AB against The Scottish Ministers (Court of Session)

Factual and Procedural Background

The Petitioner is a prisoner subject to an extended sentence comprising a custodial term of nine years and an extension period of three years. The sentence commenced on 14 August 2015. The custodial part expired on 13 August 2024 and the extension period will expire on 13 August 2027. The Petitioner was released on licence on 13 August 2021 and was recalled to custody on 1 September 2022 following a breach of licence conditions and a recommendation for recall by the Parole Board. The Petitioner contends that the Respondents have failed to provide him with the rehabilitative, offence-focused programme work necessary to give him a real prospect of release on licence and seeks declarator and damages for breach of Article 5(1) of the European Convention on Human Rights.

The Petitioner was convicted of sexual offences under sections 1, 2 and 3 of the Sexual Offences (Scotland) Act 2009; an extended sentence was imposed on 30 September 2015 with a commencement date of 14 August 2015. Prior to liberation in August 2021 the Petitioner spent periods in custody in England (including a short transfer in early 2016) and, from 3 April 2019, was transferred to the English prison service and detained in several prisons in the north of England. Before transfer he had been on the Respondents' waiting list for the Moving Forward, Making Changes (MFMC) programme; the transfer removed him from that waiting list.

While in custody in England some rehabilitative activity was available and the Petitioner undertook programmes described as "Building Futures", a "Managing Emotions" group and a "Recovery Pathway" intervention with a substance misuse team; the court had limited information about the nature or extent of that work. The Parole Board considered the Petitioner on 9 December 2020 and noted that no risk reduction programmes had been completed in custody and that lack of offence-focused work was a reason for not recommending release, with COVID-19 identified as impacting programme provision.

After release on licence (13 August 2021) the Petitioner participated in the Caledonian Programme (a domestic violence rehabilitative programme). In July–August 2022 he breached licence conditions by having undisclosed contact with a vulnerable young woman; the Parole Board recommended revocation of licence and he was returned to custody on 1 September 2022. On 23 June 2023 the Petitioner was recommended for the Self Change Programme ("SCP") run by the Respondents and placed on the SCP waiting list.

The Respondents filed affidavit evidence from Attorney Holmes (head of psychological services within the Prison Service) describing the discontinuation of MFMC and replacement by two programmes: Moving Forward to Change (medium intensity) and the Self Change Programme (SCP) (high intensity). The MFMC waiting list was collapsed and historical waiting list data are not available. There was a delay of almost 10 months between the Petitioner's recall and placement on the SCP waiting list; as at 20 February 2025 the Petitioner was number 105 on the SCP list and as at 23 May 2025 he was number 100. The SCP runs for about 6–9 months, with 15–20 completions annually per current capacity; the Respondents plan to expand SCP delivery capacity by the end of 2025, aiming to double capacity for offence-protection prisoners, though completion figures will not change immediately.

Legal Issues Presented

1. Whether, for the purposes of Article 5(1) ECHR, the Respondents have failed to provide the Petitioner with a real opportunity for rehabilitation during the extension period such that his continued detention is arbitrary.
2. Whether the Petitioner’s time spent in custody in England is relevant to the assessment of whether reasonable rehabilitative opportunities have been afforded.
3. Whether the Petitioner’s conduct leading to recall (the licence breach) is relevant to the assessment of arbitrariness under Article 5(1).
4. Whether, on the facts of this case, a delay of approximately nine months (measured to the hearing date) in access to an offence-focused programme (the SCP) is sufficiently long to establish a violation of Article 5(1).

Arguments of the Parties

Petitioner's Arguments

• The Article 5(1) obligation to provide rehabilitative programme work arose at the start of the extension period (14 August 2024). At the hearing date the Petitioner had been without access to appropriate offence-focused work for approximately nine months and that delay was asserted to be too long to satisfy Article 5(1).
• Counsel for the Petitioner submitted that, despite planned improvements described in Attorney Holmes' affidavit, there was no realistic chance that the Petitioner would reach the top of the SCP waiting list in time; however, he did not rely on anticipated future failure in assessing whether a breach already existed at the hearing date.
• The Petitioner relied on case authorities said to be comparable (in particular BS v Scottish Ministers and aspects of the European Court of Human Rights' consideration in James) but candidly accepted there was no authority directly establishing that the present period (nine months) is necessarily too long.
• It was submitted that the Petitioner should not be criticized for promptly seeking judicial review given the three-month time limit under section 27A of the Court of Session Act 1988.
• The time spent in England and the facts of the licence breach were, the Petitioner argued, irrelevant to the Article 5(1) obligation which arises at the start of the extension period; in any event the Petitioner had already been on a waiting list for rehabilitative work (placed on SCP list on 23 June 2023) and so had spent too long waiting by the time his extension period began.

Respondents' Arguments

• The Respondents submitted that the Petitioner's detention is not arbitrary when account is taken of rehabilitative opportunities made available (including some work in England) and the Petitioner's individual circumstances.
• The Respondents argued the court is entitled to take account of the Petitioner's conduct in assessing whether reasonable opportunities were offered. Two points were emphasised: (a) the Petitioner's decision to transfer to the English prison service affected the Respondents' ability to provide certain programmes; and (b) the Petitioner's breach of licence and recall curtailed community rehabilitative opportunities and is relevant to the assessment of risk and arbitrariness.
• The Respondents relied on Attorney Holmes' affidavit to demonstrate systemic efforts to increase SCP capacity and reduce waiting times; on that basis they submitted it was not safe to conclude that no provision would be made for the Petitioner within the relevant timescale.
• Referring to BS v Scottish Ministers, the Respondents submitted that the delay there (20 months beyond the punishment part of the sentence) was materially longer than the period in this case and that there were factual distinctions (for example, an unbroken period in custody in BS) which justified a different outcome.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
James v United Kingdom (2013) 56 EHRR 12	That, to avoid arbitrariness, detention justified solely by reference to public protection requires a real opportunity for rehabilitation (cited at paragraph 209 in the original authority).	The court invoked James as the foundational European authority establishing that a real opportunity for rehabilitation is necessary where detention is justified by public protection.
Brown v Parole Board for Scotland 2018 SC (UKSC) 49	That the James principle applies to detention during the extension period of an extended sentence; and that the threshold for establishing a breach of Article 5(1) on this basis is high.	The court relied on Brown to apply the James principle to extension-period detention, to emphasise the high threshold for finding a violation and to distinguish the present facts from Brown where the prisoner’s own misconduct prevented access to programmes.
Kaiyam v United Kingdom (2016) 62 EHRR SE 13	That assessment of whether reasonable rehabilitative opportunities have been afforded requires regard to be had to the detention as a whole (cited at paragraph 69 in the original authority).	The court used Kaiyam to justify evaluating the Petitioner's overall period of detention (custodial term, community licence period, and extension period) when assessing arbitrariness under Article 5(1).
BS v Scottish Ministers [2024] CSOH 47	Used as a comparator for delay: in BS the delay to access offence-focused work was cited as 20 months beyond the punishment part of the sentence.	Both parties referenced BS: the Petitioner relied on it as broadly comparable, while the Respondents relied on it to distinguish the present case (noting the longer delay and differing factual matrix in BS), and the court accepted the comparison as a point of contrast rather than as determinative.

Court's Reasoning and Analysis

The court stated the relevant legal principles were not substantially disputed: the Article 5(1) text, the requirement (per James) for a real opportunity for rehabilitation where detention is justified by public protection, the application of that principle to extension-period detention (per Brown) and the need to consider detention as a whole (per Kaiyam).

The court framed the factual questions it needed to address as (i) whether the Petitioner’s time in custody in England was material to the assessment of whether reasonable rehabilitative opportunities had been afforded, and (ii) whether the Petitioner's conduct leading to his recall was material to that assessment.

Relevance of custody in England

The court recorded that the Petitioner spent about three years and four months in the English prison service. While some rehabilitative activity was available in England, the transfer removed him from the Respondents' MFMC waiting list and the MFMC programme was subsequently discontinued and its waiting list collapsed; historical waiting-list records are not kept. The court found there was limited factual material about arrangements for transferred prisoners and that the evidence did not demonstrate that the time in England caused a substantial delay in access to offence-focused programmes in comparison with prisoners who had not transferred. On the evidence the effect of the transfer was neutral, insofar as it left the Petitioner in his present position on the SCP waiting list.

Relevance of conduct leading to recall

The court accepted that a prisoner's misconduct may be relevant to the arbitrariness assessment (citing Brown as an example where misconduct within custody blocked access to programmes). In the present case no custodial misconduct prevented access to programmes. However, the court treated the Petitioner's licence breach and resulting recall as a legitimate and relevant factor: release on licence had been an important rehabilitative opportunity (including the chance to undertake community-based programmes such as the Caledonian Programme) which the Petitioner had not fully utilised; the breach curtailed those opportunities and that fact properly forms part of the overall assessment of whether the detention is arbitrary. The court also noted that the Parole Board had assessed risk and determined continued detention was necessary in light of the absence of offence-focused work.

Assessment of arbitrariness (the nine-month delay)

The central question was whether the approximately nine-month delay from the start of the extension period (measured to the hearing date) in access to the SCP was, in all the circumstances, so excessive that detention had become arbitrary in breach of Article 5(1). The court emphasised the high threshold for establishing a violation and that such findings will be rare. It reiterated that the Respondents are responsible for resource allocation, waiting-list management and programme delivery, and that immediate provision cannot realistically be expected. Attorney Holmes' affidavit was accepted as a candid account of capacity constraints and of steps being taken to improve provision (including plans to expand SCP delivery by the end of 2025), but the court noted uncertainty as to the direct consequences of those plans for the Petitioner in the present.

The court observed that the Petitioner has had some rehabilitative opportunities (including non-offence-specific work in England and participation in the Caledonian Programme on licence), but that no offence-focused work has been provided to date. The Parole Board had recorded that offence-focused programme work was essential to reducing the Petitioner's risk and that there was a prospect such work might not be provided during the remainder of the sentence; the affidavit evidence, however, did not establish that the delay was attributable to the time spent in England or, on current evidence, that the Petitioner's position on the SCP list was caused by the transfer.

Balancing these considerations—the duration of the delay, the limited provision of other rehabilitative opportunities over the whole sentence, the Petitioner's conduct while on licence, and the Respondents' resource and prioritisation responsibilities—the court concluded that the high threshold required to establish arbitrariness under Article 5(1) had not been met in this case. The court noted that this was not an exceptional case of absolute inaction and that remedial measures were being taken; accordingly the point at which detention becomes arbitrary had not been reached.

Holding and Implications

Holding: The court DISMISSED the petition. In the court's terms, it upheld the Respondents' second plea-in-law, repelled the Petitioner's pleas-in-law and dismissed the petition.

Implications: The direct effect of the decision is that the Petitioner’s claim that the Respondents breached Article 5(1) by failing to provide a real opportunity for rehabilitation during the extension period was rejected; there was no declarator of breach and no award of damages as a result of this petition. The court applied existing authorities (notably James, Brown and Kaiyam) and emphasised that the high threshold for finding arbitrariness had not been met on the facts before it. The opinion does not purport to establish a new legal principle; it applies established authority to the particular facts and resources/capacity constraints presented in the evidence.

(The opinion was delivered by Judge Ross. Counsel of record in the proceeding were Attorney Leighton for the Petitioner and Attorney Blair for the Respondents; affidavit evidence was given by Attorney Holmes on behalf of the Prison Service.)