Baker v. The Parole Board For Scotland & Anor [2006] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2006] CSOH 31

OPINION OF LORD CARLOWAY

in the petition of

JASON BAKER

Petitioner;

against

(First) THE PAROLE BOARD FOR SCOTLAND; and (Second) THE SCOTTISH MINISTERS

Respondents:

for

Judicial Review of a decision of the first respondents to decline to recommend the early release of the petitioner on licence

________________

Petitioner : BT Smith , Gillespie Macandrew WS

First Respondents: McGregor; Anderson Strathern

Second Respondents: Poole; Solicitor to the Scottish Executive

21 February 2006

1. The Legislation

[1] The Prisoners and Criminal Proceedings (Scotland) Act 1993 (c 9) defines a "long-term prisoner" as "a person serving a sentence of imprisonment for a term of four years or more" (section 27). Section 1 of the Act provides:

"(2) As soon as a long-term prisoner has served two-thirds of his sentence, the [Scottish Ministers] shall release him on licence unless he has before that time been so released, in relation to that sentence, under any provision of this Act.

(3) After a long-term prisoner has served one-half of his sentence the [Scottish Ministers] -

(a) shall, ... if recommended to do so by the Parole Board under this

section, release him on licence."

The Act does not contain any specific guidance in relation to the test which should be applied before making such a recommendation. The provisions relating to life prisoners state (section 2(5)) that the Board should not direct release unless it is: "satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined". However, no similar phraseology is applied to the release of long-term prisoners.

[2 ] The 1993 Act also provides:

"20(1) There shall continue to be a body to be known as the Parole Board for Scotland, which shall discharge the functions conferred on it by, or by virtue of, this Act.

(2) It shall be the duty of the Board to advise the [Scottish Ministers] with respect to any matter referred to it by him which is connected with the early release ... of prisoners"

....

(4) The [Scottish Ministers] may by rules make provision with respect to the proceedings of the Board, including provision -

...

(b) as to what matters may be taken into account by the Board...in dealing

with a case.

...

(5) The [Scottish Ministers] may give the Board directions as to the matters to be taken into account in discharging its functions ... and in giving such directions the [Scottish Ministers] shall in particular have regard to -

(a) the need to protect the public from serious harm from offenders; and

(b) the desirability of preventing the commission by offenders of further

offences and of securing their rehabilitation."

The Parole Board (Scotland) Rules 2001 (SSI No 315) are made under section 20(4). They provide that, where a case is referred to the Board by the Scottish Ministers, a "dossier" containing any information considered to be relevant is sent to the Board and to the prisoner (rule 5). The prisoner has the right to make his own representations in writing. The Rules continue:

"8. In dealing with a case of a person, the Board may take into account any matter which it considers to be relevant, including, but without prejudice to the foregoing generality, any of the following matters:-

(a) the nature and circumstances of any offence of which that person has

been convicted ... by a court;

(b) that person's conduct since the date of his ... sentence...;

other person if he ... were to be released on licence ...; and

(d) what the person intends to do if he ... were to be released on

licence ... and the likelihood of that person fulfilling those intentions."

2. The Sentence

[3 ] On 16 June 2003 at the High Court of Justiciary, the petitioner pleaded guilty to a charge which libelled that:

"on 13 February 2003 and 14 February 2003, at 56/5 Granton Crescent, Edinburgh, you did assault [AR] residing there, seize her coat from her, repeatedly place a dog lead around her neck and tighten same thereby constricting her breathing, seize hold of her body, throw her onto a chair and punch her on the head, and cause her to write a farewell letter to her daughter, all to her injury and to the danger of her life."

The complainer was the petitioner's cohabitee. The trial judge's Report records that:

"on 13 February, there had been an argument between [the petitioner] and the complainer ... about the terms on which they might separate ... The complainer put on her coat intending to leave and [the petitioner] grabbed her by the coat and then grabbed a dog lead and pulled it tight round the complainer's neck so that she had difficulty breathing. The complainer was at first too frightened to do anything, but eventually managed to free herself and ran to the window crying for help. [The petitioner] again pulled the dog lead around the complainer's neck, even tighter than before. For a few seconds, the complainer was unable to breath but managed eventually to struggle free. [The petitioner] said, 'I'm going to f***ing kill you', and as the complainer sat on a chair [the petitioner] gave her a notebook and said, 'You had better write your daughter a letter for you're never going to see her again'. The complainer wrote the letter and about 2.00 am, after the complainer had managed to assure [the petitioner] that she would not report the assault to the police or the social work department, [the petitioner] let her go ... On medical examination twelve injuries were found on the complainer, including bruising to the neck and petechial bruising consistent with strangulation. There was also an injury to the face consistent with having been punched. [The petitioner] was interviewed on tape and made admissions. He said he had been driven to it because the complainer had been 'getting on at him'".

The judge sentenced the petitioner to five years imprisonment, backdated to 17 February 2003. In so doing, he noted that:

"[The petitioner] had been convicted on 19 previous occasions of a total of some 28 separate offences. All the previous convictions were on summary procedure. The record was primarily for dishonesty, but included two convictions for assault. The second of those convictions was for assault to injury and was accompanied by a conviction for abduction. It appeared from the social enquiry report that the victim of those offences had been ... the complainer ...

The author of the social enquiry report was of the opinion that [the petitioner] did not accept full responsibility for his actions and lacked insight into the seriousness of his behaviour. It was her opinion that in the event of similar circumstances occurring, he would pose a high risk of harm to his partner..."

3. The Dossier

[4 ] The petitioner became eligible for parole on about 15 August 2005. The trial judge's Report was included in the dossier sent to the first respondents and the petitioner. Also included within the dossier was a social work report from Clackmannanshire Council dated 18 March 2005. This recorded that the petitioner:

"does not fully agree with the contents of the judge's report and strenuously denies that he forced [AR] to write a farewell letter to her daughter. He also insists that he did not punch [AR] in the face".

During his interview with the social worker the petitioner:

"did attempt to deny and minimise the impact of this offence on [AR] by highlighting that she was not hospitalised or injured. He also made efforts to justify his actions by highlighting that the victim had provoked the argument".

The social worker concluded that he had little victim empathy. His expressions of regret regarding the offence were "entirely self-focused in nature".

[5 ] In addition, the report recorded the petitioner's regular use of cannabis since the age of fifteen and his experimentation with amphetamine, ecstasy and cocaine. Alcohol dependency had been a serious problem in his life over many years. Although he had, at times, been able to reduce his alcohol intake, he had not succeeded in fully addressing the problem. He had undergone an alcohol awareness programme as a condition of probation in 1999, but had relapsed thereafter. Although he had, not surprisingly, not indulged in alcohol in prison, he had tested positive for opiates in February 2004.

[6 ] Looking at his plans for release, the report noted that the petitioner intended to live in Edinburgh on his release but had no accommodation. He had been referred to the SACRO resettlement team with a view to providing him with supported accommodation. He had no firm employment plans. He did appear to have responded reasonably well in prison. However, the report concluded that he presented a: "medium to high risk of being reconvicted". That risk was based to a large extent on his potential alcohol misuse against his background of offending. The petitioner was also assessed as presenting:

"a high risk of harm, more particularly when he has been drinking. Those most at risk appear to be partners. [The] main concern is clearly a return to alcohol, nevertheless whilst alcohol can be viewed as an influential factor in relationship violence, it cannot be viewed in isolation ... it would be prudent to monitor [the petitioner's] relationships, explore power and control issues and examine anger management strategies".

Nevertheless, the report did recommend parole provided conditions were attached involving alcohol treatment/counselling, relationship violence work, specified accommodation and a prohibition on contacting [AR].

[7 ] A member of the first respondents interviewed the petitioner on 10 May 2005, after he had received the dossier. The petitioner admitted that he had failed the drug test, saying that he had accepted some heroin because "he had been a bit low". He hoped to drink socially on his release. He explained that, at the time of the offence, he had been drinking heavily because he had lost his job and his relationship had not being going well. It became a vicious cycle. The petitioner said that he would be homeless on his release and awaited an appointment with SACRO. He continued to deny parts of the offence and earlier offending too. He maintained that he did have victim empathy and had sent [AR] many cards and gifts after the offence, but before their relationship finally ceased. He did not think he was a high risk. He was a low category prisoner.

[8 ] A letter to the petitioner from SACRO dated 2 July 2005 reads as follows:

"I am writing to inform you that you have been accepted as suitable for our supported accommodation. This would be subject to the availability of a flat on the date of your release. The agreement pending that availability would be on a week-to-week contract".

4. The First Respondents' Decision

[9 ] The meeting of the first respondents was on 14 June 2005. The minute records:

"At this first review of [the petitioner's] suitability for early release on licence the [first respondents] noted that he had a fairly lengthy record of offending in England, mainly for minor dishonesty and road traffic offences, but members noted that he had been convicted of assault and abduction in 2001 which had involved the same complainer. He had incurred one failed Mandatory Drug Test for cannabis (sic) in February 2004. He had undertaken cognitive skills and alcohol counselling and had attained low supervision status in October 2004. Staff reports were generally favourable and he was likely to progress to a top end shortly. It was clear from the dossier that [the petitioner] had a longstanding problem with alcohol misuse over a number of years which had resulted in the ending of previous relationships and offending. The trial judge's report did not mention this in particular detail, but it was clear that he had been under the influence of alcohol at the time of the index offence. There was also evidence that he minimised the seriousness of his actions. He had denied forcing his partner to write a letter and there was a suggestion, disputed by him, of previous domestic violence. On release he will be of no fixed abode. His family are in England and remain in contact. His relationship with his former partner was now over and he accepted that he must not contact her. Members noted that risk factors consisted of his long history of alcohol abuse, relationship instability, minimisation and lack of victim empathy, together with the absence at present of a structured release plan."

The first respondents agreed not to recommend parole for the following reasons:

"He has a long history of serious alcohol misuse, and this is his second conviction for domestic violence. He demonstrates little in the way of victim empathy or relapse prevention. On release he will be homeless and he has no immediate prospects of employment. These factors increase the risk that he will revert to alcohol misuse. He therefore presents as an unacceptable risk in terms of re-offending."

Because the petitioner is due for release in any event on or about 16 June 2006, no future review of parole will take place.

5. The Pleadings and Submissions

[10 ] The petition seeks reduction of the first respondents' decision on the basis that it is one that no reasonable parole board could have reached. It seeks an order requiring it to be reconsidered and liberation of the petitioner. The petitioner moved for a first order for service and interim liberation. He did not dispute that the Court could competently dismiss a petition at this early stage. The criteria for dealing with the merits of a petition at this stage were that:

"(1) the respondent is represented; (2) all necessary documents are to hand; (3) the respondent wishes to have the petition disposed of without resort to a first hearing and is in a position to present a fully prepared case; and (4) there is no dispute of a factual nature so as to prevent the court from making a properly informed decision at that stage" (Butt v Secretary of State for the Home Department, 15 March 1995, Lord Gill, unreported, at pp 9-12).

The appropriate test was one of relevancy and the petition ought only to be dismissed if it could be said that, even if the petitioner proved all his averments, he was still bound to fail. The petitioner attacked the decision on three fronts. First, the first respondents had failed to take, or took insufficient, notice of: the petitioner's abstinence from alcohol whilst in custody; his completion of counselling and other alcohol related courses; and his appreciation of the link between his offending and alcohol. It was, therefore, unreasonable for the first respondents to conclude that there was a risk of the petitioner reverting to alcohol misuse. It was also a breach of rule 8(b) which required the first respondents to take his conduct in prison into account. Secondly, it was contended that it was "unfair and unreasonable" for the first respondents to conclude that the petitioner had a lack of victim empathy given that: he continued in the relationship with the complainer after the offence; and he had expressed love for the complainer and horror at his behaviour. Thirdly, it was "erroneous and unreasonable" for the first respondents to have concluded that the petitioner had an increased risk of reverting to alcohol because he would be homeless upon his release, given the terms of the SACRO letter. The first respondents had misunderstood the position on homelessness. It was accepted that the first respondents had a balancing act to perform (McRae v Parole Board for Scotland (infra)) but it could not be said that the petitioner was bound to fail if he proved all his averments. Interim liberation ought to be granted because, if it were not, the petitioner would lose his remedy. Even if an early first hearing were held, much of the period during which the petitioner ought to have been at liberty would have expired. A large part of it had already gone because of the time taken to secure legal aid.

[11 ] The first respondents sought dismissal of the petition as irrelevant. No procedural irregularity was claimed and the issue was whether the decision reached had been unreasonable. The Court had all the information it required, since all that was before the first respondents had been lodged in process (i.e. the dossier). In relation to alcohol, the fact that the petitioner had been abstinent in prison was a neutral factor, since it would have been surprising if the situation had been otherwise. Although the petitioner made reference to completing certain programs, he had done so in the past yet still reverted to alcohol misuse. He had also said that he intended to consume alcohol, albeit socially, on his release. The social work report had been sufficient for the first respondents to reach the view that the petitioner lacked victim empathy. Expressions of remorse after the offence did not effect that. The SACRO letter did not suggest that accommodation was immediately available to the petitioner, only that he was a suitable candidate. At the time of the first respondents' decision, the petitioner remained in closed conditions in Glenochil and had not been tested in the community. The paramount consideration of the first respondents is the protection of the public against the risk of serious injury (McRae v Parole Board for Scotland 1997 SLT 97, Lord Weir at 100 following Howden v Parole Board for Scotland, 8 April 1992, Lord Maclean, unreported (1992 GWD 20-1186)). It was not the only consideration. However, the petitioner had failed to reveal why, in relation to the balancing exercise which the first respondents had to carry out, their decision should be viewed as unreasonable. The petitioner had to produce a "very strong case" before intervention by judicial review would be justified (McRae v Parole Board for Scotland (supra) Lord Weir at 101). That had not been done. The first respondents had taken into account the relevant factors under rule 8 and, in the absence of anything further, there were no grounds for finding that the decision was anything other than reasonable.

[12 ] The second respondents also sought dismissal. The petitioner had to demonstrate that the decision was so unreasonable that no reasonable decision maker could have reached it. The averments did not make out such a case. The principal concern of the first respondents was the safety of the public, i.e. to determine whether there was an unacceptable risk of re-offending. A balancing exercise was involved (McRae v Parole Board for Scotland (supra) Lord Weir at 100; R (West) v Parole Board [2005] UKHL 1, Lord Bingham at para 26, following R v Parole Board ex parte Watson [1996] 1 WLR 906 at 916; R (Roberts) v Parole Board [2005] UKHL 45, Lord Bingham at para 14; cf R (Buxton) v The Parole Board [2004] EWHC 1930, Forbes J at para 49). In that exercise, the appropriate weight of individual factors was for a parole board to determine (R (Jackson) v Parole Board [2003] EWHC 2437, Richards J at para 42). The petitioner's contentions on the alcohol, empathy and housing issues had all been taken into account by the first respondents and they had acted within the area of discretion open to them. A technical approach to the reasoning in the decision letter was not appropriate (R v Parole Board ex parte Oyston 2000 Prison LR 45, Bingham CJ at para 46). In any event, interim liberation should not be granted. The competency of seeking such liberation was not meantime challenged, but it was opposed since its grant would go beyond what the petitioner could achieve, even if the petition were ultimately to be determined wholly in his favour. The status quo ought to be maintained (Beggs v The Scottish Ministers 2004 SLT 755, Lord Drummond Young at para 13).

6. Decision

[13] A petition process is summary in nature. Within the parameters of the Rules of Court, it is matter for the Court to determine what procedure ought to be adopted in a given case. Where a judicial review is sought, the Court is specifically afforded a discretion by the Rules on whether a first order should be granted (RC 58.7); that is to say whether the petition should be allowed to proceed at all. If the Court determines that it should not, the appropriate order may be to dismiss it. That is all that the respondents ultimately sought in this case. At the stage of seeking a first order, a petitioner must be in a position to argue the merits of the petition, at least to the extent of showing that a prima facie case has been made out (Butt v Secretary of State for the Home Department (supra) Lord Gill at p 11). If there is no such case then the Court should be reluctant to oblige a potential respondent to answer. If a motion for a first order is not opposed, as will often be the case where no interim order is sought and hence no caveat triggered, the Court will at least wish to ensure that a prima facie case appears from the averments. However, it is not obliged to grant a first order even if a relevant case has been averred if, for example, that case is, either upon looking at any documents lodged or otherwise, manifestly unfounded in fact. If the motion is opposed, similar considerations apply. Although a petitioner will have to show that his pleadings disclose a prima facie case, that will not avail him if the respondent can demonstrate, by the production of pertinent material, that the averments are factually incorrect. Of course if there is a substantial dispute on the facts, further procedure may be necessary but, in a petition process, that is primarily for the Court to determine.

[14 ] The petitioner has not been able to demonstrate that he has a prima facie case either as a matter of relevancy of averment or, looking at the dossier, in fact. In order to succeed in a judicial review of the actings of a tribunal, such as the first respondents, the petitioner requires to demonstrate that the tribunal erred by, for example: (a) misdirecting itself on the applicable law; (b) entertaining the wrong issue; (c) misunderstanding the material placed before it; (d) taking into account an irrelevant consideration; (e) failing to take into account a relevant one; or (f) reaching a conclusion which is so unreasonable that no reasonable tribunal could have reached it. It is essentially only the last of these which the petitioner seeks to found upon. It is probably not helpful to quantify the necessary strength a case must have to succeed, even where the relevant tribunal is making important decisions on the release of convicted persons into the community. A tribunal's decision will either be unreasonable or it will not. In that context, it may be unreasonable for a tribunal to reach a conclusion without any basis in the material placed before it. However, if there was material upon which a tribunal could, and did, found its decision, questions of whether it attached appropriate weight to a particular element will seldom be capable of providing a sufficient ground for a claim of unreasonableness. The assessment of weight is primarily for the tribunal to gauge and the fact that the Court might itself have been tempted, were it approaching the matter anew, to attach different levels of importance to difference factors is of little moment.

[15 ] There appears to be no statutory test which the first respondents must apply when deciding whether to recommend a long-term prisoner for release. Presumably, some reason existed for Parliament determining not to impose the same test of public protection as it did for life prisoners. It is not normally appropriate for a Court to formulate a test for use by a statutory body where none has been specified in the statute. On the other hand, it is clear from the Rules that the first respondents must take into account the risk of the prisoner re-offending or causing harm in the event of release. Although this is only one of a number of factors which the Rules stipulate must be taken into account, it must be of some importance in that context. The basis for the first respondents' decision was that the petitioner presented an unacceptable risk in terms of re-offending. They must have concluded, in essence, that there was a substantial risk of such offending occurring. The question is, therefore, whether there was a basis for that conclusion. In the material before them, there undoubtedly was.

[16 ] The first respondents set out three principal bases for their conclusion. The first was that the petitioner had a long history of alcohol abuse and this had provoked two episodes of domestic violence. The significance of these facts in the context of the risk of re-offending is clear. If the petitioner were to revert to alcohol misuse upon release, he would, given his history, be at increased risk of repeating his abusive conduct were he to resume a domestic relationship. That such reversion was a substantial possibility was supported first by the petitioner's previous return to alcohol misuse after an awareness program. Secondly, the petitioner himself stated that it was his intention to return to "social" drinking upon release. The dangers of him doing so are self evident. Thirdly, although he had not secured any alcohol in prison, the petitioner had succumbed to the misuse of opiates in prison simply because of low mood. In short, the first respondents were entitled to reach the view, on this material alone, that the petitioner posed a significant re-offending risk. For completeness, it should be added that the first respondents did take into account the petitioner's behaviour in prison, as they were bound to do in terms of the Rules. This is clear from their narrative of his conduct, notably the content of staff reports, in the minutes of their decision.

[17 ] The second basis outlined by the first respondents was the petitioner's lack of victim empathy. Again, such lack is self evidently a risk factor when calculating future conduct. The foundation for the first respondents' conclusion can be seen in at least three sources. First, there was the fact that this was his second conviction for domestic violence. Secondly, the social work report before the trial judge had recorded that the petitioner did not fully accept responsibility for his actions. He lacked insight into their seriousness. Thirdly, some two years later, a second SER recorded that he still failed to accept full responsibility and engaged in self justification and mitigation of his conduct. The social worker's observation that his expressions of regret were "entirely self-focused" was particularly damning. The fact that the petitioner had expressed affection for the complainer and horror at his actions detract little from this.

[18 ] The final element in the first respondents' reasoning was their noting that the petitioner would be homeless, with no immediate prospects of employment when released. The first respondents did not regard these factors as likely in themselves to prompt re-offending. Rather, their existence increased the risk of reversion to alcohol and thus to further criminal conduct. The homeless element was not rendered inaccurate by the SACRO letter. The first respondents were not suggesting that the petitioner would be "of no fixed abode" upon release. They were, no doubt, aware of the offer from SACRO and would be fully cognisant with the services provided by that organisation. What they were doing was recording that the petitioner did not have a home (rather than a flat or house) to go to, such as one with relatives, or friends, to offer support. In the same passage they recorded the absence of employment; again a factor which can result in low mood. It was that low mood that had driven the petitioner to resort to opiates in prison and its ability to tempt him back to alcohol abuse has already been noted.

[19 ] In summary, the first respondents had ample material upon which to base the decision they took. Indeed, it was perhaps the only reasonable decision open to them in the circumstances. I will refuse to grant the motion for first orders and interim liberation, sustain the first pleas-in-law of the respondents and dismiss the petition.

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