OLR prisoner’s damages claim over failure to move him to open estate dismissed

A judge in the Court of Session refused the petition for judicial review by James Haggerty, who was seeking “just satisfaction” damages from the Scottish Ministers on the basis that the Scottish Prison Service had failed to move him to a national top end (NTE) facility or to the open prison estate, where he could make progress towards satisfying the Parole Board for Scotland that he no longer represented a danger to the public.

The petitioner was made subject to an OLR in June 2011, backdated to April 2010, with a punishment part of five years, after being convicted of assault and robbery.

Lady Carmichael heard that the petitioner’s complaint was in relation to the level of security in which he remained confined at HMP Shotts, which is part of the closed estate.

The court was told that in order to make progress towards satisfying the Parole Board, he needed to move to either an NTE facility such as HMP Greenock or HMP Barlinnie or to the open prison estate, where he could be tested under temporary licence conditions.

The petitioner’s case was considered by a Lifelong Restriction Prisoner Tribunal of the Parole Board for Scotland on 15 February 2016.

The Scottish Ministers were represented at that hearing by a Lifer Liaison Officer, Mr Rooney, who has provided an affidavit confirming that the petitioner was ready to be tested in conditions of greater freedom, and the petitioner was willing to progress either to the NTE or to the open estate.

In its decision letter of 29 February 2016, the tribunal found that “it is essential that you spend a significant period being tested under temporary licence conditions before you can be considered suitable for release. This will permit a future tribunal to consider a body of evidence upon which a decision on whether your level of risk can be managed in the community may be based.”

The petitioner’s case was that since 29 February 2016 a breach of his right under Article 5 of the European Convention on Human Rights had occurred by reason of what he claimed was a failure to move him to NTE or open conditions.

It was submitted that the petitioner’s case was analogous to that of (R (Haney) and others v Secretary of State for Justice 1 AC 1344), in which Mr Haney was accepted in principle for transfer to a suitable open prison by Secretary of State, but the transfer did not take place because of a very severe undersupply of places.

There was a delay of about a year and the UK Supreme Court found that the delay was a breach of the duty to facilitate release, sounding in damages.

But the respondents argued that a number of necessary steps required to be taken after 29 February 2016 and none of the periods during which the individual steps taken had involved unlawful delay.

The petitioner’s case was considered at meeting in July of the risk management team (RMT), which considered whether he should progress directly to the open estate, but concluded that a gradual period of testing via the NTE was preferable.

The RMT noted that before that could occur, a revised risk management plan (RMP) had to be completed, presented to the RMT and then to the risk management authority (RMA).

Therefore, it was submitted that the “true equivalent” of the Secretary of State’s letter to Mr Haney was the decision in October 2017 of the RMA to approve the revised RMP – meaning the delay in this case was around three months.

Dismissing the petitioner, the judge held that the petitioner had not established that the respondents had failed to provide him with an opportunity reasonable in all the circumstances for him to rehabilitate himself and to demonstrate that he longer presented an unacceptable risk to the public.

In a written opinion, Lady Carmichael said: “I considered whether I should treat the representation made to the tribunal by Mr Rooney on 15 February 2016 as directly analogous to the letter to Mr Haney in June 2011. That is not, in my view, however, the correct analysis.

“What Mr Rooney submitted to the Tribunal was that the petitioner was ready to be tested in conditions of greater freedom. Whether that testing was to be from NTE or from the Open Estate had not been determined at that point. It was not Mr Rooney’s role to make that determination. That was for the RMT to determine, and until it had met, and decided that matter, no revised RMP could be prepared.”

In relation to the period from 29 February 2016 to 17 October 2017, the judge found that there was “no basis for me to conclude that the steps taken were anything other than lawful and necessary precursors to progression”.

She said: “They are not particularly lengthy periods, and in the absence of any basis for finding that they were in excess of what was required, I am not prepared to conclude that they were periods of unlawful delay. Taken together, but in isolation from any other periods, even if they were regarded in their entirety periods of unlawful delay, they would not sound in damages.”

On the period from 17 October 2016 to the date of the hearing, the judge noted that the delay was “very lightly more than three months” and not of sufficient severity to sound in damages.