Introduction

The case of AB v Scottish Ministers ([2024] ScotCS CSOH_30) before the Scottish Court of Session presents a significant judicial review concerning the imposition of specific conditions upon AB's release from prison. AB, a former inmate of HMP Edinburgh, was convicted of heinous crimes, including rape and lewd conduct towards minors. Upon his release on license after serving a reduced sentence of 12 years, the Scottish Ministers, guided by the Parole Board for Scotland, imposed several conditions aimed at mitigating the risk of reoffending. AB challenged five of these conditions on various legal grounds, including domestic law inconsistencies and potential violations of the European Convention on Human Rights (ECHR).

Summary of the Judgment

The Court thoroughly examined AB's challenges against the imposed license conditions. It upheld the imposition of Condition 12, which mandates mental health assessments and cooperation with community mental health services, by establishing a rational basis rooted in risk mitigation. The challenges regarding Conditions 14 and 18, which pertain to alcohol misuse counseling and information technology restrictions respectively, were dismissed based on procedural fairness and their standard application to similar offenders. Furthermore, objections to Conditions 17 and 20a, concerning restrictions on entering certain public places and reporting personal relationships, were rejected as the court found them sufficiently clear and proportionate.

AB's arguments invoking the ECHR, particularly Articles 5, 8, and 14, were evaluated with the court determining that the imposed conditions did not amount to a deprivation of liberty under Article 5 and that the interference with family life under Article 8 was justified and proportionate. The claim under Article 14 regarding discrimination was also dismissed, as the court found no analogous comparator group and justified differential treatment based on public safety concerns.

Analysis

Precedents Cited

The Judgment extensively references seminal cases and legal principles that underpin its reasoning:

• R (Keyu) v Secretary of State ([2016] AC 1335): Broadened the scope of the Wednesbury principle, emphasizing rationality in administrative decisions.
• R (Gul) v Secretary of State for Justice [2014] EWHC 373 (Admin): Clarified the requirements for procedural fairness in setting license conditions, highlighting the necessity of involving the individual in the decision-making process.
• Percy v Hall [1997] QB 924: Established that conditions should only be invalidated if they lack a sensible and practicable meaning.
• Secretary of State for the Home Department v JJ and others [2008] 1 AC 385: Provided guidance on interpreting the scope of Article 5 ECHR concerning deprivation of liberty.
• R (Latif) v Secretary of State for Justice [2021] 4 WLR 61: Determined that setting license conditions does not fall within the ambit of Article 5 ECHR.
• Khliafia v Italy [2016] ECHR 1124: Emphasized the importance of certainty in conditions that affect liberty.
• Clift v United Kingdom: Discussed the breadth of "other status" under Article 14 ECHR and its implications for discrimination claims.

Legal Reasoning

The court's decision hinged on establishing that the imposed conditions were both rational and proportional responses to the risk AB posed upon release. Specifically:

• Condition 12: Required AB to undergo mental health assessments and cooperate with mental health services. The court found a rational basis for this, given AB's history and the Parole Board's risk assessments, dismissing claims that it effectively imposed compulsory mental health care beyond statutory authority.
• Conditions 14 and 18: Focused on alcohol misuse counseling and IT restrictions. The court upheld these, noting their standard application to similar offenders and the involvement of AB in the decision-making process, thereby satisfying procedural fairness.
• Conditions 17 and 20a: Addressed AB's access to public places and requirement to report personal relationships. The court applied the Percy v Hall test, determining that these conditions were sufficiently clear and proportionate to their objectives.
• ECHR Articles 5, 8, and 14: The court concluded that license conditions did not constitute a deprivation of liberty under Article 5. For Article 8, the conditions were deemed necessary and proportionate to protect AB's family life while ensuring public safety. The Article 14 claim was dismissed due to lack of an analogous comparator group and justified differential treatment.

Impact

This Judgment sets important precedents in the realm of criminal law and human rights within Scotland:

• Clarification on License Conditions: Establishes that specific, risk-based license conditions are permissible and can withstand challenges on both domestic and ECHR grounds if they are rational and proportionate.
• Interpretation of ECHR in Licensing Context: Affirms that not all restrictions imposed on released prisoners fall within the scope of Article 5 ECHR, narrowing the circumstances under which such articles are applicable.
• Procedural Fairness: Reinforces the importance of involving individuals in the decision-making process when imposing license conditions to meet standards of procedural fairness.
• Standard for Uncertainty: Endorses the Percy v Hall test over the Kruse v Johnson test, setting a clear standard for assessing the certainty of legal conditions.

Complex Concepts Simplified

Wednesbury Principle

The Wednesbury principle relates to the standard of review courts apply to determine if a public authority's decision was so unreasonable that no reasonable authority would ever consider it. In this case, AB argued that the conditions imposed lacked a rational basis, invoking a broader interpretation of this principle.

European Convention on Human Rights (ECHR)

The ECHR is an international treaty that protects human rights and fundamental freedoms in Europe. Articles 5, 8, and 14 were central to AB's challenges:

• Article 5: Right to Liberty and Security - AB contended that the license conditions violated his liberty.
• Article 8: Respect for Private and Family Life - AB argued that conditions interfered with his family life.
• Article 14: Prohibition of Discrimination - AB claimed discrimination based on "other status."

Proportionality Test

Proportionality is a legal principle used to assess whether the actions of a public authority are appropriate and not excessively restrictive concerning the objectives they aim to achieve. It involves evaluating:

• The importance of the objective.
• The rational connection between the measure and the objective.
• The availability of less intrusive means to achieve the objective.
• The balance between the measure's impact on rights and the significance of the objective.

Conclusion

The Judgment in AB v Scottish Ministers serves as a critical affirmation of the authority and discretion granted to parole boards and government ministers in imposing license conditions tailored to individual risk profiles. By meticulously upholding the conditions on both domestic and ECHR grounds, the court underscored the balance between individual rights and public safety. This decision reinforces the legal framework supporting the supervised release of offenders, ensuring that conditions are clear, proportionate, and grounded in rational risk assessment. Moreover, it delineates the boundaries of human rights protections in the context of criminal rehabilitation and public protection, providing a robust precedent for future cases involving similar legal challenges.