Life prisoner denied release on licence after taking unauthorised prescription painkillers wins challenge against Parole Board decision

About this case:

• Citation:
  [2022] CSOH 82
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Tyre

Petitioner Dean Ryan was sentenced to life imprisonment with a punishment part of eight years after being convicted aged 17 in 1994. He argued that the Parole Board tribunal had acted unfairly in making its decision, particularly in its consideration of whether he would be likely to comply with licence conditions.

The petition was considered by Lord Tyre. Crabb, advocate, appeared for the petitioner and Lindsay KC for the respondent.

Poor decision making

The petitioner was originally convicted of murder art and part along with his older brother. Together, they had assaulted the deceased, detained him in his home against his will, attempted to steal money and his car, and ultimately murdered him by strangulation and set fire to his body and furnishings of his home. Previously, the petitioner had been released twice on licence, once between 2010 and 2013 and again in 2017.

During his first release on licence, the petitioner was convicted of various offences including housebreaking, for which he received a four-month prison sentence. During the second period, he was charged with two offences of rape by a complainer who alleged that he had raped her after they had both smoked a quantity of heroin. The petitioner was found not guilty of one of the rape charges and the other was not proven.

On 17 March 2022, a Parole Board tribunal refused to direct the petitioner’s release on licence. While it recorded that the petitioner was managed at a low supervision category and posed no concerns for prison staff, it also noted that he had accrued two misconduct reports, including one for failing a drugs test after his sample tested positive for a prescription drug and another for being found with a vial of liquid said to be urine in his cell, likely to be used to circumvent drug testing procedures.

The petitioner’s evidence to the tribunal was that he had taken the drug Pregabalin because he had been seeing a doctor about back pain and he had decided to take the drug rather than wait for an appointment. However, the tribunal took the view that this demonstrated “poor decision making” on his part that demonstrated he could not be trusted to comply with his licence conditions, and further considered that the fact he was tried for rape demonstrated his inability to manage his risks.

Counsel for the petitioner submitted that the tribunal had acted unfairly by providing inadequate reasoning for its decision. It had taken into account unproven allegations that had been rejected by a jury and failed to establish a link between the petitioner’s use of prescription painkillers and any risk to life and limb he may pose. The procedure was therefore unfair having regard to what was at stake.

Below acceptable standard

In his decision, Lord Tyre observed: “It is not in dispute that the decision of a specialist tribunal of the Parole Board must be given due deference and that the court may not substitute its own views for those of the tribunal. Nevertheless, the tribunal’s reasons must be carefully scrutinised. Particularly anxious scrutiny must be applied where, as here, the prisoner remains confined long after expiry of the punishment part.”

Assessing the tribunal’s treatment of the unproven rape charges, he said: “A difficulty arises because of the tribunal’s express and unqualified approval of both the evidence and the reasoning of the two social workers in relation to the risk of serious harm to the public posed by the petitioner if released. There are, to say the least, indications that both social workers placed weight not only on the circumstances that led to the allegations being made, but also on the allegations themselves. [One of them] is reported to have described the sexual charges as ‘a whole new area of risk’.”

He continued: “I cannot read the tribunal’s treatment of the social workers’ evidence and reasoning as amounting to no more than obiter observations. The paragraphs in question clearly form part of the tribunal’s reasoning leading to its conclusion that the petitioners’ confinement remained necessary for the protection of the public from serious harm. I conclude that, in respect that the tribunal took allegations of which the petitioner was acquitted into account in reaching its decision, it acted unfairly.”

Turning to his use of Pregabalin, Lord Tyre said: “Read in isolation, each of the observations made by the tribunal about the link between the drugs trade at every level and the risks of serious harm posed to the public is unexceptionable. But the observations are then applied to justify a conclusion that the petitioner’s ‘involvement in drugs in both prison and the community’ poses a risk to the community that ‘cannot be underestimated by the Board’.”

He concluded: “It must be concluded that the tribunal regarded the petitioner’s use of the illicit drug while in prison as constituting involvement in serious organised crime, and therefore of posing a risk of serious harm to the public. In my opinion that logical progression does not stand up to scrutiny and falls below an acceptable standard of reasoning as a part of the justification for continuing to confine the petitioner so long after tariff expiry.”

Lord Tyre therefore reduced the decision of the tribunal of March 2022 and remitted the matter for determination by a differently constituted tribunal.