Life prisoner denied access to unredacted documents in advance of parole hearing loses challenge against release refusal

About this case:

• Citation:
  [2025] CSOH 19
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Haldane

Luke Mitchell, who became eligible for release on licence in April 2024 after serving the punishment part of his life sentence, argued that the Parole Board for Scotland had conducted his parole hearing unfairly as he was not given unredacted copies of reports accessible in unedited form by the Board. The respondent considered that, as the decision was made without regard to those documents, the challenge could not succeed on the basis of unfairness.

The petition was considered by Lady Haldane, with S McPhee, advocate, appearing for the petitioner and Lindsay KC for the respondent.

Without regard to reports

The petitioner was considered for release on licence by a panel of the respondent on 15 April 2024. He was provided in advance with his dossier comprising detailed information and reports, in accordance with the relevant rules and practice, before the panel considered his application for release on licence. Additional material was prepared in respect of the petitioner, in the form of two Serious Offender Liaison reports dated 1 February 2022, and 28 June 2023.

The petitioner’s solicitor sought to obtain copies of the SOLS reports and was provided with redacted copies of them following a subject access request submitted on behalf of the petitioner. The panel was provided with unredacted copies of the SOLS reports. The petitioner was given notice that the unredacted reports would not be provided as they were deemed to contain “damaging information” as that term is defined in rule 9 of the Parole Board (Scotland) Rules 2022.

In advance of an oral hearing scheduled for 15 April 2024, the petitioner’s solicitor wrote to the Board seeking to adjourn the hearing to address the question of whether or not the hearing could be conducted fairly, in the absence of the petitioner having sight of the unredacted versions of the SOLS reports, or alternatively the appointment of a special advocate to consider the material. By a majority decision, with one dissenting opinion, the panel determined that the hearing could go ahead, without having regard to the SOLS, and determined not to order the petitioner’s release.

For the petitioner it was submitted that the respondent had acted unlawfully in failing to have regard to the two SOLS reports and considering the evidence of witnesses, which had given rise to procedural unfairness. The respondent further failed to have regard to relevant factors, specifically that the content of the SOLS reports might have had a bearing on the question of risk, and violated the petitioner’s right not to be subject to arbitrary detention per article 5 ECHR.

The respondent contended that the true complaint being made by the petitioner was that a special advocate should have been appointed to consider the redacted material. If this was the case, there was little in the way of practical consequence to the petition, as this was a motion that could be made of new.

Sufficient for concluded view

In her decision, Lady Haldane said of the relevant question of law: “The question is not whether a better or fairer procedure might have been adopted. The question, rather, is what fairness requires in this particular context. That assessment must be performed having regard to the fact that it is for the court to determine whether the procedure adopted was fair; its’ function is not merely to review the reasonableness of the decision-maker’s judgment of what fairness required.”

She continued: “Once the decision had been taken to withhold the un-redacted SOLS reports in terms of rule 9, the panel were bound to proceed in accordance with the procedure set out in that rule. That procedure is not binary, and offers different options in terms of how to proceed, depending on the view taken by the panel of the significance, or otherwise, of the rule 9 material to their determination of the question of risk.”

Evaluating whether this amounted to unfair procedure, Lady Haldane said: “There was no requirement to consider what weight if any to attach to the SOLS reports, as, having brought to bear their skills and experience in the assessment of risk, the panel concluded that the other material available was sufficient for a concluded view on risk to be taken. It is noteworthy in this respect that the member of the panel who dissented in relation to the procedural decision, did not ultimately dissociate themselves from the conclusions on risk having considered all of the other material available which bore on that question.”

She concluded: “They felt able to reach a unanimous conclusion based on the other material before them. Again, there is nothing procedurally unfair in their doing so. No doubt the petitioner feels aggrieved at their conclusion. That is unsurprising from his perspective and may well lead to feelings of resentment. However it is to be expected that the petitioner may well resent any outcome which is not the one that he hopes for. That does not mean that the process itself, considered from a ‘360’ perspective, was unfair.”

For these reasons, the petition was refused.