Barlinnie prisoner who was released and then detained again loses judicial review case

Thomas O’Leary contended that the Parole Board for Scotland were unlikely to consider directing his release unless the respondents prepared risk management plans in relation to him. The failure to produce such plans was contended to be unlawful and in breach of the petitioner’s rights in terms of articles 5 and 14 of the ECHR. 

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

Unmanageable risk 

The petitioner was convicted in the Sheriff Court of multiple assault charges against two former partners. The case was remitted to the High Court for sentencing in light of its severity, resulting in the imposition of the OLR on 19 August 2014. He had been eligible to be considered for parole since the end of August 2017. 

The Parole Board directed the petitioner’s release on licence on 6 December 2019. However, his licence was revoked in the same month following the receipt by the board of a breach report by the second respondent stating he had been released without a community-facing risk management plan being in place. The report stated that until such a plan was compiled and approved by the Risk Management Authority, the petitioner posed an unmanageable risk in the community. 

A risk management plan was prepared by the Scottish Ministers that assessed the petitioner as being at a medium risk of offending whilst in custody and a high risk of committing violence if released to the community without appropriate testing. The plan set out numerous activities to be undertaken to manage the petitioner’s risk within a custodial setting. 

The petitioner submitted that for him to have a fair chance of release the board required to have contingent information about how his risk could be managed in the community in the event of release, and they were not being provided with information which they were requesting. The continuing refusal of the first respondents, or alternatively the second respondents, to provide this information was unfair and unlawful. 

It was further submitted that it was an implicit representation within the second respondents’ breach report that such a plan as described in the report would be forthcoming, giving rise to a legitimate expectation, from either the first or second respondents. Additionally, article 5(4) of the ECHR required equality of arms, and circumstances where one party was at a significant disadvantage vis-à-vis the presentation of evidence was a breach of this. 

The first respondents submitted that they had a statutory duty to apply their own specialist judgment in preparing a risk management plan under section 6 of the Criminal Justice (Scotland) Act 2003. Their assessment of risk, and of the measures necessary to minimise it, could not be fettered in the manner proposed, either by the board or by the court. 

Not ready for community plan 

In his decision, Lord Braid first considered what a “community-facing risk management plan”, a term that did not appear in legislation, was, saying: “[A representative for the second respondent] described a ‘community-facing plan’ simply as one which indicates that someone could be released into the community. Since the petitioner’s risk management plan, dated 17 April 2020, states in terms that his risk of reoffending is such that he is not currently manageable in the community, the petitioner’s case appears, at first sight, to fail to get off the starting blocks, in the absence of any challenge to the legality of the risk management plan itself, since he appears to be seeking an order for a plan which, by definition, he is not ready for.” 

On whether there was a legitimate expectation of a risk management plan from the Scottish Ministers in the terms sought, he said: “Not only can the first respondents, as lead authority responsible for the creation of the risk management plan, not be held bound by any undertaking given by the second respondents, nothing in the breach report submitted by the second respondents can be regarded as a clear and unambiguous undertaking that a community-facing risk management plan (or a community-facing risk assessment) would be produced.” 

He continued: “Read as a whole, the report does not so much state that a community-facing risk assessment should now be produced, but that the petitioner should not be released until such time as the risk management plan is ‘community-facing’ – that is, until such time as the risk management plan assesses that the petitioner can safely be managed in the community. That stage has not yet been reached.” 

Of the ECHR arguments, he said: “There is no inequality of arms. Such inequality cannot arise from the submission of a plan with which the petitioner disagrees. The process is not adversarial but, as already noted, the board has the power to compel witnesses to attend and to give evidence. Such witnesses may be questioned by the petitioner. The petitioner’s continued detention is in accordance with procedures prescribed by law and which are article 5 compliant.” 

As to whether the second respondents were obliged to produce a risk management plan in the terms sought, he said: “Their sole obligation in terms of the provision of information is to provide the first respondents with such background and other reports as the first respondents may request […], which the second respondents have done. The petition, insofar as it is founded upon breach of duty by the second respondent, is therefore irrelevant.” 

For these reasons, the petition was refused.