OLR prisoner fails in legal challenge over alleged failure to provide opportunity for rehabilitation

David Beattie, who was made the subject of the OLR in 2012 with a punishment part expiry (PPE) date of April 2019 after being convicted of his third rape, argued that the Scottish Ministers had acted “unlawfully” in failing to assess him for rehabilitative course work and that they failed in their duty by adopting a policy of prioritising assessments for courses which prevent him from being able to demonstrate to the Parole Board that he “no longer represented an unacceptable danger to the public”.

He claimed that the failure to assess him for rehabilitative course work breached his right to liberty under article 5 of the European Convention on Human Rights and that the prioritisation policy adopted by the respondents was a breach of his right to protection against discrimination in terms of article 14 of the convention.

However, Lord Armstrong ruled that the petition in relation to the petitioner’s assessment for course work was “premature” and that the prioritisation policy “does not fall outwith the range of options reasonably open to the respondents”.

The basis in law for the petitioner’s case was found in the 2015 UK Supreme Court case of Haney v Secretary of State for Justice, in which it was accepted as implicit in the scheme of ECHR article 5 that the state is under an “ancillary duty” to provide an opportunity, reasonable in all the circumstances, for a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.

The Supreme Court further held that the obligation is geared towards the prisoner having such a reasonable opportunity to establish that he is safe to release, at or within a reasonable time after the expiry of the referable tariff period and, that a failure before tariff expiry may constitute a breach of the duty if it remains uncorrected so that the prisoner is deprived of such reasonable opportunity.

The petitioner argued that as he had completed more than half of the determinate part of his sentence and with little over three years remaining there was not enough time for him to complete the relevant course work and properly progress through the prison system, which was “likely to result in a breach of the duty recognised in Haney”.

It was further submitted that the respondents’ policy of prioritising assessment for course work by reference to a prisoner’s first possible release date “discriminated irrationally” between different categories of prisoner because of the different patterns of management between long term prisoners, life term prisoners and OLR prisoners.

The petitioner’s convention case was to the effect that the respondent’s policy was in breach of ECHR article 5 and article 14, taken together, in that it resulted in “discriminatory, unfair and irrational provision of rehabilitation” in respect of different categories of prisoner.

But the judge dismissed the challenge made in relation to the assessment of course work after ruling that the petition was “premature”.

In a written opinion, Lord Armstrong said: “On the basis of the guidance set out in Haney, it would follow as appropriate that whether or not the duty has been breached ought to be determined by having regard not just to the point in his sentence prior to his PPE date which a prisoner such as the petitioner has reached, but also to the factors identified in Haney at paragraph 60, assessing them over the period during which fulfilment of the duty ought to occur. In the petitioner’s case that period, which logically must extend to a point at or within a reasonable time after his PPE date, has not yet expired.

“As matters stand, however, I find that it cannot be determined at this stage in the petitioner’s sentence that there has been such a breach of the duty on the part of the respondents. Even if I was wrong to reach that conclusion, I would be unable to find, again as matters stand at this stage in his sentence, that any such relevant breach would remain uncorrected. In that regard, the petition is premature.”

In rejecting the claim that the respondents’ prioritisation policy was unreasonable, the judge observed that the test was “a high one”.

He continued: “In that context, I accept that waiting lists for coursework are subject to change for the reasons submitted by the respondents, and that in circumstances where rehabilitative coursework is relevant to the reduction of the risk of reoffending after release of all categories of prisoner, a system which provided an earlier critical date in relation to OLR prisoners would operate to the prejudice of other categories of prisoner by removing or restricting the coursework currently available to them. On that basis, I am persuaded that the prioritisation policy currently adopted does not fall outwith the range of options reasonably open to the respondents.”

The petitioner’s convention case based on discrimination failed because the decision of the House of Lords in the 2007 case of R(Clift) v Secretary of State for Justice, which was to the effect that the type or length of a prisoner’s sentence does not operate so as to confer on him “other status”, was binding on the court.

Lord Armstrong added: “Had it been necessary to determine the matter, I would have found that, in any event, the respondents’ policy does not create circumstances of direct discrimination as between different categories of prisoner…Further, applying careful scrutiny to the whole facts pertaining to the manner in which different categories of prisoner are managed under the current policy, including the factors which contribute to that objective and reasonable justification, I am satisfied that ECHR article 5 has not been breached such as to bring about a system which could be said to expose the petitioner to arbitrary detention.”