Sex offender fails in human rights claim over lack of opportunity for rehabilitation in prison

A judge in the Court of Session refused the petition for judicial review after ruling that the Scottish Prison Service did provide the sex offender with opportunities to rehabilitate himself and that the inmate failed to engage with a programme aimed at treating offending behaviour.

Lord Bannatyne heard that the petitioner “AG” was seeking judicial review in respect of an alleged failure of the Scottish Ministers to provide him with a reasonable opportunity to rehabilitate himself while serving an indeterminate sentence based on an Order for Lifelong Restriction imposed in 2008.

The punishment part of four years and three months had since expired, but the petitioner remained in prison because the Parole Board considered that he could not yet be released for reasons of “protection of the public”.

It was argued that the failure to provide the petitioner with opportunities for rehabilitation constituted a breach by the respondent of the ancillary public law duty arising from Article 5 of the European Convention on Human Rights (ECHR) and a breach of the public law duty to make provision which allowed to demonstrate to the Parole Board that they should be released.

The essence of the petitioner’s complaint was that, more or less from the outset, it had been recognised that his cognitive functioning operated at a “low level”, with consequential implications for his rehabilitation and his ability to undertake group programmes, with a need for more professional staff intensive work.

At the time of a Programme Case Management Board (PCMB) meeting in June 2012 the petitioner had been under the control of the respondents for about three-and-a-half years and had undergone several assessments with various professionals.

It was noted that he had participated in the Adapted Sex Offender Treatment Programme (ASOTP) but struggled because of his cognitive issues and he was referred to a learning disability nurse for assessment using a tool called the Hayes Ability Screening Index (HASI), but the report recorded no concerns and the petitioner was subsequently put on a “Good Lives” course, which is aimed at sex offenders, with a group of other prisoners.

However, it was known that the petitioner had a “significant cognitive impairment” such that he would need a “specialised environment” in order to get the necessary support, as several professionals involved in his care had indicated that he might meet the criteria for learning disability, with one doctor concluding that he did.

It was submitted that as a result of the failings in the management of the petitioner’s case he had been provided with resources that were “unsuited to his particular needs” and therefore had not been afforded an opportunity reasonable in all the circumstances to demonstrate that he no longer represented an unacceptable danger to the public, in breach of the ancillary duty.

Turning to the public law duty counsel submitted that the same circumstances that gave rise to the breach of the ancillary duty could be described as a “failure to make reasonable provision for an individual prisoner so egregious as to satisfy the Wednesbury standard of unreasonableness”.

The primary point made by counsel for the petitioner was that the decision of the Risk Management Team (RMT) meeting in December 2012 to put him on the Good Lives course and what followed thereafter amounted to a failure to provide a reasonable opportunity of rehabilitation.

That decision, it was submitted, was “irrational” as it relied on the HASI assessment and failed to have regard to the whole background knowledge regarding the petitioner’s learning disability.

The respondents’ position in summary was that the focus of the petitioner’s argument was the doctor’s report which concluded that he did have a learning disability and the HASI assessment, but this was a somewhat “selective approach” and taking into account all the circumstances in this case, rather than focusing on selective aspects, the respondents had “complied” with their duties.

Refusing the petition, the judge held that the decision made by the RMT did provide a reasonable opportunity of rehabilitation and was a “rational” one.

In a written opinion, Lord Bannatyne said: “I am clearly of the view, that having regard to all of the background material before it, this was a reasonable decision.

“The balance which was struck by the RMT at that time, having considered all the relevant information before it, was one it was entitled to reach. By proceeding in the manner which it did at that time the respondents cannot be said to have failed to provide reasonable opportunities to rehabilitate.

“Thus having regard to the foregoing, overall the respondents sought to reduce the petitioner’s risk by providing him with access to behavioural treatment programmes as and when recommended”.

He added: “Beyond the above I am satisfied that there is merit in the argument advanced by counsel for the respondents that one of the reasons that the petitioner did not get as much out of the Good Lives programmes as he might have done was his failure to engage properly in the programme by failing to disclose sexual thoughts…In assessing the reasonableness of the opportunities for rehabilitation one of the factors that must be taken into account is: the use made of opportunities for rehabilitation.

“In summary: for the reasons I have set out the challenged decision of the RMT was not seriously flawed, that is irrational; the petitioner was throughout offered reasonable opportunities to rehabilitate himself having regard to the whole circumstances of his case; and the respondents therefore complied with the two duties incumbent upon them.”