concluded: “Standing the petitioner’s decision now to engage with a fresh PRA, there would be no purpose served by pronouncing decrees of declarator and reduction of the ICC decision of 15 August 2019, even had they been otherwise justified. In that regard, counsel for the respondents is well founded, in my opinion, in his submission that the decision to engage with a fresh PRA renders the petition as a whole academic.”

For these reasons, the petition was refused.