Killer who claimed human rights breach over lack of access to rehabilitation courses has damages appeal refused

Billy Brown, who killed Steven Lennon by stabbing him in the heart during a street fight in July 2005, argued that his rights under article 5 of the European Convention on Human Rights had been breached, but judges in the Inner House of the Court of Session dismissed the claim.

Lord Menzies, Lady Clark of Calton and Lord McGhie heard that the reclaimer was sentenced to a custodial term of seven years and an extension period of three years in January 2006 after he pled guilty to the charge of culpable homicide, which had been reduced from murder.

In 2013, the reclaimer raised an action of judicial review directed against the first respondents, the Parole Board for Scotland, after the board refused to order his release.

During the procedural stages of the reclaiming proceedings, counsel for the parties were aware that the law relating to the main issues disputed by the parties was to be considered by the UK Supreme Court in the case now reported as of R (On the application of Haney & Others) v Secretary of State for Justice 2015 2 WLR 76.

Following the decision in Haney, the issues between the reclaimer and the respondents were narrowed to focus on the issue whether declarator should be granted that the reclaimer’s Convention rights under article 5 ECHR were breached, and whether an award of damages should be pronounced to afford the reclaimer just satisfaction in respect of said breach.

The alleged breach was based on averments alleging failure and delay by the respondents in the provision of courses recommended by the first respondents as relevant to the progress of the reclaimer towards release.

Refusing the appeal, the judges said they would have awarded damages due if a breach of article 5 had been established, due to the delay in providing certain rehabilitative courses.

Delivering the opinion of the court, Lady Clark said: “It is well settled that where a judge imposes a determinate sentence after conviction the case falls within article 5(1)(a) and there is no breach of the ECHR.

“We consider that the European Court of Human Rights recognises that there is a fundamental difference in the nature of determinate and indeterminate sentences and the consequences thereof so that in certain circumstances that Court may conclude that the indeterminate sentence becomes so arbitrary that it constitutes a breach of article 5.

“We also consider that although the Supreme Court in Haney adopted different reasoning from the Court in developing the ECHR article 5 implied ancillary duty to facilitate rehabilitation and release, such implied duty was clearly embedded by the Supreme Court in the context of indeterminate sentences. The applications being considered by the Supreme Court were indeterminate sentences and we are unable to read the judgments as having any wider implication.”

She added: “Standing our opinion, we consider the question of just satisfaction and damages may be dealt with briefly. We note the reclaimer did have access to some rehabilitative work both before and after his mandatory release. His response to rehabilitation and progress within the prison can only be described as unimpressive.

“Nevertheless we do accept that there was delay in providing additional rehabilitative courses recommended by the first respondent for the reclaimer. Looking at the matter broadly, we consider that a period of 18 months may be taken as the relevant period of delay in this case.

“We also accept that the reclaimer was upset and frustrated by the delay. Again looking at the matter broadly, we consider that a sum in damages of £500 would have been an appropriate award to represent just satisfaction in damages if the implied article 5 ECHR duty had been breached in this case.”