Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 84

P200/15

OPINION OF LORD GLENNIE

In the petition of

ALEXANDER LEWIS HUTCHISON REID

Petitioner;

for judicial review of decisions of the Scottish Ministers

 

Petitioner:  Bain QC, McCluskey;  Drummond Miller LLP

Respondents:  Ower;  Scottish Government Legal Directorate

23 June 2015

Introduction

[1]        In R (Haney and others) v Secretary of State for Justice [2014] UKSC 66, [2015] 2 WLR 76 (“Haney”) the Supreme Court held that the overall scheme of article 5 ECHR gave rise to an implied duty on the Secretary of State, ancillary to article 5, to provide an opportunity reasonable in all the circumstances for a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.  The respondents to this petition accept that in relation to the petitioner they were and remain under such a duty.

[2]        The Supreme Court emphasised that breach of that duty would not affect the lawfulness of a prisoner’ detention but would entitle the prisoner to damages.  That too is accepted by the respondents.  The court went on to explain:  (a) that the appropriate remedy was an award of damages for legitimate frustration and anxiety where such could properly be inferred to have been occasioned by the breach;  (b) that, except in the rarest cases, it would not be possible to establish any prolongation of detention;  (c) that the express rights conferred by article 5 were individual rights; and (d) that the ancillary right identified by the court was also a right in favour of each individual prisoner, the satisfaction (or otherwise) of which depended upon the circumstances of the individual case.  The court emphasised that each case was highly fact sensitive.

[3]        The petitioner, Mr Reid, is currently detained at HM Prison, Glenochil.  The respondents, the Scottish Ministers, acting through the Scottish Prison Service (“SPS”), are responsible for his detention and the management of his imprisonment there.  He has been there since 27 November 2012.  Before that he received care and treatment in the State Hospital, for which the State Hospitals Board for Scotland (“SBS”) – and not the respondents – is responsible. 

[4]        The petitioner complains that since he moved to Glenochil and came under their responsibility, the respondents have failed to comply with their duty to provide him with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.  He claims a declarator to that effect and damages.

[5]        The petition came before me for a first hearing.  At that hearing the petitioner moved the court for declarator that his convention rights had been breached by the respondents’ failure from 27 November 2012 to date to facilitate his progress towards release and enable him to demonstrate to the Parole Board for Scotland that he no longer presents an unacceptable danger to the public and for an award of damages.  The respondents sought dismissal of the petition.  Parties had helpfully agreed a Joint Statement of Facts (“JSF”).  Both parties were agreed that I could (probably) dispose of the petition without resolving any other factual matters in dispute between the parties; but that I could, if necessary, appoint the case to a second hearing for evidence on such matters as were thought necessary.

 

Agreed facts
[6]        The JSF is lengthy but it is convenient to set it out at some length, omitting the first introductory paragraphs and editing it in other places.  For ease of reference I have kept the same paragraph numbering as on the JSF.

Factual background
4.         In September 1967 the petitioner, then aged 17, pled guilty to culpable homicide.  The charge related to the fatal stabbing of a young woman in her own home (“the index offence”).  Following the entering of the plea, oral evidence was led from two consultant psychiatrists to the effect that, at the time at which the index offence was committed, the petitioner was suffering from “mental deficiency”, a mental disorder within the meaning of the Mental Health (Scotland) Act 1960 such as warranted his detention.  That evidence was accepted by the court, which ordered that he be detained in a mental hospital under a hospital order without limit of time.

5.         Since 1980, if not earlier, the petitioner was regarded as no longer suffering from a mental deficiency.  The sole basis for his detention since then has been a diagnosis of anti-social personality, or psychopathic disorder.

6.         The petitioner remained in the State Hospital for 17 years.  In 1985, he was transferred to Sunnyside Hospital.  But he did not spend long there.  On 6 August 1986, whilst “on a pass” from Sunnyside Hospital, he entered the ladies toilet at a caravan site and abducted an eight-year-old girl.  The girl screamed and struggled.  The petitioner dropped her to the ground, struck her across the head, and ran off.  He was arrested the same day, charged on summary complaint and convicted of attempted abduction and assault.  He served a period of three months’ imprisonment and was then returned to the State Hospital, where he remained until November 2012.

7.         Both the index offence and that which occurred in August 1986 are considered by the relevant authorities to have contained a sexual element.  The victim of the index offence was found with her clothes in disarray, exposing her breasts and pubis.  The State Hospital’s records state that the petitioner’s position in relation to the index offence was that, if the victim had not been wearing a sanitary towel, he would have raped her.  The petitioner denies making that statement.  His position is that all he did was loosen the victim’s shirt in order to apply CPR to her breast area, and that he pulled her waistband down in order to allow her to breathe.  The petitioner denies that either the index offence or that which occurred in 1986 contained any sexual element.  The petitioner does not consider that he is a sex offender.

 

Time spent in the State Hospital
8.         During the time which the petitioner spent at the State Hospital, the State Hospital’s records state that he displayed reactive, aggressive and sexually inappropriate behaviour.  The petitioner disputes that he displayed such behaviour.

9.         On the information available to the petitioners, during the time which the petitioner spent at the State Hospital he was identified as suitable to participate in a number of programmes designed to assist with his rehabilitation, including Anxiety Management, Anger Management, Offending Behaviours: Problem Solving and Social Schools Training, CBT for Psychosis, Offending Behaviours:  R&R and, finally, Social Problem Solving Skills (Take Control).  With the exception of Anxiety Management (with which he engaged twice), the petitioner refused to participate in any of those intervention programmes.

10.       The petitioner made repeated attempts to challenge his detention in hospital on the ground that his mental condition did not warrant it.  Those challenges included an application to the European Court of Human Rights in 2003 (Hutchison Reid v UK 2003 37 EHRR 211).  All were unsuccessful.

 

The petitioner’s successful appeal
11.       In 2010, the Scottish Criminal Case Review Commission referred the petitioner’s case back to the Appeal Court.  On 27 November 2012, the Appeal Court determined that a miscarriage of justice occurred when the hospital order and restriction order were imposed in 1967 and quashed those orders.  It substituted a discretionary life sentence of imprisonment with a punishment part of 10 years.  The court held:

“Accordingly, in the light of the fresh evidence, we are satisfied that a miscarriage of justice occurred when the hospital order and restriction order were imposed in 1967.  To that extent, we overrule any observations or conclusions to the contrary contained in the Opinions in the earlier appeal (2008 SLT 293).  Our decision does not mean that we are critical of the refusal of the earlier appeal (which was advanced on quite different grounds), or of the sentencing procedure in 1967.  It is simply that, over the years, it has proved possible for professionals to assess the appellant’s condition more accurately”:

see Reid v HM Advocate [2012] HCJAC 150 at paragraph 15.

12.       The effect of the appeal court’s decision is that the petitioner is now in the post-tariff stage of his detention and his continued detention is justified solely by reference to public protection.  That has in fact been the position since 27 November 2012; and it is to be regarded as having been the case since 8 September 1977.

13.       The respondents say that they are not responsible for the care and treatment which the petitioner received while in the State Hospital between 8 September 1977 and 27 November 2012.  The petitioner disputes that.

14.       The petitioner made an application to the European Court of Human Rights on 17 December 2012 seeking compensation for delay and/or deprivation of the right to apply for parole and/or for being held as a patient as opposed to a prisoner, contrary to articles 2, 5, 6, 7 and 8 ECHR.  His application was declared inadmissible on 5 December 2013.  No reasons were given.

 

Detention in HM Prison, Glenochil
15.       On 27 November 2012, following the decision of the Appeal Court, the petitioner was transferred to HM Prison, Glenochil.  The respondents’ position is that he was detained in conditions of high supervision.  An Initial Risk Contingency Assessment was carried out and an Initial Safe Operating Protocol implemented, in terms of which no lone female was permitted to enter his cell, he was to be seen at the Health Centre by staff on a 2:1 ratio, and he was prevented from participating in visits with children.  On 29 December 2012, however, the level of supervision was reduced to medium.

16.       The petitioner’s initial Integrated Case Management Case Conference (“ICMC”) was held on 18 January 2013.  It was attended by the petitioner.  He confirmed that he was willing to take part in any suggested programmes, but that he would prefer one-to-one sessions because he was not keen to participate in group work.  It was agreed that he would be referred for a Generic Programmes Assessment (“GPA”) and to the Risk Management Tribunal (“RMT”), the function of which is to make an informed decision about the risk presented by any one individual prisoner at that prison.

17.       Following the ICMC, the petitioner agreed to and participated in a GPA on 15 February 2013.

18.       On 6 February 2013, the RMT determined, that in light of the behaviour reported by the State Hospital, the following special risk precautions would require to be applied to the petitioner:  no lone female would be permitted to enter his cell, nor interview him;  when seen at the prison’s health centre or in the prison hall by medical staff, he should be attended by two members of staff and the door to the consultation room should be left ajar;  he was to be permitted no visits with children;  and all SPS staff should be made aware of any sexual behaviour displayed by him in his cell.  The RMT determined that the petitioner would be afforded a period of 12 to 18 months to adjust to the prison setting, as opposed to that of the State Hospital, and would be reassessed by the RMT in six months.  The petitioner disagrees with the determination of the RMT. 

19.       The Programme Case Management Board (“PCMB”) met on 8 March 2013 (with the petitioner in attendance) to discuss the findings of the ICMC.  The petitioner’s suitability for the Good Lives programme (which is directed at sexual offenders) was discussed.  It is recorded that the petitioner stated that he was not willing to listen to other participants on a Good Lives course, but the petitioner denies that he said this.  He denied any sexual motivation behind either the index offence or the offence committed by him in 1986.  The PCMB determined that the petitioner’s denial that there was any sexual element in respect of either offence, together with the sexually inappropriate behaviour displayed by him at the State Hospital, supported the contention that he required to participate in the Good Lives programme.

20.       The petitioners’ first Parole Board hearing took place on 11 March 2013.  The Parole Board (“the Board”) considered whether it could be satisfied that it was no longer necessary for the protection of the public that the petitioner continue to be detained in prison.  It unanimously determined that it could not be so satisfied, and refused to direct the petitioner’s release.  The Board noted the following:

(i)         The petitioner had been assessed in autumn 2011 as being at very high risk of offending in the community.

(ii)        The respondents submitted that the petitioner was at the start of any progression to freedom, having been in HMP Glenochil for just over three months.

(iii)       The petitioner had failed to carry out or co‑operate in any therapeutic work whilst in the State Hospital, nor had he participated in any programmes to address sexual offending, despite having been offered numerous opportunities to do so.  He strongly disputed that he was a sexual offender, and claimed that he was not a risk to children, despite (a) the nature of the index offence and, in particular, the disturbance of the victims clothing to expose her breasts and pubis, and (b) the circumstances of the offence perpetrated by him upon the 8-year-old girl in 1986.

(iv)       The information provided by the State Hospital to the respondents disclosed instances of inappropriate sexual remarks being made by the petitioner to staff, open masturbation, and inappropriate comments regarding rape and sex with children.

(v)        Submissions were made to the Board by Allan Donald, Life Liaison Officer at HMP Glenochil (“Mr Donald”), as follows.  The petitioner had settled well and been of good behaviour.  His social work report (dated 16 January 2013) noted various areas of concern but he was motivated to address these and to progress.  The SPS had prepared and implemented a Management Plan in respect of the petitioner, which would probably take two years to complete and it might be that, if matters progressed in a satisfactory fashion, the petitioner would be able to transfer to Top End conditions and ultimately to the open estate.  The petitioner’s risk would be re-assessed in around June/July 2013.  He would participate in the CARE course for three months thereafter, followed by a break before the commencement of the Good Lives Programme, which would last for 8/9 months.  The petitioner was regarded as a high priority for the Good Lives Programme.  The petitioner disagrees that he was regarded as a high priority for the Good Lives Programme.

(vi)       It was submitted on behalf of the petitioner that he did not understand why the history of his confinement at the State Hospital should be taken into account.  There was no sexual element to the index offence, although he accepted that he loosened the victim’s clothing after stabbing her.  He was willing to “go along with” the fact that he was a Schedule 1 offender as a result of the 1985 offence.  Reports from the staff at the State Hospital were unreliable.  They “had it in for” the petitioner.  He had not participated in any courses at the State Hospital because he did not need to do so.  He was not a sex offender.

21.       The Board preferred the submissions made on behalf of the respondents.  It was unimpressed by the petitioner’s blanket rejection of the assessments made of his conduct by staff at the State Hospital and did not regard those denials as a good omen for the successful completion of the coursework recommended for him.  The Board assessed the petitioner as requiring meaningfully to participate in the CARE (Controlling Anger, Regulating Emotions) and Good Lives (now known as Moving Forward: Making Changes) (which is directed at sex offenders) programmes, so that he could make progress and show that he could abide by licence conditions.  The process of preparing post-programme reports could take several months.  Even if the programme work identified for the petitioner were to be completed within a year, it was unlikely to have been fully evaluated by the end of that time.  Even if it had been, the petitioner would still have to meet the criteria for progression from closed conditions.  His risk levels remained very high and would require to be reduced substantially before he could be considered as a candidate for release on life licence.

22.       The Management Plan for the petitioner was approved by the Board in March 2013.  The petitioner did not challenge the Parole Board’s decision.

23.       The petitioner took part in the CARE programme between 9 January 2014 and 28 March 2014.  A number of key treatment needs were identified, including emotional identification, emotional management (including problem-solving) and unhelpful thinking styles.  The petitioner denied that he had any issue with anger, stating that previous reports of his aggressive behaviour were “lies”.  He declined the opportunity to engage in a number of skills practices and provided little personal input into assignment work.  With support, he evidenced a basic understanding of helpful and unhelpful thinking, although that understanding was not consistent.

24.       The CARE programme was the first intervention which the petitioner had completed within the prison system.  He made only limited progress in it, despite attending all 25 sessions.  A number of factors account for that.  He presents with a moderate degree of psychopathy and dissocial personality disorder.  He has a lower level of cognitive functioning and intelligence and struggles to process and retain information presented to him.

25.       The petitioner’s RMT meeting took place on 26 February 2014, during the currency of his participation in the CARE programme.  In the report deriving from that referral, it was indicated that the CARE programme was anticipated to end in March 2014, with a post-programme report to be completed in due course thereafter.

26.       The post-programme report on the petitioner was completed in August 2014.  It noted that the petitioner’s progress was limited due to his low level of understanding, literacy abilities, personality traits, denial of behaviour within the State Hospital, unwillingness to discuss his offending, and ambivalent motivation to change.  The report noted that the petitioner still had a number of outstanding treatment needs.

27.       By letter of 1 September 2014, the SPS’s Offender Outcomes Unit manager confirmed that:  (i) the petitioner had completed the CARE programme and his case would be returned to the PCMB when the post-programme report was complete; and (ii) the petitioner had outstanding needs in relation to his sexual offending, was awaiting consideration for a place on Moving Forward Making Changes (formerly Good Lives), and was held on a national waiting list.

28.       At a further meeting of the PCMB on 9 September 2014, the petitioner’s post-programme report was discussed and concerns expressed by course facilitators were noted.  The PCMB determined that the petitioner would not benefit from participating in any further programme work at that time; but that a case management discussion should take place to discuss the petitioner’s participation in offending behaviour programmes and make proposals or recommendations to support him in future intervention work and to assist his understanding of the content of any subsequent programme work and his appreciation of what he should be learning and what he should take from that further work.

29.       The PCMB met again on 5 December 2014 with representatives from SPS’s Psychology and Social Work departments, and the petitioner, to discuss discrepancies in self-reports provided by the petitioner to the Psychology and Social Work departments, to assess his readiness to participate in intervention work and to determine which behaviour he felt it necessary, or was willing to, address.  The petitioner discussed the index offence and that committed in 1986, denying any sexual element.  He discussed reports of his behaviour at the State Hospital at length, stating that the majority of those reports were “made up” by staff with “a bad attitude” and that others were based on his behaviour having been “taken out of context” by staff.  He was not able to identify any risk factors which he felt would be beneficial to him to work on in interventions, although he was keen to engage in work to assist his transition to the community.  The PCMB agreed that the petitioner would be revisited in early 2015, following completion of a parole report, and to allow him time to reflect on the discussion.

30.       On 19 December 2014, a case conference took place, attended by the petitioner.  It was noted that the petitioner’s Life Prisoner Tribunal (“LPT”) was scheduled for 11 March 2015.  He was reminded that, should he be granted parole then, he would be on life licence and should be mindful of licence conditions.  He was aware that he would require support.

31.       On 14 January 2015, a Tribunal Overview was prepared in respect of the petitioner.  It noted that, since his last tribunal on 11 March 2013, the petitioner had completed the CARE programme, and that the post-programme report commended his engagement with and completion of the programme, but highlighted some concerns, and recommended further work to address his outstanding needs.  In terms of a Management Plan, it recommended that, in order to establish a way forward in the outstanding programme work, the petitioner should participate fully with the professional services involved in his case management.

32.       A further meeting of the PCMB took place on 21 January 2015.  The petitioner’s position remained unchanged.  He maintained that he is not a sex offender and that there would be no benefit to him in engaging in further group work, since his participation “would not be good enough”, which would result in him continually requiring to repeat programmes.  He did not feel he had any issues which required to be addressed.  He displayed a positive attitude to engaging with support and conditions upon his release, but in general viewed himself as considerably closer to, and better prepared for, release than SPS considered him to be.

33.       On 4 March 2015, the PCMB met again.  It noted that the petitioner had not displayed the same level of concerning behaviours in custody since his transfer from the State Hospital to HM Prison Glenochil and no reports had been made which indicate any repetition of those behaviours.  In terms of insight into his behaviours and motivation to engage in intervention work, the petitioner’s position remained unchanged.  He did not feel that intervention work would be beneficial to him, as he did not have any issues to be addressed through programme interventions.  He continued to deny that he was a sex offender.  This presented a difficulty in motivating him to engage in intervention work.  The PCMB concluded that intervention programmes at this time would not be beneficial to him, given that a treatment pathway remained unclear.  The petitioner’s case should be remitted to RMT:  (i) to consider the best way to explore the reasons behind the petitioner’s dramatic change in presentation since his transfer from the State Hospital;  (ii) to make a comprehensive and up‑to‑date risk formulation;  and (iii) on the basis of that risk formulation, to determine the most appropriate interventions/treatment needs, alongside any other relevant risk management measures.

34.  The petitioner has been assessed as having a number of outstanding treatment needs.

35.       The petitioner’s Parole Board hearing was due to take place on 10 March 2015.  It was postponed because no local authority would accept responsibility for him.  The respondents’ position is that they have repeatedly sought to secure agreement from a local authority (and, in particular, Fife Council) to take responsibility for the petitioner in the event of his release.

36.  The RMT met on 18 March 2015.  It considered the petitioner’s engagement in the CARE programme between January and March 2014, and concluded that a range of factors may have contributed to his lack of progress, including: lack of recognition and insight into his emotions and risk factors; his limited cognitive abilities and subsequent lack of understanding of the material or ability to understand concepts in an abstract manner; his previously assessed personality traits (i.e. dissocial personality disorder and psychopathy); and denial of past behaviour and lack of motivation to change.  It determined that it was unclear which of these factors was most significant in influencing his current progress.  A range of support might be required to allow the petitioner to make progress in future intervention work and to address his outstanding needs.  Prior to engagement in future interventions, the petitioner might benefit from a review of his motivation.  A Psychological Risk Assessment (“PRA”) should be carried out to review risk and collate all collateral file information, including all previous assessments and historical information, in order to ascertain the petitioner’s current cognitive function and the level of risk.  The PRA should assist in the formulation of a robust risk formulation which would identify his most appropriate treatment needs.  Once the PRA had been carried out, and the subsequent report written, the petitioner’s case should be referred back to the RMT to discuss the findings/recommendations going forward.

37.       The respondents’ position is that they are in the process of instructing the preparation of a PRA in respect of the petitioner.

References to the material in a particular paragraph of the JSF are indicated thus:  “JSF/16” or “JSF/24”.

 

Petitioner’s submissions
[7]        The petitioner’s case can be summarised briefly in this way.  He has been in the prison system since November 2012.  He ought to have been there earlier, since he should not have been detained in the State Hospital.  Be that as it may, he is now in a position, and has been since, at latest, 10 March 2015, when the latest Parole Board hearing due to take place on that day was cancelled, where he has been told that he cannot be considered for release until he has progressed gradually to conditions of increased freedoms during the course of which he will be assessed in terms of the risk he would present to the public were he to be released.  The respondents completely failed in their duty to prepare him for or allow him access to such conditions over a sufficient period prior to his anticipated review by the Parole Board, and have deprived him of the opportunity to rehabilitate himself and to demonstrate to the Parole Board that he no longer presents an unacceptable risk.

[8]        Developing this submission in more detail, Ms Bain QC, on behalf of the petitioner, submitted that the current delay had to be seen against the background of the fact that the petitioner had for many years been in the wrong system.  There was no need for him to be kept in the State Hospital and there was no incentive or requirement for him to conform to the regime of the Hospital.  The time in the State Hospital was totally wasted.

[9]        Soon after he was moved to the prison, it was recognised that he needed to be made subject to a “robust management plan” which would begin to look at all areas of his risk and needs, first by identifying that risk and those needs and then undertaking relevant focused interventions.  That need for a robust management plan was re-iterated in a Report for the Parole Board dated 16 January 2013 prepared by Caroline Hughes, the acting senior social worker and in a Tribunal Overview dated 28 January 2013, which referred back to the ICMC on 18 January 2013 (JSF/16) at which, as part of the Management Plan, it was agreed that prison based social work authorities would carry out a risk assessment to identify what risk level the petitioner posed at that time.  It was recognised that, even at this early stage, there was a need to identify a local authority which would accept responsibility for him in the event of his release.  The Scottish Ministers’ Position Statement dated February 2013, while stating their view that the petitioner should continue to be confined for the protection of the public, made recommendations to much the same effect.  The Scottish Ministers noted that the petitioner had had limited engagement in offence focused work, and considered that he

“should participate fully in all identified programme work before working towards meeting the criteria for progression to conditions of increased freedoms, including Top End, prior to progressing to the open estate where he can evidence over a sustained period in conditions of increased freedom and responsibilities … that he is capable of utilising the supports that are available to him in the community and that he is committed to a positive resettlement”. 

 

Until that was achieved there would be no evidence that he did not continue to present an unacceptable risk to the community. 

[10]      The Parole Board met on 11 March 2013.  The petitioner’s solicitor did not seek the petitioner’s release at that stage.  Details of the discussion and its conclusions are at JSF/20‑22.  Ms Bain highlighted the fact that, as appears from its letter of 19 March 2013, the Board approved the Management Plan set out in the Overview.  It noted that the Management Plan would probably take two years to complete.  If matters progressed in a satisfactory fashion, the petitioner might be able to transfer to Top End conditions and ultimately to the open estate.  It also noted that Fife Council had now agreed to assist.  The Board concluded that it would not be realistic for it to conduct a review of the case one year from then.  The petitioner’s risk would be reassessed in about June or July 2013.  The CARE course would last for three months; that would be followed by a break before the commencement of the Good Lives programme, which itself would last for about eight or nine months.  Post‑programme reports had to be prepared and that process could take two or three months.  Thereafter, the petitioner’s case would have to be considered by the PCMB to assess progress.  There would have to be a high level of support from the local authority whenever he was to be released.  In short, even if the programme work presently identified as being necessary for the petitioner had been completed within a year, it would not have been fully evaluated by the end of the year.  Even if it had been, the petitioner would still have to meet the criteria for progression from closed conditions.  Accordingly, at the end of one year there would not have been sufficient opportunity for the petitioner to be tested in conditions of lesser security through national Top End and time in the open estate.  That testing would normally include some Special Escorted Leaves, a successful application for a First Grant of Temporary Release, a number of home leaves and the development of robust release plans.  All of that would take longer than a year.

[11]      Ms Bain did not criticise that decision by the Parole Board or the Scottish Ministers’ Position Statement.  Her complaint was that steps were not taken promptly to implement its recommendations.  The robust management system, which was necessary if the petitioner was to make progress, did not materialise.  No steps were taken to enable him to make any progress towards release within the two years identified by the Parole Board.  The petitioner did not start the CARE programme, an essential first step, until January 2014 (JSF/23), some nine or ten months later.  Although he completed the CARE programme at the end of March 2014, the post-programme report on his progress was not completed until August (JSF/26) and was not considered by the SPS until early September (JSF/27-28).  That was nearly a year and a half after the Parole Board hearing, and about a year and three quarters after his transfer to the prison regime.  That left only seven months until the next scheduled Parole Board hearing within which to complete the other steps contemplated.  Because of this the scheduled Parole Board hearing was bound to be ineffective.

[12]      The CARE Post‑Programme Report concludes with a number of recommendations.  In addition to the points summarised at JSF/26, it identified a number of “key treatment needs”, including emotional identification, emotional management (including problem-solving) and unhelpful thinking styles.  A number of factors were suggested as being responsible for the limited progress which the petitioner had made during the CARE process, including lack of recognition and insight into his emotions and risk factors, his poor cognitive abilities and subsequent lack of understanding of the material or ability to understand concepts in an abstract manner, his previously assessed personality traits (such as dissocial personality disorder and psychopathy), his denial of past behaviour and his lack of motivation to change.  The report concluded that it was “unclear at this time which of these factors is most significant in influencing his current progress within CARE” but it was thought that it was likely to be a combination of them.  As a result, a range of support might be required to allow the petitioner to make progress in future intervention work and to address his outstanding needs. 

[13]      The CARE Report did not suggest that there would be an immediate or easy transition to the next stage.  As was inevitable, further meetings and discussions took place as identified in JSF/28- 36.  The Parole Board hearing fixed for 10 March 2015 was cancelled at the instance of the Parole Board because no local authority would take responsibility for the petitioner upon his release (JSF/35).  I was told that it remains the position that no local authority had yet accepted responsibility.  It is not necessary to go through each of these meetings and discussions in detail.  Two points however should be noted.  The first is that although the Parole Board hearing for 10 March 2015 was postponed on the ground that no local authority had been identified which would accept responsibility for the petitioner were he to be released (JSF/35), it is obvious that even if a local authority had been identified there was no question of the petitioner being released at that stage.  Nor was he even close to being released, not having gone through the various post-CARE courses and strategies already identified as being necessary.  The second point is that at the meeting of the RMT on 18 March 2015 (JSF/36) it was recognised that there still needed to be a risk assessment carried out, and that the most appropriate way of doing this was to instruct a Psychological Risk Assessment (“PRA”) to help establish “his current cognitive functioning and level of risk” and thereby assist in the formulation of a robust risk formulation plan and in identifying the petitioner’s most appropriate treatment needs.  It was anticipated that the PRA would be completed and a report produced by the end of August 2015, after which the petitioner’s case would be referred back to the RMT to discuss its findings and make recommendations going forward.

[14]      Ms Bain did not suggest that the cancellation of the Parole Board hearing deprived the petitioner of a realistic opportunity of securing his release at that time.  But she had two complaints about this episode.  The first was that the issue of agreement from a local authority to take responsibility for the petitioner upon his release should have been sorted out right at the beginning of the process; it should not still have been a matter of uncertainty as at March 2015.  The second was that the need for a PRA was only identified at this stage, in March 2015, at a time when the petitioner could reasonably have been hoping to have made considerable progress through the system towards release.  If a PRA was necessary, the need for it should have been identified before the petitioner underwent the CARE programme.  Indeed it should have been identified at the very earliest stage when discussions were taking place as to how best to move towards rehabilitation.  It was well known when the petitioner moved from the State Hospital into the prison sector that the petitioner had a low level of intelligence, that no up‑to‑date risk assessment had been carried out, and that one would be needed.  As a result of these delays the petitioner was now in effect no further forward than he was when he left the State Hospital and transferred to the prison.

[15]      Ms Bain submitted that taking all these matters into account, the delay in starting and completing the CARE programme and the subsequent delay, including the realisation much too late in the day that there ought to be a psychological risk assessment carried out before there could be any further steps towards rehabilitation, the circumstances presented a picture of complete and utter mismanagement.  The answer to the question whether the petitioner had been afforded a reasonable opportunity to reform himself and to demonstrate that he no longer presented an unacceptable risk to the public (cf.  Haney at paragraph 48) was a resounding:  No.  Based on the levels of damages awarded in Haney, she submitted that an award of damages in the amount of £1,500 would be appropriate to reflect the last three years of post‑tariff delays (£500 per year for three years), and that a further £1,000 should be awarded to take account of the fact that this delay had taken place against the background of the petitioner having been in the post‑tariff stage since as long ago as 1977.

 

Respondents’ submissions
[16]      Ms Ower, for the respondents, submitted that this was not presented as a case of systemic failure.  Further, although it was right to say that the petitioner has been in the post-tariff stage since 1977, that state of affairs has only become apparent since the success of his appeal against sentence in November 2012.  The Scottish Ministers, through the SPS, are not responsible for the petitioner’s treatment before his transfer to the prison.  Further, she reminded me, under reference to Haney at paragraphs 41-42, that the conduct of the prison authorities is not to be judged by reference to standards of perfection.  Regard must be had to the pressure on the system, the numbers of prisoners involved and the limits on courses, facilities and resources.  No system is likely to be capable of avoiding some periods of waiting and delay, particularly where treatment of those categorised as sex offenders is involved.  Every case was fact specific.  Here the petitioner had been the author of many of the difficulties faced by the respondents in trying to deal with him in an appropriate way.  He had failed to participate in courses at the State Hospital and he continued to deny that he should be treated as a sex offender (cf. Haney at paragraph 60).  Judgements have to be made about what treatment is appropriate and how to implement it.  There will inevitably be delays while consideration is given to the appropriate next step; and there will be further delays because of the number of prisoners judged suitable to attend particular courses.  As was emphasised both in Haney and in Knights v Parole Board 2015 EWHC 136 (Admin) at paragraph 77, the question of what coursework or other treatment is necessary is a matter for the judgement of the respondents, taking account of relevant advice from qualified professionals.  It is not for the court to substitute its view of the best way to manage a prisoner, or to conclude that the duty imposed on the Scottish Ministers has been broken just because the rehabilitation of the prisoner could have been better managed:

“In assessing the reasonableness of an opportunity for rehabilitation, the court must take into account all the circumstances; the prisoner’s history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use made of opportunities for rehabilitation.”

 

Under reference to Haney at paragraph 85, she emphasised that the correct question was not whether the respondents had made reasonable provision for a particular course which might have been relevant to the petitioner’s rehabilitation;  rather it was whether the respondents had afforded the petitioner a reasonable opportunity to reform himself and to demonstrate to the Parole Board that he no longer presented an unacceptable risk to the public.

[17]      Ms Ower submitted that there was no basis for the assertion that the respondents ought to have appreciated right from the start that a PRA was necessary.  A risk assessment was, of course, a common occurrence but a psychological risk assessment was much more rarely carried out.  The appreciation that a PRA was necessary emerged as a result of the petitioner having undergone the CARE programme and discussions following upon that relating, in particular, to the petitioner’s limited progress.

[18]      So far as concerned the delay before starting the CARE programme, Ms Ower submitted that it was not reasonable for the petitioner to expect to be put on that course immediately after his change of status from being held at the State Hospital to being an inmate at the prison.  Assessments had to be made as to what treatment was appropriate: see in particular JSF/16-22.  The management plan was developed, agreed by the Parole Board and implemented.  No basis was put forward for criticising the timing of the petitioner’s entry into the CARE programme.  Nor could any complaint realistically be made about any delay in producing the CARE Report.  The course lasted for some three months and it was always known that the preparation of the report would take a number of months after that.  The petitioner’s complaints appeared to proceed upon the assumption that he should be given the first priority and not have to wait his turn.  This was not warranted.  It was true that the petitioner has spent many years at the State Hospital, but that did not entitle him to priority over other prisoners without that history.  Further, the petitioner’s conduct over those years of refusing to participate in courses offered to him and in continuing to deny that his offences were sexually driven meant that there was always going to be some doubt about his willingness to participate in the future, whatever he said.  That history certainly did not entitle him to be afforded priority.

[19]      Ms Ower reminded me that the State Hospital is run by the State Hospital Board, a body for which the Scottish Ministers cannot be held responsible: Charles McCann v State Hospitals Board [2014] CSIH 71.  She also pointed out that the problems in finding a local authority willing to take responsibility were not the responsibility of the Scottish Ministers.  It was true that there was a protocol, in terms of which the Governor would liaise with the appropriate local authority, but this was a case where there were difficulties in identifying the appropriate authority, since the petitioner had not lived anywhere outside the State Hospital and, later, the prison since 1967.  It was clear from the material before the court that discussions had been ongoing about Fife Council accepting responsibility, and at one stage it seemed as though they had, but their failure to do so could not be laid at the door of the Scottish Ministers.

[20]      In summary, Ms Ower submitted that there was no breach of the duty identified in Haney.  Insofar as there were delays, they amounted to no more than a short delay before the commencement of the CARE programme and a short delay in the preparation of the CARE Report.  They were not such as to sound in damages.  As was noted by Lord Bannatyne in SM [2013] CSOH 112 at paragraphs [103]-[104], there is a difference between a failure to give a prisoner a real opportunity of rehabilitation and a complaint about the rate at which he is allowed to proceed through the rehabilitation system.  The rate at which a prisoner proceeds through the rehabilitation process is very much a matter of judgement for the prison authorities.  It would be only in the most exceptional circumstances that a decision about that could be regarded as irrational.

 

Discussion
[21]      As noted in JSF/12, the effect of his successful appeal on 27 November 2012 is that the petitioner is now, and is to be treated as having been since 8 September 1977, in the post‑tariff stage of his detention.  His continued detention is justified solely by reference to the need for public protection.  It was accepted that this brings his case squarely within the ambit of the decision of the Supreme Court in Haney.  The effect of that is that the respondents were and still are under a duty to provide him with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. 

[22]      That duty came into being when the petitioner was transferred from the State Hospital to the prison in November 2012.  Although the effect of his successful appeal was that his tariff expired in 1977, it would be completely artificial to suggest that any delay in affording him the opportunity to rehabilitate himself should be measured from that time.  The fact is that he only acquired the status of a post-tariff prisoner in November 2012.  It was only at that time that he was transferred to prison and his management in confinement there came under the responsibility of the SPS and therefore of the Scottish Ministers.  I accept Ms Ower’s submission that the respondents are not responsible for his management during the period of his confinement in the State Hospital.  Although, in considering what is reasonable, they must obviously have regard to the fact that he has been held since 1967 in the State Hospital, it does not follow that they were obliged to treat his case with any particular degree of priority in comparison with the competing claims of others.  The time spent in the State Hospital works both ways.  On the one hand it entitles the petitioner to say that he must be allowed after all these years to progress towards rehabilitation and, ultimately, release.  But, on the other, it presents the prison authorities, and therefore the Scottish Ministers, with difficulties not often encountered in their dealings with the rehabilitation of prisoners.  His history of being in confinement in one place or another for well over 50 years and his refusal, whether justified or not, to participate in any of the programmes and coursework offered to him while at the State Hospital, present their own problems of assessment and treatment.  It cannot be assumed either that the prison authorities will immediately upon his transfer to prison be able to offer the petitioner a place on any particular course relevant to his rehabilitation or that there will immediately be any clear and consistent view as to the nature of any programmes, coursework or treatment required to be undertaken.  It must be recognised that the problems presented by someone in the position of the petitioner are likely to be rare, if not unique.

[23]      For those reasons it is, to my mind, simplistic simply to point to the lapse of time before a particular step in the rehabilitation process is undertaken, or between one step and another, and ask the court to infer from that that there has been a breach of the duty to provide a reasonable opportunity for rehabilitation.  Still less is it permissible to point to a reassessment of what is required, for example the PRA, coming at a fairly late stage, and ask the court to infer that the failure to identify the necessity for this at an earlier stage demonstrates a breach of that duty.

[24]      Further, while I do not necessarily go so far as (so it was submitted) Lord Bannatyne went in SM in holding there to be a qualitative difference between delay in the rehabilitation process offered in the prison context and an outright failure to provide a real opportunity for rehabilitation, I accept that the rate at which a petitioner proceeds through the rehabilitation process will depend very largely upon matters of judgement reached by the prison authorities and the teams of experts consulted by them.  Experts and authorities are not infallible, but they are in a better position than the court to assess what is needed and when.  It is not a dereliction of duty on the part of the court to approach such matters on the basis that before it can be shown that any particular delay amounts to a failure to provide a reasonable opportunity of rehabilitation, it must be shown that the professional or administrative judgement which led to that delay was seriously flawed or, in the language of judicial review, irrational.

[25]      It must be borne in mind that the allegations made by the petitioner are not allegations of a systemic failure to provide courses and other means of rehabilitation.  The complaint is focused on the alleged failures on the part of the prison service to progress this particular prisoner through the rehabilitation process with sufficient expedition.  This is, perhaps, another side of the point made in the last paragraph.  It again directs attention to alleged failings in the particular decisions concerning the petitioner at particular times.  These are matters of judgement, with which the court will only interfere on grounds of irrationality or if it can be shown that the decision was one which no reasonable body directing itself as to the facts and as to its duties owed to the petitioner could properly have arrived at.

[26]      With those points in mind, I turn to consider the particular complaints.  They can be considered at two levels, the specific and the general, and I propose to deal with them in that order.

[27]      The first specific complaint is as to the delay before the petitioner began to participate in the CARE programme.  The decision to adopt the robust management plan was taken, at latest, by March 2013, yet the petitioner did not begin the CARE programme until January 2014, a gap of something over nine months from the decision to adopt the plan and a gap of over a year from the petitioner’s transfer to the prison.  There is a dearth of information about why it took this time to enrol the petitioner on the course.  The petition itself places reliance only on that lapse of time – I hesitate to call it “delay”, since that implies that the passage of time was longer than it should have been and therefore prejudges the argument.  But this takes one nowhere.  The answers to the petition say that that period up to the beginning of the petitioner’s participation in January 2014 is reasonable in the circumstances, though no particular circumstances explaining what was happening in the meantime are set out.  The JSF too is silent as to what, if anything, was taking place.  But I am not prepared to assume from this that there was unjustified delay on the part of the respondents in placing or accommodating the petitioner on that course.  It seems to me to be likely that the passage of time was due to issues of resources and availability of places.  But that, perhaps, is speculation.  I do not have to go that far.  It is sufficient to note that the petitioner has failed to demonstrate that that period up to the commencement of the petitioner’s participation in the CARE programme amounted to or resulted from a breach by the respondents of their duties.

[28]      There is then a complaint that, although the CARE programme was completed by the end of March 2014, it took until August before the post-programme Report was finalised and until early September for it to be considered by the prison service.  I see no reason to think that this time was not required.  The CARE Report was not simply a narrative of what had happened during the three months of the CARE programme.  It is in fact a detailed evaluation of the progress made by the petitioner on the course, leading to recommendations as to future treatment.  The report was prepared by those who had been involved in the programme, each with different qualifications.  There was a psychology manager, a trainee forensic psychologist and a programmes officer.  Each brought their own skills to bear on the report which was inevitably a result of discussions and assessments carried on amongst them.  There were others on the programme at the same time, each of whom needed similar attention and for each of whom a report required to be prepared.  The fact that it took something over four months to complete the report does not, of itself, mean that there was unwarranted delay in its preparation.  Once it had been prepared, it was discussed formally by the PCMB on 9 September 2014, although it is to be assumed that it had been circulated amongst members of the PCMB before that.  I see no basis for any complaint about this aspect of the alleged delay.

[29]      The PCMB met on 9 September and 5 December 2014 and on 21 January, 4 March and 18 March 2015:  see JSF/28, 29, 32 and 33.  There were other meetings of other bodies concerning the petitioner.  All this led to a referral to the RMT on 18 March 2015 at which the decision was taken to instruct a PRA:  see JSF/36.  In a letter from SPS dated 6 May 2015, Mr Donald, the case management unit manager at HMP Glenochil, explained that during the case management discussions on 23 October 2014 and 4 March 2015 the petitioner’s improvement was noted, in that he had not evidenced in prison the same level of concerning behaviours as he had at the State Hospital.  They acknowledged, however, that despite participating in CARE and having access to historical evidence from the State Hospital, they still do not understand all of the petitioner’s treatment needs.  They identified a need to establish a comprehensive formulation of his harmful and offending behaviour and his level of risk.  From that there was a need to identify the most relevant intervention needs.  They recognised the difficulties in motivating the petitioner to engage in intervention work given his consistent denial of aspects of his offending behaviour.  They took the view that intervention programmes would not be beneficial to him at that time given that a clear treatment pathway remained undetermined.  This, to my mind, is understandable or, at the very least, not manifestly wrong.  The petitioner presented an unusual, if not unique, problem, being new to the prison after more than 40 years in the State Hospital and denying aspects of his offending.  They needed to understand his problems and his treatment needs.  That was bound to take time.  It comes as no surprise, therefore, that it was not for some time that the decision was taken to instruct the PRA.  The petitioner’s complaint that this should all have been worked out before he was introduced to the CARE programme is, to my mind, wholly unrealistic given the difficulties with which the petitioner presented.

[30]      The last specific complaint concerns the failure to get a local authority to accept responsibility for the petitioner upon his release.  I have already referred to Ms Ower’s explanation of some of the difficulties (see paragraph [19] above).  There is no absolute duty on the respondents.  Their duty is to take reasonable steps to further the process of rehabilitation leading to possible release.  The co‑operation of the local authority is required, and the respondents must take reasonable steps to procure that co‑operation.  But I have seen nothing to suggest that their efforts, through the Governor, were lacking.  It is clear, in any case, that although the lack of a local authority taking responsibility was the nominal reason for cancelling the Parole Board meeting fixed for 10 March 2015, there was no prospect of the Board recommending release even if it had gone ahead.  There remained much more to be done.

[31]      The rejection of these specific complaints still leaves open the petitioner’s complaint, at a general level, that it has all gone on much too long and without sufficient priority being given to his needs.  But stripped of any valid specific complaint, that general complaint is difficult to maintain.  Once it is understood that the petitioner upon his transfer to the prison presented the sort of problem I have tried to identify, it is unrealistic to expect that he could be put straight into something like the CARE programme and then put seamlessly through the next levels leading towards preparation for release.  There had to be time for proper assessment in addition to identifying and then implementing the programmes and other coursework.  I see no basis for the complaint made at this general level either.

 

Decision
[32]      For these reasons I reject the submissions for the petitioner.  There is nothing to be gained in appointing the case to a second hearing.  In those circumstances I do not propose to say anything about what damages I would have awarded had I found the petitioner to be justified in some or all of his complaints.  I agree with counsel that the sums awarded in the four cases considered by the Supreme Court in Haney provide sensible guidance, but what the figure would have been in this case would have depended on what breaches of duty I found and over what period they extended.

[33]      The petition is therefore refused.  I shall reserve all questions of expenses.