Prisoner serving life sentence since 1974 for murder of young boy fails in challenge of decision not to grant temporary release

About this case:

• Citation:
  [2022] CSOH 77
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Weir

Brian Morrice was convicted of the murder when he was 17 years old and had served in excess of 48 years in custody on a sentence with a punishment part of 13 years. He argued that the decision of the respondents was in breach of Article 5 ECHR and sought payment by way of just satisfaction for the delay that had ensued.

The petition was heard by Lord Weir in the Outer House of the Court of Session. Leighton, advocate, appeared for the petitioner and Way, advocate, for the respondents.

Natural justice

On 3 August 2020 the petitioner, who was imprisoned within the National Top End facility at HMP Greenock, applied to the Scottish Prison Service for a FGTR. The application was reviewed by SPS HQs and various clarifications were sought on aspects of the risk assessment and risk management plan prepared for the petitioner.

Eventually, on 12 January 2022, the petitioner’s case was considered by the Parole Board for Scotland, who determined that the petitioner remained an “unacceptable risk” to society. It was recorded by the Parole Board that the delay in considering the petitioner’s FGTR was “excessive” and “concerning”.

It was submitted for the petitioner that by apparently refusing to make any decision the respondents had made de facto a decision to refuse FGTR which was incapable of appeal, thus undermining the rule of law. Alternatively, the failure to take a decision timeously was procedurally unfair and the continuing delay was a breach of natural justice.

In his reply, counsel for the respondents submitted that delay would only be unlawful if it was shown to result from actions or inactions which could be regarded as irrational. The time taken to address the petitioner’s case was not irrational in the context of the petitioner’s risk of serious harm assessment having been raised to high during the application period.

Counsel for the respondents further argued that the circumstances of the petitioner’s application for FGTR did not come close to justifying the conclusion that his detention had become arbitrary. The lawfulness of the petitioner’s detention was considered and approved by the Parole Board in January 2022, and there were sound reasons for why a decision in favour of FGTR had not yet been taken.

Not irrational in context

In his decision, Lord Weir observed: “In the instant case the petitioner does not have a settled or established right to be granted FGTR. As is apparent from the terms of the affidavits submitted on behalf of the respondents, whether an application for FGTR is granted to a prisoner in the position of the petitioner will depend on variety of considerations arising from an assessment of the risk still posed by him were he to be released into the community.”

On whether the decision of the Parole Board was irrational, he said: “The petitioner had very complex and enduring personality functioning problems and there remained an inconsistent understanding of what risks he presented. SPS could not honestly and justifiably say that his risk could currently be managed at lesser levels of security. These difficulties fed into the reasons why the petitioner’s application was taking longer than would ordinarily be expected.”

He continued: “Measured against the well-known context of a global pandemic whose impact has been felt in so many different contexts (not least in the prosecution of serious crime), and recognising that the petitioner’s application is not the only application for which the respondents have ultimate responsibility, the period of time concerned might be regarded as regrettable in a general sense, but I am unable to characterise the delay as irrational.”

Lord Weir concluded: “The right to progression is not absolute and, in circumstances where the Parole Board did not direct release in January 2022, nothing in the process by which the petitioner’s application for FGTR has been considered seems to me to constitute a denial of the opportunity to rehabilitate. There being no breach of Article 5, no issue of payment of damages for just satisfaction arises.”

The prayer of the petition was therefore refused.