Factual and Procedural Background
This opinion of Judge Braid concerns a petition for judicial review of a decision by the Parole Board for Scotland dated 12 February 2026. The Petitioner is a life prisoner whose punishment part expired in April 2016. He had previously been released on licence twice and recalled to custody. In May 2025, he was arrested and later convicted of driving with drugs in his system, driving without a licence, and driving without insurance. He received a 12-month conditional discharge. [1][2][3][4][5]
On 12 February 2026, the Respondent refused to direct the Petitioner’s release on licence. The Petitioner challenged that decision, arguing that his recent road-traffic offending was insufficiently connected to the index offence to justify continued detention. A further review was scheduled for 2 September 2026. [5][6]
Legal Issues Presented
- Whether the Parole Board, when considering the release of a life prisoner, must determine that release would create a substantial risk of serious violence to the public similar to that arising from the index offence, or whether the statutory test is broader. [7]
- Whether the petition had become academic because a further review of the Petitioner’s case was imminent. [7][6][8]
Arguments of the Parties
Petitioner’s Arguments
- The relevant test was not merely whether there was a risk of further offending, but whether the Petitioner posed a risk of offences capable of causing serious harm, involving serious violence comparable to the index offence. [9]
- There had to be a link between the index offence and the later offending. The road-traffic offences were qualitatively different from the index offence and therefore could not justify continued detention so long after expiry of the punishment part. [10][11]
- The Respondent had failed to apply the requisite anxious scrutiny, and its reference to a car as a weapon was unjustified. [11]
- An unlawful decision should not remain on the Petitioner’s dossier, particularly because it could affect the starting point for the forthcoming review. [8]
Respondent’s Arguments
- The statutory test did not require the Respondent to assess the degree or type of violence creating the risk to the public. The references to violence in Wells had to be read in context. [12]
- The Respondent had applied anxious scrutiny, as demonstrated by the detailed reasons in its decision letter and its reliance on the risk assessment. The Petitioner himself had accepted that his conduct was highly dangerous. [12]
- The reference to a car being a weapon was not essential to the reasoning. The court should not substitute its own assessment for that of the specialist tribunal. [12]
- The forthcoming review would reassess risk using up-to-date information, so reducing the earlier decision would have no practical effect. [8]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Brown v Parole Board for Scotland [2021] CSIH 20 |
Reference to the “life and limb” test. |
The case was identified as the source of the shorthand expression, but the court held that the statutory language must not be narrowed by it. [7] |
| R (Brooke) v Parole Board [2008] EWCA Civ 29 |
The release decision involves balancing public protection against the hardship of continued detention; the question is whether risk is proportionate to detention, not whether the prisoner will remain offence-free. |
The court applied this principle in explaining the Respondent’s judicial function and the proper statutory approach. [13][14][15] |
| R (on the application of Wells) v Parole Board [2019] EWHC 2710 (Admin) |
The relevant question is whether potential risk is proportionate to continued detention, rather than whether there is no risk of reoffending. |
The court rejected the Petitioner’s reading of Wells as imposing a requirement of serious violence comparable to the index offence. [14][9][16][17] |
| R (Sturnham) v Parole Board [2013] 2 A.C. 254 |
The risk need not necessarily concern the same type of specified offence for which the prisoner was originally sentenced; the relevant concern is continuing risk to “life or limb”. |
The court held that the cited passage did not establish a requirement that future risk involve serious violence like the index offence. [18][19] |
| Ryan v Parole Board for Scotland [2022] CSIH 11 |
The “life and limb” shorthand must not obscure or embellish the statutory test; the Board must take a 360-degree view, give adequate reasons, and decisions require anxious scrutiny. |
The court used Ryan to assess both the breadth of the Respondent’s task and the adequacy of its reasoning. [20][21][22][23][19][24][25][26] |
Court’s Reasoning and Analysis
The statutory test under section 2(5)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 is whether the Parole Board is satisfied that confinement remains necessary for the protection of the public. The Parole Board (Scotland) Rules 2022 also permit consideration of the person’s offending, conduct, risk of offending or harm, proposed conduct on release, and effects on the safety of others. [27][28][29][30][31]
The court held that the “life and limb” expression is only shorthand. Read together, the authorities establish that the Respondent need not—and should not—restrict its assessment to the risk of serious violence or to offending of the same kind as the index offence. The proper question is whether the identified risk is proportionate to continued detention. [17][19][15][32]
The petition was not academic. Although a fresh review was imminent, the February decision could affect the starting point for that assessment, and the parties wished the court’s decision to be available before the new review. [8]
The Respondent considered the index offence, offending history, assessed risks and needs, conduct since sentence, release intentions, dossier material, and hearing evidence. It also considered the Petitioner’s candour and remorse. [33]
The Respondent was entitled to rely on evidence that the Petitioner had deliberately consumed alcohol and drugs, driven without a licence or insurance while carrying his partner and child, and exposed the public and his family to significant danger. The fact that the conduct was not an act of direct violence did not prevent it from being relevant to public protection. [34][35][36]
The reference to the car as a weapon was described as unnecessary and potentially unhelpful, but the underlying point was sufficiently clear: a vehicle driven by someone under the influence of drugs can cause serious injury or death. The court also distinguished this conduct from the example of an otherwise fit driver exceeding a speed limit. [37][36]
Although anxious scrutiny was required, it did not permit the court to substitute its own view for that of the specialist tribunal. The Respondent’s reasoning was cautious and sufficiently detailed to withstand the required scrutiny. [24][25][26]
Holding and Implications
The petition was refused. The court sustained the Respondent’s fourth plea-in-law, repelled the Petitioner’s pleas-in-law, and awarded expenses to the Respondent, subject to the legally aided Petitioner’s right to seek modification in the usual way. [38][39]
The direct effect was that the Parole Board’s refusal of release remained in force pending the forthcoming review. The decision established no new broader precedent beyond applying the existing statutory framework and authorities to the Respondent’s reasoning. [8][26][39]