PETITION OF LEE BROWN FOR JUDICIAL REVIEW OF A DECISION BY THE SCOTTISH MINISTERS [2020] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PETITION OF LEE BROWN FOR JUDICIAL REVIEW OF A DECISION BY THE SCOTTISH MINISTERS [2020] ScotCS CSOH_45 (19 May 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_45.html Cite as: [2020] CSOH 45, 2020 GWD 18-252, [2020] ScotCS CSOH_45, 2020 SLT 1303

for Judicial Review of a decision by the Scottish Ministers to refuse to recommend

Respondents (Scottish Ministers): P Reid; Scottish Government Legal Directorate

[1] The petitioner is a prisoner in HMP Glenochil who is serving a number of sentences

including an extended sentence. The custodial part of his sentences is 19 years, 8 months

and 125 days; the extension period is 2 years. Unless previously released, he will remain in

prison until 13 September 2024. In 2008 he escaped from custody and spent three days

unlawfully at large. On 13 July 2016, he was released on non-parole licence but was recalled

[2] The petitioner is considered for release at least annually by the Parole Board. In

order to have a realistic chance of release, he requires first to progress to less secure prison

conditions. On 26 April 2019, a Risk Management Team (“RMT”) met and considered his

management. The RMT decided not to recommend his transfer to less secure conditions. In

this petition the petitioner seeks reduction of that decision. Permission to proceed with the

petition was granted on one ground only, namely that fairness had required that he be

permitted to attend the meeting of the RMT at which the decision concerning his

Risk management and progression of prisoners within the Scottish prison system

[3] Section 10(1) of the Prisons (Scotland) Act 1989 states that a prisoner may lawfully be

confined in any prison. Section 10(2) provides that prisoners shall be committed to such

prisons as the Scottish Ministers may from time to time direct, and may be moved from any

prison to any other prison. Decisions as to where a prisoner is to be confined, and whether

or not he or she is to be transferred from one prison to another, accordingly fall within the

management functions exercised by the Scottish Prison Service (“SPS”) on behalf of the

[4] The SPS policy in relation to Risk Management, Progression and Temporary Release

is set out in some detail in a guidance document published in August 2018. An application

by a prisoner for progression to less secure conditions is referred in the first instance to the

“…a multi-disciplinary team of professionals representing a range of agencies

involved in the management of offenders. Its primary purpose is to consider the

assessment, intervention and management needs of those offenders referred via the

ICM [ie integrated case management] process or where local management have a

particular concern about an offender’s behaviour or on-going management that

requires immediate intervention. It is also the decision making body that considers

offenders for progression to less secure conditions and/or community access…”

The RMT is chaired by the Deputy Governor or, in his or her absence, the Governor in

Charge. The guidance provides that the Chair must ensure that the membership of a RMT

meeting contains an appropriate range of disciplines to reflect the specific risk and need of

the offender. In addition, the Chair should consider the benefits, on a case by case basis, of a

prisoner making his or her own representation by attending the meeting.

[5] An offender seeking progression to less secure conditions is required to complete an

application form providing inter alia the following information: the reason for the

application; confirmation that they meet certain standard criteria for progression; details of

what they have achieved in order to merit consideration for a move to less secure conditions,

including evidence of a reduction in risk; reasons why they should be considered by the

RMT for progression; and any other supporting factors which should be taken into

consideration by the RMT. The person responsible for the co-ordination of the RMT must

then carry out a review of all available information pertinent to the offender, identify and

request any necessary further investigations in specialist areas, and liaise with the Chair as

to whether the offender should be invited to attend the meeting. The co-ordinator must then

produce a risk assessment for circulation to RMT members in advance of the meeting,

[6] Section 14.3 of the guidance deals specifically with progression of previous

absconders and escapees. There is a presumption against any offender progressing to less

secure conditions where there has been a previous abscond or escape, unless it is in the

public interest. If the RMT recommends that it is in the public interest for the offender to be

allowed to be tested in less secure conditions, it should ensure that the case is forwarded to

the Prisoner Monitoring and Assurance Group (“PMAG”). Under the heading “The case to

“Where the RMT makes a recommendation for progression of a previous

escapee/absconder, the Chair of the RMT should, no later than 2 weeks following the

RMT, complete Section 10 of the RMT documentation and forward it to the Head of

Operations and Public Protection. The establishment’s case for progression must

clearly, and in detail, identify the specific circumstances that were considered to be

exceptional or of such criticality to justify progression, given the ‘presumption

against’. It is also necessary in all cases to identify that progression is in the public

interest. If no such case is, or can be made, progression should not be approved.”

[7] As regards “the public interest test” for previous absconders and escapees, the

“The decision to be reached based on the evidence available is whether in a

particular case it serves the interests of the public better to permit the offender, with

a previous escape or abscond, to access less secure conditions than it would be to

deny that access. The public interest might be served by allowing access to test risk

and evidence suitability for release. Withholding access to less secure conditions

when it is a necessary step for the offender to demonstrate suitability for release

would not normally be in the public interest as the offender would be held longer

[8] The RMT has produced a guidance leaflet for prisoners, explaining inter alia its

purposes and membership. The leaflet notes that one of the RMT’s purposes is to consider

progression to less secure conditions. Under the heading “What do I need to do?” the leaflet

“When the referral form is raised, and if you are being considered for progression,

you will be required to make your own representation. This is your chance to put

your case to the RMT and inform them of the offending behaviour work, personal

circumstances, your achievements and your goals for the future. This is your own

representation during this process and it is important that you give as much

Support with writing your representation can come via a friend, your personal

No mention is made in the leaflet of the presumption against progression of previous

absconders and escapees, although there is reference to copies of the “Risk Management &

Progression Guidance” manual being available in the prison library.

[9] The petitioner applied for transfer to less secure conditions at the Open Estate. He

completed an application form with the assistance of his personal officer. At that time he

was unaware of the existence of either the guidance or the leaflet, and in particular was

unaware that there was a policy applicable specifically to previous absconders and escapees.

His application was considered at a RMT meeting on 26 April 2019. The meeting was

chaired by the Deputy Governor. Among those present were prison based social workers, a

psychologist, and a cognitive behavioural therapist who had been working with the

petitioner. The petitioner was not in attendance. There is nothing in the documentation to

indicate what consideration, if any, was given to inviting him to attend.

[10] The RMT decided to refuse the application. It is unnecessary for me to narrate in full

the RMT’s reasons for refusal, but it should be noted that it is stated that the RMT members

“considered all paperwork in relation to this case including Mr Brown’s self

“The RMT members noted that Mr Brown’s case did not merit [sic] the criteria of an

application to PMAG, as it was deemed that the circumstances that were considered

today were not exceptional nor were they critical to justify progression.

…In view of the above information, the RMT is satisfied that it is in the public

interest that Mr Brown should not spend a period in the Open Estate, given the risk

[11] On being informed of the RMT’s decision, the petitioner submitted a complaint to the

prison’s internal complaints committee. Again it is unnecessary to go into the detail, but the

substance of his complaint was that he was unable to discern from the RMT’s decision what,

if anything, he could ever do in order to be considered for progression. The committee

agreed that the RMT’s minute could be improved to provide the petitioner with clearer

expectations for his future management, and recommended that his case for progression be

considered by the RMT at least annually. At a meeting on 29 August 2019, the Parole Board

unanimously decided not to direct the petitioner’s release, but respectfully suggested that

“some creativity be employed, in terms of testing Mr Brown in a less secure environment”.

[12] The petitioner’s argument is founded upon the decision of the Supreme Court in R

(Osborn) v Parole Board [2014] AC 1115. That case concerned three appellants, one of whom

(Osborn) was a determinate sentence prisoner who had been released on licence but then

recalled to custody. His case was listed for hearing by the Parole Board to assess whether he

could be released. His case was considered by a “paper panel” consisting of a single

anonymous member of the board, who decided not to recommend his release. He then

requested an oral hearing, which request was refused by another anonymous single member

panel. He sought judicial review of the refusal of an oral hearing.

[13] Delivering a judgment with which the other members of the Court agreed, Lord

Reed made certain observations of a general nature in relation to procedural fairness, and

certain others that were more specific to the circumstances of the three appeals. Lord Reed’s

general observations, at paragraphs 64-72, included the following:

(i) When considering whether a fair procedure was followed by a decision-

making body such as the board, the role of the court was not merely to review the

reasonableness of the decision-maker’s judgment of what fairness required, but

rather to determine for itself whether a fair procedure was followed.

(ii) The purpose of procedural fairness was not limited to achieving better

decisions by ensuring that the decision maker received all relevant information and

that it was properly tested. At least two other important values were engaged. The

first was the avoidance of the sense of injustice that the person who was the subject

of the decision might otherwise feel, where his or her rights were not adequately

respected. The second was the rule of law, promoting congruence between the

actions of the decision-makers and the law which should govern their actions.

(iii) If cost were regarded as a factor in deciding whether to allow oral hearings, it

should be borne in mind that inaccurate risk assessments could lead to greater cost if

[14] In relation to the particular question of the circumstances in which the Parole Board

was required to hold an oral hearing, Lord Reed’s first conclusion (paragraph 2) was that in

order to comply with common law standards of procedural fairness, the board should hold

an oral hearing before determining an application for release, or for transfer to open

conditions, whenever fairness to the prisoner required such a hearing in the light of the facts

of the case and the importance of what was at stake. Although it was impossible to define

exhaustively the circumstances in which an oral hearing would be necessary, these would

include (a) where important facts were in dispute; (b) where the board could not otherwise

properly make an independent assessment of risk; (c) where a face to face encounter was

necessary to enable the prisoner or his representatives to put their case effectively; and

(d) where, having regard to the consequences, it would be unfair for a “paper” decision by a

single board member to become final without an oral hearing. Lord Reed also noted at

paragraph 88 that the question whether a prisoner’s right to a fair hearing required the

holding of an oral hearing did not depend on his establishing that his application stood any

particular chance of success: such an approach involved circular reasoning.

[15] The Supreme Court’s decision in Osborn was distinguished by the Court of Appeal in

R (Hassett) v Secretary of State for Justice [2017] 1 WLR 4750. This case concerned the standard

of procedural fairness required to be observed by a review team (“CART”) responsible for

deciding whether to maintain a prisoner’s security classification in prison as Category A (ie

as a prisoner whose escape would be highly dangerous). The applicant sought judicial

review of the CART’s refusal to allow him an oral hearing before the decision was made.

The Court of Appeal refused the application. Delivering a judgment with which the other

members of the court agreed, Sales LJ identified what he regarded as material distinctions

between the Parole Board on the one hand and the CART on the other, in relation to the

requirements of procedural fairness. Having referred at some length to Lord Reed’s

judgment in Osborn, Sales LJ at paragraph 59 contrasted the respective tasks of the Parole

Board and the CART: the former had to make its own independent assessment of risk, and

be seen to do so, rather than acting as part of an overall consideration by the Secretary of

State; the Parole Board had to carry out a broader assessment of possible management

measures after release, to which a prisoner might make a useful contribution at an oral

hearing; in the context of prisoner management decision-making it was less likely that the

prisoner would be directly engaged; and it was less likely that a prisoner would be able to

make a useful contribution at the stage of consideration by the CART because of the

question being addressed and the nature of the process leading up to that consideration.

“Lord Reed JSC was considering the standards to be expected of the Parole Board as

an independent judicial body. Therefore he did not address other reasons why, in

striking a fair balance in terms of procedural standards between the public interest

and individual interests in the context of decision-making by the CART/director, it is

legitimate to bear in mind that the director and other officials engaged in the process

are not judges required to dedicate their full time and attention to categorisation

decision-making, but have wider management responsibilities in running prisons.

Lord Reed JSC observes that the Parole Board should guard against any temptation

to refuse oral hearings as a means of saving time, trouble and expense. However,

whilst it is no doubt the case that the CART/director could not lawfully refuse an oral

hearing on these grounds if fairness required one, it is a relevant consideration in

assessing whether it does that the courts should be careful not to impose unduly

stringent standards liable to judicialise what remains in essence a prison

management function. That would lead to inappropriate diversion of excessive

resources to the categorisation review function, away from other management

Sales LJ did accept that fairness would sometimes require an oral hearing by the CART,

[16] On behalf of the petitioner it was submitted that the circumstances of the present

case were analogous to those in Osborn. The Parole Board member in Osborn was in effect

carrying out the same function as the RMT in the petitioner’s case, and making the same

character of decision. Hassett was an unwarranted gloss on Osborn and should not be

followed. In any event it was concerned with categorisation and not progression.

[17] In the present case, the RMT’s decision-making process could only have benefited

from having the petitioner present. He had been justifiably ignorant of the test of

exceptionality and criticality, and had not therefore addressed it in his application. It was

not obvious from the minute of the RMT’s decision that they had made much of his written

submissions. His arguments, for example in relation to being drug-free, were best presented

personally. It was not submitted that fairness would require all previous absconder/escapee

applicants to be permitted personal attendance. The distinguishing features in the

petitioner’s case were his ignorance of the test to be applied, his desire to be present, the

absence of any practical difficulty in allowing him to be present, and the importance of the

decision to him, having regard to the time that he had spent in prison and the fact that he

[18] On behalf of the respondent it was submitted that fairness had not, in all the

circumstances, required the RMT to allow the petitioner to attend its meeting and make

representations. The question was not whether allowing attendance would have been better

or more fair; it was whether the procedure was actually unfair: R v Home Secretary, ex p

Doody [1994] 1 AC 531, Lord Mustill at 560-1. The true parallel with the present case was

Hassett, not Osborn. The RMT was taking an internal prison management decision. The test

had been set out in published guidance. The participants knew the petitioner and were fully

informed of his circumstances. The petitioner had failed to identify any way in which his

personal attendance could have made a difference. There were no facts in dispute and no

additional information that might affect the RMT’s assessment of risk. The petitioner’s

situation was not distinguishable from that of any other previous absconder/escapee

[19] In my opinion the circumstances of the present case are distinguishable from those of

the applicant in Osborn. It is unnecessary for me to analyse the differences or similarities

between the role of the Parole Board in England and Wales on the one hand and the role of

the RMT in Scotland on the other. I agree with the submission by counsel for the petitioner

that what matters is the nature of the decision that is being made, rather than the identity of

the body tasked with making the decision. If in all the circumstances of a case procedural

fairness requires personal attendance by an applicant, then provision must be made for it.

[20] The reasons why I consider that personal attendance was not necessary in the

present case in order to achieve procedural fairness are as follows:

The participants at the RMT meeting included the individuals most closely

familiar with the petitioner, including the prison-based social worker and

cognitive behavioural therapist responsible for managing him and assessing

his progress. The issue that the RMT had to determine, namely whether there

were exceptional circumstances justifying a recommendation that the

petitioner progress to less secure conditions, was one that fell to be resolved

by specialist assessment. In contrast to the task of the decision-maker in

Osborn, that assessment was being made by persons who knew the petitioner

There were no disputed issues of fact for the RMT to consider. It is difficult

to see what the petitioner could have contributed to the meeting other than

an assurance, from his personal perspective, that he was ready for

progression. Such an assurance would not have added anything to the

information provided by the petitioner in the application form which he had

The petitioner founded upon what was said to be his excusable ignorance of

the criteria applicable under the guidance to previous absconders/escapees

such as himself. I am not entirely persuaded that his ignorance of the test

should be regarded as wholly excusable: the application form that he

completed included a reference to the leaflet which, in turn, referred to the

guidance which was available had he sought it. But, more importantly, it did

not seem to me that counsel was able to identify any particular matter that

the petitioner would or might have put forward as an additional argument to

address the “presumption against” progression, had he been in attendance at

the meeting. Nor, for my part, can I see any reason why his awareness of the

test in the guidance could have made any difference to the presentation of his

[21] As regards comparison of the petitioner’s circumstances with those of the applicant

in Hassett, it does seem to me that there is more in common than there is with those of the

applicant Osborn. I agree with the submission by counsel for the respondent that there is no

conflict between Osborn and Hassett, and that the difference in outcome results from the

significant differences between the role, in England and Wales, of the Parole Board on the

one hand and the CART on the other. Like the CART, it seems to me that the RMT was

performing what is in essence a prison management function. It was, of course, a decision

which carried significant personal consequences for the petitioner and I accept, as the Court

of Appeal recognised in Hassett, that there could be circumstances in which fairness would

require an opportunity to be given to attend the meeting of the decision-making body. For

the reasons already given, I do not consider that this was such a case.

[22] Finally, although I have not placed any weight on it in reaching my decision, it is

worth noting that the petitioner’s grievance immediately following intimation of the RMT’s

decision was not that he would have wished to attend the meeting in person, but rather that

the reasons that he was given for the decision left him without a clear indication of how, if at

all, he might be able to achieve progression in the future. It appears that that complaint was

regarded by the internal complaints committee as having some merit. The petitioner can

also derive some encouragement from the Parole Board’s suggestion that creativity be

employed in testing him in a less secure environment. But there is nothing in the post-

decision material to support the contention that in arriving at its decision without the

[23] For these reasons, the petition is refused. Questions of expenses are reserved.

Scottish Court of Session Decisions