Outer House refuses life prisoner’s appeal against parole refusal following prior reoffending

About this case:

• Citation:
  [2026] CSOH 74
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

The Parole Board for Scotland refused in February 2026 to allow the petitioner release on licence. Challenging that decision, the petitioner sought judicial review before the Outer House of the Court of Session.

The petition was heard by Lord Braid, with Simon Crabb appearing for the petitioner and Richard Pugh KC for the respondent.

Drove for family while on drugs

After being convicted of murder and sentenced to life imprisonment, the petitioner saw the punishment part of his sentence come to an end in April 2016. Thereafter he was twice released on licence and twice recalled to prison on account of having committed further offences, threatening or abusive behaviour and driving under the influence of drugs (with his partner and two-year-old son present) among their number.

In February 2026, the Parole Board for Scotland decided that the petitioner would not, for the time being, be released on licence. In applying the relevant test under section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the board had regard to paragraphs (c) and (e) of rule 11 of the Parole Board (Scotland) Rules 2022. Those paragraphs permit the board to take account of the risk of reoffending and the effect on the safety of any other person in considering whether to allow release on licence.

Although the case was heard shortly after the parole board had shared its intention to reconsider the petitioner’s case in September 2026, the petitioner made various submissions. The board had failed to apply the correct test, namely whether the prisoner posed a risk of committing “offences that may occasion serious harm, being ones of serious violence like the index offence”. There was a qualitative difference, he argued, between the index offence of murder and the driving offences which the board had cited to justify continued detention.

Parole Board’s reasoning withstands anxious scrutiny

Beginning by evaluating whether the petition was in itself academic, Lord Braid noted: “The difference between the parties is whether reduction of the decision would have any practical effect given that the petitioner’s case is in any event due to be reconsidered by the respondent on 2 September 2026 … [B]oth parties appeared to be keen that the court’s decision in this petition should be available before 2 September 2026, and on that practical basis alone the matter would not appear to be entirely academic in the eyes of either party. Further, while I take the respondent’s point that risk will be considered again at the forthcoming hearing, there is a difference between asking whether the risk has diminished since February 2026 on the one hand, and revisiting the question of risk without the backdrop of the decision reached then; in other words, the starting point for the assessment of risk may differ depending upon whether the February 2026 decision stands or not. I therefore find that the petition has not become academic, and that there is some practical benefit to the petitioner in a decision being reached on the merits.”

Turning to the merits, he continued: “The correct approach was set out at paragraph 26 [in R (Wells) v Parole Board (2019)], as follows: ‘…Rather than evaluating whether the [prisoner] would be ‘offence free’ (effectively, no risk of reoffending), they should have instead assessed whether any potential risk was proportionate with his continued detention.’ … [I]t is clear that the Parole Board need not, and indeed should not, confine itself to the question of whether there is a risk of serious violence, when considering a prisoner’s release.”

Lord Braid added: “Counsel for the petitioner submitted that the exercise of anxious scrutiny should lead the court to find that the respondent’s reasoning was inadequate, and the decision flawed. The respondent accepts that “anxious scrutiny” is required. That phrase was explained by the Inner House in [Ryan v Parole Board for Scotland (2022)], at para [17] as meaning that the graver the issue, the more rigorously the court should examine the decision to ensure that it was in no way flawed. The decision to continue to confine the petitioner, 10 years post-tariff, is undoubtedly a decision which requires such scrutiny, albeit in the context that he has previously been released twice. However, what anxious scrutiny does not require, let alone permit, is that the court substitute its own decision for that of the respondent.”

Examining the board’s decision, he reasoned: “The respondent’s panel did ask itself the correct question and then reached a view on the risk posed by the appellant which it was patently entitled to reach … namely, that the public and the petitioner’s loved ones had all been put in significant danger by his actions. The reference to a car being used as a weapon was perhaps an unnecessary, and to the extent that it suggested that the car had in fact been used as a weapon, unhelpful, gloss on what had gone before but the point being made is clear enough: that a car can cause serious injury, or even death, when driven by someone under the influence of drugs. There is a qualitative difference between the petitioner’s offending, and the example posited by counsel of someone (otherwise fit to drive) driving at 30mph in a 20mph zone.”

Lord Braid concluded: “The respondent’s reasoning does make clear that it had adopted a cautious, indeed meticulous, approach and explains why the respondent was of the view that confinement remained necessary in the public interest. That view was reached having regard to the evidence of both Mr Findlay and the petitioner himself. Finally, the respondent was correct, as I have found, to say at the end of the passage complained of, that it was not restricted to considering acts of violence as opposed to acts of stupidity. Put shortly, the respondent’s reasoning does withstand anxious scrutiny by the court. That being so, it is not for this court to substitute its own view as to risk. To do so would be to impinge upon the function of the respondent. The decision reached was not unlawful.”

The petition was accordingly refused.