Life prisoner loses challenge against Scottish ministers’ management of temporary release scheme

About this case:

• Citation:
  [2024] CSOH 6
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Petitioner Gordon Burns, who had been serving a discretionary life dating from 31 December 2000, sought declarator that the scheme for approval of First Grant of Temporary Release breached his ECHR rights. He additionally contended that it was unlawful for decisions on applications for FGTR to be made by the Scottish Ministers rather than a non-political agent.

The petition was heard by Lord Sandison in the Outer House of the Court of Session. Leighton, advocate, appeared for the petitioner and D Ross KC for the respondent.

Political involvement

Since March 2023, the petitioner had been confined in the National Top End section of the Scottish prison estate and had been afforded occasions of special escorted leave. Having observed what had happened to other prisoners like him and having obtained certain statistical information, he was apprehensive that a ministerial decision on whether to approve FGTR for him was likely to be inordinately delayed, particularly in comparison with the process which prisoners subject to orders for lifelong restriction went through.

It was submitted for the petitioner that consideration of his case would take a disproportionately long period of time, contrary to Article 14 ECHR taken with Articles 5 and 8, when compared to prisoners subject to an OLR, who instead required the approval of the Risk Management Authority. Most, if not all, other decisions of this nature were made by civil servants, not politicians, and there was no proper justification for political involvement in this class of decision making.

The petitioner further contended that he was in an analogous position to prisoners subject to orders for lifelong restriction for these purposes. The Inner House in Brown v Scottish Ministers (2022) had held that prisoners subject to orders for lifelong restriction were in an analogous position to discretionary life prisoners for the purposes of the availability and timing of rehabilitative opportunities. The respondent had not proved there was reasonable and objective justification for the difference in treatment.

For the respondent it was submitted that the petitioner’s complaints were unfounded. When looked at in the round, discretionary life sentence prisoners were not treated any less favourably than prisoners subject to OLRs. The practice of Ministers approving FGTR reflected the importance of the matter from the point of view of community safety, and there was nothing intrinsically objectionable in Convention terms to the policy.

Very difficult argument

In his decision, Lord Sandison said of the two classes of prisoner: “The aim pursued by the different sentencing regimes applicable to the groups identified as analogous is to cater for different combinations of offending and risk in ways deemed appropriate by law from time to time. That was accepted as a legitimate aim in Stott v United Kingdom (2023), both in the ECtHR and in the UK Supreme Court, and it is not possible to see why the same view should not apply to the circumstances presently under consideration.”

He continued: “The extent of the margin of appreciation enjoyed by the State in this field makes it very difficult to maintain any argument that there is not a reasonable relationship of proportionality between the aim pursued and the legislative measures put in place to realise it. The petitioner does not complain about the circumstances in which he may be deemed eligible to apply for First Grant of Temporary Release, or about the substantive assessment of the conditions upon which the decision to afford it to him are based.”

Turning to the involvement of the Ministers in the FGTR process, Lord Sandison said: “The primary aspect of the package of rights afforded by Article 5 is undoubtedly protection against arbitrary detention, but any decision taken by a Minister in relation to First Grant of Temporary Release is in principle subject to the supervisory jurisdiction of this court, a primary element of which is the provision of protection against arbitrary decisions by members of the executive.”

He explained further: “That is not to suggest that recourse to judicial review will always in practice be easy or entirely satisfactory in outcome, but its availability as a means of independent review of the propriety in public law terms of a relative decision of a Minister provides a sufficient safeguard against arbitrariness as to show that the petitioner’s complaint based on breach of Article 5 alone lacks proper foundation.”

Lord Sandison concluded: “It is not difficult to understand why the petitioner, deprived of his liberty and much of the agency enjoyed by those who have not been imprisoned for the commission of serious crimes, should readily conceive genuinely-held grievances in consequence of perceived advantages enjoyed by others in similar situations. For the reasons stated, however, even if those grievances are factually well-founded they do not found a valid case for infringement of his Convention rights.”

The petition was therefore dismissed.