About this case

Case name

Petition of Neil Robertson for Judicial review of the failure to permit him access to the community by the Scottish Ministers

Case reference number

P543/22

Date of hearing

Friday 27 October 2023

Division

Second

Judges

Agents and Counsel

For the Appellant (Neil Robertson)

• Agents: Drummond Miller LLP, (for McGreevy & Co., Solicitors)
• Counsel: David Leighton

Case description

The petitioner was convicted of a number of sexual offences in 2003. He was sentenced to a discretionary life sentence with a punishment part of 6 years and is currently a prisoner in HMP Glenochil. He has never been released. The Parole Board most recently declined to release him on licence in November 2021. The petitioner suffers from Asperger’s Syndrome. On 14 April 2022 the respondents’ Risk Management Team met to discuss whether the petitioner was in a position to progress to the “National Top End”. The petitioner stated that he was unwilling to progress to the NTE or “Open Estate”. He feared being seriously assaulted. Psychiatric investigation indicated that his fears were associated with his Asperger’s. The RMT undertook to discuss the petitioner’s willingness to participate in a progression plan to the NTE. On 7 December 2022 the RMT met again. The petitioner had applied to progress to less secure conditions; in particular, he sought access to the community by “Special Escorted Leave”. The RMT concluded that this would not provide appropriate testing commensurate with the petitioner’s level of risk. It could not recommend progression due to the petitioner’s unwillingness to participate. It undertook to reinforce the value of progression and to devise an individualised management plan, addressing his fears, with a view to facilitating progression.

In the petition the minutes of the 4 April and 7 December meetings were challenged. The petitioner argued that these decisions were unlawful and that he had been indirectly discriminated against. None of the members had specialist training on disabilities, nor was there a general guide for staff on equality issues. The failure to provide these amounted to a failure to make reasonable adjustments. The petitioner was disadvantaged. The RMT’s policy and the Supplementary Guidance did not refer to prisoners with disabilities or their potential reluctance to progress through the prison estate, thereby failing to recognise the Ministers’ obligations under the Equality Act 2010. Those deficiencies had not been addressed. The petitioner’s rights under Article 5 and 8 ECHR, each when taken with Article 14, were breached by the RMT’s failures and just satisfaction of £10,000.00 was sought.

The Lord Ordinary refused permission for the petition to proceed. He accepted the respondents’ submission that SEL would be ineffective. It would not properly test the risk posed by the petitioner, particularly in light of the complexity of his case. The Parole Board had emphasised the need for testing of the petitioner’s risk in NTE or open conditions. The Ministers had made reasonable adjustments in terms of prisoner programmes and in its proposals of overnight NTE visits.

The petitioner reclaims (appeals) the Lord Ordinary’s decision. An almost identical petition, in respect of which permission was granted and the substantive petition only dismissed on grounds of prematurity, was not taken into account (see [2022] CSOH 45). Medical evidence supports the petitioner’s case. The Lord Ordinary, in evaluating affidavit evidence at the permission stage, adopted an irregular procedure. The reasonable adjustments made in respect of prisoner programmes are irrelevant. Matters have moved on. The issue was where testing of the petitioner’s risk should take place. These factors demonstrate that there is a real prospect of success.