Introduction

The case of DD v Parole Board for Scotland [2023] ScotCS CSOH_24 marks a significant development in Scottish parole law, particularly concerning the principles of proportionality and risk assessment in parole decisions. This judicial review case involves the petitioner, DD, a long-term prisoner seeking release on licence, challenging the Parole Board's decision to deny his release. The crux of the dispute revolves around whether the Parole Board correctly applied the legal standards governing the release of prisoners detained indefinitely.

Parties Involved:

• Petitioner: DD, represented by Drummond Miller LLP.
• Respondent: Parole Board for Scotland, represented by Lindsay KC of Anderson Strathern.

Summary of the Judgment

The Scottish Court of Session, Outer House, delivered a decision on April 21, 2023, wherein Lord Sandison reviewed the Parole Board's determination not to release DD on licence. After an extensive examination of the legal standards and the evidence presented, the Court found the Tribunal's decision to be unreasonable and unlawful. Consequently, the Court reduced the original decision and ordered a differently-constituted Tribunal to reconsider DD's application within a reasonable timeframe.

Analysis

Precedents Cited

The Judgment extensively references several key precedents that underscore the legal framework for parole decisions:

• Brown v Parole Board for Scotland [2021] CSIH 20: Established that the Tribunal must assess whether the risk of re-offending outweighs the hardship of continued detention.
• R (Brooke) v Parole Board for England and Wales [2008] EWCA Civ 29: Emphasized the necessity of proportionate assessment between potential risks and the implications of prolonged detention.
• R (on the application of Wells) v Parole Board [2019] EWHC 2710 (Admin): Highlighted the importance of scrutinizing the Tribunal's reasoning and the proportionality of its decisions.
• R (on the application of Osborn) v The Parole Board [2013] UKSC 61: Discussed the level of scrutiny courts should apply, particularly as time served beyond the sentence increases.
• Ryan, Wiseman and Meehan v Parole Board for Scotland [2022] CSIH 11: Affirmed the need for clear reasoning and appropriate consideration of all relevant factors in Tribunal decisions.
• Crawford v Parole Board for Scotland [2021] CSOH 44: Set out the standards for valid reasoning in Parole Board decisions.

These precedents collectively highlight the judiciary's commitment to ensuring that parole decisions are not only based on substantial evidence but also adhere to principles of fairness, proportionality, and transparency.

Legal Reasoning

The core of Lord Sandison's reasoning revolves around the proper application of the proportionality test in parole decisions. He emphasized that the Tribunal must evaluate whether any potential risk posed by releasing a prisoner is proportionate to the hardship and implications of continued detention. This involves a meticulous assessment of both the individual's risk to public safety and their rehabilitation progress.

Key Points in Legal Reasoning:

• Proportionality Test: The Tribunal should weigh the risk of re-offending against the consequences of prolonged detention.
• Scrutiny Level: Given the severity of depriving an individual of liberty for an extended period, especially after serving the punishment part of the sentence, an intense level of scrutiny is warranted.
• Assessment of Risk: The Judgment critiques the Tribunal for not sufficiently justifying the perceived risk to public safety, especially given the petitioner's lack of violent behavior post-conviction.
• Consideration of Evidence: The Court found that while the Tribunal considered evidence of the petitioner's drug misuse and lack of engagement with supervision, it failed to adequately balance this against his low risk of committing further violence.
• Legal Standards: The Tribunal's decision was assessed against the standards set out in existing case law, determining that it did not meet the required legal thresholds.

Ultimately, Lord Sandison concluded that the Tribunal's decision lacked the necessary legal grounding and failed to apply the proportionality test correctly. This warranted the Court's intervention to ensure that DD's application is reconsidered appropriately.

Impact

This Judgment has profound implications for future parole decisions within Scotland:

• Enhanced Scrutiny: Parole Boards must ensure that their decisions undergo a rigorous proportionality analysis, balancing risks against the detainee's rights and rehabilitation progress.
• Clearer Reasoning: Tribunals are mandated to provide transparent and thorough explanations for their decisions, particularly when denying parole, to withstand judicial review.
• Focus on Rehabilitation: The case underscores the importance of considering an individual's behavior post-conviction and their engagement with rehabilitation programs as part of the risk assessment.
• Judicial Oversight: Courts may become more involved in supervising parole decisions to ensure adherence to legal standards, potentially leading to more frequent judicial reviews.

Overall, the Judgment reinforces the necessity for balanced and legally sound parole decisions, promoting fairness and accountability within the parole system.

Complex Concepts Simplified

Proportionality Test

The proportionality test involves evaluating whether the potential risks of releasing a prisoner outweigh the benefits and consequences of keeping them detained. It ensures that decisions are balanced, fair, and justifiable.

Jurisdiction of Judicial Review

Judicial review is a process where courts examine the decisions of public bodies (like the Parole Board) to ensure they comply with the law, are rational, and follow proper procedures.

Risk Assessment

Risk assessment in parole decisions involves evaluating the likelihood that a prisoner will re-offend or pose a threat to public safety if released. This assessment considers past behavior, rehabilitation progress, and other relevant factors.

Conclusion

The DD v Parole Board for Scotland [2023] Judgment serves as a pivotal reference point in Scottish parole law, particularly in emphasizing the importance of proportionality and thorough risk assessments in parole decisions. By mandating a higher level of scrutiny and requiring clear, justified reasoning, the Court ensures that parole decisions are both fair and legally sound. This case underscores the judiciary's role in safeguarding individual rights while balancing public safety, thereby fostering a more accountable and transparent parole system.

Key takeaways include the necessity for Parole Boards to meticulously apply legal standards, provide comprehensive reasoning for their decisions, and continuously reassess the balance between risk and rehabilitation. As a result, this Judgment is poised to influence future parole hearings, promoting enhanced fairness and adherence to legal principles within the Scottish justice system.