Scottish Court of Session Establishes New Precedent on Early Release of Foreign National Prisoners

Introduction

The case of Harpreet Singh v Scottish Ministers ([2021] CSOH 57) presents a significant development in Scottish criminal law concerning the early release of foreign national prisoners (FNPs). Harpreet Singh, an Indian national, was sentenced in August 2016 for a serious sexual offense against a vulnerable young person. Serving a seven and a half-year sentence, Singh sought judicial review after his application for parole was denied by the Scottish Ministers on September 17, 2020. This commentary examines the Court of Session's decision, which upheld the rejection of Singh's early release, thereby setting a new precedent regarding the treatment of FNPs in Scotland.

Summary of the Judgment

The Court of Session, presided over by Lady Carmichael, ruled against Harpreet Singh's petition for judicial review. Singh challenged the decision of the Scottish Ministers not to release him on parole licence, arguing that the ministers failed to consider his imminent deportation and thus acted unlawfully by not exercising their discretion under section 9 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

The court meticulously analyzed the statutory framework, the discretion granted to the Scottish Ministers, and the arguments presented by both parties. Ultimately, the court found that the Scottish Ministers acted within their legal rights, considering the manageability of Singh's risk to the public within the UK, irrespective of his pending deportation. The petition was dismissed, affirming the ministers' authority to base release decisions on community safety without being compelled to align with UK-wide deportation policies.

Analysis

Precedents Cited

The judgment references several key cases and statutes that influenced the court's decision:

Re Finucane's Application for Judicial Review [2019] HRLR 7: Established the necessity for clear and unambiguous promises to give rise to legitimate expectations.
Ted Baker v AXA [2017] EWCA Civ 4097: Highlighted the duties of public bodies to not breach legitimate expectations.
R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1355: Provided the standard for assessing irrationality in administrative decisions.
Yan v Scottish Ministers [2020] CSOH 104: Addressed the treatment of foreign national prisoners and the implications for temporary release systems.
Reedlines Ltd v Dover (Mayor of the City of London): Discussed the unfettered discretion of public authorities in decision-making processes.

These precedents collectively underscored the principles of administrative law, particularly regarding the scope of discretion, the requirements for legitimate expectations, and the standards for judicial review of executive decisions.

Legal Reasoning

The court's legal reasoning centered on interpreting section 9 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, particularly in light of its repeal by the Management of Offenders (Scotland) Act 2019. The petitioner argued that the repeal undermined his chances for early release due to deportation, effectively limiting the Scottish Ministers' consideration to risks within the UK only.

However, the court determined that the discretion granted to the Scottish Ministers remained unfettered by the repeal. The Ministers were not obligated to align their risk assessments solely with within-UK considerations, nor were they required to follow a "nationalist" view as proposed by Singh's counsel. The court emphasized that the statutory language did not impose such limitations, allowing the Ministers to consider broader risk factors, including potential risks outside the UK.

The court also addressed the claim of a legitimate expectation, finding that there was no clear, unambiguous promise by the Ministers to release FNPs for deportation purposes, thereby rejecting Singh's argument. The judgment reinforced the principle that executive discretion in parole decisions must consider community safety comprehensively, without being unduly influenced by unrelated governmental policies on deportation.

Impact

This judgment has significant implications for the future handling of foreign national prisoners in Scotland:

Affirmation of Executive Discretion: Reinforces the broad discretionary powers of Scottish Ministers in parole decisions, especially concerning public safety considerations.
Limitations on Legitimate Expectations: Clarifies that legitimate expectations require explicit promises, which are not easily inferred from broader government policies.
Consistency in Risk Assessment: Ensures that risk assessments for early release are comprehensive, taking into account potential risks beyond the UK context.
Policy Alignment: While the Ministers are not required to align parole decisions with UK-wide deportation policies, the judgment recognizes the importance of intergovernmental communication and policy coherence.

Overall, the decision delineates the boundaries of ministerial discretion and emphasizes the primacy of community safety in parole considerations, setting a clear standard for similar cases in the future.

Complex Concepts Simplified

Legitimate Expectation

A legitimate expectation arises when a public authority makes a clear and unambiguous promise or sets a policy, leading individuals to expect that the authority will act accordingly. In this case, Singh argued that he had a legitimate expectation of early release based on government policies regarding deportation of FNPs. However, the court found that no such explicit promise was made by the Scottish Ministers, thus negating the claim.

Unfettered Discretion

The concept of unfettered discretion refers to the broad authority granted to public officials to make decisions based on their judgment, without being constrained by prior policies or external pressures. The court upheld that the Scottish Ministers possessed such discretion in determining parole, allowing them to prioritize community safety over other considerations like imminent deportation.

Wednesbury Unreasonableness

Originating from the case Associated Provincial Picture Houses v Wednesbury Corporation, Wednesbury unreasonableness is a legal standard used to assess whether a decision made by a public authority is so unreasonable that no reasonable authority would ever consider it. The court determined that the Scottish Ministers' decision was not Wednesbury unreasonable, as it was based on legitimate risk assessments.

Conclusion

The Court of Session's decision in Harpreet Singh v Scottish Ministers solidifies the legal framework governing the early release of foreign national prisoners in Scotland. By affirming the breadth of ministerial discretion and clarifying the stringent requirements for establishing a legitimate expectation, the judgment ensures that parole decisions remain firmly rooted in public safety considerations. This case underscores the judiciary's role in maintaining a balance between individual rights and community protection, setting a clear precedent for future cases involving the parole and deportation of foreign national offenders.

The ruling serves as a critical reference point for legal practitioners, policymakers, and scholars interested in the intersections of criminal justice, immigration law, and administrative discretion within the Scottish legal system.