Prisoner fails in human rights challenge to rehabilitation ‘prioritisation policy’

Lord Glennie

A rapist who claimed that the Scottish Prison Service had failed in their duty to provide him with a reasonable opportunity for rehabilitation has had a petition for judicial review dismissed.

A judge in the Court of Session dismissed the prisoner’s complaints under article 5 and article 14 of the European Convention on Human Rights and under common law about the respondents’ prioritisation policy in terms of which different categories of prisoners were put on a waiting list for rehabilitation courses, and that he had not been provided with an opportunity to demonstrate that he no longer presents an unacceptable danger to the public.

Lord Glennie heard that the petitioner Jon Daly was sentenced to an order for lifelong restriction (OLR) after being convicted of assault to injury and rape, with the punishment part of his sentence due to end in November 2017.

He alleged that the Scottish Ministers had failed to provide him with a reasonable opportunity for rehabilitation in time for the Parole Board to consider the possibility of his release.

The court was told that the progression of prisoners through the prison estate was based on a number of factors including their behaviour, performance on courses, assessment of their particular needs and level of continuing risk which they posed.

The petitioner averred that, in general, life sentence prisoners, will, after undertaking necessary coursework, embark upon a programme of escorted leaves, after which they will apply for a First Grant of Temporary Release (FGTR). Thereafter they should obtain a work placement and progress to escorted leave. In parallel with this process the prisoner will progress to the National Top End (NTE) and from there to the Open Estate.

He argued that the lack of progress in his case meant that he could not now expect to be put through the requisite stages of rehabilitation with any reasonable prospect that the possibility of his release on licence will be considered by the Parole Board at or about his first possible release date in approximately two years.

It was submitted that the failure to provide coursework, in circumstances where that had a “knock-on effect” of depriving him of a reasonable opportunity of rehabilitation and of demonstrating to the Parole Board by or about his earliest release date that he no longer presented an unacceptable risk to the public, was a breach of his rights under Article 5 ECHR and/or at common law.

The petitioner further averred that long term prisoners, including life sentence and OLR prisoners, required to proceed through further stages after the conclusion of any requisite coursework before they stood any realistic chance of release, but short term prisoners and some others did not.

Therefore, it was said, to allocate coursework to long term prisoners, on the same basis as to short term prisoners, simply by reference to the earliest release date was not only irrational but it discriminated between different categories of prisoner, in breach of his rights under articles 5 and 14 ECHR and/or at common law.

The respondents’ position was that the allocation of places on rehabilitation and treatment programmes was “rational, proportionate and fair”, as the approach of allocating places based on the proximity of each prisoner’s earliest release date “maximised the opportunity” for each prisoner to engage in the relevant rehabilitation programmes in close proximity to their individual critical date.

It was also submitted that the completion of coursework was relevant not only to decisions of the Parole Board as to whether or not to direct the release of prisoners but also to the reduction of risk of reoffending of all categories of prisoners, and, hence, to the protection of the public.

Lord Glennie said he was not satisfied that there was any proper basis for sending the case to a proof of the averments.

The petitioner made averments to the effect that it would take 29 months or more from the time he starts the required coursework (MFMC) until, having completed time in the Open Estate, he would be ready to be assessed by the Parole Board, which would be four months after the expiry of the punishment part of his sentence, but the judge observed that there were “difficulties” with this argument.

In a written opinion, Lord Glennie said: “The make up of that 29 months is said to be 12 months for completion of the MFMC (Moving Forward Making Changes) rolling programme, eight months thereafter before transfer to conditions of lesser security (including time spent in preparation of a post-programme report and consideration of his progress at a Risk Management Team meeting) and, assuming that he does not have to go to NTE, at least nine months spent on the Open Estate.

“The assertion that it will take 12 months to complete is just that, pure assertion. Nor is any basis set out in the petition for the claim that it will take in the region of eight months between completion of the MFMC programme and transfer into the Open Estate. This, too, is no more than assertion.

“If those two periods are taken out of account, or discounted even a little, there is no adequate basis for the averment that it is already unlikely that he will have completed the relevant stages in time to be assessed at or about the time of his earliest release date. That may in fact be the case, or it may not, I do not know, but the petitioner has not made any proper averments justifying me in sending that case to proof.”

The judge also noted that much of the criticisms in the petitioner’s averments focused on life sentence prisoners, not prisoners detained under an OLR, and the FGTR did not apply to OLR prisoners.

Lord Glennie added: “OLR prisoners will sometimes move straight to the Open Estate without having to progress through NTE. While it is true that for certain indeterminate sentence prisoners there is a four year pre-release management plan, for OLR prisoners that period is two years or less…The date at which the petitioner ought to be in a position to progress to NTE or the Open Estate, therefore, is November 2015, not January 2015 (as averred).

“OLR prisoners do not necessarily need to spend as long as two years in the preparation for release phase. The November 2015 date is therefore an earliest date. And it cannot therefore be said of OLR prisoners that ‘in general, in order to have a reasonable chance of release at tariff expiry, require to have completed their coursework by a date not later than three years before tariff expiry’.”

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