Inner House rules Scottish Ministers resource allocation policy for prisoner rehabilitation discriminates against OLR prisoners

About this case:

• Citation:
  [2022] CSIH 48
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Turnbull

Petitioner and reclaimer Andrew Brown, a 62-year-old serving prisoner who was convicted of sexual offences including rape in 2017, argued that the Scottish Ministers were in breach of their obligation to provide the systems and resources necessary to allow OLR prisoners to demonstrate to the parole board that it was no longer necessary for the protection of the public that they be detained.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Turnbull and Lord Doherty. Mackintosh KC and Leighton, advocate, appeared for the petitioner and Irvine, advocate, for the respondent.

Analogous position

In 2017, the petitioner was sentenced to an OLR with a punishment part of four and a half years. The following year he was assessed as meeting the criteria for the Moving Forward: Making Changes intervention programme and a requirement to complete that course was included in his Risk Management Plan. It was understood that the MF:MC programme required to be completed by him before he could be moved into less secure conditions.

On the expiry of the punishment part in April 2021, the petitioner had his case considered by the Parole Board. By this time, he had not been allocated a place on the MF:MC course. The Parole Board noted that he presented a high risk of sexual re-offending and had not yet engaged in any offence-focused interventions during his sentence, and decided it remained necessary for him to be confined. At the time of the hearing, the petitioner was number 14 on a waiting list for a more intensive rehabilitation programme that replaced MF:MC in 2021.

It had been accepted by the Lord Ordinary that the respondents had not ignored their public law duty, but a decision on resourcing rehabilitating for OLR prisoners was one of a poly-centric nature and fell squarely within the sphere of decision-making with which the court should not intervene. Further, while it was recognised that the difference in determining eligibility dates between OLR and life sentence prisoners engaged the provisions of article 14 ECHR, she rejected the proposition that the sentencing regimes which such prisoners were subject to were sufficiently analogous to render the difference in treatment unlawful.

It was submitted for the petitioner that the Lord Ordinary had erred in failing to recognise that prisoners serving an OLR and life prisoners were in an analogous position and there was no objective justification for treating them differently. The effect of the respondents’ policy changes were that OLR prisoners were now being held back, or discriminated against, as compared to life sentence prisoners. More than a year after the expiry of his punishment part the petitioner had still not been able to access the course he was required to complete to have any prospect of demonstrating absence of risk to the Parole Board and was in a disadvantageous position when compared to a discretionary life sentence prisoner in particular.

No objective justification

Delivering the opinion of the court, Lord Turnbull said of the ability to compare OLR and life sentence prisoners: “OLR prisoners and discretionary life sentence prisoners are plainly in an analogous situation. An OLR is a sentence which can only be passed on conviction for an offence other than murder, which is a sexual offence, a violent offence or an offence which endangers life. It will be imposed where the court is satisfied on the basis of a risk assessment report and any other relevant evidence placed before it, that the prisoner, if at liberty, will seriously endanger the lives or physical or psychological wellbeing of members of the public.”

He continued: “The Prisoners and Criminal Proceedings (Scotland) Act 1993 provides that the relevant punishment part for an OLR prisoner and for a discretionary life sentence prisoner is to be calculated in precisely the same manner and in a different manner from the relevant punishment part for a mandatory life sentence prisoner. Whilst it is correct that only an OLR prisoner will be the subject of a statutory RMP, the progression pathways for all indeterminate sentence prisoners as set out in respondents’ Risk Management Progression and Temporary Release Guidance document are indistinguishable for practical purposes.”

Addressing the Lord Ordinary’s conclusions, he said: “There is no objective justification identified in the Lord Ordinary’s opinion for treating OLR prisoners and discretionary life sentence prisoners differently in terms of waiting list allocation. Accordingly this question now requires to be addressed.”

On this, he continued: “OLR prisoners and discretionary life sentence prisoners have the same type of sentence and in many cases will have similar punishment part lengths yet they are treated quite differently. Indeed, in some cases they may have been convicted of very similar offences, but the sentence imposed may have been determined by whether or not the offences were committed before 26 June 2006. The measure is therefore not rationally connected to the objective.”

Lord Turnbull concluded: “A less intrusive and more proportionate method of distributing resources as between discretionary life sentence prisoners and OLR prisoners would have been to incorporate a common critical date for those within these two groups. The court therefore rejects the respondents’ contention that the differential testament of OLR and discretionary life prisoners can be seen to be objectively justified. These conclusions are sufficient to permit the reclaiming motion to succeed.”

The case was thereafter put out by order for a discussion as to the appropriate orders to be pronounced, having regard to what steps the respondents may decide to take in light of the court’s decision.