Denial is Not an Automatic Bar to Rehabilitation, but Article 5 Does Not Require Denier-Specific Courses Where Unsuitability is a Professional Risk/Responsivity Judgment

1. Introduction

Case: Petition of JH against The Scottish Ministers (Outer House, Court of Session), [2026] CSOH 20, decided 6 March 2026 by Lord Harrower.

Parties: JH, a serving prisoner in HMP Barlinnie, petitioned for judicial review of decisions taken within the Scottish Prison Service (“SPS”) progression framework. The respondent was the Scottish Ministers (with SPS acting on their behalf).

Background: JH is serving an extended sentence (17 years 6 months) imposed in 2011 for serious sexual abuse and assault of his children. He was automatically released at the two‑thirds point of the custodial term in 2018, then recalled, re‑released in 2022, and recalled again after further violent offending.

Central issue: The respondent conceded in principle that, during the extension period (when detention is justified solely by public protection), Article 5 requires a “real opportunity for rehabilitation.” The dispute was whether JH had been denied that opportunity simply because he maintained innocence (“denial”)—particularly where he was assessed as needing offence‑focused work (SCP) but also assessed as unsuitable for it as a denier.

Decisions challenged: The petition targeted the Risk Management Team (“RMT”) refusal (6 June 2024) to transfer JH to the open estate, but the court necessarily examined Programme Case Management Board (“PCMB”) decisions on programme suitability, especially those in May 2023 and September 2025.

2. Summary of the Judgment

  • No systemic unlawfulness: The court rejected the claim that SPS operated an unreasonable system for “deniers as a class.” Denial is not an automatic bar in SPS policy and practice; assessment mechanisms exist to explore whether deniers can engage.
  • No individual breach (Article 5 or domestic public law): On the facts, JH had not been denied a “real opportunity for rehabilitation.” The court accepted professional judgments that he was unsuitable for SCP because he could not identify workable material beyond (or connected to) the denied sexual offending and did not show responsivity/insight into broader violence/relationship issues.
  • Deference and evidential gap: Article 5 does not require maximising coursework; the court would not second‑guess professional suitability assessments. There was no evidential basis that some other specific programme should have existed or been offered.
  • Petition refused: No declarator; no damages; expenses reserved.

Lord Harrower added a postscript noting Mackay v The Scottish Ministers [2026] CSOH 14 (Lady Hood, 3 March 2026) reached similar conclusions.

3. Analysis

A. Precedents Cited

i. Thresholds for review and restraint

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 supplied the irrationality benchmark for domestic public law claims: any failure in course provision must be sufficiently egregious to be “Wednesbury unreasonable.”

R(Kaiyam) v Secretary of State for Justice [2013] EWCA Civ 1587 and Kaiyam v Secretary of State for Justice [2015] AC 1344 reinforced two limiting ideas that became decisive here: (1) the high threshold of review; and (2) Article 5 does not oblige the state to “maximise” coursework, nor allow courts to re-run prison management decisions with hindsight.

ii. Article 5 “lawful detention” and the rehabilitation opportunity

The court grounded its Article 5 approach in James v United Kingdom (2013) 56 EHRR 12 and Kaiyam v United Kingdom (2016) 62 EHRR SE13, which explain that “lawfulness” under Article 5(1)(a) is not mere compliance with domestic law: detention must not be arbitrary, and where detention is solely for public protection the prisoner must have a real opportunity to reduce risk through rehabilitative means.

Brown v Parole Board for Scotland 2018 SC (UKSC) 49 was cited for extended sentences: the Article 5 rehabilitation duty is engaged in the extension period (public protection only), though the prisoner’s whole history must be examined to judge whether the opportunity was real.

iii. Denial of guilt and risk decision-making

The petitioner relied heavily on English authorities where denial was said not to be conclusive of risk:

  • R v The Parole Board, ex parte Oyston, [2000] 3 WLUK 35, [2000] Prison LR 45—denial cannot be treated as irrelevant, but also cannot be treated as conclusively demonstrating risk; decision-makers must engage with the prisoner’s account insofar as it relates to risk management.
  • R (Roberts) v Secretary of State for the Home Department [2004] EWHC 679 (Admin)—in categorisation, denial cannot be the sole determinant; risk assessment must be rational and evidence-based.
  • R (Gourlay) v The Secretary of State for Justice [2016] EWHC 1957—considered “denier-accessible” programmes (Horizon/Kaizen) and rejected a claim that such programmes should have been introduced earlier absent evidence that they could/should have existed sooner; also accepted a systemic duty to keep provision under review, but found no evidence of breach.
  • R (Raw) v The Parole Board for England and Wales [2021] EWHC 1934 (Admin)—recognised that denial may, in some cases, be determinative of risk where it blocks meaningful work and insight.

Lord Harrower treated these cases as persuasive but context-sensitive. He accepted the broad proposition that denial is not an automatic bar, while also stressing (drawing particularly from Raw and passages in Oyston) that denial may be decisive where it prevents addressing “problems” that drive risk.

iv. Deference to professional assessment

The court relied on Strasbourg admissibility/merits decisions emphasising restraint: Dillon v United Kingdom (32621/11) 4 November 2014 and Alexander v United Kingdom (54119/10) 30 June 2015, cited to support the proposition that courts should not second-guess qualified professional judgments about programme suitability and risk management.

v. Scottish authorities on rehabilitation provision

Glancy v The Scottish Ministers [2020] CSOH 1 was used to reject the notion that Scots law requires the provision of any particular course at any particular time; the duty is to offer rehabilitation over the sentence as a whole.

BS v The Scottish Ministers 2024 SLT 579 was distinguished: cases about delayed access often assume willingness to engage, whereas JH’s history showed repeated refusal, ambivalence, and “strategic” engagement.

AB v The Scottish Ministers [2025] CSOH 82 was cited for the relevance of a prisoner’s behaviour on licence (and recalls) when assessing arbitrariness and reasonableness: opportunities to demonstrate reduced risk in the community matter.

Finally, Mackay v The Scottish Ministers [2026] CSOH 14 was noted as a near-contemporaneous parallel reaching “similar conclusions,” signalling an emerging line of Outer House authority on deniers, programme suitability, and Article 5.

B. Legal Reasoning

i. Two distinct challenges: “system” vs “individual provision”

Lord Harrower separated the petition into: (1) an alleged systemic failure to provide reasonable rehabilitative provision for deniers as a class; and (2) an alleged individual failure to provide JH with reasonable rehabilitative access (under both domestic public law and Article 5).

ii. Systemic failure rejected: denial not a categorical exclusion, and no evidential basis for a “bespoke denier programme” duty

The court accepted SPS materials and practice (including the continuing effect of the SPS 2013 notice and alignment with the 2025 PCMB chair guidance) showing that: denial does not automatically exclude progression or programme consideration; rather, the question is whether risk can be conceptualised and addressed despite denial.

The petitioner’s “bold” systemic argument—because miscarriages of justice occur, SPS must design programmes that accommodate those who maintain innocence—was rejected for two principal reasons:

  • The conviction is the starting point: Drawing on Oyston, Roberts, Gourlay, and Raw, the court held authorities are entitled (and required) to proceed on the basis that the conviction stands, while still asking whether there are “problems” the prisoner can work on without admissions.
  • No evidence of feasible/required alternative provision: Echoing R (Gourlay), the court found a lack of evidence that some other specific programme “other than SCP” should have been devised and made available; and, following Glancy v The Scottish Ministers [2020] CSOH 1, there is no common-law obligation to provide any particular course in any particular year.

iii. Individual claim rejected: “real opportunity” is not “guaranteed access to a preferred programme”

The court’s individual analysis turned on (a) JH’s longitudinal engagement history and (b) the professional judgment that he was unsuitable for SCP due to responsivity/insight deficits rather than being barred merely for denying guilt.

Key factual strands supporting refusal:

  • Early refusals and strategic choices: JH refused sex offender work (Good Lives / MF:MC), declined denier assessment to avoid perceived parole impact, and was removed from waiting lists due to lack of motivation.
  • Recalls and community failure: Two licence periods ended in recall, the second involving new violent offending linked to alcohol and poor emotional regulation—supporting continuing public protection detention and undermining the claim that detention became arbitrary due to state inaction.
  • Provisional suitability in 2021, revised later: The court read the 2021 PCMB “suitability” as provisional and contingent on whether, when offered, he could engage meaningfully. By 2023 and 2025, PCMB concluded he could not: he could not identify workable treatment needs; his acceptance of responsibility for recent incidents was “opaque”; and his stance on relationship violence and attitudes toward women/children prevented engagement with SCP “core components.”
  • Restraint and Article 5 limits: Applying Kaiyam v Secretary of State for Justice [2015] AC 1344, the court held Article 5 does not require maximising coursework; and applying Dillon/Alexander, it would not substitute its view for specialist assessments on suitability.

A notable feature was the September 2025 PCMB minute correction from “Not Yet Ready” to “Not Suitable” by reference to the 2025 guidance. The court treated the corrected record and the affidavits as supporting a coherent professional rationale: denial of offending was not, in itself, a bar; rather, denial of problems (and lack of responsivity) meant SCP could not be delivered meaningfully to JH.

iv. The court’s synthesis: denial may be relevant, even determinative, where it blocks meaningful engagement

The decision articulates a practical, programme-facing rule: denial is not automatically disqualifying, but where a prisoner’s stance leaves no workable material to address risk, treating that as rendering him unsuitable is lawful and compatible with Article 5.

C. Impact

  • Clarifies the “denier” line in Scottish Article 5 litigation: The court confirms that Scotland will likely follow the English thread (especially Gourlay/Raw) in distinguishing denial of guilt from denial of problems, while accepting that denial can still be outcome-determinative where it blocks treatment engagement.
  • Strengthens evidential discipline in “systemic failure” claims: Petitioners alleging the state should have devised different programmes must lead evidence of feasibility, professional consensus, or identifiable omission—assertion alone will not suffice.
  • Reinforces deference to PCMB/RMT expertise: Courts will scrutinise whether a mechanism exists and is applied rationally, but will not re-evaluate clinical/programmatic judgments without compelling evidence.
  • Practical consequence for progression disputes: The case accepts that a prisoner may remain “stuck” where risk is assessed as requiring offence-focused work, but the prisoner is professionally assessed as unsuitable for available interventions; Article 5 is not automatically breached by that impasse if the system is rational and opportunities have been real over time (including chances in the community).
  • Developing consistency: The postscript reference to Mackay v The Scottish Ministers [2026] CSOH 14 suggests an emerging Outer House consensus that similar “denier rehabilitation” challenges will fail absent strong evidence of arbitrary detention or unreasonable provision.

4. Complex Concepts Simplified

Extended sentence / custodial term / extension period
An extended sentence has two parts: (1) a custodial term (punishment, deterrence, and protection), and (2) an extension period where detention (if continued) is justified only by public protection. Article 5 “rehabilitation opportunity” duties are typically most acute in the extension period.
Article 5(1)(a) “lawful detention” and “arbitrariness”
Even if detention follows domestic law, it must not be arbitrary. If a prisoner is held only because he is considered dangerous, the state must provide a real opportunity to reduce that risk (e.g., through relevant courses or interventions), though it need not provide every possible resource.
Wednesbury unreasonableness
A high threshold: the decision must be so irrational that no reasonable public authority could have made it. It is not enough that another decision might have been better.
PCMB and RMT
The PCMB identifies programme needs and decides suitability for accredited interventions (e.g., SCP). The RMT focuses on risk management and progression decisions (e.g., transfer to the open estate), informed by programme status but not limited to it.
“Denier” assessment and “responsivity”
A “denier” maintains innocence. “Responsivity” is whether the person can engage meaningfully with the programme (communication style, insight, motivation, ability to discuss relevant material). The 2025 guidance distinguishes Not Ready (steps could make the person ready soon) from Not Suitable (programme cannot accommodate the person’s needs/limitations, commonly where denial prevents identifying workable areas).
Criminogenic needs
Dynamic factors linked to offending risk (e.g., substance misuse, emotional regulation, violent attitudes). A programme aims to reduce risk by changing these factors.

5. Conclusion

Petition of JH against The Scottish Ministers [2026] CSOH 20 reaffirms that, during public-protection detention, prisoners must have a real opportunity for rehabilitation, but that duty is not transformed into an obligation to create or provide bespoke interventions for those who deny guilt. Denial is not an automatic bar; however, where professional assessment concludes that denial (and associated lack of insight into broader harmful attitudes/behaviours) prevents meaningful engagement, treating the prisoner as unsuitable for available programmes is lawful.

The case is significant for its structured rejection of “systemic failure” arguments absent evidence of feasible alternative provision, its emphasis on restraint in reviewing programme suitability judgments, and its practical message: Article 5 protects against arbitrary preventive detention, not against the consequences of a prisoner’s persistent inability (for whatever reason) to engage with risk-reducing work that professionals consider necessary.