Factual and Procedural Background
The Plaintiff was convicted of murder in 2005 and sentenced to life imprisonment with a punishment part fixed at 20 years, backdated to 2004, making him eligible for release consideration in April 2024. The Defendant is the Parole Board for Scotland, a statutory judicial body responsible for directing the release on licence of prisoners serving life sentences. On 15 April 2024, a panel of the Defendant considered the Plaintiff's application for release on licence. The Plaintiff was provided with a dossier of information, including redacted copies of two Serious Offender Liaison reports ("SOLS reports"), while the panel had access to un-redacted versions. The Plaintiff's solicitor raised a preliminary issue regarding the fairness of the hearing proceeding without the Plaintiff having access to the un-redacted SOLS reports or the appointment of a special advocate to review the material. The panel, by majority, rejected the motion to adjourn and appoint a special advocate, deciding the hearing could proceed fairly without considering the SOLS reports. The Plaintiff challenges the decision not to release him on licence, contending that excluding the SOLS reports was unfair and breached his rights. The Defendant denies unfairness and submits that the challenge is misconceived and late if it relates to the refusal to adjourn and appoint a special advocate.
Legal Issues Presented
- Whether the Defendant acted unfairly by excluding the un-redacted SOLS reports from consideration in the Plaintiff's release hearing.
- Whether the refusal to adjourn the hearing and appoint a special advocate constituted procedural unfairness.
- Whether the Defendant failed to have regard to relevant factors, specifically the SOLS reports, in assessing the risk posed by the Plaintiff.
- Whether the procedure adopted breached the Plaintiff's rights under Article 5 of the European Convention on Human Rights (ECHR).
Arguments of the Parties
Plaintiff's Arguments
- The Defendant acted unlawfully and procedurally unfairly by failing to consider the SOLS reports and by excluding them from the hearing.
- The Defendant failed to have regard to relevant factors, as the SOLS reports were material to the risk assessment and may have influenced other reports.
- The hearing was unfair because the Plaintiff received only short notice of the intention to withhold the un-redacted reports, preventing informed legal advice.
- The Plaintiff's Article 5 rights to liberty and security were breached due to the unfair procedure.
- There was uncertainty whether the social workers’ report (TARL) considered undisclosed SOLS report content, raising further procedural fairness concerns.
Defendant's Arguments
- The challenge is misconceived as it only properly relates to the substantive refusal of release, not the procedural decision to refuse adjournment and appointment of a special advocate, which was not challenged.
- It would have been unfair to consider un-redacted SOLS reports without appointing a special advocate, so excluding them was lawful and fair.
- The Plaintiff’s criticisms of the SOLS reports undermine any claim that the Defendant should have relied on them.
- The TARL report did not explicitly rely on the SOLS reports, and if there were concerns about influence, the Plaintiff could have called social workers to give evidence but did not.
- The Defendant correctly applied Rule 9 of the Parole Board (Scotland) Rules 2022 and relevant guidance; the approach was neither irrational nor perverse.
- There will be a further review within a year, providing another opportunity for the Plaintiff to seek release.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Regina v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 |
Requirement that procedural fairness demands actual fairness, not just a preferable procedure. |
The court emphasized that fairness must be assessed on what is required, not what is merely desirable, applying this to the procedural fairness question in the case. |
| Smith v Parole Board [2021] CSOH 83 |
Clarification that the petitioner must show actual unfairness in the procedure adopted. |
The court referred to this case to support the principle that procedural fairness is context-specific and must be concretely demonstrated. |
| Osborn v Parole Board [2014] AC 1115 |
General principles on procedural fairness, importance of fair process in decisions affecting liberty. |
The court relied on Osborn to explain the values underpinning procedural fairness and to frame the analysis of the fairness of the parole hearing process. |
| O'Leary v Parole Board for Scotland 2022 SLT 623 |
Fairness depends on the circumstances of each case. |
Referenced to acknowledge that the requirements of fairness vary depending on context and specific facts. |
| Ryan v Parole Board for Scotland 2022 SLT 1319 |
Requirement to take a comprehensive ("360") view of all relevant factors in parole decisions. |
Used to support the argument that the SOLS reports were relevant and should have been considered. |
| R(D) v Parole Board for England and Wales [2019] QB 285 |
Parole Board’s proactive role in assessing risk and questioning evidence. |
Applied to emphasize the panel’s duty to actively engage with all evidence and assess risk thoroughly. |
Court's Reasoning and Analysis
The court acknowledged the uncontroversial requirement of procedural fairness, especially in decisions affecting liberty, as elaborated in Osborn. It distinguished between two decisions made by the Defendant’s panel on 15 April 2024: a procedural decision refusing adjournment and appointment of a special advocate, and a substantive decision refusing release on licence. The procedural decision was not challenged and must be presumed lawful.
The court focused on whether excluding the SOLS reports from consideration was unfair. It accepted that the SOLS reports were relevant but found that the panel acted in accordance with Rule 9 of the Parole Board (Scotland) Rules 2022, which permits withholding damaging information if it is not material or if procedural safeguards are met.
The panel applied a staged approach: initially disregarding the SOLS reports to see if a decision could be made on other evidence, with a commitment to revisit the SOLS reports if needed. This approach was consistent with the rules and guidance.
The Plaintiff was provided with all other material, including the un-redacted TARL report. The court found no objective evidence that the TARL report was influenced by the SOLS reports, and the Plaintiff’s concerns were speculative. The opportunity to call social workers for evidence was offered but not taken.
The panel, composed of skilled and experienced members, concluded that the other evidence sufficed to assess risk and deny release. The dissenting member on the procedural issue did not dispute the substantive risk assessment outcome.
The court held that the process was fair, the panel acted lawfully and rationally, and the Plaintiff’s Article 5 rights were not breached. While the Plaintiff may feel aggrieved by the outcome, resentment does not equate to procedural unfairness. The upcoming review within a year further mitigated concerns.
Holding and Implications
The court's final decision was to REFUSE THE PETITION.
This decision means that the refusal to release the Plaintiff on licence stands, and the procedural approach taken by the Defendant’s panel is upheld as fair and lawful. No new precedent was established, and the Plaintiff retains the opportunity to apply for release again at the next scheduled review. Questions of expenses were reserved.