Prisoner arguing arbitrary detention for lack of access to rehabilitation programmes loses Article 5 challenge

About this case:

• Citation:
  [2025] CSOH 82
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Ross

Petitioner AB, who was convicted of offences under the Sexual Offences (Scotland) Act 2009 in September 2015, argued that he had not been provided with a real opportunity for rehabilitation and thus had been arbitrarily detained contrary to Article 5(1) ECHR following the end of the custodial part of his sentence. It was not disputed that rehabilitative programme work was necessary for parole in the petitioner’s case, but the respondents argued that his own conduct had contributed to the opportunities he had been afforded.

The petition was considered by Lady Ross in the Outer House of the Court of Session. D Leighton, advocate, appeared for the petitioner and D Blair, advocate, for the respondents.

No realistic chance

The petitioner’s sentence comprised a custodial term of nine years and a three-year extension period. He was released on licence in August 2021 but following a breach of his licence conditions he was recalled to custody on 1 September 2022. The custodial part of his sentence expired on 13 August 2024, with the extended part due to expire on 13 August 2027.

Prior to his release on licence, the petitioner spent periods of time in custody in England in order to attend court there, and in April 2019 he was transferred to HM Prison Service at his request. Before his transfer, he had been on the waiting list for the respondents’ “Moving Forward, Making Changes” programme, but he was removed from this list when he transferred to England. Ten months after his return to Scotland, he was placed on the waiting list for a new programme, the SCP.

It was submitted for the petitioner that there was no realistic chance of him getting to the top of the SCP programme waiting list before August 2027. The previous breach of his licence conditions and subsequent recall to custody were irrelevant, as the Article 5(1) obligation only arose at the point he began the extension period of his sentence. At the date of the hearing, the period for which he had not had the opportunity to undertake relevant work was approximately 9 months, which he contended was too long to wait.

For the respondents it was submitted that the court was entitled to have regard to the petitioner’s own conduct when determining whether reasonable opportunities had been offered. Relevant conduct included the request for transfer to England and the petitioner’s misconduct which brought to an end his ability to engage in rehabilitative work in the community. Efforts were also being made to improve the availability of programmes for prisoners such as the petitioner, and it would not be safe to conclude that no provision would be made for him within the relevant timescale.

Serious step backwards

In her decision, Lady Ross began by assessing the relevance of the English custodial period: “If it were the case that, as a direct result of transferring to England and then returning to Scotland, a prisoner experienced a substantial delay in gaining access to rehabilitative programme work, in contrast to prisoners who had not transferred, that may be a relevant consideration, but the information provided to the court in this case does not suggest that that is an issue for the petitioner.”

She continued: “There have been delays, but it is not possible to conclude that these are attributable to the time spent in custody in England. Indeed, the affidavit evidence relating to the collapsed MFMC waiting list and the information about the placing of the petitioner on the SCP waiting list in June 2023, after recall to custody, suggest that the effect of spending time in custody in England was neutral for the petitioner, certainly so far as his present position on the SCP waiting list is concerned.”

Assessing the effect of the petitioner’s own conduct, Lady Ross said: “Had the petitioner not breached his licence conditions in July and August 2022, or subsequently, he would not now be in custody. The respondents are subject to an obligation in respect of the petitioner, as a person serving an extended sentence, and the strength of that obligation is not diluted by the circumstances of his recall to custody.”

However, she added: “It is a relevant consideration, when looking at the whole of the petitioner’s circumstances, that he was afforded opportunities for reintegration into society when on licence. That is relevant to the overall assessment, across the whole of the sentence, of the opportunity that the petitioner has had to make progress. Being released on licence was an important step forwards. Acting in breach of licence conditions was a serious step backwards.”

Lady Ross concluded: “The high threshold for a violation of Article 5(1) is not met. This is not an exceptional case. There is no right to immediate provision of rehabilitative opportunities. This is not a case in which absolutely nothing has been done. That is not to say that the petitioner’s circumstances are satisfactory. The respondents recognise that it is unfortunate that the petitioner is in his present position. Delays have occurred as a result of capacity problems and the respondents have explained that necessary remedial actions are being put in place. However, that does not mean that the point at which detention becomes arbitrary has been reached. That will occur only in exceptional cases and this is not such a case.”

The court therefore repelled the petitioner’s pleas-in-law and refused the petition.