Prisoner with Asperger’s syndrome denied community release loses challenge against Scottish ministers’ decision

About this case:

• Citation:
  [2022] CSOH 45
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Neil Robertson challenged a decision made on 8 November 2019 by a risk management team assessing his fitness for community access. The Scottish Ministers argued that the petition was now without purpose as that decision was later superseded by more recent decisions that took into account information that was unavailable in 2019.

The petition was heard by Lord Braid in the Outer House of the Court of Session. Leighton, advocate, appeared for the petitioner and Byrne, advocate, on behalf of the Scottish Government.

Community risk management

The petitioner was serving a discretionary life sentence of imprisonment, the punishment part of which expired in 2009. His case was considered by the Parole Board in August 2019, however it did not direct his release and concluded that he would require a period of testing in the community. However, the petitioner contended that due to his disability he was unable to undertake the typical transfer to the National Top End.

At a meeting on 8 November 2019 the respondents’ Risk Management Team concluded that a five-step management plan required to be put in place for the petitioner, which did not include community release. The petitioner contended that unless he was granted such access, he would never be able to demonstrate to the Parole Board that the risk which he presented could be safely managed in the community.

Following the November 2019 decision, the RMT met again in March, August and November 2021, and April 2022. At these meetings, further plans concerning the petitioner were formulated and adopted, with the meeting notes for March 2021 recording that all but one of the actions in the November 2019 plan had been completed.

The petitioner’s case was that the decision reached in November 2019 continued to have ongoing effects on him sufficient for him to derive a real benefit from its reduction, and that the respondents’ policy was unlawful in that it made no provision for community access from closed conditions. It was argued for the respondents that reduction would have no practical effect, noting that no challenge had been made to the decisions of the RMT in 2021 and 2022 which did not include community release.

Dynamic process

In his decision, Lord Braid began: “The petitioner argues that there is no need for him to challenge or seek to reduce subsequent decisions of the RMT, because they are all undermined in some way by the original one, and would all be swept away were it to be reduced. The flaw in that argument is that it fails to recognise that management of his sentence is a fluid, dynamic process which is constantly evolving, and has evolved since November 2019.”

He explained further: “The petitioner himself has changed his position since the meeting of 8 November 2019. He has asserted since then that he suffers from PTSD (which has been investigated and rejected, without challenge). Although he avers that he does not wish to progress to the National Top End, he has as a matter of fact applied for progression to it, which he had not done previously. Decisions have been reached in light of those developments. The pursuer’s fundamental premise, that those decisions have been predicated on the decision reached at the meeting of 8 November 2019, does not stand up to scrutiny.”

Addressing whether the respondent’s policy was unlawful, Lord Braid said: “As the respondents submitted, the manner in which the policy may have played a role in the meeting of 8 November 2019 is a historical one, now of no practical relevance for the reasons already given. Further, the attack on the policy is beside the point since as the respondents also submitted, even if the respondents had no policy at all, it would be eminently capable of having due regard to its equality duties in carrying out the function of progressing the petitioner through the prison estate.”

He continued: “Since reduction of that decision is now academic, so too would be any decision of the court in relation to the policy as applied on that occasion, and reduction of it would be of no practical benefit to the petitioner. It follows that the remedies sought in relation to the guidance are equally futile as those in relation to the decision itself.”

Lord Braid concluded: “None of the remedies sought by the petitioner are of anything more than academic interest and the granting of none of them would confer any substantial benefit upon him, save that of damages, which it is incompetent to pursue as a stand-alone remedy in a judicial review. I intend to sustain the respondents’ fourth plea in law but as agreed with counsel at the conclusion of the hearing, I will put the case out by order for further discussion as to the precise terms of the order to be made and in particular whether it should be dismissal or refusal of the petition.”