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Petition of Craig MacKay for Judicial Review (Court of Session)
Summary of Opinion — Judge Hood (Outer House, Court of Session)
Factual and Procedural Background
The Petitioner, serving an Order for Lifelong Restriction following conviction at the High Court in 2021, is detained in The Prison. The Petition challenges the Government (acting through Agency A) alleging failure to operate a reasonable system for rehabilitation and to afford the Petitioner a real opportunity for rehabilitation while he maintains his innocence of the index offences. The substantive hearing took place on 5 December 2025. Judge Hood received affidavit evidence from Witness Knox (Head of Risk at Agency A) and Witness Holmes (Head of Psychology at Agency A), and considered risk assessment reports prepared by Witness Doig and Witness Macpherson. The Petitioner seeks declarators of unlawfulness (including under Article 5 ECHR), payment of £2,000, and expenses. The Petition was disposed of by way of judgment dated 3 March 2026.
Legal Issues Presented
- Whether the Petitioner, as a post-tariff prisoner serving an indeterminate sentence, has been denied a "real opportunity for rehabilitation" in breach of Article 5(1)(a) ECHR by reason of being unable to access suitable rehabilitative courses while maintaining his innocence.
- Whether there is a systemic failure by the Government/Agency A to operate a rehabilitation system that allows prisoners who maintain their innocence to access appropriate rehabilitative courses, such that the system is unlawful (including under Article 5 and domestic public law).
- Whether, if unlawful conduct is established, the Petitioner is entitled to a declarator and monetary relief.
Arguments of the Parties
Petitioner’s Arguments
- The Petitioner contends that because he maintains his innocence he cannot meaningfully participate in the Self Change Programme (SCP), which he asserts is necessary to demonstrate risk reduction and progress towards release.
- He argues he has not been offered suitable alternatives to the SCP and that the system operated by the Respondent therefore denies him a real opportunity for rehabilitation; this is said to be Wednesbury unreasonable and to render his detention arbitrary under Article 5.
- He seeks declarators of unlawfulness, an award of £2,000, and expenses.
Respondent’s Arguments
- The Respondent (Government) relied on the affidavit evidence of Witness Knox and Witness Holmes describing eligibility/suitability assessments, the SCP, and other methods by which a prisoner may demonstrate risk reduction.
- It was argued that maintaining innocence does not in itself prevent access to rehabilitation; suitability (readiness and willingness to engage, acceptance of responsibility or identification of risk-relevant behaviours) is distinct from eligibility.
- The Respondent submitted that the Programmes Case Management Board's decision that the Petitioner was eligible but not yet suitable for SCP was not Wednesbury unreasonable and that alternative means of demonstrating risk reduction exist.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Brown v Parole Board for Scotland [2017] UKSC 69; 2018 SC (UKSC) 49 | Interprets Article 5(1)(a) for indeterminate sentences: detention must not be arbitrary; a real opportunity for rehabilitation is required in the post-tariff period; courts should apply the principle realistically and not substitute their view of prison management. | The court summarised Brown's principles as the governing framework and applied its caution against substituting judicial judgment for prison management when assessing whether rehabilitation opportunities meet Article 5. |
| James v UK (2013) 56 EHRR 12 | Establishes that rehabilitation requires reasonable opportunities to undertake courses aimed at addressing offending behaviour; informs the Article 5 jurisprudence on rehabilitation. | The court relied on James as the genesis of the rehabilitation requirement and used it to assess whether the Petitioner had reasonable opportunities for rehabilitative work. |
| R (on the application of Kaiyam) v Secretary of State for Justice [2014] UKSC 66; [2015] AC 1344 | Distinguishes claims of systemic failure and individual failure; requires Wednesbury standard for individual claims that authorities failed to act rationally in providing opportunities. | The court applied the Kaiyam framework to characterise the Petitioner's challenge and to require proof of Wednesbury unreasonableness for the individual claim. |
| R (Kaiyam) v Secretary of State for Justice [2013] EWCA Civ 1587; [2014] 1 WLR 1208 | Supports the principles in Kaiyam regarding standards of judicial review in prison rehabilitation contexts. | The court treated the Court of Appeal reasoning as equally applicable in Scotland and relied on it in assessing the standard of review. |
| R (Gourlay) v Secretary of State for Justice 2016 EWHC 1957 Admin | Considered whether authorities must devise courses for prisoners who deny offending; held authorities are not under absolute duty to devise all courses and rolling out new courses involves complex, evidence-based considerations. | The court found Gourlay instructive on the issue of courses for those denying their offences and used it to support the view that there is no absolute duty to create bespoke courses quickly absent evidence. |
| R (Oyston) v Parole Board for England and Wales (1 March 2000); [2000] 3 WLUK 35 | Holds that authorities may start from the presumption of guilt (absent successful appeal) but must assess risk; denial of guilt is not determinative though it may be highly relevant to risk assessment. | The court applied Oyston to endorse the premise that assessment of risk, not a blanket exclusion for denial, must guide decisions about rehabilitation and progression. |
| R (Roberts) v Secretary of State for the Home Department [2004] EWHC 679 (Admin) | Similar to Oyston: denial of guilt may make assessment of risk difficult; cogent evidence of diminution of risk is required to justify recategorisation/release. | The court relied on Roberts for the proposition that persistent denial can indicate lack of insight and may limit practical opportunities to demonstrate risk reduction. |
| BS v Scottish Ministers [2024] CSOH 47; 2024 SLT 579 | Recent Scottish example where delay in providing a real opportunity for rehabilitation was found to breach Article 5(1)(a). | The court referenced BS as an example but distinguished it from the present case, noting the Petitioner's challenge concerned course suitability and systemic provision rather than delay. |
Court's Reasoning and Analysis
The court began from established Article 5 jurisprudence (notably Brown and James) that post-tariff detention for public protection requires a realistic, flexible real opportunity for rehabilitation but does not oblige maximal provision or judicial substitution of management decisions. The court accepted the affidavit evidence of Witness Knox and Witness Holmes about the eligibility/suitability distinction, the nature and purpose of the Self Change Programme (SCP), and other routes by which risk reduction may be demonstrated. The court found:
- The Petitioner is eligible but was assessed as not currently suitable for SCP because he could not identify risk-relevant behaviours he was willing to work on; that factual decision was reached by the Programmes Case Management Board on 13 June 2025.
- Maintaining innocence does not, as a matter of policy or fact, automatically prevent access to SCP; suitability is assessed individually and the SCP has sufficient flexibility (for example, use of prior convictions as a "proxy").
- The Petitioner's denial and minimisation of offending, together with his misconduct in custody, supported the Board's assessment and did not render the decision Wednesbury unreasonable.
- There is no persuasive evidence that the Respondent is under a systemic duty to devise and rapidly implement a new course specifically for prisoners who maintain their innocence, nor evidence of operational programmes elsewhere demonstrating a different approach requiring immediate adoption.
- Successful completion of SCP is not the only means to demonstrate risk reduction; the Petitioner can, by conduct and engagement, seek to persuade Board A of diminished risk.
On these bases the court concluded the Respondent had provided a real opportunity for rehabilitation as required by Article 5 and domestic law, and that no Wednesbury-unreasonable or Convention-incompatible conduct had been shown.
Holding and Implications
CORE RULING: THE PETITION IS REFUSED.
Direct effect: The court repelled the Petitioner’s second to fourth pleas-in-law, refused the Petition, and reserved questions of expenses. The court rejected the requested declarators and declined to entertain the monetary claim given that the declarators failed. The decision rests on application of settled Article 5 principles and factual findings about eligibility, suitability and available alternatives; it does not require the introduction of new rehabilitative courses or alter the established legal framework. No general new precedent was established beyond the application of existing authorities to the facts of this case.
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