Outer House reduces Scottish Ministers’ decision not to progress man who raped and murdered his neighbour to open estate

A judge in the Outer House of the Court of Session has reduced a decision not to progress a prisoner serving a life sentence in closed conditions at HMP Edinburgh to the open estate after he petitioned for a judicial review of the decision.

George Smith was jailed for the murder of his neighbour in 1985. The 14-year punishment part of his sentence expired in 1999. He argued that the decision not to progress him to open conditions was unfair as he had not been invited to attend the meeting of the Risk Management Team at which the decision was taken.

The petition was heard by Lord Braid. The petitioner was represented by Leighton, advocate and the respondent, the Scottish Ministers, by McGuire, advocate.

Confessed to rape

Following his imprisonment in 1985, the petitioner was transferred to open conditions. However, he was transferred back to closed conditions in 1995 after he confessed to a social worker that he had raped his victim before he murdered her, a fact which had previously not been known. Since then, he had remained in closed conditions.

At a meeting of the RMT on 18 November 2020, it was recommended that the petitioner progress to the National Top End, which has semi-open conditions, rather than to fully open conditions. The RMT’s reasoning for this decision was that it was satisfied it was necessary for the protection of the public that the petitioner should be confined and accepted recommendations that a phased return to society was necessary in his case.

The petitioner maintained that the effect of the RMT’s decision would require him to spend another two years in the NTE before he could progress again. While it was not a hard requirement that he spent time in the open estate prior to release, in practice the timeframe for his potential release had been delayed.

Counsel for the respondent explained that no consideration had been given to inviting the petitioner to the meeting because of a blanket policy previously implemented during the pandemic to suspend the attendance of prisoners at RMT meetings. The petitioner averred that he had completed his application for progression on the understanding that he would be permitted to attend the meeting.

It was submitted for the petitioner that the procedure adopted by the RMT was unfair. Had the petitioner known he would not be invited, there was more he could and would have said in his application. The assurance he had relied upon in believing he would be able to attend, even if it fell short of giving rise to a legitimate expectation, should be taken into account in assessing any procedural unfairness.

Covid cart driving the fairness horse

In his opinion, Lord Braid began by noting: “The nature of the decision was one which was likely to have a significant impact on the petitioner’s release date, and, as such, one which had the potential to significantly affect his rights. It has a clear bearing on the date when he may be considered by the Parole Board to be suitable for release. While the RMT minute records that a move to NTE would ‘benefit’ the petitioner, it is not suggested that the benefit would consist of an expedited release date.”

Assessing the circumstances that led to the decision, he said: “The first whiff of unfairness comes from the apparently blanket instruction, due to Covid, that no prisoner was to attend any RMT. This runs counter to the implicit acknowledgement in the guidance that there will be cases where fairness does require the prisoner’s attendance at the RMT meeting. Although the guidance requires consideration to be given to this in each case, that was not done here.”

He continued: “The Covid cart cannot be allowed to drive the fairness horse, any more than considerations of cost can be determinative. It is for decision -making bodies, such as the RMT, to devise procedures which remain fair notwithstanding the strictures imposed by the pandemic. It should be observed that the attendees at the RMT meeting all attended in person.”

Considering the assurance given to the petitioner that he would be allowed to attend, Lord Braid said: “In those circumstances the very least that fairness required, if different circumstances (Covid) rendered his attendance impossible (or undesirable for health reasons) and if attendance by remote means was not possible, was that he be informed of that fact, so as to give him the opportunity to make further and fuller representations if he wished.”

He concluded: “While recognising that the dividing line between ‘unfair’ and ‘could have been more fair’ is not necessarily an easy one to draw, I am satisfied that in this case the line has been crossed and that the procedure adopted was unfair.”

For these reasons, the decision of the respondents was reduced.

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