PATRICK CRAWFORD FOR JUDICIAL REVIEW [2021] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2021] CSOH 44

P965/20

OPINION OF LORD BRAID

In the cause

PATRICK CRAWFORD

Petitioner

for

Judicial Review of a decision of the Parole Board for Scotland dated 25 August 2020

Petitioner: Crabb; Drummond Miller LLP

Respondents: Lindsay QC, Anderson Strathern LLP

6 May 2021

Introduction

[1]

The petitioner is a life prisoner more than 20 years past his tariff date. The short

issue raised by this petition for judicial review is whether adequate reasons were given by

the Parole Board for Scotland ("the Board") for its decision of 25 August 2020 not to direct

the petitioner's release on licence from custody.

[2]

The petitioner contends that the Board's reasons were inadequate since they did not

explain why the Board preferred one expert's views over another (one social worker

supporting his release on licence, and one not), nor did it explain why it was necessary for

the protection of the public that the petitioner should continue to be confined. He seeks

reduction of the decision and an order that his case be reconsidered by the Board within a

reasonable time.

Background

[3]

The petitioner was convicted of murder and two charges of attempted murder

in 1997. He was sentenced to life imprisonment in respect of the murder with a punishment

part of 13 years, and a period of 10 years imprisonment in respect of the charges of

attempted murder. In 2014 he was released on licence. Concerns arose that the petitioner

was misusing illicit substances in the community. The petitioner's licence was revoked

in 2017 and he was returned to prison. In January 2018 he was fined £500 in respect of a

conviction of possession of diamorphine whilst in the community.

[4]

The petitioner's case came before the Board on 3 August 2020 to consider his

application for parole. Prior to the hearing, the petitioner's prison based social worker,

Mr Murray, had produced a report supporting his release on licence. However, the

community based social worker, Ms Cordiner, produced reports which did not support the

petitioner's release.

[5]

On 3 August 2020 the Board heard from Mr Murray. In its minute of that date, it

recorded Mr Murray's evidence. It noted that he supported the petitioner's release on

licence. He referred to two refusals by the petitioner to provide mandatory drug tests,

which he ascribed to the petitioner's desire to make a point, rather than to hide drug use.

The petitioner had been on licence in the community for almost 4 years before his return to

custody in December 2017 although had been unlawfully at large (UAL) for 3½ months of

that period. He had engaged well with community supervision, other than having received

a warning letter for possession of two diazepam tablets. Mr Murray acknowledged that the

petitioner had resorted to heroin use in the months before his recall and had not been honest

with his supervising officer about that. However he had not attended supervision meetings

under the influence. Had substance misuse been a problem Mr Murray would have

expected it to be visible in the prison environment but it was not. While the UAL was a

concern, Mr Murray took the view that it was because the petitioner had not wanted to

return to prison. What was significant in terms of risk was that there was nothing to suggest

any aggressive or violent behaviour in that period. As noted above, the petitioner had

accrued a conviction for possession of diamorphine in respect of which he had been

fined £500. He had now been in custody in closed conditions for over 3 years following his

recall. There was no evidence from his behaviour in prison that would give rise to concern

that he would not engage with supervision in the community or that his risk could not be

managed in the community. While he had strong opinions, these had been put forward in

an appropriate way. The Board concluded its summary of Mr Murray's evidence in the

following terms (paragraph 23 of the minute):

"However, in terms of risk, there was no evidence of any substance misuse, no

evidence that he was attempting to conceal substance misuse, no concerns about his

behaviour or his engagement otherwise in the prison regime and no evidence of any

violence since the index offence. Looking overall at his response in the community,

the circumstances of his recall, subsequent conviction and his response in custody

thereafter Mr Murray could see no reason to justify [the petitioner]'s continued

detention in closed conditions and he recommended and supported his release."

[6]

The Board decided to adjourn the hearing, to obtain evidence from Ms Cordiner. In

reaching that decision the Board accepted (at paragraph 65) that there was no suspicion or

evidence of substance misuse, and that the refusal to take mandatory drug tests was to make

what the petitioner considered to be a justified point. It then stated (paragraph 66):

"Having regard to that background, the fact that [the petitioner] has not been

involved in violent behaviour since the index offence and his positive response and

engagement in the community for 3½ years prior to the circumstances that led to his

recall, the Board wishes to explore with [Ms Cordiner] the extent to which his risk

could be managed in the community with close supervision and additional licence

conditions to include conditions relating to substance misuse, engagement with

Psychological Services and work on decision making, problem solving and

consequential thinking."

To that extent, at that stage, the Board appeared to have accepted at least elements of

Mr Murray's evidence, and to have attached some weight to the absence of violent

behaviour and to the petitioner's previous positive engagement in the community.

[7]

A further hearing took place on 25 August 2020 at which the evidence of

Ms Cordiner was heard. She did not support release and considered that the petitioner

required to demonstrate an ability to comply with licence conditions to allow his risk to be

managed safely in the community. She attributed his heroin relapse to the impact of

historical child abuse. The petitioner had not followed through with the psychological

support he had received in the community and Ms Cordiner had a concern therefore about

the extent to which those issues still had to be addressed. She believed it would present a

significant difficulty for him in the community if they remained unaddressed. A licence

condition to ensure that he had the support of psychological services, if required, would be

appropriate. Ms Cordiner then referred to the petitioner's having been UAL for over

3 months which she considered was a significant concern because he had been unscrutinised

for that period. While she recognized that it was positive that there was no evidence of

further offending during that period, given his level of compliance she did not consider that

his risk could be managed. Her view was that progression to the Open Estate would be the

best way forward for the petitioner. That would allow him to build up a relationship with

his supervising officer, discuss any issues that he may have with substances, show that he

could make wise choices about how he spent his time and with whom, and that he could

adhere to temporary licence conditions. It would also help with his reintegration to the

community. At her meeting with the petitioner on 21 July 2020 he took issue with her

recommendation that he should be tested in the Open Estate because he felt that he could be

released. He considered that he was right and she was wrong. She considered that his

attitude could present a problem in managing him, because he would have to be prepared to

comply with her directions. His attitude would have to change to allow him to be managed

in the community. It was a concern that the petitioner's house had been searched twice by

police officers in connection with drugs (in May 2016 and August 2017) and that drugs were

recovered on each occasion. She considered that 6 months testing at the Open Estate would

allow Mr Crawford to have six periods of home leave to demonstrate compliance and to

build a relationship with his supervising officer. She acknowledged th at he had succeeded

in the community for some time, that there had been no evidence of substance misuse in

prison and that there had been no suggestion of violence in the community. She also

accepted that his failure to comply with the prison regime related only to his failure to

provide drug tests.

[8]

After that hearing, the Board declined to direct the petitioner's release on licence.

Since the adequacy of the reasons given is at issue, they bear setting out in full:

"63.

The Board, having considered the evidence, is satisfied that it is necessary for

the protection of the public that [the petitioner] should be confined.

64.

The Board has considered carefully [the petitioner]'s response and

engagement in the community prior to the circumstances that led to his recall and his

response in custody.

65.

However, [the petitioner] was not open and honest with his supervising

officer about his difficulties in coping with memories of childhood abuse and about

his relapse to heroin use. At a time when he was in need of support, his superficial

engagement led his supervising officer to believe that he was responding well and to

reduce the frequency of his supervision appointments in June 2017.

66.

In August 2017 his house was searched by police officers for the second time

and a quantity of drugs and drug paraphernalia was recovered. The Board notes

that [the petitioner] subsequently pleaded guilty to simple possession of heroin,

but the Board is entitled to look at all the circumstances and it did not find [the

petitioner]'s evidence about the items recovered to be credible. It raised concern

about the extent of his involvement in the drugs scene and the risks associated with

such involvement.

67.

While [the petitioner]'s engagement with the supervision process was

superficial prior to his arrest in August 2017, the Board was satisfied on the

evidence presented that he disengaged completely thereafter. He failed to inform

his supervising officer of his arrest and his subsequent conviction, he failed to

reside at his approved address, and he was UAL for over 3 months. The Board

notes [the petitioner]'s position that he was unaware that his licence had been

revoked, but even if that position was accepted, it does not explain his failure to

attend his next supervision appointment in September 2017. Even if it is accepted

that he only became aware that his licence had been revoked two weeks before he

was returned to custody, he did not hand himself in at that stage. The Board did

not find [the petitioner]'s explanation for his failure to have any contact with his

supervising officer from August 2017 until his return to custody to be satisfactory.

The Board considered that [the petitioner] was reluctant to take responsibility for

and minimised his failures to comply with his licence. He stated that he had been

recalled for a £200 drug fine and that demonstrated to the Board that he did not

appreciate the significance of his lack of engagement and the need for full

compliance with his life licence.

68.

Following his recall, the entrenched position which [the petitioner] adopted

with regard to the provision of MDTs and his reasons for doing so are set out in the

Minute of 3 August 2020. However as stated therein his decision making in dealing

with the issue by refusing to provide MDTs and failing to accept the advice of

[Mr Murray] to do so, raised concern about his future compliance. His attitude in

discussion with Ms Cordiner in July 2020 also raised concern about his willingness to

accept an alternative view and his future compliance with the directions of his

supervising officer.

69.

Ms Cordiner does not support [the petitioner]'s release and the Board agrees

with her assessment.

70.

Licence conditions and open and honest engagement form a significant part

of the risk management process in the community. [The petitioner]'s failure to

comply with the conditions of his licence and lack of openness and honesty with his

supervising officer are therefore matters of significant concern and the Board cannot

be satisfied that his risk can be managed in the community without a period of

testing in less secure conditions to show that he can remain drug free, avoid negative

peers, make good decisions and comply with temporary licence conditions. It will

also provide an opportunity for him to start to build a relationship with his

supervising officer which the Board considers will be important for his future

management.

71.

The Board notes that [the petitioner] is willing to provide the drug tests

necessary for progression and in the expectation that he will now progress quickly to

the Open Estate, the Board considers that a review in 9 months is appropriate. That

period should allow the progression process to be completed and for [the petitioner]

to have a period of 6 months testing at the Open Estate."

Submissions

Petitioner

[9]

Counsel for the petitioner submitted that the decision reached was unreasonable

because the reasons given were inadequate. While accepting that it was open to the Board

to reject expert evidence, counsel focussed on the importance of giving adequate reasons

where liberty is at stake, and the need for anxious scrutiny. The reasons given must reflect

the issues at play. The Board ought to have explained which expert evidence it accepted and

which it rejected, giving reasons. In the decision part of the Board's minute it had not once

referred to the evidence of Mr Murray. Given what was at stake for the petitioner and the

nature of Mr Murray's evidence, it was insufficient to say only that the Board agreed with

Ms Cordiner. Whether or not the reasons given might have been adequate in another

context, they were not adequate having regard to the need for anxious scrutiny where

liberty was at stake. The petitioner had been prejudiced because he did not know whether

the Board had properly addressed the issues. Counsel referred to the following cases: R (on

the application of H) v Ashworth Special Hospital Authority [2003] 1 WLR 127, paragraph 76;

R (on the application of Wells) v Parole Board [2019] EWHC 2710 (Admin), paragraph 38 to 41);

Brown v The Parole Board for Scotland [2021] CSIH 20, [35] to [37].

The Board

[10]

Senior counsel for the Board submitted that the reasons were adequate. The

petitioner knew why the Board had decided not to direct his release, and knew what he had

to do to secure release in the future. It was evident from the Board's reasoning (as set out

above) that the Board had preferred the evidence of Ms Cordiner to that of Mr Murray. The

Board did not require to state explicitly which expert it preferred, or why, where that was

implicit from its reasoning, as here. It had dealt with all the issues which had been raised:

the petitioner's criminal conviction; his relapse into drugs and discovery of drugs

paraphernalia; his failure to engage with his supervising officer; his having been UAL; and

his refusal to undertake mandatory drug tests. That was sufficient. The reasons given

adequately explained why the decision had been reached. The issue as to whether the

substantive reasons themselves might be impugned had not been raised in this petition.

Senior counsel referred to the following cases: Wordie Property Co Ltd v Secretary of State for

Scotland 1984 SLT 345 per Lord President Emslie at 348; Hutton v Parole Board for

Scotland [2021] CSOH 34; Laidlaw v Parole Board for Scotland [2008] SCLR 51, [32] to [34];

R (CPRE Kent) v Dover District Council [2018] 1 WLR 108 per Lord Carnwath at [35]-[36]

and [42]; and General Medical Council v Awan [2020] EWHC 1553 (Admin) per Mostyn J

at [12].

Decision

[11]

The law governing reasons in the context of decisions of the Board was recently

summarised by Lord Clark in Hutton v Parole Board for Scotland [2021] CSOH 34 at para [62]

as follows:

"In R v Northamptonshire County Council, Ex p W, Hutchinson LJ said (at para [3]):

`[t]he purpose of reasons is to inform the parties why they have won or lost and

enable them to assess whether they have any ground for challenging the adverse

decision.'

In Wordie Property Co Ltd v Secretary of State for Scotland the Lord President (Emslie)

said (at p348):

`The decision must, in short, leave the informed reader and the court in no real and

substantial doubt as to what the reasons for it were and what were the material

considerations which were taken into account in reaching it'.

... provided the standards expressed in these cases are met, there is no requirement

to deal with every argument advanced .... As was explained in Laidlaw v Parole

Board for Scotland, the reasons should be readily understandable to the prisoner and

his advisers and ideally should be short, simple and easy to follow".

[12]

To this may be added that reasoned decisions need not be lengthy, provided they

achieve the above standards: R (on the application of H) v Ashworth Special Hospital Authority,

above, para [79]. The corollary of that should not be overlooked, namely, that a lengthy

decision will not necessarily be an adequately reasoned one if the reasons are nonetheless

not readily understandable, or otherwise fail to reach the requisite standard. Moreover, the

adequacy of reasons must be judged by reference to what is demanded by the issues which

call for decision: Ashworth, para [76].

[13]

A further strand of authority is that discussed by the Inner House in Brown v Parole

Board for Scotland [2021] CSIH 20 at paragraph 36:

"[36] The following can be taken from R(Wells) v Parole Board (cited above), where

the prisoner remained in custody 12 years after the expiry of the tariff. To justify

continued confinement the danger posed by the prisoner must involve a substantial

risk of serious harm to the public, ie involving offences of serious violence. (From

time to time reference has been made to a `life and limb' test.) The longer the time in

custody after expiry of the tariff the scrutiny should be ever more anxious as to

whether the level of risk is unacceptable: see paragraphs 20/21 and 27. Under the

modern context-specific approach to rationality and reasons challenges, in the area of

detention and liberty the court must adopt an anxious scrutiny of the decision. The

court can interfere if the board's reasoning falls below an acceptable standard in

public law. The duty to give reasons is heightened if expert evidence is being

rejected: paragraphs 35, 38 and 40. It can be noted that the need for ever more

anxious scrutiny as to whether the level of risk is unacceptable as time goes by is well

established in England and Wales: see Osborn v Parole Board [2014] AC 1115,

Lord Reed at paragraph 83; R(King) v Parole Board [2016] 1 WLR 1947, Lord Dyson

MR at paragraphs 37/39. In the latter decision his Lordship referred to earlier

authority that the longer the prisoner serves beyond the tariff `the clearer should be

the Parole Board's perception of public risk to justify the continued deprivation of

liberty involved'.

[37] ... While a cautious approach is appropriate when public protection is in issue,

as time passes it is not only legitimate but necessary for there to be appropriate

appreciation of the impact of confinement well beyond tariff. The decision-maker

should ensure that it is apparent that this approach has been adopted and its

reasoning should provide clarity as to why confinement remains necessary in the

public interest. Thus in the present case, given that every professional involved with

the petitioner and who assisted the tribunal said that he posed no serious risk of

significant harm to others, the petitioner can reasonably expect to be informed as to

why those opinions were rejected."

[14]

Before turning to consider the decision in this case, two further points fall to be

made. First, whether reasons are adequate or not will depend on the circumstances of the

particular case; each case is fact specific. Thus, while senior counsel for the Board sought to

distinguish Brown on the basis that in that case, all the expert evidence favoured the

petitioner whereas here there are two competing opinions, I do not consider that difference

to be material: as counsel for the petitioner submitted, Brown (where the issue was merely

whether permission ought to be granted) is significant for the principles it affirmed rather

than for the application of those principles to the facts. Second, the two decisions in this

case, those of 3 August 2020 and 25 August 2020, fall to be read together. Thus it is not

entirely correct to say that the Board's decision does not mention Mr Murray's evidence at

all, since it is narrated in the minute of 3 August 2020.

[15]

None of the foregoing is controversial. The dispute between the parties is the

application of these established principles to the facts of the petitioner's case. Superficially,

and at first blush, there is some merit in the submissions of senior counsel for the Board. It

does appear from the Board's own reasoning that it preferred the eviden ce of Ms Cordiner

to that of Mr Murray. In a nutshell, based upon the circumstances which led to his recall,

and his refusal to undertake mandatory drug tests, the Board was concerned about the

petitioner's future compliance if released. To that extent, the Board has explained why it

reached the decision it did.

[16]

However, although it may be clear that the Board did in fact prefer the evidence of

Ms Cordiner, it has not explained why it did so, and I consider it was all the more incumbent

upon the Board to give some explanation for that choice when from the minute of 3 August

2020 it appeared, as I have mentioned above, to have accepted Mr Murray's evidence at least

to an extent. When one then adds in the fact that the petitioner is a life prisoner more than

20 years past his tariff date, resulting in a need for anxious scrutiny, and a greater onus to

explain the Board's thinking, the decision does, in my view, fall short of the requisite

standard, as explained in Brown. It is not possible, from the reasons given, to discern

whether or not the Board did have regard, as Brown puts it, to the impact of confinement

well beyond tariff, nor does the reasoning provide clarity, again in the words of Brown, as to

why confinement of the petitioner remains necessary in the public interest. That was not

specifically an issue spoken to by Ms Cordiner in her evidence, and therefore, in the

particular circumstances of this case, it was insufficient for the Board to record merely that

Ms Cordiner did not support the petitioner's release and that the Board agreed with her

assessment. It is therefore simply not possible for the reader, and more importantly, the

petitioner, to know whether or not the Board has properly addressed whether confinement

of the petitioner continued to be necessary in the public interest. In that regard, the

petitioner has been prejudiced, for the reasons submitted by his counsel.

[17]

For these reasons, I find that the petitioner's criticisms of the Board's reasons are

justified. Accordingly, I have sustained the petitioner's second and third pleas in law, and

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PATRICK CRAWFORD FOR JUDICIAL REVIEW [2021] ScotCS CSOH_44 (06 May 2021) URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_44.html Cite as: 2021 SLT 822, [2021] ScotCS CSOH_44, 2021 GWD 15-229, [2021] CSOH 44

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