Life prisoner fails in human rights legal challenge over failure to provide opportunity for rehabilitation

A man serving a sentence of life imprisonment for murder who claimed that the prison service has failed to provide him with a reasonable opportunity to rehabilitate himself has had a petition for judicial review dismissed by a judge in the Court of Session.

Stuart Quinn argued that the Scottish Ministers, acting through the Scottish Prison Service, had failed in their duty to provide an opportunity for him to demonstrate to the Parole Board that he will no longer present an “unacceptable risk to the public” at or about the time his tariff expires.

The petitioner’s complaint of “systemic failure” and a challenge to the respondent’s “prioritisation policy” for rehabilitation courses were previously dismissed as “irrelevant” by Lord Tyre following a first hearing, and Lord Glennie has now rejected the petitioner’s human rights claim following a second hearing.

Since the 2015 decision of the UK Supreme Court in the case of R (Haney) v Secretary of State, a number of petitions for judicial review raising similar questions had come before the courts in Scotland for a first hearing, but this case was thought to be the first to progress to a second hearing and the first time that the courts in Scotland had heard evidence on the issue.

The court heard that progress through the prison estate towards release of a prisoner serving a sentence of life imprisonment followed a general pattern, which could take a number of years.

The petitioner, who was sentenced to a punishment part of 18 years in 2001 and will become eligible to apply to the Parole Board’s Life Prisoner Tribunal (LPT) in May 2019, averred that first prisoners must undertake and complete necessary rehabilitative coursework, after which they may advance to the National Top End (NTE) where they will embark upon a programme of escorted leave before applying for a first grant of temporary release (FGTR).

They will then obtain a work placement and progress to unescorted leave and from the NTE prisoners will advance to the Open Estate.

In making its assessment of the risk of releasing a prisoner on licence, the Parole Board will have regard to his successful progression through the prison estate, and in general will only consider a life prisoner for release on licence if he has spent a substantial amount of time in the Open Estate.

The petitioner’s evidence was that he was told by the prison at the start of his sentence that he would require to work towards what is known as the “four year window”, i.e. the period of four years prior to his parole qualifying date.

He was told that he would complete offence focused programmes in time for the start of that period and that, subject to him being of good behaviour, drug free and report free, he would be transferred at that point to the NTE where he would spend two years undertaking Special Escorted Leave (SELs) and a community work placement before being transferred to the Open Estate where he would spend two years getting overnight home leaves.

However, he said that he was now three years and eight months away from my parole qualifying date and was yet to complete all his offence focused programmes.

He had now entered my “four year window” and should have been transferring to NTE, but was unable to do this as he had not yet started the Self Change Programme (SCP) or the Substance Related Offending Behaviour Programme (SROBP), which could take more than two years to complete, and therefore did not meet the criteria.

“I feel disappointed with the system. I feel let down. For 14 years I have been told by the SPS that everything will be done in time for my last four years. They now seem to have moved the goalposts,”

he said.

On that basis, the petitioner said it was “wholly unrealistic” to contemplate that he could pass through the NTE and the Open Estate in time to be assessed by the LPT in May 2019 with a fair opportunity of persuading them that he is “suitable for release”.

In terms of the European Convention on Human Rights, he relied upon the “ancillary obligation” implicit in the scheme of article 5, namely that the state is under a duty to provide an opportunity reasonable in all the circumstances for a life prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.

Counsel submitted that a failure before tariff expiry may constitute a breach of that ancillary obligation if it remains uncorrected and if, as a result of it, a prisoner is deprived of that reasonable opportunity, and the “simple fact” was that although the SPS had put the petitioner on a waiting list it had not placed him on the appropriate course in sufficient time to enable him to progress at the appropriate speed within the appropriate timescale.

Lord Glennie accepted that the petitioner would not be in a position at the end of the punishment part of his sentence to satisfy the LPT that he no longer presents a danger to the public and is suitable for release even assuming full engagement and compliance on his part with the SCP and in the NTE and Open Estate, but he was not persuaded that this was sufficient to demonstrate a breach of the Haney duty.

“First, because other passages in the judgments in Haney make it clear that resources and the demands of other prisoners are a factor to be taken into account. And secondly because in this case there is no live challenge based on systemic failure nor any live challenge to the prioritisation policy according to which prisoners are placed on the waiting list for rehabilitative courses,” the judge explained.

In a written opinion, Lord Glennie said: “The evidence in this case does not seek to attach blame to any particular decision made by the SPS in its handling of Mr Quinn’s case. The evidence appears to suggest that the prioritisation policy, by reference to which prisoners are first put on the waiting list for rehabilitative coursework, and the pressure on places on courses such as the SCP (and in time the waiting list for the NTE) will all play their part.

“The petitioner was recommended as suitable for the SCP in September 2014 and put on the waiting list then. Had he been put on the SCP immediately thereafter, and not had to take his place on the waiting list, all might have been well. But that may be a problem of resources.

“Had he been put on the waiting list earlier, again he might have been found a place on the SCP by now and again all might have been well. But that is a function of the prioritisation policy.

“As I have been at pains to point out, these are not matters which arise at this second hearing. Criticism of alleged systemic failures affecting the availability of rehabilitative coursework and of the respondents’ prioritisation policy have been rejected.”

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