Introduction

Brown v. Scottish Ministers ([2022] CSIH 48) is a landmark case adjudicated by the Scottish Court of Session's Inner House. The case revolves around Andrew Brown, a 62-year-old prisoner serving an Order for Lifelong Restriction (OLR) following his 2017 conviction for multiple sexual offences, including rape. Brown challenged the Scottish Ministers' policies concerning the allocation of rehabilitative programs, specifically the Moving Forward: Making Changes (MF:MC) intervention programme. The crux of the dispute centered on alleged discriminatory practices in how prisoners serving OLRs were prioritized for rehabilitation courses compared to those serving discretionary life sentences.

Summary of the Judgment

The Lord Ordinary initially dismissed Brown's petition for judicial review, upholding the Scottish Ministers' policies as lawful and within their discretion. However, upon appeal, the Inner House scrutinized the differential treatment between OLR prisoners and discretionary life sentence prisoners concerning access to rehabilitative programs. The court determined that the policy under GMA30A/17, which introduced a two-year delay in allocating the MF:MC program to OLR prisoners, constituted unlawful discrimination under Article 14 of the European Convention on Human Rights (ECHR). The judgment emphasized that OLR prisoners were in an analogous situation to discretionary life sentence prisoners and that the differential treatment lacked objective justification, failing the four-stage Bank Mellat test. Consequently, the court allowed the reclaiming motion, mandating a reassessment of the policy to eliminate unjustified discrimination.

Analysis

Precedents Cited

The judgment extensively referenced key precedents to contextualize and support its findings:

• R (Stott) v Secretary of State for Justice [2020] AC 51: This Supreme Court case examined the analogies between different sentencing regimes, concluding that distinct statutory frameworks prevented certain prisoners from being in analogous situations for discrimination claims.
• Murray v HM Advocate 2000 JC 102: Defined discretionary life sentences and their purpose in protecting the public from high-risk offenders.
• Bank Mellat v HM Treasury (No 2) [2013] UKSC 39: Established a four-stage test for assessing objective justification in discrimination cases under Article 14 ECHR.
• R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1355: Highlighted the necessity for heightened scrutiny in assessing claims of irrational discrimination.
• Clift v UK 2010 ECtHR Application no. 720507: Provided guidance on determining analogous situations in discrimination claims.

Legal Reasoning

The court's legal reasoning was methodical and grounded in human rights law. It first acknowledged that the original decision by the Lord Ordinary correctly identified the differential treatment under Article 14 as relating to "other status." However, upon closer examination, the Inner House found that OLR prisoners and discretionary life sentence prisoners share analogous statuses due to the nature of their sentences being predicated on assessing risks to public safety.

Applying the four-stage Bank Mellat test, the court evaluated whether the differential treatment was:

• Having a RELEVANT AIM: The aim of allocating rehabilitative resources fairly among different prisoner categories.
• Necessary to Achieve the AIM: Assessing whether the two-year delay was essential or if less discriminatory measures could suffice.
• Rational Connection: Determining if the policy logically advanced the stated aim.
• Proportionate: Weighing the benefits against the infringement on prisoners' rights.

The court concluded that the policy did not meet these criteria, as the differential treatment was not objectively justified and lacked a rational connection to its intended aim. The measure was deemed disproportionate, primarily favoring determinate sentence prisoners at the expense of OLR prisoners without a compelling rationale.

Impact

This judgment has significant implications for the Scottish criminal justice system and potentially sets a broader precedent within the UK. It underscores the necessity for policies involving prisoner rehabilitation to adhere strictly to non-discriminatory principles under the ECHR. Future policies must ensure that similar prisoner groups are treated equitably, particularly when allocation of resources like rehabilitative programs is concerned. Additionally, it reinforces the judiciary's role in scrutinizing governmental policies to safeguard individual rights against unlawful discrimination.

Complex Concepts Simplified

Conclusion

The Brown v. Scottish Ministers case serves as a pivotal moment in reinforcing the principles of non-discrimination within the criminal justice system, particularly concerning the allocation of rehabilitative resources. By recognizing the analogous status of OLR prisoners and discretionary life sentence prisoners, the Inner House emphasized that discriminatory policies lacking objective justification are untenable under Article 14 ECHR. This judgment not only mandates a reevaluation of existing policies to ensure fairness and equality but also sets a precedent that will guide future legislative and judicial actions to uphold human rights standards in Scotland and beyond.