BS FOR JUDICIAL REVIEW

Factual and Procedural Background

The Appellant is a prisoner serving an Order for Lifelong Restriction ("OLR") sentence, which commenced on 2 September 2016. The punishment part of this sentence expired on 1 September 2022. The Appellant has not been granted access to a rehabilitative course known as the Self Change Programme ("SCP"), which he considers essential to persuade the Parole Board for Scotland to authorize his release. The Appellant initiated judicial review proceedings against the Respondent, the Scottish Ministers, alleging a violation of his rights under Article 5(1) of the European Convention on Human Rights ("ECHR"). The Respondent acknowledged delays in providing the SCP but denied any breach of the Appellant's human rights. The matter proceeded to court with pleadings, oral submissions, and supporting documents considered by Lady Poole.

Legal Issues Presented

1. Whether the Respondent has acted unlawfully by failing to provide the Appellant with timely access to the SCP, thereby breaching Article 5(1) of the ECHR, which protects against arbitrary or unjustified deprivation of liberty.
2. Whether the delay in access to rehabilitative courses post-expiry of the punishment part of the OLR amounts to a violation of the Appellant's right to liberty under Article 5(1).
3. What constitutes a "real opportunity for rehabilitation" in the context of continued detention after the punishment part has expired.
4. The appropriate remedy for any established breach of Article 5(1), including whether damages should be awarded under section 8 of the Human Rights Act 1998.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that his continued detention without access to the SCP violates his Article 5(1) rights because the delay denies him a real opportunity for rehabilitation necessary to demonstrate reduced risk to the Parole Board.
• He emphasized the critical importance of the SCP in the pathway to release and argued that no realistic chance of release exists without completion of this course.
• The Appellant highlighted the length of the delay since the punishment part expired—approximately 20 months without access to SCP—and the prospect of further delay until 2025 as unreasonable and incompatible with his rights.

Respondent's Arguments

• The Respondent acknowledged the regrettable delay in providing the SCP but maintained that no breach of Article 5(1) occurred.
• They argued that the delay should be considered in the context of other rehabilitative opportunities afforded to the Appellant, including other courses and interventions.
• The Respondent pointed to competing interests such as the prioritization of prisoners on waiting lists, resource constraints, public health considerations related to the Covid-19 pandemic, and the need to balance public protection and rehabilitation.
• They also distinguished this case from earlier cases involving different sentence types and emphasized the high threshold for finding a violation under Article 5(1).

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by establishing the governing legal framework under section 6 of the Human Rights Act 1998 and Article 5(1) of the ECHR, emphasizing protection against arbitrary detention. It accepted that the principles from James and Kaiyam cases concerning imprisonment post-expiry of tariff apply to OLR sentences.

Lady Poole noted the high threshold for finding a violation of Article 5(1) in the context of access to rehabilitative courses, requiring a realistic and flexible approach that balances the prisoner's rights with public and systemic interests.

Applying these principles, the court examined the Appellant's circumstances: the 20-month delay post-punishment part without access to the SCP, the centrality of the SCP to demonstrating risk reduction to the Parole Board, and the limited rehabilitative courses completed by the Appellant compared to other cases where delays were excused.

The court rejected the Respondent's arguments that the delay was justified by other rehabilitative opportunities or the Appellant's conduct, noting only one minor misconduct incident insufficient to explain the delay. It also acknowledged competing interests including resource constraints, public health (Covid-19), and fairness to other prisoners but found these did not justify the length of delay.

Balancing all factors, the court concluded that the Appellant had not been afforded a real opportunity for rehabilitation since the punishment part expired, rendering his continued detention arbitrary in Article 5(1) terms. The court granted a declarator of breach but declined to award damages at this stage, indicating damages might be considered if the breach continues unremedied.

Holding and Implications

The court's final decision was to GRANT A DECLARATOR THAT THE SCOTTISH MINISTERS HAVE BREACHED THE APPELLANT'S RIGHTS UNDER ARTICLE 5(1) OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS.

This declarator acknowledges that the delay in providing access to the Self Change Programme post-expiry of the punishment part of the OLR sentence constitutes arbitrary detention under Article 5(1). The effect is that the Respondent must take appropriate steps to provide real opportunities for rehabilitation to the Appellant without undue delay.

No immediate release was ordered, and no damages were awarded at this stage, reflecting the court's recognition of the high threshold for breaches and the need for balanced remedies. The decision does not establish new precedent but applies and confirms existing legal principles in the context of OLR sentences and rehabilitative course access.