- Bookmark
- Share
- CaseIQ
Petition of Craig McInally for Judicial Review of a decision of a failure by the Scottish Ministers to plan his sentence, progress him through the prison system, and provide him with rehabilitative opportunities (Court of Session)
Factual and Procedural Background
The Petitioner was convicted after pleading guilty to culpable and reckless conduct to the danger of life and was sentenced to an Order for Lifelong Restriction (OLR) with a punishment part backdated so that the punishment part expired in March 2022. The Petitioner remains detained and is more than three years post-tariff.
The Petitioner contends that the agency responsible for prison management (Company A) failed to plan his sentence, to progress him through the prison system, and to afford reasonable access to rehabilitative opportunities; he has not been provided with any rehabilitative programme during his sentence. A court-ordered risk assessment report (RAR) concluded the Petitioner presented a high risk with complex, rare sexually deviant features and limited responsivity to treatment.
The Petitioner’s case was considered by the Programmes Case Management Board (PCMB) on multiple occasions. Initially (February 2024) Company A assessed the Petitioner as meeting criteria for the Self Change Programme (SCP) and placed him on its waiting list; on 28 January 2025 the PCMB removed him from the SCP waiting list and recommended a bespoke individual intervention, adding him to a separate waiting list. A referral to an external specialist (Company D) was made in October 2025 and assessment work was undertaken thereafter.
The Petitioner initiated judicial review proceedings challenging the decision of 28 January 2025 and related delay. A prior petition for judicial review was refused by the Lord Ordinary as time-barred; that refusal was later treated as academic by an Extra Division of the Inner House (McInally v The Scottish Ministers [2026] CSIH 2).
Legal Issues Presented
- Whether the Respondent has breached the Petitioner’s rights under article 5 of the European Convention on Human Rights by failing to make reasonable offers of rehabilitative opportunities since expiry of the punishment part of the sentence.
- If there is a breach of article 5, whether an award of damages is necessary to afford just satisfaction and, if so, in what sum.
- What remedy (declarator, damages, expenses) should be pronounced.
Arguments of the Parties
Petitioner's Arguments
- The Petitioner argued that as an OLR prisoner in the post-tariff period he must be afforded a real and reasonable opportunity for rehabilitation; he has had none and is therefore detained arbitrarily under article 5 (relying on James v United Kingdom and related authorities).
- The RAR, available in May 2022, identified bespoke, specialist interventions as necessary; Company A’s initial decision to place the Petitioner on SCP was inappropriate and led to delay. No meaningful progress was made toward suitable treatment for an extended period.
- If breach is found, damages are necessary for just satisfaction; by analogy with ECtHR awards the Petitioner sought £6,000, but in any event sought an award for the prolonged post-tariff period without rehabilitative opportunity.
Respondent's Arguments
- The Respondent submitted detention was not arbitrary given the Petitioner’s highly unusual and complex presentation, the clinical view that group work was unsuitable, and the steps taken (including referral to external specialist services) to identify bespoke treatment.
- The Respondent accepted the Petitioner had not yet been afforded programme work but argued assessment and steps to procure appropriate external resources were reasonable; the court should not second-guess clinical judgements about suitability for particular interventions.
- If breach were found, damages were unnecessary or, at most, should be nominal (suggested up to £500), having regard to comparable authorities.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| James v United Kingdom (2013) 56 EHRR 12 | Conditions of detention must reflect purpose; where detention is for public protection a real opportunity for rehabilitation is required; tests for arbitrariness and proportionality. | Used as primary authority to require a real opportunity for rehabilitation in post-tariff detention and to assess arbitrariness; court applied James to conclude duty existed and to evaluate Respondent’s conduct. |
| Kaiyam v United Kingdom (2016) 62 EHRR SE13 | Duty to provide rehabilitation opportunities is assessed with focus on post-tariff period; reasonableness assessed holistically. | Referred to limit duty assessment to post-tariff context and to note comparative outcomes in prior ECtHR decisions. |
| BS v Scottish Ministers 2024 SLT 579 | Illustrative domestic authority on delay to access to SCP (20 months post-tariff) constituting a breach of article 5. | Relied upon for context and threshold; court distinguished factual circumstances but noted BS as guidance on rare nature of breaches and comparable outcomes. |
| Glancy v Scottish Ministers [2020] CSOH 1 | State duty is not to maximise provision; resource allocation and balancing prisoner needs are relevant. | Respondent relied on Glancy to argue resource/selection considerations; court acknowledged limits on duty but found different facts here. |
| Haney v Secretary of State for Justice [2015] AC 1344 | Principle cited regarding limits on state obligations and balancing resources. | Quoted in support of Glancy’s proposition; court considered resource constraints but found them insufficient to excuse delay here. |
| Dillon v United Kingdom (app no 32621/11, 4 February 2015) | Court should not second-guess qualified clinical professionals on appropriate interventions or suitability for treatment. | Respondent invoked this principle; court accepted the general rule but held it did not absolve Respondent from failures to plan and to provide rehabilitation in this case. |
| Alexander v United Kingdom (app no 54119/10, 30 June 2015) | Similar principle to Dillon on deference to clinical judgements. | Invoked by Respondent; court noted it but found factual failings that remained material despite deference principle. |
| Brown v Parole Board for Scotland 2018 SC (UKSC) 49 | High threshold for establishing arbitrariness under article 5; such findings are rare. | Cited to underscore the high threshold; court concluded this was nevertheless a case meeting that threshold on the facts. |
| McInally v The Scottish Ministers [2026] CSIH 2 | Procedural determination that an earlier petition was academic. | Referred to in procedural history; court recorded the Extra Division’s conclusion that the earlier petition no longer served a practical purpose. |
| Wells; Lee (as cited in James) | ECtHR awards in comparable cases used as benchmarks for just satisfaction. | Values cited (Wells €6,200; Lee €8,000) were used by parties and the court as comparative guidance when assessing an appropriate award of damages. |
Court's Reasoning and Analysis
The court analysed the issue by reference to the principles in James and related authorities. It rejected the Respondent’s submission that the assessment process alone constituted provision of rehabilitative opportunities. The court found the Respondent’s duty to provide a real opportunity for rehabilitation arose upon imposition of the OLR (22 December 2022) and that the Respondent could not be held responsible for the period between expiry of the punishment part and imposition of the OLR.
The court gave weight to the RAR’s findings that the Petitioner presented a rare and complex risk profile requiring specialist, bespoke interventions. It was critical of Company A’s decision to place the Petitioner on the SCP in February 2024 despite material in the RAR indicating groupwork was unlikely to be effective, a decision that produced nearly a year of wasted post-tariff time. The court found that Company A lacked internal resources and expertise to provide the required intervention and only belatedly sought external assistance (Company D and Company E), with meaningful steps toward assessment not taken until October 2025.
Balancing the high threshold for finding an article 5 violation against the undisputed facts—almost four years post-tariff and no rehabilitative opportunities provided—the court concluded the obligation to provide a real opportunity had not been met and that the Petitioner’s continued detention had become arbitrary. The court sustained the Petitioner’s first plea-in-law (declarator of unlawfulness) and second plea-in-law (damages), awarding a modest sum after considering comparative authorities and the specific circumstances of bespoke treatment provision.
Holding and Implications
HOLDING: The court granted a declarator that the Respondent acted unlawfully in terms of article 5 of the European Convention on Human Rights by failing to properly plan the Petitioner’s sentence and to afford reasonable access to rehabilitative opportunities. The court awarded the Petitioner damages of £1,000 and ordered expenses in favour of the Petitioner.
Implications: The immediate effect is declaratory relief, an award of damages (£1,000) and expenses for the Petitioner. The court emphasised that findings of arbitrariness under article 5 remain exceptional; the decision is fact-specific and the court did not purport to establish a broader new principle beyond application of existing authorities to the circumstances set out. No new precedent beyond the application of established principles was stated.
Alert