‘Post-tariff’ prisoner loses human rights appeal over alleged ‘failure to facilitate rehabilitation and release’

A man convicted of culpable homicide some 50 years ago who claimed that his human rights had been breached because he had not been given a reasonable opportunity to rehabilitate himself after being transferred from the state hospital to prison has had his legal challenge dismissed.

The Inner House of the Court of Session dismissed the appeal by Alexander Reid, upholding the Lord Ordinary’s decision to refuse a petition for judicial review in which it was argued that the “post-tariff” prisoner had suffered a breach of his rights under Article 5 of the European Convention on Human Rights (ECHR).

In 1967 the petitioner, then aged 17, was accused of murder but pled guilty to a “violent homicide” on the grounds of diminished responsibility and detained in Carstairs State Hospital, where he remained for about 45 years.

Lady Paton, Lord Brodie and Lord Malcolm heard that in 2012, following upon developments in the diagnosis relating to his mental health, he was successful in an appeal to the High Court of Justiciary (Reid v HM Advocate 2013 SLT 65) and in November that year was transferred from Carstairs to serve a life sentence in HM Prison, Glenochil.

The punishment part of his life sentence, which was set at 10 years, expired on 8 September 1977, meaning he was now a post-tariff prisoner serving an “indeterminate” life sentence.

The petitioner raised judicial review proceedings contending that his rights under Article 5 ECHR had been breached, in that the Scottish Prison Service – for whom the Scottish Ministers are responsible – had failed in their duty to “provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he is no longer an unacceptable danger to the public” (R (Haney) and others v Secretary of State for Justice 1 AC 1344).

The petitioner sought declarator that his Convention rights had been breached by the respondents’ failure, in the period 27 November 2012 to date, to facilitate his progress towards release; damages of £5,000; and such further order as the court deemed just and reasonable in the circumstances.

Following a first hearing before Lord Glennie in May 2015, the Lord Ordinary rejected the petition and in particular declined to grant declarator of a breach of the petitioner’s convention rights, and refused to award any damages.

But the petitioner reclaimed, arguing that the Lord Ordinary erred in failing to hold that the circumstances of his case required the respondents, in fulfilling the implied ancillary duty owed to the petitioner under Article 5 of the ECHR, to “prioritise his case” within the prison system.

It was also claimed that Lord Glennie erred in failing to hold that the respondents’ overall management of the petitioner’s rehabilitation was in breach of the implied ancillary duty “to facilitate his rehabilitation and release from custody”.

The Lord Ordinary failed to have regard to the respondents’ failure to carry out a psychological assessment of the reclaimer prior to his involvement in a CARE programme, the period of time that elapsed before the respondents provided a place to the petitioner on the CARE programme and thereafter the period of time that elapsed before the provision of a psychological risk assessment.

Further, it was submitted that the judge had failed to have regard to the facts of the petitioner’s case and to consider these against the decision in Haney.

It was said that the petitioner’s “unusual circumstances and unique history” required the respondents to give him “priority” within the prison system, but he had not been given a reasonable opportunity to progress to a point where the Parole Board would be in a position to consider releasing him.

However, the appeal judges found no error in the Lord Ordinary’s judgment.

Delivering the opinion of the court, Lady Paton said: “In our opinion, the steps taken with a view to the rehabilitation of the petitioner disclose a careful and consistent endeavour on the part of the Scottish Prison Service to provide the petitioner with opportunities reasonable in all the circumstances for him to rehabilitate himself and to demonstrate that he is no longer an unacceptable danger to the public.

“Applying the guidance in Haney, we have detected no breach of any duty arising under Article 5 of the ECHR, nor any error in the Lord Ordinary’s approach or conclusions.”

In relation to the question of damages, senior counsel for the petitioner submitted that if the judges were satisfied that there had been a breach of the Article 5 duty, he should be awarded damages of £500 as “an expression of the court’s disapproval”.

Lady Paton added: “As we have concluded that there has been no breach of the duty arising from Article 5, and that the petitioner is being provided with opportunities reasonable in the circumstances for him to rehabilitate himself and to demonstrate that he is no longer an unacceptable danger to the public, it is difficult to identify, far less quantify, any alleged loss, injury or damage suffered by him.”