Article 5 ECHR, Extended Sentences and Rehabilitation: A Nine‑Month Post‑Custodial Delay Does Not Cross the Arbitrariness Threshold — AB v Scottish Ministers [2025] CSOH 82

Introduction

This commentary examines the decision of Lady Ross in the Outer House of the Court of Session in AB v Scottish Ministers ([2025] CSOH 82), a judicial review brought by a prisoner serving an extended sentence. The petitioner alleged that the Scottish Ministers breached his rights under Article 5(1) of the European Convention on Human Rights (ECHR) by failing to provide him, during the extension period of his sentence, with offence-focused rehabilitative opportunities necessary to secure a realistic prospect of release on licence. He sought declarator and damages.

The dispute sits at the intersection of prison law, parole, and human rights. It raises familiar but difficult questions: when does delay in providing risk-reduction programmes render continued detention arbitrary for the purposes of Article 5(1)? How should courts weigh systemic capacity constraints, a prisoner’s own conduct, time spent in custody in another jurisdiction, and previous rehabilitative opportunities? The court’s answer reaffirms the high threshold for proving arbitrariness and clarifies how the “whole sentence” must be assessed in extended sentence cases.

Summary of the Judgment

The court dismissed the petition, holding that the petitioner’s detention was not arbitrary for the purposes of Article 5(1) ECHR. Key points include:

The applicable standard is the requirement to afford a “real opportunity for rehabilitation” where detention is justified by public protection, extended to the extension period of extended sentences (James v UK; Brown v Parole Board for Scotland). The threshold for violation is high and cases will be rare ([19]–[21], [40]).
Assessment must consider the whole period of detention and opportunities across the sentence as a whole (Kaiyam v UK; [21], [40]–[45]).
A nine‑month delay from the start of the extension period without access to offence-specific programme work (here, the Self Change Programme, SCP) is “short” and insufficient to meet the high threshold for arbitrariness, especially where some rehabilitative opportunities existed across the sentence ([40]–[48]).
Time spent in custody in England, and the discontinuation of the Scottish MFMC programme, were neutral in effect on the petitioner’s present position; the court could not attribute current delay to the cross-border period ([33]–[36]).
The petitioner’s misconduct that led to recall does not dilute the State’s Article 5(1) obligation, but release on licence and community work (e.g., Caledonian Programme) are relevant context when assessing opportunities across the whole sentence ([37]–[45]).
Resource constraints, waiting list management, and systemic improvements (as explained in evidence) are recognized realities; there is no right to immediate provision of courses ([41], [48]). The court assessed breach at the date of hearing and would not speculate on future provision ([41]).
The three‑month judicial review time limit does not lower the Article 5(1) threshold ([47]).

Factual Background (Overview)

Sentence: Extended sentence imposed in 2015 — 9 years’ custody + 3 years’ extension (custodial part expired 13 August 2024; extension expires 13 August 2027) ([1]–[2]).
Cross-border custody: Transfer to England in 2019; earlier inclusion on Scottish MFMC waiting list lapsed upon transfer; MFMC later discontinued and replaced by two programmes (Moving Forward to Change and high-intensity SCP) ([3], [8]).
Release and recall: Released on licence in August 2021; undertook the Caledonian Programme in the community; recalled in September 2022 for breaching licence conditions involving undisclosed contact with a vulnerable young woman ([5]–[6]).
Programme status: Recommended for SCP on 23 June 2023; placed on waiting list; progressed from 105th to 100th place between February and May 2025; programme lasts 6–9 months with 15–20 completions per year; expansion planned late 2025/2026; prioritisation for OLR prisoners affects list; estimated up to four years to reach the top if nothing changed, which the evidence suggested would not be the case ([7], [10]–[15]).
Parole Board (March 2025) noted programme work remained essential to risk reduction and might not be provided within the remaining sentence; without such work risk would not be reduced to an acceptable level ([15]).

Issues Before the Court

Whether, at the date of hearing, the nine-month period since the custodial term expired (during which no offence-focused programme had been provided) breached Article 5(1) by rendering detention arbitrary.
What weight to give to (a) time spent in England and the discontinuation of MFMC; and (b) the petitioner’s misconduct leading to recall.

Precedents Cited and Their Influence

James v United Kingdom (2013) 56 EHRR 12

James established that, to avoid arbitrariness under Article 5, prisoners detained for public protection must be afforded a “real opportunity for rehabilitation” and risk reduction (para 209). While James concerned indeterminate sentences, the principle has been generalized to contexts where continued detention is justified by public protection rather than punishment. In AB, this principle forms the backbone of the legal test: the State must take reasonable steps to make available appropriate rehabilitative pathways; however, immediate access is not required, and resource realities matter ([19], [41]).

Brown v Parole Board for Scotland 2018 SC (UKSC) 49

Brown extends James to the extension period of extended sentences ([19]), affirming that Article 5(1) obligations apply post-punishment part. Brown also emphasized that establishing a violation is exceptional (high threshold) ([20], [40]) and that a prisoner’s own misconduct can be relevant to outcome (in Brown the appellant served the whole sentence due to his own conduct: [37]). AB relies on Brown for three main propositions: (i) the Article 5 rehabilitation duty applies to extended sentences; (ii) the threshold is high; and (iii) the prisoner’s conduct can be weighed in the holistic assessment of arbitrariness.

Kaiyam v United Kingdom (2016) 62 EHRR SE 13

Kaiyam instructs that courts must look at detention “as a whole” when assessing whether reasonable rehabilitative opportunities have been afforded ([21]). AB uses this to justify a holistic review of the petitioner’s entire sentence, including early programme waiting lists, release on licence, community interventions, periods in English custody, and recall. This approach permits the court to treat the nine‑month post-custodial delay in context rather than in isolation ([40]–[45]).

BS v Scottish Ministers [2024] CSOH 47

BS is a recent Outer House decision referenced for comparison. The court noted in BS there was a substantially longer delay—20 months beyond the punishment part—and the petitioner there was subject to an Order for Lifelong Restriction (OLR) ([31], [46]). In AB, Lady Ross distinguished BS based on the relative brevity of the nine‑month delay and the different sentence type/context. The case serves as a cautionary comparator but does not set a strict temporal threshold.

Legal Reasoning

1) The governing test and threshold

Article 5(1) permits detention after conviction but guards against arbitrariness.
Where detention is justified by public protection, the State must provide a real opportunity for rehabilitation, extended to the extension period of an extended sentence (James; Brown) ([19]).
The threshold for establishing a breach is “high”; such cases are rare (Brown at [45]; [20], [40]).
Assessment is holistic: consider the sentence as a whole (Kaiyam; [21]).

2) Application to the facts

The nine‑month delay: The core question was whether approximately nine months without access to offence-specific programme work during the extension period is, by itself, too long. The court held that, “by contrast” with the 20‑month delay encountered in BS, nine months is “short” and does not meet the high threshold ([40]–[48]). There is no right to immediate provision ([41], [48]).

Whole-sentence assessment: The court considered:

Time in England: The petitioner’s removal from the MFMC waiting list and the programme’s later discontinuation did not, on the evidence, cause his current delay. Records could not establish whether MFMC would have been delivered had he remained in Scotland. His position on the SCP waiting list reflects current needs/priorities; English custody was essentially neutral in effect ([33]–[36]).
Rehabilitative opportunities in custody and community: The petitioner undertook some interventions in England (not offence-specific) and, critically, was released on licence and participated in the Caledonian Programme. The Parole Board recognized potential benefits of future participation in that programme ([5], [44]). Although not a substitute for offence-specific work, these opportunities contribute to the whole-sentence picture and weigh to a limited extent against a finding of arbitrariness ([44]–[45]).
Misconduct and recall: Misconduct that leads to recall does not dilute the State’s Article 5 duty, but it is a relevant factual context for assessing whether detention has been arbitrary. Here, release on licence was a meaningful rehabilitative opportunity, curtailed by the petitioner’s breach. That history informs the proportionality of continued detention pending offence-specific work ([37]–[39], [44]).

Systemic constraints and policy responses: The court accepted evidence from the Scottish Prison Service (SPS) that SCP capacity is limited but expanding, that waiting lists are dynamic and prioritize certain categories (e.g., OLR), and that completion numbers cannot immediately reflect expansion due to the programme’s 6–9 month length ([11]–[13]). While these policy-level measures do not resolve the petitioner’s immediate position, they contextualize the delay and support the conclusion that current non-provision does not yet make detention arbitrary ([41]–[42], [48]).

Date-of-hearing assessment: The court assessed breach as at the date of the hearing, not on speculative future shortfalls or predictions. Even though there was a “high prospect” that programme work might not be provided during the remainder of the sentence (per the Parole Board minute), the court refused to convert forecasts into a present breach ([15], [41]).

Judicial review time limits: The petitioner argued that the three‑month limit in section 27A of the Court of Session Act 1988 pressures early litigation. The court held that procedural time limits do not lower the substantive Article 5 threshold ([47]).

Impact and Significance

1) The practical threshold for Article 5(1) rehabilitation claims

AB confirms that relatively short periods (here, nine months) of non-provision of offence-specific programmes during the extension period will ordinarily not cross the Article 5(1) arbitrariness threshold—particularly where some rehabilitative opportunities existed across the sentence and the State is taking steps to improve provision.
The decision underscores that “exceptional” delay, not just delay, is required. The court avoids setting a bright-line limit but distinguishes significantly longer delays noted in other contexts (e.g., 20 months in BS) ([46]).

2) Whole-sentence lens and the role of release on licence

The judgment reinforces that courts will examine the entire sentence—including any periods on licence and community programmes—when assessing arbitrariness (Kaiyam). Release on licence counts as a rehabilitative opportunity, even if later withdrawn due to recall ([39], [44]).
This holistic lens can, in some cases, offset shorter post-custodial delays in programme access.

3) Cross-border custody and discontinued programmes

Time served in another jurisdiction (here, England) was treated as neutral on the evidence. Petitioners who rely on cross-border transfer to explain delay will need clear evidence of causation—i.e., that the transfer materially worsened their access relative to comparators ([33]–[36]).
Historic waiting list entries for discontinued programmes (MFMC) carry little weight if there is no evidence they would have been delivered. Courts will focus on present access to the successor programme(s) (here, SCP) and current prioritisation rules.

4) Systemic capacity constraints and policy reform

AB recognizes the reality that programme capacity is finite and that SPS may prioritise groups (e.g., OLR) and manage dynamic waiting lists. Reasonable, transparent prioritisation and credible expansion plans can mitigate Article 5 risk in the short term ([11]–[13], [41]).
However, the court’s focus on the “date of hearing” leaves open the possibility of future claims if promised reforms do not translate into timely access for prisoners who would otherwise “drop off” the list because of sentence end rules ([13], [41]).

5) Litigation strategy and timing

AB cautions against bringing Article 5 rehabilitation claims too early. The existence of the three‑month judicial review time limit does not lower the substantive standard ([47]). Practitioners should assemble robust, sentence‑wide evidence of lack of meaningful rehabilitative opportunity and be prepared to demonstrate that delay is both substantial and causally linked to the authorities’ failures.

Complex Concepts Simplified

Extended sentence: A sentence consisting of a custodial term plus an extension period served in the community under licence. During the extension period, detention (if recalled) must be justified by public protection and is therefore subject to Article 5’s rehabilitation logic.
Article 5(1) arbitrariness: Even if detention is lawful “after conviction,” it must not be arbitrary. Where continued detention is for public protection, the State must offer a real opportunity for rehabilitation. Failure to do so, over time, can render detention arbitrary.
“Real opportunity for rehabilitation”: Not a right to immediate or particular courses, but a duty on the State to take reasonable steps to provide offence‑focused interventions that enable progression and potential release, having regard to resources and priorities.
Holistic assessment (“detention as a whole”): The court examines the entire sentence—including earlier opportunities, time on licence, community programmes, and any constraints—to decide whether overall the State has afforded a real rehabilitative opportunity.
Order for Lifelong Restriction (OLR): A sentence type involving stringent risk management, often prioritised for scarce programme places. Although the petitioner here was not under an OLR, the court noted OLR prioritisation impacts SCP waiting lists ([11]–[13]).
MFMC / SCP: MFMC (Moving Forward, Making Changes) was discontinued and replaced by Moving Forward to Change (medium intensity) and the Self Change Programme (SCP, high intensity). SCP is offence-focused and often essential for parole in high‑risk cases. It lasts 6–9 months and has limited annual completions ([8], [11]).
“Drop off” rule: Prisoners with less than 12 months left are not kept on the SCP waiting list; those with less than four months left cannot start the programme. This operational rule can complicate late-stage access ([13], [16]).
Date-of-hearing assessment: Courts determine breach as at the date of the hearing; projections or policy assurances may inform context but are not themselves determinative of current violation ([41]).

Detailed Analysis of Key Points in the Court’s Reasoning

A. The significance of nine months without offence-specific work

Lady Ross’s central conclusion is that nine months is “short” relative to the kind of delay that would trigger a finding of arbitrariness under Article 5(1) ([46]). Importantly, the court refuses to create a bright-line threshold. Instead, it stresses the rarity of violations, the need to consider the whole sentence, and the absence of a right to immediate programme access ([40]–[41], [48]). The judgment thereby counsels restraint in litigation where delays are still measured in months rather than years, especially when other rehabilitative touchpoints exist.

B. Weight given to release on licence and community interventions

While offence-specific work (here, SCP) was undisputedly important for parole, the court counts the petitioner’s release on licence and participation in the Caledonian Programme as parts of the holistic rehabilitative picture ([44]). These are not “offence-specific” in the same sense as SCP, so they only weigh “to a limited extent,” but their existence matters ([45]). This approach aligns with the “whole sentence” methodology in Kaiyam and reduces the risk that relatively short delays post‑custody will, in isolation, establish arbitrariness.

C. Misconduct and recall: relevant but not exculpatory for the State

Crucially, the court recognizes that misconduct leading to recall does not dilute the State’s duty under Article 5(1) ([38]). However, the prisoner’s breach contextualizes the trajectory of opportunities and setbacks; it helps explain why the petitioner is back in custody and why the authorities’ provision must be judged against a full-sentence backdrop ([39]). This balanced view avoids penalizing the prisoner twice for misconduct while still giving a realistic account of how opportunities unfolded.

D. Cross-border custody and discontinued waiting lists

The judgment is careful not to attribute current delay to the petitioner’s English custody when the evidence does not support causation. The collapse of the MFMC waiting list and lack of historical data make it impossible to say MFMC would have been delivered had he stayed in Scotland. With successor programmes now in place, the petitioner’s position depends on current waiting list dynamics and prioritisation, not on a speculative counterfactual ([33]–[36]). This has two implications: petitioners should assemble precise evidence of causation where cross-border transfer is alleged to disadvantage access; and authorities should maintain better records to avoid uncertainty.

E. Systemic constraints and credible expansion

The court acknowledges SPS’s evidence of capacity constraints, prioritisation (especially for OLR cases), and planned expansion, while emphasizing that such policy-level developments do not directly answer whether there is a breach at present ([11]–[13], [41]–[42]). Put differently, credible reform plans can inform context but cannot excuse current arbitrariness if and when that arises. Here, because the delay was short and some opportunities existed across the sentence, the reforms help justify a conclusion of no current breach.

F. Procedural time limits vs substantive standards

Finally, Lady Ross rejects the notion that the three‑month judicial review time limit (s 27A of the 1988 Act) lowers the Article 5 threshold ([47]). Petitioners must still demonstrate the high standard of arbitrariness; early recourse to court, without more, will not succeed. This clarifies litigation strategy: in the absence of exceptional facts, it may be prudent to allow a more complete evidential picture of delay and missed opportunities to emerge.

Potential Future Implications

For SPS and Ministers: AB provides breathing space for programme expansion, but it is not a shield against future claims. If prisoners approach the “drop off” point without realistic access to SCP, and if whole-sentence opportunities remain thin, a violation may arise on different facts. Transparent prioritisation criteria and documented triage decisions will be essential.
For prisoners and practitioners: Successful Article 5(1) claims will likely require (i) sustained, not short, delay; (ii) clear evidence that across the whole sentence the State failed to provide meaningful rehabilitative opportunities; (iii) proof that the prisoner’s own conduct did not block access; and (iv) where relevant, evidence that cross-border transfer tangibly worsened access.
For parole decision-making: While the Parole Board’s view that programme work is “essential” informs risk assessment, it is not determinative of Article 5’s arbitrariness test. Courts will remain slow to treat lack of immediate programme access as automatically rendering detention unlawful.

Key Takeaways

A nine‑month post‑custodial delay in accessing an offence-specific programme, in the context of some opportunities across the sentence and ongoing capacity expansion, does not cross the high Article 5(1) arbitrariness threshold.
Courts assess the entire sentence, including community-based opportunities and any periods on licence, not just the post‑custodial window.
Cross-border custody and discontinued programmes are not, without evidence, a basis to attribute current delay to past events; causation matters.
Misconduct leading to recall is relevant background but does not absolve the State of its Article 5 duty.
Resource constraints and planned reforms are legitimate considerations; there is no right to immediate provision, and violations will be “rare.”
Procedural time limits do not lower substantive human rights thresholds; premature claims face dismissal.

Conclusion

AB v Scottish Ministers consolidates the jurisprudence on Article 5(1) and rehabilitation in the context of extended sentences. It reaffirms that arbitrariness is a high bar, that courts must take a whole‑sentence view, and that shorter periods of delay—particularly where some rehabilitative opportunities have existed and systemic reforms are underway—will not ordinarily breach Article 5(1). The ruling neither excuses prolonged non‑provision nor immunizes the State against future challenge; it does, however, provide practical guidance for when Article 5 claims are likely to succeed. In that sense, AB is a calibrating decision: it clarifies expectations, underscores evidential burdens, and emphasizes that exceptional delay and a demonstrable absence of meaningful opportunities across the sentence are the hallmarks of a successful arbitrariness claim.