£10,000 damages claim over ‘unlawful’ refusal to release prisoner on home detention curfew dismissed 

Thomas Scott sued the Scottish Ministers, claiming that his continued imprisonment following a Parole Board for Scotland recommendation that he should be re-released was “unlawful”, but a sheriff ruled that there was “no legal basis” to support the argument that the prison authorities required to release him.

Home detention curfew 

Falkirk Sheriff Court heard that the pursuer was convicted of the offence of carrying a knife in contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. 

He was sentenced on 5 February 2016 to 16 months’ imprisonment, backdated to 16 October 2015, this being the date on which he was detained at HMP Addiewell, and was accordingly a short-term prisoner in terms of section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

Under section 1 of the 1993 Act, as soon as he had served one half of his sentence he would be released by the Secretary of State unconditionally.

That date, or his earliest date of liberation (EDL), was 16 June 2016 when he was in fact ultimately released.

In terms of section 3AA of the 1993 Act certain prisoners may be released before their EDL at the discretion of the defenders in furtherance of a Home Detention Curfew Licence (HDCL).

Sheriff John Mundy was told that the pursuer was released on such a licence of 7 March 2016 as a short-term prisoner having served three months or more, which licence was due to expire on 16 June 2016 - the same date as his EDL.

‘Unlawful imprisonment’

However, the HDCL was revoked and the pursuer recalled to prison on 20 March 2016 in terms of the powers contained in section 17A of the 1993 Act after he failed to comply with the conditions included in his licence.

Thereafter the pursuer made representations to the defenders in relation to that revocation and the defenders referred the case to the Parole Board.

The case was considered on 10 May 2016 by the Parole Board, which concluded that Mr Scott “should be re-released on HDC licence”.

Thereafter the defenders considered again whether the pursuer should be released under the HDCL scheme, but his application was refused on the basis of information in a community assessment report dated 31 May 2016 by criminal justice social work, which disclosed breaches of community payback orders not evident when release was first considered.

The pursuer appealed that decision but before the appeal was determined he was released at his EDL.

He nevertheless raised an action against the defenders for declarator that his imprisonment from 10 May 2016 to 16 June 2016 was unlawful, was in breach of his rights in terms of Article 5 of the European Convention on Human Rights, and sought damages of £10,000. 

‘No obligation to release’

Dismissing the action, the sheriff observed that the terms of the legislation were clear and that on a proper construction of the statute the Parole Board did not have the power to order release and its decision therefore did not amount to a direction to release.

In a written judgment, Sheriff Mundy said: “The decision of the Parole Board in relation to the pursuer of 10 May 2016 has to be looked at in that light and in particular the way the decision was expressed. The wording of the decision was that the pursuer ‘should be re-released on HDC licence’. 

“In the first place, it was not expressed as a direction to release. In the second place, even if it might be so construed, it could not be regarded as a direction to which the defenders required to give effect. 

“The height of the board’s competence was to direct cancellation of the revocation. It might also be regarded as a recommendation as to what should happen in the event that the matter was placed before the defenders for their consideration. 

“As we know, they did consider it again but decided not to re-release the pursuer on the information they had before them and which they did not have at the time of the earlier decision to release.

“Accordingly, as a matter of statutory interpretation, I have come to the view that the arguments advanced on behalf of the defenders are sound and that there is no legal basis for the pursuer’s argument that the defenders required, as a matter of statutory obligation, to release the pursuer following the decision of the Parole Board.

“The release provisions under section 3AA are discretionary. The defenders are under no legal obligation to release a prisoner under an HDCL.”

The sheriff also rejected the separate argument based on Article 5 of the ECHR, which relates to deprivation of liberty, having concluded that neither Article 5.1 nor 5.4 was engaged.

Sheriff Mundy added: “The pursuer was lawfully sentenced by a competent court to a determinate term of imprisonment and could not, in the absence of unusual circumstances (which are not averred) challenge his loss of liberty during that term on the ground that it infringed Article 5.4, because for the duration of the sentence period, the lawfulness of his detention had been decided by the sentencing court so that he had been deprived of his liberty in a way permitted by Article 5.1(a). In other words Article 5.4 was satisfied by the original sentence. 

“Accordingly, it seems to me that there is no question of the relevant statutory provisions coming into conflict with Article 5 of the Convention and I have concluded that reference to it does not assist the pursuer in this case.”