Long-term prisoner sues over failure to allow maximum 180-day home detention curfew

The Court of Session judge refused the application for judicial review to proceed following an oral hearing, but after the inmate indicated his intention to appeal, the judge issued written reasons in which he stated that one of the grounds of complaint had “sufficient substance” for permission to be granted.

Lord Doherty heard that the petitioner Niall Dinsmore, a prisoner at HMP Castle Huntly, told the Scottish Prison Service (SPS) that he wanted to be considered for the grant of a home detention curfew (HDC) licence for the maximum permitted period of 180 days.

A long-term prisoner such as the petitioner may only be released 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. 

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.

The petitioner lodged a petition for judicial review, and at the time the petition was served on the respondents they had not referred the petitioner’s parole dossier to PBS.

The petitioner was seeking declarator that the decision of 13 August 2018 was “unlawful”.

He claimed that the respondents “erred in law” in failing to make rules or guidance which gave effect to the policy underlying section 3AA(3), namely parliament’s wish that long term prisoners should have the opportunity of obtaining a 180-day HDC licence. 

Moreover, in operating a system whereby long term prisoners’ parole dossiers are not referred to PBS until, at the earliest, about 12-16 weeks before their PQD, the respondents “unlawfully fettered their discretion”.

Finally, he argued that the respondents’ decision not to initiate the HDC process until 9 November 2018 was “irrational”. 

He sought reduction of the decision of 13 August 2018; an order requiring the respondents to refer the petitioner’s parole dossier to PBS; and an order requiring the respondents to “update their guidance to give effect to section 3AA(3) of the 1993 Act 1993”.

In relation to permission to proceed, the petitioner averred that he had “sufficient interest” in the subject matter of the petition as he was a person who was “entitled to seek an HDC licence” and that he has “a real prospect of success”. 

The respondents admitted that the petitioner had sufficient interest in the subject matter of the petition, but denied that he had a real prospect of establishing that the respondents erred in law in failing to make rules or guidance to give effect to the policy underlying section 3AA(3), and they denied that the decision of 13 August 2018 was irrational. 

However, in their answers, the respondents did not oppose permission to proceed being granted in so far as it was grounded on the respondents having fettered their discretion.

On 13 December 2018 the Lord Ordinary refused permission on the papers without putting the case out for an oral hearing. 

The petitioner sought a review of that decision and Lord Doherty granted the request for an oral hearing because he had “misgivings” about the reasons for refusal of permission and because it seemed “odd” that no oral hearing had been thought necessary, particularly as the respondents had not opposed permission being granted on one of the grounds.

In advance of the oral hearing the respondents disclosed that on 4 January 2019 - 109 days before the PQD - they referred the petitioner’s parole dossier to PBS; and that the petitioner’s parole application was expected to be considered by PBS at its meeting on 12 February 2019 - 70 days before the PQQ - with a decision being issued shortly thereafter.

At the oral hearing, on behalf of the petitioner it was submitted that, notwithstanding these developments, the petition had a “real prospect of success” and that permission to proceed should be granted. 

It was argued that the respondents had “erred in law” in failing to make rules or guidance to ensure that long term prisoners had an opportunity of obtaining a 180-day HDC licence. 

The practice of not submitting parole dossiers until 12-16 weeks before the PQD resulted in a situation where no long term prisoners could obtain a 180 day HDC licence, which failed to give effect to the policy objective of permitting any eligible prisoner to apply for a period of 180 days on HDC licence. 

The respondents had “wrongfully fettered their discretion” and the decision on 13 August 2018 that an application could not be initiated until 9 November 2018 was “irrational”. 

It was further submitted that the issues raised by the petitioner were not academic, as the petitioner continued to have standing and interest notwithstanding the fact that his dossier had now been referred to PBS. 

He had been “wrongfully deprived” of an opportunity to have his application for a 180-day HDC licence considered and granted and the petition sought to secure the preservation of the rule of law, which is an essential function of the courts.

The absence of appropriate guidance affected all long term prisoners who wished to apply for a 180 day HDC licence, as did the fettering of the respondents’ discretion through the indiscriminate application of their policy.

On behalf of the respondents it was submitted that the petition had “no real prospect of success”. 

Moreover, the petition was now “academic”, and the petitioner no longer had standing or interest to seek the remedies he sought - there was “no practical purpose” in granting any of those remedies.

However, if, contrary to the argument that the petition was not now academic in so far as it proceeded on the fettering of discretion ground, the respondents did not oppose permission being granted to that limited extent.

The judge refused permission to proceed, but after the petitioner reclaimed the judge issued written reasons in which he admitted that, on reflection, he was not convinced that he was correct to refuse permission in relation to the fettering of discretion ground. 

In his written opinion, Lord Doherty said: “Having had the opportunity to consider that matter further, it now appears to me that that ground has sufficient substance for permission to be granted, and that I ought to have granted it. 

“I am not persuaded that the ground is academic, or that the petitioner has no standing or interest in relation to it. He has lost the opportunity to seek an HDC licence for the maximum permitted period. 

“At present, the petition does not seek damages for the loss of that opportunity, but it is possible that such a claim might be advanced if there is an opportunity to recast the pleadings to take account of events since the petition was lodged. 

“In any case, I think there is substance in the argument that there is a public law interest in this ground being adjudicated upon. It affects all long term prisoners who are eligible for HDC. I was informed that although the maximum licence period had been increased to 180 days on 21 March 2008, no long term prisoner had been granted a licence for the maximum period. 

“I am unimpressed by the suggestion that the petition is academic because other long term prisoners could vindicate their rights by seeking judicial review before the question becomes academic for them. It seems to me that other prisoners who raise proceedings are very likely to run into the same sort of practical difficulties caused by the effluxion of time as the petitioner has experienced.”

He added: “I remain of the view that neither the rules or guidance ground nor the irrationality ground have real prospects of success. I am not persuaded that there is any substantial basis for maintaining that the respondents are obliged to issue the suggested rules or guidance. 

“Similarly, I am unconvinced that there is any substance in the irrationality ground. There is nothing irrational in applying a clear policy consistently. 

“It seems to me that the real nub of the complaint is not that the particular decision was unreasonable, but that the respondents act unlawfully in applying their policy rigidly in all cases, with the result (it is said) that they have fettered their decision.”

In relation to the fact that no oral hearing was ordered before the refusal of permission on 13 December 2018, the judge observed that the court had a discretion whether to order an oral hearing before deciding the question of permission, adding that there will “undoubtedly be cases where it is very clear indeed that permission ought to be refused, and where an oral hearing would be pointless”. 

However, Practice Note 3 of 2017 on Judicial Review, states, at paragraph 12, that: “The Lord Ordinary must make a decision on whether to grant or refuse permission or order an oral hearing (RCS 58.7). The Lord Ordinary will ordinarily order an oral hearing if considering refusing permission….”

Lord Doherty added: “That suggests that oral hearings should be the norm where the court is minded to refuse permission. My impression is that does not in fact represent what is happening in practice. I rather think that in a large majority of cases where permission is refused there is no oral hearing. I very much doubt whether it was anticipated, or intended, that that should be the case.”