Outer House awards £1,000 to prisoner after finding prison service failed to provide him appropriate rehabilitation opportunities

About this case:

• Citation:
  [2026] CSOH 21
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Colbeck

Craig McInally was sentenced to an OLR with a punishment part of two years and three months, backdated to his first remand in December 2019, after pleading guilty to a charge of culpable and reckless conduct to the danger of life in November 2021. He contended that the SPS had failed to plan his sentence, progress him through the prison system, and provide him reasonable access to rehabilitation programmes.

The petition was heard by Lord Colbeck in the Outer House of the Court of Session, with Lord Stewart of Dirleton KC and McPhee, advocate, appearing for the petitioner and C O’Neill KC and D Blair, advocate, for the respondent.

Comparable to necrophilia

The circumstances of the offence were that the petitioner had made conduct with the complainer via a website where members could seek information about suicide and encouraged her to come to his house for “practice”. On two separate occasions he repeatedly choked her and suspended her from a pulley in his kitchen, to the point of unconsciousness, for the purpose of sexual gratification. Following his arrest, he stated that he became sexually aroused at the thought of his own death and the deaths of others.

A Risk Assessment Report prepared in 2022 in advance of sentencing concluded that the petitioner had meticulously groomed vulnerable adult females into giving consent for him to asphyxiate them to gratify his deeply entrenched paraphilic interest, comparable to necrophilia. The risk assessor also opined that he would have difficulty engaging with treatment interventions which targeted sexual violence and would require multi-agency management for the rest of his life.

While SPS initially concluded that the petitioner would meet the criteria for its Self Change Programme, he was removed from the national waiting list on 28 January 2025 in favour of making a recommendation for bespoke intervention. The petitioner contended that this decision was in breach of his rights under article 5 ECHR, in the context of being more than three years post-tariff in a sentence of indeterminate length.

It was submitted that the RAR of May 2022 had identified that the petitioner would require a suitably trained individual to work with his specific needs, yet it still remained unknown what bespoke intervention would involve in his case. He was detained because of the risk he posed to the public but had been given no real opportunity to demonstrate a meaningful reduction in that risk. An award of £6,000 was appropriate in this case based on case law from the ECtHR.

For the respondent it was submitted that the consistent thread throughout all clinical discussions of the petitioner was that his sexual interests could not be easily treated and it was not for the court to second-guess the opinion of clinical professionals. Removal from the SCP waiting list was a lawful, rational, and proportionate decision for the respondent to take.

Absence from the outset

In his decision, Lord Colbeck noted the petitioner’s case was far from straightforward, saying: “I recognise that it is not for the court to second-guess the views of qualified clinical professionals when considering what the appropriate intervention might be, or whether any individual is suited to undergoing such an intervention. That issue does not arise in the present case. Had the petitioner remained on the waiting list for the SCP differing considerations might have applied, however, no issue is taken with the decision to remove the petitioner from that waiting list and to recommend a bespoke individual intervention instead. The somewhat perplexing issue is that of the decision by SPS to admit the petitioner the SCP waiting list in the first place.”

He added: “The availability of relevant resources is, to a degree, a material consideration in the present proceedings in that SPS do not have the necessary resources or expertise to design and deliver an appropriate intervention to the petitioner ‘in-house’. It is not suggested that that position has changed since the OLR was made. The absence of such expertise ought to have been apparent to SPS from the outset. Whilst it is unrealistic, and too rigid an approach, to expect the authorities to ensure that relevant rehabilitative opportunities be available immediately, the time taken to commence the journey towards identifying suitable treatment in the present case is inexcusable.”

Considering whether the petitioner had been arbitrarily detained contrary to Article 5, Lord Colbeck said: “Almost 4 years post-tariff, the petitioner has been provided with no rehabilitative opportunities, whatsoever, and steps have only recently been taken to identify what those opportunities might be. Almost a year of the post-tariff period was wasted whilst the petitioner was on a waiting list for a course which the SPS Head of Psychology believes he could not have progressed beyond the first skill step of.”

He concluded on damages: “The length of the delay in this case is such that an award of damages is appropriate. In assessing the amount to be awarded, I have regard to the post-tariff period the petitioner has continued to be imprisoned for and the nature of the petitioner’s offending and circumstances. Identifying and providing bespoke interventions for the petitioner would inevitably take longer than providing to him a rehabilitative programme that SPS already provide. I will sustain the second plea-in-law for the petitioner and award the petitioner damages in the sum of £1,000.”

The court therefore sustained the petitioner’s first plea-in-law and granted declarator that the respondent had been and was acting unlawfully in terms of article 5 ECHR, and awarded him damages of £1,000 under section 8 of the Human Rights Act 1998.