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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 13
P572/21
OPINION OF LORD SANDISON
In the Petition
THOMAS O'LEARY
Petitioner
for
Judicial review of a Decision of the Parole Board for Scotland dated 29 April 2021
Petitioner: Mackintosh, QC, Crabb; Drummond Miller LLP
Respondent: Lindsay, QC; Anderson Strathern LLP
2 February 2022
Introduction
[1]
Thomas O'Leary is presently a prisoner in HMP Barlinnie. He is subject to an order
for lifelong restriction, pronounced on 19 August 2014, in respect of his conviction of certain
serious criminal offences. The punishment part of that order, ie the period before the expiry
of which his release from custody on licence could not lawfully be considered, was fixed at
5 years beginning on 31 August 2012.
[2]
The Parole Board for Scotland is a statutory body existing and discharging functions
under the Prisons (Scotland) Act 1989, the Prisoners and Criminal Proceedings (Scotland)
Act 1993, the Convention Rights (Compliance) (Scotland) Act 2001 and the Criminal Justice
2
(Scotland) Act 2003. One of its functions is directing the release on licence of prisoners
subject to orders for lifelong restriction. It performs that function, amongst others, through a
Tribunal established in terms of Part IV of the Parole Board (Scotland) Rules 2001. The
Tribunal is an independent and impartial judicial body. In terms of section 2(5)(b) of the
1993 Act, it can only properly direct the release on licence of a prisoner subject to an order
for lifelong restriction if satisfied that it is no longer necessary for the protection of the public
that the prisoner in question should be confined.
[3]
By way of a decision dated 29 April 2021, a Tribunal of the Board declined to order
Mr O'Leary's release from custody on licence. In this petition for judicial review,
Mr O'Leary seeks reduction of the decision not to direct his release on licence and an order
requiring a differently-constituted Tribunal of the Board to reconsider his application for
such release within a reasonable time, on the grounds that the decision in question was the
product of legal error and procedural unfairness on the part of the Board.
Background
[4]
There was a considerable backdrop to the Tribunal's decision of April 2021. So far as
relevant for present purposes, it includes the following features: Mr O'Leary's first
application for release on licence after the expiry of the punishment part of his sentence was
refused by a Tribunal of the Board on 18 July 2018. In August 2019 he was briefly placed in
a Segregation and Reintegration Unit on the basis of intelligence that he was bringing drugs
into prison. On 6 December 2019 a Tribunal of the Board directed his release on licence. He
was at liberty for four days before, on a reference from the Scottish Ministers, the Board
recalled him to prison. He again applied to the Board for release on licence. It became
apparent that intelligence emanating from both Police Scotland and the Scottish Prison
3
Service was available which might bear upon the question which the Board's Tribunal
would require to determine, and that some of that material was considered to be of a kind
which might be withheld from Mr O'Leary and his legal representatives on the basis that its
disclosure to them might damage the public interest in one or more than one of the ways set
out in Rule 6 of the 2001 Rules.
[5]
Questions about the appropriate treatment of the intelligence information and its
impact on the procedure to be adopted in dealing with Mr O'Leary's application for release
on licence rumbled on in various respects throughout 2020. During that year he also
unsuccessfully sought judicial review of another aspect of the process of assessment of his
risk to the community: see [2020] CSOH 81. Ultimately some of the intelligence available to
the Board was disclosed in specie to Mr O'Leary's representatives. In respect of other aspects
of the intelligence, a "gist" was so disclosed, ie an indication of the tenor of the intelligence
insofar as that could be disclosed without risk of damage to the public interest(s) said to
justify it being withheld from full disclosure. Some of the available intelligence, however,
was not disclosed even in gist form. Some consideration was given to attempting to mitigate
the effect on Mr O'Leary's position of the use of intelligence which had not been disclosed in
whole or part to him. For example, his solicitor was permitted to formulate questions about
intelligence material which the Board then posed in his absence to an officer of Police
Scotland. In the event, that officer was unable to answer most of the (entirely reasonable)
questions which were so posed and at the hearing before me it was accepted on behalf of the
Board that this episode had not moved matters forward in any positive way. The other
expedient which Mr O'Leary's solicitor invited the Board to adopt at various points was the
appointment of a special advocate, that is to say a legal representative specifically put in
place to represent Mr O'Leary's interests in relation to the material which was to be
4
withheld from him, and to whom that material would be disclosed. On 21 April 2020 the
Board stated to Mr O'Leary's solicitor that it considered that there was no need to appoint a
special advocate for him "at this stage" and that it would indicate the reasons for its view on
that matter in the final decision to be issued by its Tribunal. The matter was not thereafter
raised again on behalf of Mr O'Leary.
[6]
The decision of the Board's Tribunal refusing to direct Mr O'Leary's release on
licence narrated that, in coming to the conclusion that he continued to pose a risk of
committing offences that might occasion serious harm, it had inter alia attached weight to
intelligence that was not disclosed to him. It acknowledged the "the inherent difficulty of a
decision that is largely based on intelligence information" and accepted that it was "difficult
for Mr O'Leary to refute such information". The decision did not provide any explanation
as to why the Board had decided not to appoint a special advocate as part of the processes it
had applied in disposing of Mr O'Leary's parole application.
Petitioner's submissions
[7]
In written and oral argument on behalf of Mr O'Leary, senior counsel submitted
paragraph 37 that the court should very anxiously scrutinise the procedure adopted by the
Board in the case given that it involved a prisoner remaining in custody long after the expiry
of his punishment part. A procedure ought to have been adopted which fairly reflected the
importance of what was at stake for the prisoner and society, and which enabled the
prisoner to present his case to best advantage R (Roberts) v Parole Board for England and
the final analysis a matter for the court and not the Board R (Osborn) v Parole Board
5
advanced involved any issue within the ambit of special knowledge or experience on the
part of the Board's Tribunal to which the court should properly defer.
[8]
The Board had an inherent power to appoint a special advocate to assist in the
discharge of its functions notwithstanding the absence of specific rules enabling it to do so
Roberts, paragraph 83; Gallagher v Parole Board for Scotland [2005] CSOH 126 at paragraph 81.
It should do so where it became (or ought to have become) apparent at any stage u p to and
including the point of final determination that the proceedings would not otherwise be fair
and that the involvement of a special advocate might assist the prisoner's position Roberts
at paragraph 83. Proceedings were likely to be unfair if the prisoner did not have the
opportunity to see and comment upon information put before the Tribunal and upon which
it relied in coming to its decision. In the present case, although it was unnecessary to
demonstrate even on a prima facie basis that Mr O'Leary's position before the Tribunal
would have been improved by the appointment of a special advocate, the potential for such
an improvement in various ways by use of that expedient clearly existed.
[9]
The Tribunal was, further, under a duty to provide reasons for its decision on the
substantive issue before it which left the informed reader and the court in no real and
substantial doubt as to the material considerations which it had taken into account, why it
had determined the matter in the way it had, and whether there might be any good ground
for challenge of the decision Hutton v Parole Board for Scotland [2021] CSOH 34, 2021
paragraphs 11 and 12. The reasons given in the present case, constrained as they were by
the Tribunal's inability to refer frankly to the nature of all of the intelligence which weighed
in its decision, failed to meet those tests and thus rendered the decision itself unreasonable:
6
same conclusion could separately be reached by considering the Board's unfulfilled
undertaking that the Tribunal would provide reasons in its final decision for the refusal to
appoint a special advocate.
Respondent's Submissions
[10]
On behalf of the Parole Board, senior counsel submitted in writing and orally that the
decision complained of was lawful and reasonable. So far as special advocates were
concerned, the leading case was Roberts, the effect of which was conveniently summarised in
being that the need to appoint a special advocate would depend on the whole circumstances
of any individual case in which information upon which the Board's Tribunal proposed to
proceed was withheld from the prisoner and his ordinary representatives, and in particular
whether other steps could be and were taken effectively to mitigate the effects of non -
disclosure, as by partial disclosure or the provision of gists. Only if the procedure adopted
by the Board had resulted in significant injustice to the prisoner, a question to be determined
by the court, would the relative substantive decision fall to be reduced. It was accepted that
the context of the present case required compliance on the part of the Board with the highest
standards of procedural fairness. Reference was also made to Campbell, Petitioner [2008] CSOH 16,
2008 SLT 231 and Laidlaw v Parole Board for Scotland 2008 SCLR 51.
[11]
In the present case, Mr O'Leary had had access to almost all of the intelligence
information available to the Board, either in specie or in gist form. It was clear from what
had been disclosed and from the questioning of Mr O'Leary by the Tribunal that the
principal areas of concern were his supposed involvement in organised crime, alleged
7
threats towards his ex-partners and others, and his claimed involvement in the misuse of
drugs in prison. The key points of intelligence had been put to him when he appeared
before the Tribunal and, with one possible exception, he had been able to answer all of the
questions posed without difficulty. Further, no argument that the procedure had been
unfair to him was advanced in the final submissions made on his behalf. In these
circumstances the Board had been correct to conclude that the mitigations put in place were
sufficient to render unnecessary the appointment of a special advocate. It was accepted that
speculation as to what might have happened had a special advocate been appointed was
inappropriate; rather, the question given the criticism advanced in this regard was simply
whether the procedure adopted was, in context, unfair in the absence of such an
appointment.
[12]
It was, further, accepted that the sufficiency of the Tribunal's reasons fell to be
determined by reference to the considerations described in Hutton and Crawford. Another
way of putting the question was whether the Tribunal's reasoning had fallen below an
acceptable standard in public law in the particular circumstances of the case: Brown at
paragraph 36. In the present case the reasons given passed the relevant tests standing the
lawful restriction imposed on the disclosure of some of the intelligence to Mr O'Leary and
the circumstances already referred to.
[13]
However, it was accepted that the failure of the Tribunal to explain in its final
decision why a special advocate had not been appointed despite the prior undertaking of the
Board that that would be done amounted to an error of law. Nonetheless, that error was not
of sufficient materiality to vitiate the Tribunal's decision, because the circumstances in which
it was and was not necessary for a special advocate to be appointed were clear from Roberts
and other authorities and it was (or ought to have been) therefore obvious that the reason for
8
the refusal to appoint a special advocate in the present case was that the Board considered
that the other mitigations deployed were sufficient to render the procedure before its
Tribunal fair. Since that was clearly all that could properly have lain behind the decision not
to appoint a special advocate, nothing of materiality had been lost by an inadvertent failure
to make that reasoning explicit.
Decision
Procedural Unfairness
[14]
The Board's Tribunal is a judicial body performing important public functions in the
course of the proper administration of criminal justice in Scotland. Given the subject matter
of the questions with which it has to deal, it has been made specifically clear by way of
statutory instrument in the form of Rule 6 of the Parole Board (Scotland) Rules 2001
(SSI 2001/315) that the Board is entitled not to disclose to the prisoner with whose case it is
dealing certain types of information relevant to it in the performance of its functions and to
the decision which its Tribunal requires to make in the case of that prisoner. No suggestion
has been made in the present case that the Board was not entitled in terms of Rule 6 to
withhold from Mr O'Leary the information which was withheld from him, or that the
Tribunal was not entitled to proceed to make a decision based in part on that information.
Rather, the suggestion is that, in the context of the Board having withheld that information
from Mr O'Leary and the Tribunal having proposed to make a decision based in part on that
information, procedural fairness required the Board to put in place a specific mitigation, in
the form of a special advocate, against the consequence of the situation which was thereby
created, which was that Mr O'Leary's interest in being able to participate to the fullest extent
9
reasonably possible in a process which would lead to a decision about his liberty or
continued detention was not being fully realised.
[15]
Neither Mr O'Leary nor the court is in a position to review the accuracy or
sufficiency of the intelligence gists which the Board did provide, and thus no criticism of the
Board can be advanced on any possible deficiency of that nature. The focus must
accordingly be on the information which was not provided in any form to Mr O'Leary.
About that, nothing was expressly made known to him as part of the processes to which he
was subject. It was suggested in argument on behalf of the Board that he might reasonably
have surmised that the particular information withheld was similar in nature to that which
had been disclosed, and that it would thus have related to the three broad themes of
supposed involvement in organised crime, in the misuse of drugs in prison, and of alleged
threats made by him, about which he was overtly questioned. I am far from sure that the
correctness of that proposition is self-evident, but ultimately what cannot be disputed is that
the Tribunal in fact proceeded to its decision in partial reliance on the basis of information
withheld from Mr O'Leary and in respect of which his position might have been improved
by the Board's appointment of a special advocate in his interests. I do not accept the
suggestion that the Board was not required to consider the issue of procedural fairness other
than as and when any such issue was made the subject of complaint to it on behalf of
Mr O'Leary. That would be contrary to the principle that the provision and maintenance of
procedural fairness is first and foremost the responsibility of the body whose procedures are
in question, and to the observation in Roberts at paragraph 83 to which reference has already
been made.
[16]
In determining whether the procedural situation created by the Board in
Mr O'Leary's case is an acceptable one, I did not find the notions of "anxious scrutiny" or
10
"ever more anxious scrutiny" and the like expressions, well-used though they are in various
legal contexts, very helpful. I do not consider that the concept of anxiety, whether mild,
moderate or extreme, quite captures the mental attitude with which the Court ought to
approach its task in this or other similar kinds of case, which might more accurately be
described as one of meticulousness. Further, and probably more importantly, the whole
idea of "anxious scrutiny" and its related expressions seem to me to risk suggesting that it is
the process of examination of the facts before the court to which the relevant attitude ought
to be applied, perhaps differentially in different cases, whereas in most cases of the present
kind, at least, the process of examining and ascertaining the features of the procedure
adopted, meticulous though it must be, will in essence be reasonably straightforward, and it
is at the stage of considering the result of that examination against the importance of the
matters at stake at which a differential approach may well be required. Put more simply, a
process which may be deemed fair enough where not very much of importance is at stake
may be adjudged to be inadequate where more weighty interests are in play.
[17]
Viewed in that light, it is clear that, Mr O'Leary's future at liberty or in detention
well after the expiry of the punishment part of his sentence being the de quo of the Tribunal's
task, and the issue of the use of intelligence material in that context being one of more than
usual sensitivity in his case because of the history already narrated, the Board was correct to
accept in the argument before me that the highest standards of procedural fairness were
required. Certainly that must be the case where the procedure being considered relates
directly to Mr O'Leary's ability to engage to some degree with undisclosed intelligence
information. When the question is put in that form, the answer becomes straightforward;
the highest procedural standards were not met because there was an expedient the
appointment of a special advocate which could have made the process more fair, but
11
which was not adopted. While it is true that the Tribunal had before it weighty
considerations, quite independent of the withheld intelligence information, which might
well have led it in any event to the same conclusion which it reached with that information, I
consider that the parties were correct in their position before me that, so long as the
appointment of a special advocate might have made a difference to Mr O'Leary's position,
even if only to the extent of making a reasonable perception of the fairness of proceedings
more favourable than it otherwise might have been, the requisite highest standards were not
reached. It follows that the Tribunal's decision which is the subject of complaint falls to be
reduced on the ground that it was arrived at by way of a procedure which was in its context
not sufficiently fair. It was not disputed that the ancillary order sought, namely that
Mr O'Leary's application for release on licence should be considered of new by a differently-
constituted Tribunal of the Board within a reasonable time, should be granted if the existin g
decision were to be reduced.
Adequacy of Reasons
[18]
Although it is not strictly necessary for me to express a view on the adequacy of the
Tribunal's reasons, given that its decision is to be reduced on grounds of procedural
unfairness, I should indicate that, apart from the issue of the Board's undertaking that its
reasons for not appointing a special advocate would be explained in the final decision of the
Tribunal on the application, which I will deal with shortly, I would not have found the
Tribunal's reasons inadequate on the application of the criteria set out in Hutton and
Crawford. In explaining the substantive reasons for its view that Mr O'Leary should not be
released on licence, the Tribunal had to take care that it did not expressly or by implication
disclose the nature of the intelligence material which was properly being withheld from
12
him. Taking that unavoidable constraint into account, its decision fully explained what it
had considered, why it had determined the matter in the way it had, and whether there
might be any good ground for challenge of the decision. In particular, it was made quite
clear that the decision did proceed to some extent on the undisclosed material. The Tribunal
cannot properly be faulted for having gone to that extent, and no further, in the
circumstances already discussed.
[19]
However, the special fact that the Board had undertaken that the reasons for its
refusal to appoint a special advocate would be explained in the Tribunal's final decision, and
that no such explanation appeared, takes the case into a different category from that
contemplated in Hutton and Crawford. If an explanation of a particular matter has clearly
been promised in the final decision, and no attempt at all is in fact made there to explain that
matter, then the content of the final decision has fallen foul of the more broadly-expressed
criterion in Brown, namely that it has to meet an acceptable standard in public law in the
particular circumstances of the case.
[20]
I do not accept the Board's argument that, since the only good reason for its refusal
to appoint a special advocate would have been that it considered that the other mitigations
deployed were sufficient to render the procedure before its Tribunal fair, that reasoning
ought to be regarded as implicit in the Tribunal's final decision even if not explicitly stated
there, and that the error made in not stating it explicitly accordingly falls to be regarded as a
nugatory one. Firstly, the fact that there is only one good reason in law for a particular
course of action carries no necessary implication that that was indeed the reason behind that
course of action being taken in a particular case. A suggestion otherwise implies the
proposition that administrative bodies do not make mistakes in the discharge of their duties,
which experience shows is not necessarily correct. Secondly, a merely formulaic recitation
13
of the kind contemplated would not have met the tests for comprehensibility set out in
Hutton and Crawford and so would have failed to meet the required standard of reasoning
even if it had been made express.
Conclusion
[21]
For the reasons stated, I shall sustain the petitioner's second plea-in-law, repel the
respondent's pleas, reduce the Tribunal's decision of 29 April 2021 and direct that a
differently-constituted Tribunal reconsider the petitioner's application for release on licence
within a reasonable time. All questions of expenses are meantime reserved.
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