Convicted knife murderer successful in judicial review petition for reconsideration of release decision

About this case:

• Citation:
  [2023] CSOH 24
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

DD, the petitioner, was aged 16 when he was convicted in June 1996 and was subject to a punishment part of 10 years on his sentence of detention without limit of time. He sought for his application to be reconsidered by a differently constituted Tribunal on the grounds that the original decision was unreasonable and unlawful.

The petition was considered by Lord Sandison in the Outer House of the Court of Session. Crabb, advocate, appeared for the petitioner and Lindsay KC for the respondent.

Greater risk to himself

The petitioner had been convicted of murdering a young man previously unknown to him by stabbing him repeatedly with a carving knife. Before being sentenced for the murder he committed, the petitioner had been made subject to a Home Supervision Order by the Children’s Panel and had further been convicted of the assault and robbery of a shopkeeper by presenting a meat cleaver at him and demanding money from his till.

After his conviction for murder, the petitioner was originally placed in a Young Offenders Institution, where he was bullied and assaulted. He experienced further attacks when transferred to prison but had committed no further act of violence himself since his murder conviction. He had previously been released on licence on three occasions, but each time returned to custody due to breach of licence conditions including drug misuse.

The petitioner had been diagnosed as having general anxiety disorder including situational anxiety and ruminative worry, and as having difficulties suggestive of complex post-traumatic stress disorder. Repeated psychological assessments had not suggested that his mental health condition represents a risk to others. By way of a decision dated 6 September 2022, a Tribunal of the Parole Board declined to order his release, on the basis that he still represented a risk to the public.

Counsel for the petitioner submitted that, in order to justify continued confinement after the expiry of the punishment part of his sentence, the Tribunal would have to be satisfied that his release would involve a substantial risk of serious violence posing danger to the public. The decision of the Tribunal failed to give adequate weight to his youth at the time of the original offence and the fact that he posed a greater risk to himself than to the public.

Slowly revolving door

In his decision, Lord Sandison said of the petitioner’s circumstances: “Although the petitioner does not technically meet the definition of ‘life prisoner’ set out in section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, having been sentenced to detention without limit of time in terms of section 205(2) of the Criminal Procedure (Scotland) Act rather than to life imprisonment in terms of section 205(1), it was common ground before me that section 2(5) of the 1993 Act applied to him.”

He continued: “The Court’s task, then, is to examine the Tribunal’s determination with a view to deciding whether it has directed itself to the right question, namely whether the risk of re-offending in the case before it was at a level that made it proportionate to the hardship inherent in keeping a prisoner detained after the determinate part of his sentence to continue that detention meantime.”

Assessing the proportionality of keeping the petitioner detained, he said: “The indisputable fact that the petitioner had committed no act of violence in the past 26 years might be thought to be a powerful indication of the absence of material risk to the public to which the Tribunal might have been expected to accord rather greater weight than it apparently did. However, having regard to the need to accord due deference to the Tribunal’s assessment of the evidence before it, I am prepared to accept, perhaps rather benevolently, that the Tribunal did consider that the petitioner’s release would pose a material risk of harm to the public.”

He went on to say: “The Tribunal’s determination appears to proceed, rather, on the incorrect assumption that any material risk of violence, of whatever kind, ipso facto justified the continued detention of the petitioner. At the very least, the determination fails to disclose any appreciation of the correct test which fell to be applied in law, any consideration of the matters which thereby required to be assessed, and any relative conclusion reached by the Tribunal.”

Lord Sandison concluded: “I have a good deal of sympathy with what appears to have been the underlying concern of the Tribunal. One would have to be optimistic indeed to think that a release of the petitioner in his current circumstances would be likely to lead to any different outcome than that which transpired in respect of his last three releases. In these circumstances it would appear that the role of the Tribunal in cases like that of the petitioner is not dissimilar to that of a commissionaire supervising a slowly revolving door into and out of prison, a position which one cannot suppose truly represents the legislative intention.”

It was therefore directed that the petitioner’s application be reconsidered by a differently constituted Tribunal within a reasonable time.