Article 5 ECHR and OLR Prisoners: Assessment Alone Is Not a “Real Opportunity” for Rehabilitation

Court: Scottish Court of Session (Outer House), Lord Colbeck
Citation: [2026] CSOH 21
Date: 6 March 2026

1. Introduction

This judicial review concerns Craig McInally, an Order for Lifelong Restriction (OLR) prisoner whose punishment part (“tariff”) had already expired by the time the OLR was imposed (because of time spent on remand). Although he is eligible to seek release, he remains detained because the Parole Board is not satisfied that confinement is no longer necessary for public protection.

The petition challenged the Scottish Ministers’ (via the Scottish Prison Service, “SPS”) failure to provide meaningful rehabilitative opportunities post-tariff. The immediate decision attacked was the Programmes Case Management Board (PCMB) decision of 28 January 2025 removing him from the waiting list for the Self Change Programme (SCP) and recommending a bespoke individual intervention.

The key legal issues were: (i) whether the failure to provide reasonable rehabilitative opportunities post-tariff breached Article 5 ECHR (unlawful/arbitrary detention); (ii) whether damages were required for “just satisfaction”; and (iii) the appropriate remedy.

2. Summary of the Judgment

• The court held that the petitioner’s detention had become arbitrary in terms of Article 5(1) because, after the OLR was imposed, he was provided with no rehabilitative opportunities whatsoever for a prolonged period, and SPS took inexcusable time to begin the process of identifying a suitable bespoke intervention. (paras [52]–[59])
• The court rejected the respondent’s contention that assessment constituted a rehabilitative opportunity; assessment may identify opportunities, but it is not the provision of them. (para [52])
• A declarator was granted that the respondent acted unlawfully under Article 5 by failing properly to plan the sentence and afford reasonable access to rehabilitation. (para [59])
• Damages under section 8 of the Human Rights Act 1998 were awarded at £1,000, reflecting delay but also the practical complexity of devising bespoke treatment in this exceptional case. (para [61])

3. Analysis

3.1 Precedents Cited

James v United Kingdom (2013) 56 EHRR 12

• Core principle applied: where detention post-tariff is justified solely by public protection, the State must provide a real opportunity for rehabilitation. (judgment paras [28], [40]–[41], [50])
• Operational test used:(judgment para [40])
• Influence here:James, making the “real opportunity” requirement directly applicable to the petitioner’s post-tariff detention. (paras [50]–[52])

Kaiyam v United Kingdom (2016) 62 EHRR SE13

• High threshold / rarity:(judgment paras [28]–[29], [58])
• Temporal focus adjusted:upon imposition of the OLR. (para [53])
• Influence here:Kaiyam to frame the “rare case” threshold, but holds that the extreme absence of any rehabilitation over years post-OLR meets it. (para [58])

BS v Scottish Ministers 2024 SLT 579

• Domestic benchmark:BS found an Article 5 breach where access to SCP was delayed (cited by both parties as illustrating factors and remedial approach). (judgment paras [29], [42]–[43], [61])
• Influence here:BS as confirming (i) the high threshold, (ii) that remedies may be declarator alone, and (iii) damages (if any) usually compensate frustration/anxiety rather than liberty loss. But he distinguishes BS on facts: bespoke provision for unique offending will take longer than “in-house” programme provision. (para [61])

Glancy v Scottish Ministers [2020] CSOH 1 and Haney v Secretary of State for Justice [2015] AC 1344

• Resource realism:(judgment para [42])
• Influence here:(para [57])

Dillon v United Kingdom and Alexander v United Kingdom

• Clinical deference:(judgment paras [44], [54])
• Influence here:(paras [54]–[56])

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

• Threshold emphasised:(judgment para [58])
• Influence here:

McInally v The Scottish Ministers [2026] CSIH 2

• Procedural context:(judgment para [19])
• Influence here:

3.2 Legal Reasoning

• When the duty arose:after the OLR was imposed (22 December 2022), because the tariff had expired earlier and SPS could not be responsible for that earlier period. (para [53])
• Assessment is not rehabilitation:(para [52])
• Mis-planning and the “cul-de-sac”:(paras [55]–[56], [58])
• Resource/expertise constraints not a complete answer:(para [57])
• Why this meets the high threshold:no rehabilitative opportunities at all and only very recent steps to identify treatment, the court holds this is one of the rare cases where Article 5 arbitrariness is established. (para [58])

3.3 Impact

• Operational impact on SPS sentence management:
• “Assessment-as-rehabilitation” argument constrained:
• Damages calibration in bespoke-treatment cases:
• Remedial emphasis on declarator:

4. Complex Concepts Simplified

• Order for Lifelong Restriction (OLR):
• Tariff / punishment part:
• Article 5 ECHR (arbitrary detention):
• “Real opportunity for rehabilitation”:
• Declarator:
• Section 8 Human Rights Act 1998 damages:

5. Conclusion

[2026] CSOH 21 confirms, in the OLR context, that prolonged post-OLR detention for public protection becomes arbitrary under Article 5 where the State provides no real rehabilitative opportunity, and that assessment alone is not enough. The judgment is particularly notable for treating SPS’s misstep in placing the prisoner on an unsuitable programme pathway as a significant contributor to unlawfulness, and for emphasising that “bespoke complexity” explains some delay but does not excuse inaction or late commencement of an appropriate treatment pathway.