Prisoner who applied for early release on ground of previously successful curfew has judicial review petition refused

John Paton brought judicial review proceedings against the Scottish Government after his petition for early release from prison, on the ground that he had previously been under curfew without incident, was refused on appeal.

The case was heard in the Outer House of the Court of Session by Lord Ericht.

Presumed unsuitable

The petitioner was serving a 12-month prison sentence for assault to injury and disfigurement with a bladed weapon. Prior to the start of his prison sentence he had been on home curfew between the hours of 8pm and 7am for over a year. He applied for early release under HDC under section 3AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which allows the Scottish Ministers to release prisoners on licence under certain circumstances.

The petitioner’s original offence involved violence, the possession of an offensive weapon, and possession of a bladed article in a public place. As such, presumptions existed against granting HDC in normal circumstances under the official guidance for granting HDC. He applied for early release and argued against the presumption on the grounds that he had previously been under a period of curfew without any issues and thus his individual circumstances would override the presumption on account of the previous curfew period being without issue.

The original application was refused in April 2019, with the stated reasons for refusal being connected to the nature of the offence. It did not refer to the petitioner’s previous period of trouble-free curfew. The petitioner appealed the application, and again gave the previous curfew period as the main reason for appeal, stating in his application: “I feel that since I have already proved that I can and will abide by all the rules […] I don’t see how this doesn’t place me at the top of the list as a prime candidate to be released on a tag.”

The appeal was refused, again on the ground that three presumptions against granting HDC applied in the circumstances. The petitioner then sought a judicial review and the reduction of both the first instance and appeal decisions, arguing that his point about his previous curfew was not considered by either the first instance decisionmaker or the appeal decisionmaker.

Comprehensive appeal

In his written judgment, Lord Ericht said: “In my opinion, it is not appropriate for me to reduce the first instance decision.  The judicial review jurisdiction of the court is concerned with the final decision of an administrative body.  Indeed, it would not have been competent for the petitioner to seek judicial review of the first instance decision immediately after it had been made as he would not have exhausted his appeal remedy.” Thus, he would only address the appeal decision.

Referring to the petitioner’s argument that his point about his previous curfew was not considered, Lord Ericht stated: “The decisionmaker came to grips with the petitioner’s point about the trouble free curfew. He refers to the appeal as being “very comprehensive” and that is clearly a reference to the detailed handwritten paragraph in the box on the first page of the appeal form, which includes the point about the trouble free curfew.” He continued: “When the appeal decision is read as a whole, the reason why the petitioner lost is clear. The decision maker has come to the view that the curfew point, and indeed the other points in the handwritten paragraph, are not of sufficient weight to displace the presumptions.”

Lord Ericht concluded: “In so doing, Mr Peat [who considered the appeal] has come to his own conclusions on the appeal.  He has properly considered the matters in the handwritten paragraph, some of which were not before the first instance decision maker, and has not limited his decision to matters which were before the first instance decision maker.  Accordingly I reject the petitioner’s argument that Mr Peat did not consider the appeal de novo.”