Petition of JH against The Scottish Ministers (Court of Session)

Factual and Procedural Background

The Petitioner is a serving prisoner in Prison A, convicted on 8 March 2011 of sexual offences against his children and sentenced on 29 March 2011 to an extended sentence of 17 years and 6 months (11 years and 6 months custodial part; 6 years extension). He was released on licence on 6 November 2018 after serving two thirds of the custodial term, was recalled, released again, and recalled a second time after committing further offences of assault and threatening or abusive behaviour for which he received an 8-month concurrent sentence. The Petition seeks judicial review of a decision of the Prison Service's risk management team (RMT) dated 6 June 2024 refusing transfer to the open estate, and challenges the provision of access to rehabilitation courses. Permission to proceed was granted by the Inner House and the matter was heard substantively by Judge Harrower.

Legal Issues Presented

1. Whether the Respondents breached Article 5 of the European Convention on Human Rights by failing to offer the Petitioner a real opportunity for rehabilitation during the extension period.
2. Whether the Respondents breached domestic public law by (a) operating an unreasonable system for the rehabilitation of offenders who maintain their innocence as a class (systemic failure), and (b) failing to make reasonable provision for rehabilitation courses for the Petitioner individually.
3. Whether the RMT's 6 June 2024 decision and the Programme Case Management Board's (PCMB) assessments were Wednesbury-unreasonable or otherwise unlawful in relation to the Petitioner.

Arguments of the Parties

Petitioner's Arguments

• The Petitioner was denied a real opportunity for rehabilitation because he maintains his innocence; as a "denier" he was assessed unsuitable for the only relevant programme (SCP) and thus barred from rehabilitation that would allow demonstration of reduced risk.
• The Respondents operate an unreasonable system for deniers as a class and failed to make reasonable provision for courses specifically accessible to deniers.
• The Petitioner sought declarator of Convention breach and domestic unlawfulness, and claimed damages of £7,000 for just satisfaction.

Respondents' Arguments

• The Petitioner had been offered reasonable opportunities for rehabilitation; his own stance and behaviour limited available interventions and his recalls to custody affected prospects for progression.
• The PCMB and psychology staff made professional judgments that no suitable group intervention then existed for the Petitioner; it is not for the court to substitute its own view for qualified professional assessments.
• There was no evidential basis to require the creation of a specific alternative programme for the Petitioner; the Respondents complied with Article 5 and domestic law and no arbitrariness was shown.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded in stages.

1. Scope of duties: The court summarised Article 5 principles (James; Kaiyam; Brown) — the Article 5 duty to offer a real opportunity for rehabilitation arises where the sole purpose of detention is protection of the public and requires a relationship between the ground of detention and place/conditions; Article 5 does not oblige maximising coursework.
2. Standard of review: Domestic public-law challenges require demonstration of Wednesbury-unreasonableness for systemic failure (Associated Provincial Picture Houses v Wednesbury Corporation; R(Kaiyam)).
3. Systemic failure claim: The court found the Respondents had processes (generic assessments, PCMB, denier assessments, waiting-lists and guidance) that recognised deniers and provided routes (denier assessments, tailored readiness processes). That practice, and evidence of assessment processes, weighed strongly against a finding of systemic exclusion of deniers.
4. Individual-provision claim: The court examined the Petitioner's file and chronology: multiple assessments and offers of programmes over a decade; instances where the Petitioner refused denier assessment or programme places or showed limited motivation; recalls to custody and community behaviour affecting risk and progression. The PCMB's ultimate assessment that the Petitioner was unsuitable for SCP in 2023 and 2025 was analyzed against contemporaneous guidance and affidavit evidence from the Head of Psychological Services (Officer Holmes) and the PCMB chair (Officer Saleemi).
5. Deference to professional judgment: The court accepted that qualified professionals reasonably concluded there was no realistic or fruitful way for the Petitioner to engage with SCP given his denial and lack of other material to work on, and that reassessment could occur if his insight or motivation changed. The court declined to substitute its view for those assessments, citing authority (Dillon; Alexander) and Kaiyam's limitation on Article 5.
6. Conclusion on Article 5 and domestic law: Considering the Petitioner's entire history (including offers, refusals, waiting-lists, and recalls), the court concluded there was no arbitrary detention nor failure to provide a real opportunity for rehabilitation, and no domestic unlawfulness in the operation of the Respondents' systems or their application to the Petitioner.

Holding and Implications

HOLDING: PETITION REFUSED.

Direct consequences: The court sustained the Respondents' first four pleas in law, repelled the Petitioner's pleas, refused the petition, and reserved questions of expenses. The court held there was no breach of Article 5 and no domestic-law failure to operate a reasonable rehabilitation system or to make reasonable provision for the Petitioner; no award of damages was made. The opinion does not purport to establish any novel legal principle; it applies established Article 5 and Wednesbury principles and defers to professional assessments in the management of rehabilitation provision.