About this case:

• Citation:
  [2024] CSOH 30
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

Petitioner AB was jailed for 12 years for two charges of rape at common law and two charges of lewd, indecent and libidinous conduct to a girl aged between 12 and 16. Throughout his sentence, the petitioner continued to deny his guilt and did not engage with work to address the risk of him committing further sexual offences.

The petition was heard by Lord Lake in the Outer House of the Court of Session. D Leighton, advocate, appeared for the petitioner, C O’Neill KC and D Scullion, advocate, for the Scottish Ministers, and M Lindsay KC for the Parole Board for Scotland.

Imposed without notice

Due to the terms of the sentencing regime that applied to him, the petitioner was automatically released on licence in March 2023. Under condition 12 of that licence, he was to undertake an assessment by community health services. He argued that there was no rational basis for imposing this condition, and that licence conditions were not the correct statutory route to subject an individual to compulsory mental health care.

Conditions 14 and 18 of the petitioner’s licence imposed a required assessment for alcohol misuse counselling and restrictions on what electronic devices he could own or possess and what information required to be given to his supervising officer in relation to them. Both, along with condition 12, were argued to have been imposed without notice of the intention to impose such conditions and thus were not procedurally fair.

Two other conditions, 17 and 20a, were challenged for their alleged lack of specificity. Condition 17 barred the petitioner from entering parks, playgrounds, and other places children under 18 were likely to be, while condition 20 required him to inform his supervisor of any new friendships, associations, or intimate or domestic relationships. Objection was taken in particular to the vagueness of the words “park” and “associations”.

Finally, challenges were made based on alleged violations of the petitioner’s rights under Articles 5, 8 and 14 ECHR. It was not contended that there was a breach per se of Article 5, but that licence conditions fell within the scope of the article and therefore were relevant when considering Article 14, the prohibition against discrimination, with the relevant comparator group being prisoners who had their mental health needs addressed under the Mental Health (Care and Treatment) (Scotland) Act 2003.

Not supported by evidence

In his decision, Lord Lake said of the mental health assessment condition: “The Parole Board decision which was part of the process of imposition of the conditions discloses the reasons for it and that it seeks to mitigate risk. The first points made by the petitioner are not supported by the evidence of the decision making and I reject them.”

Noting that conditions 14 and 18 were regularly used for child sex offenders with a history of alcohol abuse, he said of the second challenge: “The PBSW report recorded the petitioner’s misuse of alcohol in the past and that his ability to desist from offending had not been tested in the community. It also suggested that a condition should be imposed that would prevent him from communicating with or approaching any person under the age of 18.”

He added: “In view of the intensive use by younger persons of social media and electronic communications, the respondents submitted that Condition 18 is a means of enforcing restrictions on communication suggested by the Parole Board. In these circumstances, I consider that the petitioner was in a position to participate so as to protect his interests and I reject this ground of challenge.”

On the vagueness challenges, Lord Lake said: “As the respondents contend, these are ordinary words and they have a meaning which is readily understood. I do not consider that this issue is to be tested by hypothetical situations which may be said to lie on the border and, in relation to the word ‘parks’, I find the petitioner’s claimed areas of ambiguity stretched and artificial.”

Finally, Lord Lake addressed the ECHR challenges: “The effect of the decision in R (Whiston) v Secretary of State for the Home Department (2015) is, as the respondents contend, that article 5(4) does not apply to a decision to recall a prisoner on a determinate sentence. If article 5(4) does not apply to that decision, the rationale for its application to the decision as to the conditions to be imposed in a licence disappears.”

He concluded on Article 14: “Prisoners released on licence require to be managed to mitigate the risk that they may present to the public at large that they will reoffend. That consideration does not apply to the comparator group. That means not only that the comparator group are not truly analogous to the petitioner but also fully justifies the difference in approach in relation to the petitioner and his comparators. I accordingly reject this ground of challenge.”

The prayer of the petition was therefore refused.