Judge dismisses long-term prisoner’s legal challenge over failure to allow maximum 180-day home detention curfew

Niall Dinsmore, then a prisoner at HMP Castle Huntly serving a five-year sentence for a firearms offence, wanted to be considered for the grant of a home detention curfew (HDC) licence for the maximum permitted period of 180 days.

He argued that the Scottish Prison Service (SPS) “unlawfully fettered their discretion” by failing to refer his case for consideration at an earlier date, but a judge in the Court of Session has ruled that the challenge was “not well-founded”.

Home detention curfew

A long-term prisoner such as the petitioner may only be released by the Scottish Prison Service (SPS) on an HDC licence where the Parole Board for Scotland (PBS) have recommended his or her release once half of the sentence has been served, in terms of section 3AA(1)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 and section 15 of the Management of Offenders (Scotland) Act 2005.

In order for it to be possible for the petitioner to obtain a 180-day HDC licence the SPS would have to have compiled his dossier and have sent it to the PBS sufficiently in advance of 180 days before his parole qualifying date (PQD) - when half of his five-year sentence was served - to enable the board to make its decision whether to recommend release on parole before the commencement of that 180-day period. 

Lord Arthurson heard that the SPS’s response to the petitioner’s request was that its practice was to refer dossiers to PBS about 12-16 weeks before a PQD. 

On 13 August 2018, in response to a complaint by the petitioner that his HDC application had not been actioned by SPS, the governor wrote to the petitioner stating that his HDC application would not be initiated until 9 November 2018 - 165 days before his PQD of 23 April 2019.

‘Unlawful decision’

The petitioner, who was released on parole on 26 April 2019, lodged a petition for judicial review against the Scottish Ministers seeking declarator that the decision of 13 August 2018 was “unlawful”.

Counsel for the petitioner’s contention was that in not referring the petitioner’s case to the PBS on a date earlier than 9 November 2018, the respondents had thereby “unlawfully fettered their discretion”.

It was argued that the respondents had “shut their ears” to the petitioner’s application, by failing to consider his case as an exception to the general policy.

The court was told that some ten years after the increase in the available period of days referred to in section 3AA(3) of the 1993 Act, no long-term prisoner had been released for the new period of 180 days under the HDC scheme.

The petitioner accordingly sought relief from the court by way of the remedies of declarator and reduction of the decision of 13 August 2018. 

‘Permissive and not mandatory’

Refusing the petition, the judge noted that the provisions were not “mandatory”.

In his written opinion Lord Arthurson said: “I have reached the view that in determining not to initiate the petitioner’s HDC application process until 9 November 2018, being a date 165 days before the PQD, all as intimated to the petitioner in the challenged decision letter of 13 August 2018, the respondents did not act in such a way that could be characterised as comprising an unlawful fettering of their discretion in the course of their management of the petitioner’s case.

“In these circumstances, I accordingly proposed to refuse the petitioner’s application for relief by way of declarator and reduction and to dismiss the petition.”

The judge observed that the maximum period of 180 days referred to in section 3AA of the 1993 Act was “permissive and not mandatory”, adding that it should not be viewed as creating an “expectation of release on the HDC scheme for that maximum potential period”.

He explained: “In terms of section 3AA of the 1993 Act, Parliament has conferred upon the respondents a discretionary power to release, which power can only be engaged in respect of a long-term prisoner such as the petitioner once that prisoner’s release, on having served on half of his or her sentence, has been recommended by the PBS.

“It is important to understand that the exercise of this discretionary power, having regard to the clear terms of the provision in question, is located and anchored firmly around public interest matters, being the protection of the public, prevention of reoffending and community reintegration of the long-term prisoner in question.

“Once viewed in that light, section 3AA cannot be seen as a statutory provision enacted for the benefit of the prisoner, nor can it be characterised as conferring some form of entitlement upon prisoners within the relevant cohort within the prison estate.”

The judge concluded: “Having considered the material placed before the court and the full submissions there on advanced by counsel, I have therefore not been persuaded that the respondents, in the course of the exercise of their statutory discretion in respect of the power contained in section 3AA, did in this case in effect shut their ears to the petitioner’s application.

“In addition, I have further not been able to conclude that the respondents on the course of tue said exercise conducted themselves unlawfully in applying their policy so rigidly that it was being applied by them in such a way as to fetter the exercise if their own statutory discretion.

“For these reasons I have concluded that the public law challenge advanced on behalf of the petitioner in respect of the decision of the respondents not to commence the petitioner’s application for release on licence under the HDC scheme until 9 November 2018, as expressed in the challenged decision letter of 13 August 2018, is not well-founded, the respondents’ conduct in this matter not having been in my view unlawful.”