HMP Edinburgh life prisoner loses appeal against refusal of parole in 2020

About this case:

• Citation:
  [2023] CSOH 83
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Richardson

It was argued by petitioner William Beggs, who was convicted of the murder of Barry Wallace in 1999, that the Parole Board’s decision was vitiated by a material error of law and was in contravention of Article 5(4) of the ECHR.

The petition was considered by Lord Richardson. Loosemore, advocate, appeared for the petitioner, Lindsay KC for the respondent, and Scullion, advocate, for the Scottish Ministers as an interested party.

Failed to explain

On 8 January 2020, an oral hearing of the Tribunal of the Parole Board took place in respect of the petitioner, who had completed the punishment part of his sentence on 27 December 2019. On the same day, the Tribunal refused the petitioner’s application for parole. The Tribunal assessed him as presenting a moderate level of risk, noting also that a 2015 Psychological Risk Assessment suggested that he presented a high risk of sexual reoffending.

It was further noted by the Tribunal that the petitioner had refused to comply with offence-focused work identified as necessary for him on the basis of the charge of which he was convicted, notwithstanding the availability of the course to those who denied their offences. As a result, there was restricted professional insight into his offending, and no opportunities to test him in less secure conditions.

Counsel for the petitioner submitted that the Tribunal had failed to adequately explain its treatment of the 2015 PRA, which ought to have been disregarded due to its age. In support of this the court’s attention was drawn to an affidavit by a consultant psychologist, Dr Pratt, who opined that such assessments had a “shelf life” of 9 to 12 months.

The second ground of challenge was based on a submission that the Tribunal had not acted as an independent and impartial court, as required by Article 5(4) ECHR. Counsel accepted that the Tribunal had been previously held to be a court for the purposes of Article 5(4), but in the particular circumstances of the case, including the attendance of the chief executive of the Parole Board at the hearing and the recusal of the Chairperson due to his role in the petitioner’s trial, justified a conclusion that there was a lack of independence and impartiality.

Fair-minded observer

In his decision, Lord Richardson began with the first ground of challenge: “The petitioner requires to show that the weight attached by the Tribunal to the 2015 PRA was irrational in the sense of being ‘so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’. The first problem with this argument is that it is not apparent from the decision that the Tribunal placed any particular weight on the 2015 Assessment.”

He explained further: “The 2015 Assessment is simply referred to in the decision as being one of the factors which the Tribunal took into account. Viewed from this perspective, the petitioner’s position comes to be that the Tribunal’s decision is to be regarded as irrational because the Tribunal even made this reference to the 2015 Assessment. I have no hesitation in rejecting this argument.”

Turning to the ECHR argument, Lord Richardson said: “In respect of each of the first two factors: the attendance of the Chief Executive at the hearing; and the prior involvement of the Chairperson, one imagines the fair-minded observer asking herself – so what? In neither case does the petitioner explain why either factor would create an appearance of a lack of independence or impartiality.”

Addressing further factors, he concluded: “This leaves the final two factors relied upon by the petitioner being: first, the alleged lack of a clear dividing line to ensure ‘administratively and legislatively’ the Parole Board is objectively independent from the Scottish Government; and second, the absence of an available mechanism for review of the Tribunal’s decision. These factors are general and relate to the overall legislative and institutional framework in which the Parole Board is placed. No circumstances particular to the petitioner’s case are identified in relation to either of these factors.”

The petition was accordingly refused.