Introduction

The case at hand involves a judicial review petition filed by Mr. Andrew Brown against the Scottish Ministers, challenging the allocation of resources and prioritization policies related to rehabilitative coursework for prisoners serving orders for lifelong restriction (OLR). Mr. Brown, a convicted individual serving an OLR for sexual offences, contends that the Scottish Ministers have failed to provide adequate systems and resources required for his rehabilitation, thereby impeding his eligibility for parole. The key issues revolve around the sufficiency of resources allocated for the "Moving Forward: Making Changes" (MF:MC) programme and the fairness of the prioritization policy governing access to rehabilitative coursework.

Summary of the Judgment

Lady Wise, delivering the judgment of the Outer House of the Scottish Court of Session, dismissed Mr. Brown's petition. The court found that the Scottish Ministers had not breached their obligations under the Criminal Justice (Scotland) Act 2003 by failing to provide adequate resources for the MF:MC course. Additionally, the court upheld the prioritization policy, determining that it did not unlawfully discriminate against OLR prisoners in violation of Articles 5 and 14 of the European Convention on Human Rights (ECHR). The court emphasized the discretionary authority of the Scottish Ministers in resource allocation and policy formulation, especially amidst increasing demand and challenges such as the COVID-19 pandemic.

Analysis

Precedents Cited

The judgment extensively references previous cases to contextualize and support its findings:

• James v Secretary of State for Justice [2010] 1 AC 553: Highlighted systemic failures in resource allocation for indeterminate sentences in England and Wales. Mr. Brown invoked this case to argue a similar failure in Scotland.
• R (Steinfeld and another) v Secretary of State for International Development [2020] AC 1: Provided a framework for assessing breaches of Articles 5 and 14 of ECHR.
• Clift v United Kingdom [2010] ECHR 1106: Addressed differential treatment under Article 14 and its justification.
• R (Stott) v Secretary of State for Justice [2020] AC 51: Examined the comparability of different sentencing regimes under Article 14.
• Bank Mellat v HM Treasury (No 2) [2014] AC 700: Outlined the four-stage proportionality test for assessing discriminatory measures.
• R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502: Discussed the limits of judicial interference in political judgments regarding resource allocation.

These precedents were pivotal in shaping the court's approach to evaluating the appeals concerning resource allocation and policy fairness.

Legal Reasoning

Lady Wise meticulously dissected the legal arguments presented by both parties. She acknowledged Mr. Brown's assertions regarding systemic failures but distinguished the current situation from the wholesale failures evident in James. The court emphasized the discretionary nature of resource allocation, citing the complexity of balancing competing interests and the inherent challenges in adjusting resources in response to fluctuating demands.

On the prioritization policy, the court examined whether the differential treatment of OLR prisoners compared to life sentence prisoners constituted an unlawful discrimination under Articles 5 and 14 of ECHR. By referencing Clift and Stott, Lady Wise concluded that the differences in treatment were based on distinct sentencing regimes and were proportionately justified to achieve fair access to rehabilitative coursework for all prisoner categories.

The proportionality test from Bank Mellat further reinforced the court's stance that the policy was rationally connected to its objective, less intrusive measures were not evidently superior, and the overall balance between the policy's interference and its aims was acceptable.

Impact

The judgment reaffirms the deference courts must exercise regarding executive decisions on resource allocation within the public sector, especially in complex areas like prison rehabilitation. It establishes that as long as policies are grounded in rational objectives and proportionate means, they withstand judicial scrutiny even when they result in differential treatment of distinct prisoner categories.

Future cases involving similar challenges to policy fairness or resource allocation in the criminal justice system can look to this judgment for guidance on the boundaries of judicial intervention and the standards of justification required under human rights law.

Complex Concepts Simplified

Order for Lifelong Restriction (OLR)

An OLR is an indeterminate sentence imposed on individuals convicted of serious sexual offences. It comprises a punishment part (fixed period) and a restriction period that can last indefinitely, contingent upon the individual's assessed risk to the public.

Risk Management Plan (RMP)

Under the Criminal Justice (Scotland) Act 2003, an RMP is a structured plan created for OLR prisoners to assess and manage their risk levels. It outlines the necessary rehabilitation coursework and monitoring measures required for potential release.

Moving Forward: Making Changes (MF:MC) Programme

The MF:MC is a rehabilitative course designed specifically for prisoners convicted of sexual violence. Completion of this programme is typically a requirement for consideration of release by the Parole Board.

Critical Date

The critical date is a pivotal point in a prisoner's sentence that determines their priority for accessing rehabilitative programmes. It is calculated based on factors like the expiry of the punishment part of the sentence minus a set number of years, varying by sentence type.

Articles 5 and 14 of ECHR

- Article 5: Protects the right to liberty and security, outlining lawful grounds for detention and the necessity of judicial oversight for deprivation of liberty. - Article 14: Prohibits discrimination in the enjoyment of Convention rights, ensuring that any differential treatment is justified and proportionate.

Conclusion

The judgment in Andrew Brown v. The Scottish Ministers [2021] ScotCS CSOH_123 underscores the judiciary's respect for executive discretion in managing prison resources and formulating rehabilitation policies. By dismissing the petitioner's claims, the court affirmed that as long as policies are rational, proportionate, and aimed at equitable access to rehabilitation, they align with both statutory obligations and human rights standards. This decision reinforces the principle that policy-making, especially in complex public sectors like criminal justice, warrants a degree of deference, provided it meets legal and ethical benchmarks.