MICHAEL GLANCY FOR JUDICIAL REVIEW

Factual and Procedural Background

The Plaintiff, a convicted prisoner, initiated judicial review proceedings against the Defendant Scottish Ministers, alleging failure to provide rehabilitative work or information about such rehabilitation. The Plaintiff sought declarators that this failure breached his rights under Article 5 of the European Convention on Human Rights and domestic law obligations, as well as damages for just satisfaction.

The Scottish Prison Service ("SPS") offers various rehabilitative programmes, including the Self-Change Programme ("SCP"), a high intensity cognitive-behavioural course aimed at reducing violence in high-risk adult male offenders. The SCP is divided into three strands tailored to different prisoner categories: offence protection prisoners, other protection prisoners, and general prisoners. The Plaintiff was categorized as a non-offence protection prisoner.

The Plaintiff was convicted of multiple violent offences and sentenced to imprisonment with an extension period. His case management history revealed reluctance to engage in offence-focused programmes until after a Parole Board hearing in February 2018. The process for admission to SCP involves a Generic Programme Assessment, a Programme Case Management Board ("PCMB"), and the SCP Selection Board, with prioritisation based on a policy considering prisoners' critical dates.

Due to the Plaintiff's initial refusal to engage and the timing of his assessments and referrals, he missed the opportunity to be admitted to the April 2018 SCP course. Subsequently, he was placed on a waiting list but was unlikely to complete the programme before his release date in November 2020. The Plaintiff lodged a complaint about the lack of rehabilitation offered, which was responded to by the prison authorities explaining the course scheduling and eligibility criteria.

The matter proceeded to a substantive hearing with affidavits and oral evidence, culminating in this opinion addressing the claims.

Legal Issues Presented

1. Whether the Defendant's failure to provide the Plaintiff with information about when rehabilitative work might be offered breached his rights under Article 5 of the European Convention on Human Rights.
2. Whether the Defendant's failure to provide rehabilitative work to the Plaintiff breached his Article 5 rights.
3. Whether the Defendant failed in their domestic law obligations to make provision for the rehabilitation of prisoners.
4. Whether the Defendant acted irrationally or unfairly in failing to provide the Plaintiff with sufficient information about rehabilitative coursework.
5. Whether the Plaintiff was entitled to damages by way of just satisfaction for the alleged breaches.

Arguments of the Parties

Plaintiff's Arguments

• The Defendant had clear obligations to provide rehabilitation to prisoners under domestic law and Article 5, and the complete absence of provision in this case was objectionable.
• The Defendant should have offered the Plaintiff a place on the SCP non-offence protection strand commencing April 2018 or the protection strand commencing January 2019.
• There was an obligation to provide information about when rehabilitation might be provided, supported by authorities including R v H&C, Mooren v Germany, and O'Neil, petitioner.
• If Article 5 rights were infringed, damages might be appropriate, with reference to awards in James Wells and Lee v United Kingdom.

Defendant's Arguments

• The Defendant provided adequate opportunities for rehabilitation and informed the Plaintiff that failure to engage could affect progression and parole.
• The Plaintiff's failure to participate in SCP resulted from his own decisions.
• The Defendant complied with their duty to provide a reasonable opportunity for rehabilitation, considering the Plaintiff's history, risks, competing prisoner needs, and resources, citing Haney v Secretary of State for Justice and Knights and O'Brien v Parole Board of England and Wales.
• There was no obligation to provide precise information on the timing of coursework; allocation and scheduling are matters of prison expertise.
• The petition served no practical purpose given the Plaintiff's parole prospects and behaviour, and the petition should be dismissed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reaffirming the legal duty under domestic law and Article 5 to provide reasonable rehabilitative opportunities, applying the Wednesbury standard of unreasonableness to systemic or egregious failures. It noted that Article 5 does not require maximisation of rehabilitation provision nor judicial substitution of prison management decisions.

The court found no systemic failure in the provision of the SCP by the Defendant. The Defendant offered the SCP in different strands tailored to prisoner categories, including a strand suitable for the Plaintiff's category. The court emphasized that the allocation and scheduling of rehabilitative courses is a matter of prison operational judgment and expertise, which courts should not lightly interfere with.

Regarding the Plaintiff's claim that he should have been admitted to the January 2019 protection strand, the court held this was designed for a different prisoner category, and the Defendant was entitled to restrict admission accordingly.

As to the April 2018 non-offence protection strand, the court found that the Plaintiff missed the opportunity to be admitted because he did not engage with the required assessment and referral process in time. The process is designed to match courses to prisoner needs and takes time; the Plaintiff's delay was his own choice.

The court concluded that the Defendant had provided the Plaintiff with a real and reasonable opportunity for rehabilitation over the course of his sentence and had not acted irrationally or unfairly in providing information about rehabilitation courses. The Plaintiff was kept informed through case management meetings and correspondence.

The court also noted that the petition would not be dismissed on the basis of lacking practical effect, recognizing that rehabilitative courses have intrinsic value beyond parole considerations. However, the court found the Defendant had complied with their duties and that the Plaintiff's complaint was without merit.

Holding and Implications

The court DISMISSED the petition, upholding the Defendant's pleas-in-law and repelling the Plaintiff's pleas-in-law.

The direct effect of this decision is that the Defendant is found to have met their obligations under domestic law and Article 5 to provide reasonable rehabilitative opportunities and sufficient information to the Plaintiff. No breach was found, and no damages were awarded.

No new legal precedent was established; the decision reinforces the principle of judicial deference to prison authorities' operational judgment in rehabilitation programme management, emphasizing that prisoners must engage timely with assessment and referral processes to access courses.