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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 24
P1025/22
OPINION OF LORD SANDISON
in the petition of
DD
Petitioner
for
Judicial review of a decision of the Parole Board for Scotland dated 6 September 2022
Petitioner: Crabb; Drummond Miller LLP
Respondent (Parole Board for Scotland): Lindsay KC, Anderson Strathern
21 April 2023
Introduction
[1]
DD is presently a prisoner in HMP Low Moss. In June 1996, he was convicted of
murdering a young man previously unknown to him, by repeatedly stabbing him with a
carving knife in a street in Renfrew. As he was then aged 16, he was sentenced in terms of
section 205(2) of the Criminal Procedure (Scotland) Act 1995 to be detained without limit of
time, with a punishment part of 10 years commencing on 4 March 1996.
[2]
The Parole Board for Scotland is a statutory body existing and discharging functions
under the Prisoners and Criminal Proceedings (Scotland) Act 1993 amongst other
enactments. One of its functions is directing the release on licence of prisoners subject to an
2
order for indefinite detention. It performs that function through a Tribunal established by it
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 indefinite detention 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 6 September 2022, a Tribunal of the Board declined to
order DD's release from custody on licence. In this petition for judicial review, he 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 complained of was unreasonable
and unlawful.
Background
[4]
Before being sentenced for the murder he committed, the petitioner had been made
subject to a Home Supervision Order by the Children's Panel, and had further been
convicted of the assault and robbery of a shopkeeper by presenting a meat cleaver at him
and demanding money from his till. He was sentenced to probation with 240 hours of
community service for this offence.
[5]
After his conviction for murder, the petitioner was originally placed in a Young
Offenders Institution, where he was bullied and assaulted. He has been attacked in prison
on multiple occasions and has latterly been kept in the prison's protection hall for vulnerable
prisoners. He has committed no act of violence, nor manifested any tendency towards
violence at any point since the events leading to his murder conviction. He has been
3
diagnosed as having general anxiety disorder including situational anxiety and ruminative
worry, and as having difficulties suggestive of complex post-traumatic stress disorder.
Repeated psychological assessments have not suggested that his mental health condition
represents a risk to others.
[6]
The petitioner has previously been released on licence on three occasions. He was
first released in 2010, but was returned to custody after about a month in respect of breach of
his licence conditions. He was next released in 2019, again lasting only about a month in the
community before his licence was revoked for breach of his electronic monitoring
conditions, association with known drug users and using illicit drugs. A further release
later in 2019 resulted in a return to custody within about six weeks because the petitioner
disclosed that he was misusing street Valium and cannabis, and he had attended a meeting
with a clinical psychologist under the influence of Valium. A further application for release
on licence was refused by the Board's Tribunal in 2021.
Petitioner's submissions
[7]
Counsel for the petitioner submitted that, in order to justify continued confinement
after the expiry of the punishment part of his sentence, the Tribunal would have to be
satisfied that his release would involve a substantial risk of serious violence posing danger
Tribunal did not have to be satisfied that there was no risk of re-offending, but rather had to
be persuaded that the risk of re-offending was at a level that did not outweigh the hardship
of keeping a prisoner detained after he had served the term commensurate with his fault
Lord Phillips CJ at [53]. In other words, what was required was an assessment of whether
4
any potential risk was proportionate with the petitioner's continued detention R (on the
[8]
That was a question to which the Court required to apply "anxious scrutiny",
increasingly so as the period beyond the punishment part of the sentence increased: R (on the
The longer the prisoner had served beyond the expiry of the punishment part, the clearer
should be the Tribunal's perception of public risk in order to justify the continued
deprivation of liberty involved, given the need for there to be appropriate appreciation of
the impact of confinement well beyond tariff. While the Tribunal was expert in its field and
that required due deference to be given to its decisions, so that the Court could not simply
substitute its own views for that of the Tribunal, the reasons given for the decision required
an appropriate degree of scrutiny. The reasoning underpinning the decision should be
examined against the appropriate acceptable standard in public law, with a view to
ascertaining that all relevant circumstances had been taken into account, that the proper test
had been applied and that a clear explanation had been given as to why confinement
remained necessary in the public interest Ryan, Wiseman and Meehan v Parole Board for
Brown at [36] and [37]. The requisite degree of scrutiny could be intensified if the Tribunal
was rejecting expert evidence before it, where the decision concerned a prisoner previously
granted conditional freedom of which he had subsequently been deprived (Osborn at [2(vi)]),
or where the Tribunal was departing from an earlier reasoned decision concerning the
prisoner (Wells at [40]).
[9]
In the present case, the petitioner remained in confinement 16 years after the expiry
of the punishment part of his sentence. It had been 3 years since he had last been returned
5
to custody after release on licence. The Tribunal's decision did not explain the basis for any
perceived risk of serious harm to the public in the event of his release. He had not
committed a violent offence since 1996, had undertaken course work including a violence
prevention programme in 2007, and was described as a model prisoner with no further
programme needs in terms of violence reduction. No explanation had been given as to why
other relevant factors (including his drug use and difficulties with supervision) or the
overall position now were materially different from the position in 2019 when he had been
deemed suitable for release. The decision complained of failed to give appropriate weight to
his youth (and consequent likely immaturity) at the date of his offending and to the effect on
his behaviour of the complex PTSD with which he had been diagnosed. The LS/CMI
assessment of risk and needs carried out on the petitioner had resulted in a conclusion that
his levels of need and risk were "high", but on closer examination it was clear that the high
risk was of self-harm, not involving the public, and that his mental health issues, including
his ability to address the reasons for his offending, could not be addressed further in a
custodial setting. There was no psychological or psychiatric evidence that he presented any
material risk to the public safety. Although concerns about his susceptibility to monitoring
in the community might be well-founded, that did not justify a conclusion that he presented
any risk of violence to the public, nor had any such risk manifested itself during his previous
releases.
Respondent's submissions
[10]
On behalf of the respondent, senior counsel submitted that the Tribunal was an
independent specialist decision-maker which exercised its own expertise and judgment
when applying the statutory test for release on licence set out in section 2(5)(b) of the 1993
6
Act. That expertise required to be taken into account by the Court when assessing the
lawfulness and reasonableness of the Tribunal's decision. The petition was nothing more
than an illegitimate attempt to reargue the merits of the petitioner's application for release
on licence. All relevant and material considerations had been taken into account by the
Tribunal, and it had carefully scrutinised the disputed evidence. The petition failed to
identify any material error of law, any irrational exercise of a discretion or any procedural
irregularity.
[11]
In particular, the undisputed LS/CMI assessment of the petitioner concluded that he
presented a high level of risk and needs. His identified risk factors include
employment/education, companions and alcohol/drug problems. The community based
social worker who had given evidence to the Tribunal had explained the difficulties
encountered by the petitioner during his last period of supervision in the community,
including a quick relapse into substance misuse, presenting as heavily under the influence at
supervision appointments and refusing some supports offered to him to assist with his
complex risks and needs. The Tribunal, entirely reasonably, accepted her evidence that the
petitioner's lack of proper engagement with the supervision process increased his risk of
reoffending. The Tribunal similarly accepted her assessment that the petitioner's risk of
using violence could not be discounted given the circumstances of the index offence and
previous violent offence involving a weapon. It had not rejected any expert evidence before
it which clearly favoured release.
[12]
There was no evidence available to the Tribunal, whether from the petitioner or
anyone else, that he would be able to cope any differently on further release or engage with
any additional support made available to him. The Tribunal concluded that the petitioner
lacked internal risk management strategies and that it was clear from his last three failed
7
attempts in the community that despite the high level of external controls and supports put
in place he was unable to engage in supervision at a level which would allow his risks to be
assessed and monitored. The weight to be attached to these circumstances, when assessing
the risk posed by the petitioner, was a matter for the Tribunal. The circumstances presented
to the Tribunal in 2022 were different from those which had led to the decision to release in
2019; in particular, there had been another failed release since then, the social work evidence
was not supportive of release in 2022 whereas it had been in 2019, and there had been
further failures to engage with social workers.
[13]
The Tribunal gave full and adequate reasons for its decision, which met the tests for
and the subsequent paragraphs. The assessment of risk was one for the Tribunal alone, and
not one in which it was obliged, or indeed entitled, to defer to anyone else. It could not be
said that the Tribunal's decision was so outrageous in its defiance of logic or accepted moral
standards that no sensible person who had applied his mind to the question to be decided
could have arrived at it. Accordingly, the decision was one that was reasonably open to the
Tribunal, having regard to the evidence which was before it, and there were no grounds
upon which the Court could reduce or otherwise interfere with the Tribunal's decision in the
exercise of its supervisory jurisdiction.
Decision
Proper question for the Tribunal
[14]
Section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (headed
"Duty to release discretionary life prisoners") contains the following provisions:
8
"(4)
Where this subsection applies, the Secretary of State shall, if directed to do so
by the Parole Board, release a life prisoner on licence.
(5)
The Parole Board shall not give a direction under subsection (4) above
unless--
(a) the Secretary of State has referred the prisoner's case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the
public that the prisoner should be confined."
Although the petitioner does not technically meet the definition of "life prisoner" set out in
section 2 of the 1993 Act, having been sentenced to detention without limit of time in terms
of section 205(2) of the Criminal Procedure (Scotland) Act rather than to life imprisonment
in terms of section 205(1), it was common ground before me that section 2(5) of the 1993 Act
applied to him. It was also common ground that, although section 2(5)(b) does not expressly
place any duty on the Tribunal to direct a prisoner's release if satisfied that it is no longer
necessary for the protection of the public that he should be confined, there is no discretion in
the Tribunal to refuse to direct release even if satisfied of that matter, on account of some
other weighty consideration as to where the public interest lies or, perhaps, in the interests
of the prisoner's own wellbeing. Given the joint position adopted by parties on this question
and, more pertinently, the fact that it is clear that that was the assumption underlying the
Tribunal's deliberations in the present case, I proceed on the basis that that is indeed the
position in law, without, however, myself endorsing the suggestion.
Function of the Court
[15]
The Court's task, then, is to examine the Tribunal's determination with a view to
deciding whether it has directed itself to the right question, namely whether the risk of re-
offending in the case before it was at a level that made it proportionate to the hardship
inherent in keeping a prisoner detained after the determinate part of his sentence to continue
9
that detention meantime; to check that all circumstances relevant to inform a conclusion on
that matter have been taken into account; and to examine the reasons given for the decision
so as to ensure that they represent a clear explanation as to why confinement remains
necessary in the public interest.
[16]
As to how diligently that examination ought to proceed, I have already expressed
some doubt about the utility of the concept of "anxious scrutiny" in this context: O'Leary v
Parole Board for Scotland
occasion to deploy the idea of "meticulousness", both as to the examination of the material
before the Court and as to sensitivity regarding the limits of the Court's powers of review in
the particular circumstances before it. I now consider it more useful (and more accurate)
simply to recognise in general terms that the degree of intensity of scrutiny which the Court
will apply in any particular case challenging the decision of an inferior tribunal or other
decision-making body subject to its review will occupy a place on a potentially wide
spectrum, and that the location of the case on that spectrum will be fixed on a multi-factorial
basis which at a high level will inter alia take into account the nature of the decision
complained of, its effect on those complaining about it, and the specific grounds of
complaint, and at a lower level is capable of being informed by all sorts of particular features
of the individual case apt to pull it one way or the other along the spectrum, either in
general or in relation to individual aspects of the review.
[17]
In the present case, the decision complained of being one which affects the liberty of
an individual who has served 16 years in detention beyond his punishment part, a relatively
intense degree of scrutiny of the Tribunal's decision must be the starting point. The fact that
the petitioner has previously been freed on three occasions and is thus now deprived of the
(conditional) freedom previously afforded to him adds somewhat to the intensity of scrutiny
10
required. On the other hand, the Tribunal's decision followed the expert evidence led before
it from the Community Based Social Worker. It did not decline to follow any clear expert
evidence in front of it. The circumstances of the petitioner's application for release in 2022
were sufficiently dissimilar, for the reasons set out above, from those which pertained in
2019 as not to require any particular explanation for the different result. Those features of
the case accordingly neither add nor subtract anything to or from the degree of scrutiny
required. The expert nature of the Tribunal detracts to some degree from the intensity of
scrutiny applicable to areas where that expertise has or may have been applied. In
summary, the case requires a degree of scrutiny much more towards the intense than the
relaxed end of the spectrum, with due deference being given to the apparent exercise of any
specialist expertise of the Tribunal. I stress that I do not conceive myself to be applying any
different approach to the Court's function than that often referred to as "anxious scrutiny",
but merely to be expressing the matter in a more straightforward and comprehensible way.
The present case
[18]
The salient part of the Tribunal's determination in the present case is contained in
paragraphs 111 and 114, which are in the following terms:
"
111. Ms O'Hara, CBSW provided clear evidence at the Tribunal in which she
explained the extent of the difficulties encountered within Mr D's last period of
supervision in the community. He quickly relapsed into substance misuse,
presenting as heavily under the influence at supervision appointments and refusing
some supports offered to him to assist with his complex risks and needs. The
Tribunal accepted Ms O'Hara's evidence that Mr D's lack of proper engagement with
the supervision process increased his risk of reoffending. The Tribunal also accepted
Ms O'Hara's assessment that Mr D's risk of using violence could not be discounted
given the circumstances of the index offence and previous violent offence involving a
weapon. The Tribunal's concerns about Mr D's ability to engage with supports were
exacerbated by his decision not to meet with his CBSW in December 2021 and April
2022.
11
...
114. Although Mr D clearly has remorse for the index offence, he still cannot explain
why he committed it. He appears to lack internal risk management strategies and it
is clear from his last three failed attempts in the community that despite the high
level of external controls and supports put in place he was unable to engage in
supervision at a level which would allow his risks to be assessed and monitored.
Although there is no evidence of violent conduct in custody, Mr D has only been in
the community for 6 months in 26 years so there is little evidence that he can avoid
resorting to violence in the community. Although the Tribunal accepts that a return
to substance misuse is not necessarily indicative of a risk of violence in this case, it
noted that the degree to which Mr D was misusing substances in the community
made it impossible for him to engage with supervision to allow his risks to be
monitored and assessed."
In other words, the Tribunal proceeded on the basis that the petitioner's inability to engage
with supervision in the community on account of his drug misuse increased his risk of
reoffending. It noted that those circumstances did not necessarily indicate a risk of violence
on his part, but accepted the view of the community based social worker, Ms O'Hara, that
given his past history the risk of his using violence could not be discounted.
[19]
It might well be possible, given the degree of scrutiny appropriate to this case, to
query whether the Tribunal actually did reach the view that the petitioner's release would
pose any material risk of violence directed at the public. The evidence in support of any
such view was exiguous. Although Ms O'Hara certainly gave evidence of a somewhat
conjectural nature as to the existence of an increased risk of violence should the petitioner be
released and relapse into drug misuse, she did not commit herself to any definite
proposition about the risk of violence beyond stating that she could not say that there was
no risk of harm. The LS/CMI assessment carried out on the petitioner, although assessing
his level of risk and needs as high in general terms, was clear that while in custody the risk
he posed of causing serious harm was low, and it appears from the dossier before the
tribunal that any rise in that risk on release would pertain to self-harm rather than to harm
12
to members of the public. The indisputable fact that the petitioner had committed no act of
violence in the past 26 years, whether in custody or during his several months at liberty and
engaging in drug misuse might be thought to be a powerful indication of the absence of
material risk to the public to which the Tribunal might have been expected to accord rather
greater weight than it apparently did (cf Wells at [37]). However, having regard to the need
to accord due deference to the Tribunal's assessment of the evidence before it, I am prepared
to accept, perhaps rather benevolently, (a) that the Tribunal did consider that the petitioner's
release would pose a material risk of harm to the public and (b) that it was justified in
coming to that view in the basis of the evidence before it.
[20]
That, however, is not the end of the matter. As already stated, the Tribunal required
to address itself to, and answer, the question of whether whatever potential risk might be
posed by the release of the petitioner was proportionate with his continued detention. In
order to carry out such an assessment, it necessarily required to form a view on what the
nature of any such risk was, and at least in general terms on the likelihood of its
eventuation. The Tribunal's determination appears to proceed, rather, on the incorrect
assumption that any material risk of violence, of whatever kind, ipso facto justified the
continued detention of the petitioner. At the very least, the determination fails to disclose
any appreciation of the correct test which fell to be applied in law, any consideration of the
matters which thereby required to be assessed, and any relative conclusion reached by the
Tribunal. In these circumstances the determination proceeds upon an error of law or in any
event fails to express the nature of the Tribunal's reasoning at a standard acceptable in
public law and falls accordingly to be reduced.
[21]
I observe finally that I have a good deal of sympathy with what appears to have been
the underlying concern of the Tribunal, namely that the petitioner's current state of mind
13
and propensity to abuse drugs would, to put it mildly, not lead him to prosper in the
community. One would have to be optimistic indeed to think that a release of the petitioner
in his current circumstances would be likely to lead to any different outcome than that
which transpired in respect of his last three releases, namely the rapid emergence of a
situation in which the Scottish Ministers or the Board might rightly consider it "
expedient in
the public interest" (2003 Act, section 17) to revoke his licence and recall him to prison. In
these circumstances it would appear that the role of the Tribunal in cases like that of the
petitioner is not dissimilar to that of a commissionaire supervising a slowly revolving door
into and out of prison, a position which one cannot suppose truly represents the legislative
intention. Nevertheless, standing the joint position of the parties on the import of
section 2(5) of the 1993 Act narrated above,
it is difficult to see how that situation can be
avoided.
Conclusion
[22]
For the reasons stated, I shall sustain the petitioner's first and second pleas in law,
repel the respondent's pleas, reduce the Tribunal's determination dated 6 September 2022,
and direct that a differently-constituted Tribunal of the Board reconsider the petitioner's
application for release on licence within a reasonable time.
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