Parole Board wins appeal against Lord Ordinary’s decision that it unlawfully refused to order life prisoner’s release

About this case:

• Citation:
  [2023] CSIH 26
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Turnbull

David Dolan was sentenced to detention without limit of time in June 1996, with a punishment part of 10 years, after he committed the murder while on bail granted to him in June 1995. In opposing the reclaiming motion, his counsel argued that the Lord Ordinary was correct to conclude that the Tribunal’s decision was unlawfully made.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Turnbull and Lord Matthews. Dean of Faculty, Dunlop KC, appeared for the reclaimers and Pirie KC and Crabb, advocate, appeared for the petitioner and respondent.

Only outcome available

The petitioner was first released from custody in March 2010, but was quickly returned after breaching his licence conditions. He was again released in both April and October 2019 but on both occasions was similarly returned to custody a short time later due to use of illicit drugs and breach of electronic monitoring conditions.

At a hearing of the Parole Board in September 2022, the Tribunal heard that the petitioner had been diagnosed with general anxiety disorder and as having difficulties suggestive of complex post-traumatic stress disorder. It accepted that the petitioner presented a high level of risk, and the evidence of his social worker that his lack of proper engagement with the supervision process increased his risk of reoffending.

In reaching his decision on the petition at first instance, the Lord Ordinary noted that the petitioner had committed no acts of violence in the past 26 years. He took the view that the Tribunal might have been expected to accord greater weight to this factor than it apparently did and that its determination failed to disclose any appreciation of the correct test which fell to be applied on whether the potential risk posed by the petitioner was proportionate with his continued detention.

For the reclaimer it was submitted that, the Tribunal having acknowledged that the petitioner’s release would pose a material risk of harm to the public, the Lord Ordinary should have appreciated that it was directed to the only outcome available. The informed reader of the decision would have no difficulty understanding the decision or the material considerations taken into account in reaching it.

Confinement remained necessary

Lord Turnbull, delivering the opinion of the court, observed: “The submission that the September Tribunal failed to give consideration to the consequences of its decision for the prisoner falls to be assessed in the context of the whole information available to it in the dossier. The detailed decision-making set out in the Minute of the Tribunal which refused to direct the petitioner’s release in February 2021 is of relevance and importance. In its decision Minute that Tribunal noted that the petitioner’s illicit substance abuse was a feature in both the index offence and the earlier assault and robbery.”

He continued: “The submission that the 6 September Tribunal failed to give consideration to the consequences for the petitioner of its decision has no force. Seen in the context of the many years over which various Tribunals of the Parole Board have been giving detailed consideration to the level of risk which he posed, and his inability to cope with what were deemed necessary management and monitoring conditions, it is obvious that the Tribunal must have been acutely aware of his history and the reasons for his continued detention.”

On whether the Tribunal had applied the correct test, Lord Turnbull said: “We do not agree with the Lord Ordinary’s view that the Tribunal failed to show any appreciation of the correct test to be applied. It referred directly to the statutory test at paragraph 2 of the decision Minute. Nor do we agree that the Tribunal was required to embark upon an assessment of the nature of the risk posed if that meant identifying the type of conduct involved and the likelihood of it occurring.”

He went on to say: “In the context of his posing a medium risk of causing serious harm if released, with risk factors including companions and alcohol/drug problems, it concluded that it could not be so satisfied because his risk could not be assessed and monitored in the community. Accepting that the Tribunal had an appropriate appreciation of the ongoing impact of confinement on the petitioner, the reasoning set out in paragraph 114 of its decision Minute provides adequate clarity as to why confinement remains necessary in the public interest.”

Lord Turnbull concluded: “It follows that the court rejects both of the principal submissions advanced on behalf of the petitioner. To the extent that the inadequate reasons point was maintained it has no substance. The informed reader would have no difficulty in understanding why the Board came to the decision that the statutory test was not met.”

The court therefore allowed the reclaiming motion and recalled the Lord Ordinary’s interlocutor of 21 April 2023.