Life prisoner who challenged decision to increase supervision has petition for judicial review dismissed

A life prisoner who challenged a decision by the prison service to increase his supervision requirement after he was suspected of being involved in the distribution of illicit substances in jail has had a petition for judicial review dismissed.

A judge in the Court of Session refused the petition after rejecting the inmate’s claim that the decision was “unlawful” because it was made in a manner that was “procedurally unfair”.

Lord Jones heard that the petitioner Brian Hands was sentenced to life imprisonment after being convicted of murder in 1999.

The punishment part of the petitioner’s life sentence expired in August 2010 and thereafter, he became eligible to be considered for release on license by the Parole Board for Scotland.

In the petition for judicial review, he challenged the decisions by the Scottish Ministers to return him to closed conditions and to re-assign his supervision level.

The court was told that having been placed on a “short management plan” in August 2014 with a view to being transferred to open conditions in February 2015, the petitioner began a work placement with a carpet retailer, during which he said he “performed well” and that he did not misbehave.

In the course of the work placement with Spruce Carpets, the petitioner and his placement supervisor discussed various ex-showroom carpets which were lying within the premises.

The petitioner asked his supervisor whether he could have the carpets for a friend and he was told that he could, because they were two years old and would otherwise be discarded.

The petitioner was told that he could arrange for his friend to collect the carpets, which he did, only to be told later by another supervisor that they were to be sold or shredded, so he cancelled the collection arrangements he had made with his friend.

The court also was told that while in HMP Greenock in September 2014, the petitioner used a telephone and spoke with his friend - a call which was monitored and recorded - following which he was transferred to a mainstream closed conditions hall within the prison.

He was told that he had been transferred pending an investigation into the concerns that he petitioner was involved in the introduction and distribution of illicit substances within Greenock prison, and that he had access to a mobile telephone at Spruce Carpets.

The petitioner became the subject of an “adverse circumstance report” on 10 October 2014, he appeared before the risk management team (“RMT”) for a hearing, during which the petitioner denied any wrongdoing.

He repeatedly sought disclosure of the substantive intelligence from various sources said to have been gathered by the respondents, and he asked to be allowed to listen to the monitored telephone call, but his requests were refused.

The RMT’s decision stated that intelligence gathered coupled with factual information from telephone monitoring, such as Mr Hands discussing “100 Rangers Tops” which is common prison slang for blue Valium tablets and organising for associates to come to his placement to collect carpets without permission from the placement provider, gave a “clear indication” that he was involved in the introduction of illicit substances into the establishment and was prepared to breach licence conditions.

The petitioner raised concerns about the procedural fairness of the hearing and was invited to make written representations, but he refused, because he had been led to believe by prison staff that a decision to transfer him to HMP Shotts had already been ratified by the governor at the RMT meeting.

It was averred that, on 13 October 2014, the respondents made a decision to: increase the petitioner’s supervision requirement level from low supervision to medium supervision; downgrade the petitioner from national top end conditions to closed conditions; and transfer him to Shotts from Greenock. In a written opinion, Counsel for the petitioner submitted that there were three aspects to the procedural unfairness.

The first was a breach by the respondents of rule 21(4) of The Prisons and Young Offenders Institutions (Scotland) Rules 2011; the second was inadequate disclosure by the respondents as required by the terms of rule 21(3); and the third was the apparent failure by the respondents properly to investigate the complaint.

Counsel further submitted that the decision was “unreasonable” because: the respondents failed to obtain and consider the petitioner’s representations in advance of the hearing of 13 October 2014 as is intended by rule 21(4); the respondents’ case against the petitioner, and the decision complained of were so vague that it was impossible for the petitioner adequately to answer them; the respondents failed to demonstrate proper analysis of the evidence, particularly with respect to the petitioner’s account, or to give reasons for their findings; and the respondents failed to give reasons for the application of rule 27 of the Rules.

However, the judge held that the respondents “met the procedural requirements that were incumbent on them” in terms of the Rules.

In a written opinion, Lord Jones said: “Looking at the procedure as whole, I am satisfied that it was not ‘actually unfair’. Further, nothing in either the relocation or re-assignment process caused the petitioner any prejudice.”

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