Introduction

The case of The Parole Board for Scotland Against David Dolan ([2023] ScotCS CSIH_26) adjudicated by the Scottish Court of Session on June 29, 2023, serves as a significant precedent in the realm of parole decisions. This case revolves around the judicial review of a decision by the Parole Board for Scotland concerning the release of David Dolan, a prisoner with a history of violent offenses and substance abuse. The key issues pertain to the appropriate legal standards and tests applied by the Tribunal in determining the necessity of continued detention for public protection versus the rehabilitation and release of the inmate.

Summary of the Judgment

David Dolan, convicted at age 16 for murder and previously for assault and robbery, has been subject to multiple parole assessments due to recurrent breaches of license conditions and substance abuse. The Parole Board's Tribunal denied his release on September 6, 2022, citing the need for further review, which was then challenged in judicial review. The Lord Ordinary found that the Tribunal had acted unlawfully by not properly applying the statutory test under section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. The case was brought before the Inner House, which ultimately allowed the Parole Board's reclaiming motion, refusing the petition and upholding the Tribunal's original decision.

Analysis

Precedents Cited

The judgment extensively references several key cases that have shaped parole law:

• Ryan v Parole Board for Scotland (2022 SLT 1319): Emphasizes the necessity of a clear statutory test application without undue influence from risk assessment alone.
• R(Pearce) v Parole Board [2023] 2 WLR 839: Highlights the importance of considering the consequences of continued detention on the prisoner.
• R v Parole Board, Ex p Watson [1996] 1 WLR 906 and R v Parole Board, Ex p Wilson [1992] QB 740: Discuss the non-negotiable nature of the risk threshold necessary for continued detention, irrespective of the duration of imprisonment.
• R(King) v Parole Board [2016] 1 WLR 1947: Clarifies that public protection does not involve balancing risks against benefits of release.
• R(Sturnham) v Parole Board [2013] UKSC 47 and Brown v Parole Board for Scotland (2021 SLT 687): Reinforce the focus on statutory language over colloquial interpretations.
• Crawford v Parole Board for Scotland 2021 SLT 822: Sets benchmarks for adequate reasoning in Tribunal decisions.

Legal Reasoning

The court scrutinized whether the Tribunal correctly applied the statutory test from the Prisoners and Criminal Proceedings (Scotland) Act 1993. The Lord Ordinary initially held that the Tribunal erred by not balancing the risk of release against the consequences of continued detention. However, upon appeal, the Inner House clarified that the Tribunal's role is not to engage in a proportionality assessment but to determine if continued detention remains necessary for public protection based on the assessed risk.

The Tribunal concluded that Dolan posed a medium risk of causing serious harm due to his substance abuse issues, which impaired his ability to engage with supervision measures in the community. This assessment was deemed appropriate as it directly relates to the statutory requirement of ensuring public safety.

Impact

This judgment reaffirms the principle that parole decisions must strictly adhere to the statutory tests without introducing external balancing factors such as the prisoner's hardship. It underscores the judiciary's role in upholding public protection as paramount in parole considerations. Future cases will likely reference this judgment to limit judicial intervention in Tribunal decisions unless there is a clear error in law or reasoning, thereby reinforcing the autonomy of the Parole Board in making informed decisions based on comprehensive risk assessments.

Complex Concepts Simplified

Statutory Test under Section 2

Section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 mandates that the Tribunal must determine whether it is no longer necessary for public protection to keep a prisoner confined. This involves assessing the risk the prisoner poses if released, without weighing it against personal hardships faced by the prisoner.

Proportionality Test vs. Statutory Test

The proportionality test involves balancing different factors, such as the risk posed to the public against the benefits of release and the prisoner's personal circumstances. In contrast, the statutory test focuses solely on whether continued detention is necessary for public protection, without considering the prisoner's hardships.

Balancing Exercise Misconception

The court clarified that the Tribunal should not engage in a balancing exercise where the risk to the public is weighed against the prisoner's hardships. The focus should remain strictly on assessing whether continued detention is necessary for public safety based on the identified risks.

Conclusion

The decision in The Parole Board for Scotland Against David Dolan reinforces the primacy of statutory requirements in parole decisions, emphasizing that public protection must remain the central consideration. By rejecting attempts to introduce a balancing act between public risk and prisoner hardship, the Inner House has strengthened the framework within which Parole Boards operate, ensuring that decisions are founded on clear legal standards. This judgment serves as a crucial reference point for both legal practitioners and parole authorities, highlighting the boundaries of judicial oversight and the necessity for rigorous adherence to statutory mandates in maintaining public safety.