Prisoner fails in £10,000 damages claim over alleged failure to provide rehabilitation

The petitioner argued that the Scottish Prison Service (SPS) violated his “right to liberty” in terms of article 5 of the European Convention on Human Rights, but a judge in the Court of Session ruled that the (SPS) had not acted “irrationally or unreasonably” in the management of the inmate’s case.

‘High risk’

Lord Ericht heard that the petitioner Michael Glancy was sentenced in June 2015 to four years’ imprisonment with an extension period of two years after being convicted of assault to injury, two charges of assault, vandalism, two charges of domestic assault and assault to injury, permanent disfigurement and danger of life.

The inmate, who had previous convictions and was considered a “high risk”, had indicated that he was “happy” to participate in rehabilitation programmes to “change his behaviour”.

In March 2016 he was assessed as suitable for the “self-change programme” (SCP), a high intensity cognitive-behaviour programme that aims to reduce violence adult male offenders who present the highest risk, which is offered in three strands - one for offence protections prisoners such as sex offenders, one for non-offence protection prisoners, and another for general prisoners.

The petitioner, a non-offence protection prisoner, complained that he should have been offered a place on the strand for non-offence protection prisoners which commenced at the end of April 2018 or the strand for protection prisoners which began in January 2019.

He brought judicial review proceedings against the Scottish Ministers seeking declarator that the respondents’ failure to provide rehabilitative work and failure to provide information about when such rehabilitative work might be offered to him was a breach of his article 5 rights, declarator that the respondents’ had failed in their domestic law obligations and that they had acted “irrationally and unfairly”.

He also sought payment of £10,000 by way of “just satisfaction”.

The court was told that in June 2016 the petitioner was refused release on license, having failed to engage in any offence-focused programme work and having been the subject of 13 misconduct reports while in prison - most of which were for fighting and assault.

However, he was released on non-parole licence in June 2017 but recalled to custody four months later.

In December 2017 he was approached to take part in a “generic programme assessment” (GPA) but did not engage with the process because he wanted to await the outcome of a further parole board hearing in February 2018.

It was only after that hearing, having been refused release and then transferred from HMP Barilinnie to HMP Kilmarnock in March, that he consented to a GPA and was identified with a need to complete the SCP, but by that time it was too late for admission on the April 2018 course and there is no SCP course until April 2020.

‘Right to liberty’

Counsel for the petitioner submitted that there were “clear obligations” to provide rehabilitation to prisoners and that there were two occasions when the respondent ought to have offered rehabilitative work to the petitioner and did not do so.

They should have offered him a place on the non-offence protection stream of the SCP that started in April 2018 or the protection stream that started in January 2019.

It was further argued that there was an obligation both at common law and under article 5 ECHR to provide the petitioner with information about when rehabilitation might be provided. 

In respect of damages, it was submitted that if the court came to the view that the petitioner’s article 5 rights had been infringed, then an award of damages might be “appropriate” to provide just satisfaction. 

However, counsel for the respondents submitted that the petitioner had been advised by letter in December 2017 that his failure to engage with the GPA might have consequences, and his failure to have participated in and/or completed the SCP is a result of his own actings. 

It was argued that the petitioners had complied with their duty to provide the petitioner with a “real opportunity” in all the circumstances to rehabilitate himself to demonstrate that he no longer presented an unacceptable danger to the public. 

Considering these matters, the court must take into account all the circumstances: the prisoner’s history and prognosis, the risks he presents, the competing need of other prisoners, the resources available and the use made of opportunities for rehabilitation.

On the facts of the case, it was submitted that the respondents had acted reasonably in the management of the petitioner.

In relation to the petitioner’s submissions on the provision of information, counsel for the respondents submitted that there was “no obligation” on the SPS to provide information to prisoners as to exactly when coursework would be made available - the allocation and timetabling of rehabilitative courses was a matter for the expertise and experience of the Scottish Prison Service. 

‘Totally without merit’

Dismissing the petition, the judge ruled that the respondents had complied with their legal obligations.

In a written opinion, Lord Ericht said: “In this case, the petitioner does not seek to argue that there is a systemic failure to provide rehabilitative programmes. The claim is limited to failure to provide one specific course, that is the SCP, in respect of one specific prisoner, the petitioner.

“The respondents offer the SCP course to prisoners. They offer a special strand of the SCP course which is suitable for non-offence protection prisoners such as the petitioner. It is simply not the case that there is a complete absence of provision of this course, and the petitioner’s submission to that effect is totally without merit.

“In exercising its operational judgment in relation to the offer of courses the SPS are entitled to take into account the resources implications of the particular courses…They are entitled to design and offer courses in strands to cater for the specific needs of specific categories of prisoners, such as protection prisoners and non-offence protection prisoners. 

“They are under no obligation to offer any particular course, or to do so in any particular year: their obligation is to offer rehabilitation over the period of a prisoner’s sentence.

“It cannot be said that in exercising that operational judgment the SPS acted irrationally or unreasonably in the Wednesbury sense. The respondents have made adequate provision of the SCP course to comply with their obligations under article 5 and at common law.”

He continued: “As the respondents have made adequate provision of the SCP course, the petitioner’s case resolves itself into a complaint that he was not admitted to an SCP course. The petitioner avers that there was no good reason why the petitioner could not have been offered a place on either the April 2018 non-offence protection strand or the January 2019 protection strand.

“In my opinion there was good reason why he could not have been offered a place on the January 2019 strand. This strand was designed for protection prisoners. It was not designed for non-offence protection prisoners such as the petitioner. 

“The respondents have, over the course of the petitioner’s incarceration, offered him a real opportunity for rehabilitation. Had it not been for the petitioner’s decision not to engage with the opportunity for rehabilitation after his recall in 2017, then he would have been admitted to the April 2018 SCP.” 

The judge concluded: “In all the circumstances, I find that the respondents have neither failed to provide rehabilitative work in breach of article 5 nor failed in their domestic law obligations to make provision for the rehabilitation of prisoners.

“Moreover I find that the respondents have not failed to provide information about when rehabilitative work might be offered in terms of article 5, or acted irrationally in failing to provide him with this.”