Procedural Fairness in Prisoner Progression: The George Smith v Scottish Ministers Judgment

Introduction

The case of George Smith versus Scottish Ministers ([2021] ScotCS CSOH_83) adjudicated by the Scottish Court of Session on August 13, 2021, addresses critical issues surrounding procedural fairness in the context of prisoner progression within the Scottish Prison Service (SPS). Smith, serving a life sentence, sought transfer to less secure conditions to enhance his prospects for release on licence. The central contention was whether the decision by the Respondents' Risk Management Team (RMT) was procedurally unfair due to Smith not being invited to the meeting where his progression was deliberated.

Summary of the Judgment

The Court concluded that the RMT's decision-making process was indeed procedurally unfair. The primary reason was the failure to invite Smith to the RMT meeting, despite assurances and expectations that he would have the opportunity to attend. The Court emphasized that procedural fairness mandates the affected party's opportunity to present their case, especially when the decision significantly impacts their liberty. Consequently, the Court granted Smith's petitions for declaratory relief and reduction of the decision.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that shape the understanding of procedural fairness:

Regina v Secretary of State for the Home Department ex parte Doody [1994]: Established that fairness often requires individuals affected by decisions to have the opportunity to present their case.
Osborn v Parole Board [2014]: Clarified procedural fairness components, emphasizing better decision-making, avoidance of injustice, and adherence to the rule of law.
Brown v Scottish Ministers [2020]: Addressed procedural fairness in the context of RMT meetings, highlighting the significance of the decision's nature over the decision-maker's identity.

These precedents collectively informed the Court's approach in evaluating whether the RMT's procedures adhered to the standards of procedural fairness.

Legal Reasoning

Lord Braid, delivering the opinion, delved into the principles of procedural fairness, underscoring that fairness is not static but adapts to contextual factors. The Court assessed whether Smith was afforded a fair opportunity to represent himself, especially given the decision's potential to delay his release. Key aspects of the legal reasoning included:

Nature of the Decision: The decision impacted Smith's potential release date, which falls under significant liberty interests, thereby heightening the requirement for procedural fairness.
Expectation of Participation: Smith had been assured of his invitation to the RMT meeting, establishing a reasonable expectation to be heard.
Covid-19 Considerations: While the pandemic influenced procedural adaptations, it did not override the necessity to maintain fairness, suggesting alternatives like remote participation could have been considered.
Relevance of Application: Smith's application demonstrated eligibility and his submissions, though brief, indicated a desire for open conditions, which warrants personal representation.

The Court concluded that the procedural missteps in not inviting Smith, despite his expectations and the decision's gravity, amounted to unfairness.

Impact

This judgment reinforces the imperative of procedural fairness in administrative decisions affecting individual liberties. Specifically:

Prison Administration: SPS must ensure that policies allow prisoners to be heard in progression decisions, potentially adopting remote hearings where in-person attendance is impractical.
Legal Precedent: Establishes that assurances of participation, even if procedural adaptations like Covid-19 restrictions are in place, necessitate maintaining procedural rights.
Future Cases: Provides a framework for evaluating procedural fairness, emphasizing the decision's nature and affected rights over the identity of the decision-making body.

The judgment thus serves as a critical reference point for ensuring fairness in similar administrative processes within the criminal justice system.

Complex Concepts Simplified

Procedural Fairness

Procedural fairness refers to the principle that decision-making processes should be fair and transparent, allowing individuals affected by decisions to present their case and respond to evidence against them.

Risk Management Team (RMT)

The RMT is a multidisciplinary body within the SPS responsible for assessing prisoners' suitability for progression to less secure conditions based on risk assessments and other relevant factors.

Progression Pathway

In the context of prison administration, the progression pathway outlines the stages a prisoner must go through to move from more secure to less secure conditions, ultimately aiming for release on licence. This involves transfers between different estates, such as from closed conditions to National Top End (NTE) and then to the Open Estate (OE).

Conclusion

The George Smith v Scottish Ministers judgment underscores the paramount importance of procedural fairness in decisions that significantly impact an individual's liberty. By ruling the RMT process as unfair due to the omission of inviting the petitioner, the Court reinforces the necessity for administrative bodies to uphold fair procedures, even amidst external challenges like a pandemic. This decision not only affects the immediate parties but also sets a precedent ensuring that similar future proceedings within the SPS and other administrative contexts adhere to principles that respect and uphold individual rights.