OLR prisoner’s judicial review petition challenging parole board release refusal decision fails

Paul Hutton, who was given an OLR after committing offences against two former partners, argued that the Board’s decision was reached in circumstances that were procedurally unfair. The Lord Advocate also lodged answers to the petition as an interested party, while the Risk Management Authority entered as an interested party.

The petition was heard in the Outer House of the Court of Session by Lord Clark. The petitioner was represented by McLean, and the respondent by Lindsay QC.

Potential evidence for release

The petitioner, aged 45, had previously been convicted of a number of theft and fraud offences as well as offences of a sexual nature. He pled guilty to two charges of offences against former partners in July 2007, and his case was remitted to the High Court for sentence. Following a risk assessment, the sentencing judge imposed an OLR in respect of the second charge with a punishment part of 18 months, running consecutively to the determinate sentence for the first charge.

On 10 December 2009, the petitioner became eligible for consideration of release by an OLR Sentence Prisoner Tribunal of the Parole Board. Hearings concerning the petitioner’s potential release took place on various dates from December 2009 to March 2020. At some of the hearings the petitioner sought his release but in others he did not. In each decision, the Parole Board refused to release him.

The most recent hearing of the petitioner’s case took place on 28 May 2020. The Tribunal heard oral evidence from the petitioner and others as well as considering a prepared report from an expert, Dr L. At this hearing, the Tribunal concluded that it was necessary for the protection of the public that the petitioner remain confined.

It was the petitioner’s understanding that only two prisoners subject to an OLR had ever been released from prison. He submitted that the Parole Board was not a “court” in terms of Article 5(4) of the ECHR, which provides a right for detained persons to have the lawfulness of their detention considered by a court, and as such the sentence imposed on him was in danger of becoming an unjustified form of preventative detention.

In support of his proposition that the Parole Board was not a court, he referred to issues concerning the transparency of the parole process, the vague nature of the “risk” test the Board was required to consider, and the fact that the Board worked alongside the RMA and the Scottish Ministers rather than independently.

The petitioner also submitted that the Tribunal had not provided adequate reasons for its decision. In particular, it had not expressly recognised that the report by Dr L provided evidence, albeit heavily caveated evidence, that could potentially have supported his release. No reasoned rebuttal of this evidence had been provided by the Tribunal.

Obligation to consult

In his opinion, Lord Clark said of what the petitioner was required to prove to establish that the Parole Board was not a court: “If some aspect of the test under Article 5(4) is argued not to be met on the basis of an absence of power, it is in my view incumbent upon the petitioner to identify with sufficient clarity what power is alleged to be lacking and as a result which aspect of the test is not met.”

He continued: “The petitioner in this case did not specify any particular powers the Parole Board does not, but should, have in order to meet the test of being a court for the purposes of Article 5(4). Of itself, that negates any force in the petitioner’s argument.”

Citing a similar English case, he added: “In R (Morales) v Parole Board and Ors (2011) the court held that the Parole Board in England does constitute a court within the meaning of Article 5(4) even though it cannot require the production of documents. It had the power to make independent decisions of the kind specified in the authorities, including to determine the lawfulness of the detention of an individual. While it did not have jurisdiction to deal with that procedural issue about documents, it was not unknown for a court not to have all powers to enforce its orders but to have to rely on another court to enforce them.”

Regarding the Board’s use of the risk management plan prepared by the RMA, Lord Clark said: “The Parole Board is required to have regard to the risk management plan prepared by the lead authority, but is not bound to follow that risk management plan. I accept the submissions on behalf of the RMA that the phrase ‘have regard to’ used in section 26B of the [Prisoners and Criminal Proceedings (Scotland) Act 1993] involves a greater degree of consideration than an obligation simply to ‘consult’ and that it does not mean ‘follow’ or ‘slavishly obey’.”

On whether the Tribunal had provided adequate reasons for rejecting Dr L’s evidence, he said: “In my opinion, the Tribunal’s reasoning clearly meets the test articulated in the authorities. The Tribunal’s comment that Dr L’s views on the management of the petitioner’s risk in the community were not ‘clear or persuasive’ has to be considered in the context of its reasoning as a whole. That reasoning makes it plain that Dr L’s views were not accepted because the other evidence was more convincing.”

He concluded: “The Tribunal took into account his view that it ‘should be possible to implement a series of external risk management measures that are effective’ but identified solid evidential grounds for disagreeing with that view. In short, the Tribunal explained why it did not accept his position.”

For these reasons, the petition was refused.