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[2017] CSIH 53



Lady Clark of Calton

Lord Malcolm

Lord McGhie


delivered by LORD MALCOLM

in the Petition



Petitioner and Reclaimer




Petitioner and Reclaimer:  Leighton;  Drummond Miller LLP

Respondents:  D Ross, QC;  Scottish Government Legal Directorate

2 August 2017

[1]        Stuart Quinn (the petitioner) is serving a sentence of life imprisonment for murder.  The punishment part – or tariff – of his sentence is 18 years, running from May 2001.  He will become eligible to apply to the parole board for release on licence from May 2019.  In this petition he seeks various declarators and other orders in relation to the alleged failure of the Scottish Ministers (the respondents) to provide him with a reasonable opportunity to demonstrate in or about May 2019 that he no longer presents an unacceptable risk to the public.  The essence of his complaint is that his commencement on the necessary coursework, programmes, and preparation for release phase has been delayed to such an extent that it is clear that the state is in breach of an obligation which is implicit in article 5.1 ECHR.  The Lord Ordinary (Lord Glennie) refused the petition, and the matter comes before this court on appeal from that decision.  At the outset, counsel for the petitioner indicated that, if successful, the petitioner seeks damages in the sum of £500.


The Decision in R (Haney) v Secretary of State for Justice

[2]        In May 2014 the UK Supreme Court held that the purpose of a sentence of life imprisonment includes rehabilitation.  It ruled that it is implicit in the scheme of article 5 of ECHR:

“that the state is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public” – R (Haney) v Secretary of State for Justice [2015] AC 1344 at paragraph 36.


Breach of the duty does not render continuing detention unlawful, but sounds in modest damages in respect of any legitimate frustration and anxiety on the part of the prisoner.  Article 5 confers individual rights, which are not dependent upon proof of a systemic failure or egregious unreasonableness (paragraph 41).  Whether there has or has not been a breach of the duty will depend upon the particular facts of the case.  Perfection in the provision of rehabilitative programmes and the like is not required given the numbers involved and the limited courses, facilities and resources available for the purpose.  It may well be necessary to accept some delays, for example in respect of participation in a specialist and highly intensive course or in a transfer to open prison conditions.

[3]        In the circumstances of the present case it is helpful to have regard to how the UK Supreme Court dealt with Mr Haney’s case.  (The decision is sometimes designed under reference to the name of one of Mr Haney’s co‑appellants, Mr Kaiyam.)  Mr Haney was sentenced to life imprisonment for committing serious offences involving a grave risk to the public of death or serious injury.  His progress in prison was better than might have been expected.  He was moved to HM Prison, Blundeston, which has a therapeutic community designed to facilitate rehabilitation.  Reports on him were favourable.  In March 2010 a sentence plan foresaw the prospect of transfer to an open prison as an essential stage in assessing whether he could be released on licence.  In June 2011 the Secretary of State wrote to him approving such a transfer.  In the summer of 2011 he was accepted in principle by a suitable open establishment.  However, because of pressure on the system, the transfer did not happen until July 2012.  Thus, however well he presented, he had no prospect of making a successful parole application before the expiry of his tariff in November of that year. 

[4]        The excess of demand over supply had caused the prison service to give priority to prisoners whose tariffs had expired, and then to those nearest to tariff expiry.  (As will be seen, in Scotland a similar policy is operated.)  A common law challenge to the reasonableness and lawfulness of this policy had failed, and an article 14 claim was rejected by the Supreme Court.  However it held (paragraph 48) that there was a breach of an ancillary duty under article 5, which was  “geared towards the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period”.  A failure could occur before expiry if the prisoner was deprived of such an opportunity.  Emphasis was placed on the terms of the Secretary of State’s letter.  It set out what, as at its date, amounted to a reasonable opportunity to demonstrate Mr Haney’s fitness for release.  The uncertainty as to whether he would or would not be able to so demonstrate did not take away from the deprivation of that opportunity.  The delay in transfer was for about one year, which was sufficient to justify an award of £500. 


The Decision in James v UK
[5]        While in Haney the justices did not follow the ultimate outcome in James v UK (2013) 56 EHRR 12, that decision nonetheless provided the platform for construction of the ancillary duty.  During the progress of James and related cases through the courts, in the Court of Appeal Lord Phillips of Worth Matravers CJ noted that it had been the policy of the Secretary of State to provide the courses necessary for lifers to show that they were no longer dangerous, and that within a timescale aimed at such demonstration by the completion of the tariff period, or reasonably soon thereafter.  Laws LJ observed that there had been a settled understanding:

”shared by government, relevant agencies and professionals that… courses in prison would be available to maximise the opportunity for lifers to demonstrate that they were no longer a danger to the public by the time their tariff expired, or as soon as possible thereafter, so as to allow the prisoner’s release once that was shown.”


This understanding was “inherent” in the way the relevant legislation was intended to work in practice.  However, in all the cases before the Court of Appeal, the Convention claims were rejected.

[6]        In the House of Lords the view was taken that detention beyond tariff expiry in the cases of prisoners sentenced to indeterminate sentences for public protection (IPP) was justified on the basis of the original indeterminate sentence.  Lord Judge said that the opportunity or lack of opportunity for rehabilitation is dependent on the structures provided by the Secretary of State, as is the ultimate decision of the parole board.  Lord Hope of Craighead commented that the Secretary of State had failed “deplorably” in the public law duty which he accepted when introducing IPP sentences, in that he failed to provide the system and resources necessary for such prisoners to demonstrate by the time of the expiry of their tariff periods, or reasonably soon thereafter, that they need no longer remain in detention.  It was implicit in the state scheme that the Secretary of State “would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the parole board that they should be released” (paragraphs 104).  However their Lordships rejected the prisoners’ claims of a breach of article 5.  Lord Hope concluded that continued detention was not arbitrary, or otherwise unlawful, until the parole board determined that it was no longer necessary.  Detention would only become arbitrary if there was a complete breakdown in the system. 

[7]        The claims of Mr James and his co‑applicants came before the European Court of Human Rights.  The court reviewed the policy on treatment and management of life sentence prisoners, including Prison Service Order 4770, which stated that,  “lifers must be given every opportunity to demonstrate their safety for release at tariff expiry” (paragraph 4.13.2).  The court noted that changes were made in 2010 to give heightened priority to short tariff prisoners so that they could address their risk factors in time for their parole board review. The court made reference to international materials.  A common theme was that an objective of a life sentence is to provide an individual plan for each prisoner to progress through the prison system, participate in work, education and training, and complete programmes designed to address risks and needs, all with the view to maximising the chance of successful reformation, social rehabilitation and resettlement in society.  A UN report was quoted:

“International Instruments on imprisonment and human rights suggest that the deprivation of liberty may only be justified if accompanied by review and assessment procedures that operate within commonly accepted judicial standards.  Indeterminate life sentencing cannot be allowed to open the door for arbitrary detention.  Fair, unprejudiced assessment programmes offer possible checks against this”. 


[8]        In explaining its decision, the court began by stressing some general principles, not least “the fundamental importance of the guarantees contained in article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities”.    It accepted that, given the need for efficient management of public funds, “a reasonable balance must be struck between the competing interests involved”, but with “particular weight” given to the applicants’ right to liberty.  The court was satisfied that the applicants’ continued detention was linked to their perceived dangerousness, however that was not sufficient to resolve the issue of arbitrariness.  The purpose of detention was not limited to protection of the public, but extended to giving lifers “every opportunity to demonstrate their safety for release at tariff expiry” (paragraph 206).  The satisfactory completion of rehabilitative courses was a central element of the parole board’s assessment of risk.  There required to be reasonable provision for such courses.  The court was

“satisfied that in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation is a necessary element of any part of the detention which is to be justified solely by reference to public protection”. (paragraph 209)


The decision to bring into force the new legislation concerning IPP sentences without first ensuring that the necessary resources were in place could not be viewed as a discretionary choice about resources:

“because the direct consequence was likely to be that a proportion of IPP prisoners would be kept in prison for longer than was necessary for punishment or public protection, contrary to the intention of Parliament and the objective of article 5.”


[9]        It is clear that the key question for the court was not whether there had or had not been a systemic failure, but whether the applicant prisoner had or had not been afforded the necessary reasonable opportunity to rehabilitate himself by tariff expiry.  (Subsequently the UK Supreme Court in Haney adopted the same general approach.)

[10]      As to whether the continued detention should be declared unlawful, the European Court of Human Rights reiterated that the right to liberty is of fundamental importance.  Any restrictions or delays in the provision of the necessary courses and programmes caused by resource considerations

“must be reasonable in all the circumstances of the case, bearing in mind that whether a particular course is made available to a particular prisoner depends entirely on the actions of the authorities”.  (paragraph 218)


It was significant that substantial periods of time elapsed before any of the applicants even began to make progress towards rehabilitation.  They were given no realistic chance of reducing or eliminating the risk they posed by the time their tariffs expired.  All of this was caused by the absence of the necessary resources.  The court concluded that after the expiry of their tariffs, and until steps were taken to provide them with access to appropriate rehabilitative courses, their detention was arbitrary and therefore unlawful as being in violation of article 5(1) of the Convention. 

[11]      Subsequently in Haney the UK Supreme Court avoided the unattractive prospect of the release into society of dangerous persons by way of its identification of the ancillary  duty inherent in article 5, and in particular the decision that its breach did not render continued detention unlawful, but entitled the pursuer to modest damages for any legitimate frustration and anxiety.  Nonetheless there remains a considerable overlap in the analysis and reasoning in the two decisions.  The need to provide a reasonable opportunity for rehabilitation at a time which allows for at least the possibility of release at or about tariff expiry is a constant and common theme.  This is of particular importance when it comes to the proper resolution of the present petition.

[12]      The post-Haney Strasbourg jurisprudence confirms the relevance of the timing of the commencement of work towards the rehabilitation of a prisoner as he progresses towards his release date.  Three of Mr Haney’s co-appellants made a complaint to the European Court of Human Rights:  Kaiyam v UK, Application no 28160/15.  Two of the claims of a breach of article 5(1) were rejected because “prompt steps” were taken to begin rehabilitation opportunities well before the expiry of the tariffs (see paragraphs 77 and 80).  The violations in James and the related cases occurred in the context of “substantial periods of time” having passed before there was any progress towards rehabilitation (paragraph 70).  It is interesting to note the observation that the test applied by the Strasbourg court in determining whether detention is “unlawful” within the meaning of article 5(1)(a) because of delayed access to courses might be “more stringent” than that applied by the UK Supreme Court when it is considering whether there has been a breach of the ancillary duty (paragraph 72).


The Present Case
[13]      The petitioner contends that the Scottish Prison Service (SPS) has not provided a reasonable opportunity for rehabilitation and demonstration to the parole board, at or about May 2019 (the expiry date of his punishment part), that he no longer presents an unacceptable risk to the public.  A complaint of a systemic failure in the system was dismissed by Lord Tyre after a debate, as was a challenge to the prioritisation policy concerning rehabilitation courses (2015 CSOH 110).  A second hearing took place before Lord Glennie at which evidence was led.  The petitioner’s case and the evidence is fully recounted in his opinion (2016 CSOH 67).  It is averred by the petitioner that progress through the prison estate towards the release of a lifer follows a well establishment pattern, involving successful completion of coursework;  advance to National Top End where there is a programme of escorted leave;  and then, all going well, a period of work placement and progress to unescorted leave.  Finally the pursuer must spend a prescribed period in the open estate.  This procedure takes a number of years, and, in effect, is a prerequisite to a successful application for release.  The petitioner states that he will need to spend at least four years in the post‑coursework preparation for release phase, which means he should have been offered the necessary coursework in time for its successful completion by May 2015.  As at the date of the hearing before Lord Glennie, namely January 2016, he had merely been assessed as requiring coursework of various kinds.  The various programmes and courses required before he could be put on the waiting list for National Top End were likely to extend over at least one, and possibly more than two years.  There was no possibility of a successful application to the parole board at or about the time of the expiry of his punishment part. 

[14]      Although Lord Tyre ruled that there were no relevant averments in support of the common law challenge to the prioritisation policy applied by the SPS, it is nonetheless necessary to note the part played by the policy in the context of the alleged breach of the ancillary duty.  Lord Glennie summarised the policy (which was drafted before the decision in Haney) at paragraph 15 of his opinion:

“Once a prisoner has been deemed suitable for an offending behaviour treatment programme, and is motivated and able to participate in it, then he is placed on the waiting list.  Spaces on programmes are then allocated according to ‘critical dates’.  No prisoner type is prioritised over another.  Regardless of the sentence he is serving (short or long term, life, order for lifelong restriction or recalled) the critical date… is listed sequentially and spaces are offered as and when they become available….  The critical date for both short and long term prisoners is the halfway point of the sentence.  For life and OLR prisoners it is the date when the punishment part expires.  In the case of long term and life prisoners every effort will be made to offer programme spaces prior to ‘progression dates’ (as set out in the RMT guidelines document) so as to allow prisoners the opportunity to prepare for progression, but this cannot be guaranteed due to the length and dynamic nature of the waiting lists.”


Lord Glennie noted that Lord Tyre did not reject the possibility that this policy might deprive lifers of a reasonable opportunity to rehabilitate themselves by the time of their earliest release date. 

[15]      Having recorded the evidence led before him and summarised the submissions of the parties, Lord Glennie gave his decision in paragraphs 73-83.  He was satisfied that the petitioner would not be able to enter the preparation for release phase (the National Top End followed by Open Estate) until, at earliest, January 2017, and probably much later than that.  (As at the date of the appeal hearing the court was informed that the petitioner was still waiting to be placed on coursework.)  Lord Glennie noted that the petitioner remained on the waiting list for places on the self‑change programme.  Enrolment upon it was not imminent.  The earliest realistic date for recommendation for a move to National Top End was mid 2017, and he would then be placed on the waiting list.  On any view he would not be able to make his way through the three/four year window after acceptance for National Top End before the expiry of his punishment part in May 2019.  While theoretically possible to be released before completion of all of the above, that was not realistic.  Given his background, the petitioner would be “treated cautiously” before there was any recommendation for his release. 

[16]      Lord Glennie addressed the ancillary duty, and in particular the passage in Haney at paragraph 48 quoted earlier.  The submission was that the petitioner should have been offered the necessary coursework in sufficient time for there to be the necessary reasonable opportunity for rehabilitation at or within a reasonable time of the expiry of the punishment part of his sentence.  There was no good excuse for the failure of the SPS in this regard.  Lord Glennie considered this to be an attractive submission, but he rejected it for two reasons.  The first was that there are passages in Haney which make it clear that resources and the demands of other prisoners are a factor to be taken into account.  The second reason was that there was no live challenge based on any systemic failure, nor to the prioritisation policy as a rational response to the demands upon the system.  The Haney duty was to provide an opportunity, which was “reasonable in all the circumstances.”  Perfect standards were not required, given the demands and the limited available resources.  In Haney it was recognised that no system could avoid some periods of waiting and delay.  Each case depended upon its own facts.  His Lordship observed that, just because in the case of life prisoners the authorities had ample opportunity of working towards a prisoner’s earliest release date, it did not follow that there was a breach of the duty “whenever they missed their target or even missed it by a wide margin” (paragraph 82).  To point to a lapse of time was “simplistic”.  The evidence suggested that the prioritisation policy, by reference to which prisoners are put on the waiting list for coursework, and the pressure on places on courses (and the waiting list for National Top End) all play their part.  The petitioner was recommended as suitable for the programme in September 2014 and put on the relevant waiting list at that time.   “Had he been put on the self‑change programme immediately thereafter, and not had to take his place on the waiting list, all might have been well.  But that may be a problem of resources” (paragraph 82).  Delays had been caused by the application of the prioritisation policy, but the challenge to it and to systemic failings had been dismissed by Lord Tyre.  For these reasons Lord Glennie refused the petition. 


[17]      The Lord Ordinary correctly recognised that the question before him was whether the state had complied with its duty to provide an opportunity, reasonable in all the circumstances, for the petitioner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.  It is important to appreciate that it is the opportunity which is to be reasonable in all the circumstances.  At paragraph 48 of Haney it is explained that the aim should be to give the petitioner a “reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period” (emphasis added).  Every conceivable course, however specialised and expensive, is not required.  (Here reference can be made to the Supreme Court’s treatment of Mr Robinson’s claim.)  Plainly that would be a counsel of perfection – but no such question arises in the present case.  The nature and content of the provision will always be circumscribed by a variety of factors.  But in the present case the issue is timing – not a desire for further or better courses, etc. 

[18]      It can be recognised and accepted that every prisoner is an individual, and will respond differently to courses and programmes.  In short, no matter when the programmes begin, there can be no guarantee that a prisoner will be in a position to demonstrate the necessary rehabilitation at or about a particular time.  Similarly once a plan for rehabilitation is put into operation, there may be unforeseen or unavoidable delays which will not amount to a breach of the duty.  The present is not such a case – it involves a concern that the plan has not been put into operation.  Yes the petitioner is on the waiting list, but other prisoners are being given priority either because their “critical dates” (see paragraph 12) have come and gone, or because they are earlier than May 2019, which is the petitioner’s critical date.

[19]      All that a prisoner can expect is a reasonable opportunity.  In that context, it is obvious that the later the opportunity is offered, the later any demonstration of safety for release will occur, assuming it occurs at all.  It has been said that the duty does not involve any element of timing – see Lord Clarke’s decision in the petitions of Mackie and Fraser, 2016 CSOH 125 at paragraph 25.  His Lordship referred to an earlier decision to the effect that a prisoner cannot expect to progress through the rehabilitation process at a particular rate –that is a management issue for the prison service.  Lord Clarke interpreted the mention of “reasonable time” in Haney as the amount of time fairly necessary to do what needs “to be done as soon as circumstances permit” (emphasis added).  He said that it was a fallacy to suggest that every prisoner should be provided with courses which will be completed and sufficient to show that he is capable of being released within a short period after the expiry date.  No doubt such a guarantee would be an unattainable counsel of perfection, but it is not suggested by the present petitioner.  Relying heavily upon Lord Glennie’s decision in the present case, Lord Clarke concluded by observing that

“the allocation and timetabling of … resources is quintessentially a matter for the experience and expertise of the prison authorities and those specialists employed by them to put into effect their application.”


[20]      In the present case the critical question is whether the Lord Ordinary erred in refusing the petition and rejecting the claim that there has been a breach of the ancillary obligation identified in Haney.  In this regard, in our view, the question of timing is relevant.  Can it be said that an opportunity to begin a process which will last several years only shortly before tariff expiry is the provision of a reasonable opportunity as envisaged by the UK Supreme Court?  It is accepted that sooner or later the petitioner will be given the opportunity to progress through the various courses and programmes, etc, but meantime he is prevented from doing so because of the demands on the system.  Given those demands and the level of resources allocated to meet them, we can understand why a prioritisation policy was adopted.  And it has been held that the petitioner has not set out a relevant case for proof of a systemic failure on the part of the authorities.  However, in Haney (paragraph 41) it was made clear that systemic failings or irrational policies are not a prerequisite to a breach of the “individual right” of each prisoner to fulfilment of the ancillary obligation implicit in article 5.  A failure to provide the funding and resources necessary for compliance with that obligation cannot always be a defence.  (If a holistic approach was taken to funding and resources, that would include consideration of the substantial costs, both financial and social, of imprisonment, and of the current pressures caused by a large prison population.)  There was no evidence that the prioritisation policy has been reviewed in the light of the decision in Haney.  A review might identify a solution to the difficulties discussed in this opinion.

[21]      Given that there is no dispute in this case as to what should and will be provided to the petitioner, nor that its successful completion can properly be described as a prerequisite to release, and since once the coursework is started and completed, assuming it is completed, the next phase will take at least three/four years, it is difficult to understand how, in the context of this case, the continuing substantial delay is consistent with the spirit, and indeed the letter of the decisions in James and Haney (see the discussion above).  The petitioner was approved as ready for the first stage in September 2014 and has been on a waiting list since then.  The duty is not limited to the provision of a reasonable opportunity when the demand and the allocated resources allow.  It is of fundamental importance that a person does not remain in detention without proper justification.  If the justification is public protection, it has been authoritatively decided that that goes hand in glove with the prisoner having a reasonable opportunity to demonstrate at or about his release date that he is acceptably safe to be resettled in the community. 

[22]      To answer the question posed earlier, and having regard to the facts of the case as found by the Lord Ordinary, in our view the extent of the delay, in itself, demonstrates that the petitioner has not been given a reasonable opportunity to demonstrate his rehabilitation.  No doubt if greater resources were devoted, or the demand for courses was less, this would not have occurred, but this does not mean that the duty has been fulfilled; it is simply an explanation for non‑compliance.  For the above reasons, in our view the factors relied on by Lord Glennie do not justify refusal of the petition.  The petitioner is not asking for perfection, simply the reasonable opportunity which, as confirmed in Haney, should be aimed at a particular date.  In our view a consideration of timing, in the sense of when the coursework etc begins, is not “simplistic”, but is inherent in a proper consideration of the ancillary duty.  We reject the submission that timing is of no significance if it can be shown to be determined by the demand for the necessary coursework and other programmes.  The long delayed opportunity as found by Lord Glennie is not “reasonable in all the circumstances”, even if overall and on a national basis the demands and the allocated resources are being managed in a rational or reasonable way.  

[23]      This decision does not mean that every prisoner who has not been able to demonstrate rehabilitation by or about the time of his first possible release date has a remedy.  Each case will depend on its particular facts.  The requirement is to afford each prisoner a reasonable opportunity, not the best possible opportunity.  There will be prisoners who have had this opportunity, but who, for whatever reason, have been unable to demonstrate that they can be released at or about the time of the expiry of their punishment part.  There may be cases where particular factors have delayed or interfered with a prisoner’s progress through the coursework and release phase, but without resulting in breach of the duty.  A prisoner may be unhappy with a professional judgment made by or on behalf of the SPS but, in general, that is unlikely to provide a basis for a successful claim.  This is not such a case.  There is no controversy as to what coursework, etc should be provided to the petitioner.  The crux of our decision is the long delay in the provision of the opportunity, notwithstanding that the petitioner has been in custody since 2001, which means that there is no prospect of him establishing his rehabilitation at or about the expiry of his punishment part, nor for a lengthy period thereafter. 

[24]      The result is that the reclaiming motion is upheld.  We shall put the case out by order for a discussion as to the appropriate terms of the resultant court order.