Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 87
	OPINION OF LORD McEWAN in the Petition of GARY HOGG Petitioner; for Judicial Review of a failure by the Scottish Ministers to refuse to vary his transfer condition since 7 March 2013 ________________

Petitioner: Leighton; Drummond Miller LLP

Respondent: Ms Ross; SGLD

30 May 2013

[1] Mr Hogg is a painter and decorator to trade. He found work in Jersey but while there one Hogmanay he took too much to drink and got into a fight. He was charged with assault and ended up being sentenced in 2011 to three years in prison. What happened thereafter is what this case is all about.

[2] There is a large measure of agreement about what happened after he was sentenced. In January 2012 he asked the prison in Jersey to be transferred to Scotland where he had family ties. The request was made to the Scottish Prison Service (SPS) with appropriate paperwork and against an earliest date of release of 7 September 2013 (6/2 of process). SPS accepted that, the petitioner signed a form agreeing to come as a "restricted transfer" with the same release date, and the paper Order to transfer him under the Crime (Sentences) Act 1997 (the "1997 Act") was made in London on 7 February by an official of the National Offender Management Service (Mr Wilkinson) (No. 6/3 of process). It was agreed that the significance of a restricted transfer meant that he remained subject to the Jersey release date. Thereafter for reasons which are not entirely clear, and may not be relevant, the law in Jersey was changed; and after 2013 all prisoners to be transferred became unrestricted (see 6/4 to 6/7).

[3] Learning of this on 7 March (No. 6/8 and 6/9) the petitioner's solicitors wrote to SPS and Castle Huntly asking for a change to an unrestricted status and immediate liberation. A refusal of that request was sent on 20 March 2013 to the petitioner (No.6/12) giving the reasons. I refer to that for its terms. It relies on a Parliamentary Statement in 1997 about the length of time a prisoner has to serve. This is referred to below but I summarise it now. It is in 6/1 of process.

[4] It was given by Mr Straw on 28 October 1997 to explain policy implementing Schedule 1 to the 1997 Act. Inter alia it said consideration would be given to the purpose for the transfer, ordinary residence, family and visiting, prisoner misbehaviour, compassionate circumstances; and then was added:

"...when considering whether to make an unrestricted or a restricted transfer the Secretary of State of the sending jurisdiction will take into account the period and terms of transfer requested by the prisoner, and whether, as a consequence of an unrestricted transfer, there would be likely to be any effect on the length of time which the prisoner would be required to serve...."

[5] The further letters in the papers Nos. 6/13 to 6/17 do not affect the matter.

[6] In the present case it is clear and indeed not disputed that what the respondents relied on was the effect on the length of time the petitioner would have to serve. Here it is six months and at the date of writing this opinion nearly three months of that has elapsed. If it is found that he is wrongly detained then he seeks damages but that was not argued, by agreement, before me.

[7] I was told that this is in a sense a test case as the point, surprisingly, has never arisen before. Let me now set out the arguments of parties.

[8] Mr Leighton opened his argument on 14 May and gave me an overview of his case. From prison in Jersey his client had asked for a transfer to Scotland in terms of the relevant legislation and that had been done. He came as a restricted prisoner (i.e. one still subject to the laws of the sending country). His release date from his sentence there (after ⅔) would be September 2013. Had he been an unrestricted prisoner his release at 1/2 was March 2013. Legislation in Jersey now provided that all transferred prisoners were to be unrestricted (See 6/5 and 6/7 of process). For him a request had been made by the governor of the prison in Jersey (La Moye) to the Scottish Governor of Castle Huntly to make him unrestricted. That had been refused by the Scottish Prison Service.

[9] The reason for the changes in Jersey had to do with cost, saving money and repatriation provisions.

[10] Counsel referred me to the Crime (Sentences) Act 1997, section 41 and to Schedule 1, paragraphs 1(2) and 5. His transfer is encompassed in 6/3 of process and in a document signed by a Mr Wilkinson. (It was later pointed out that it contains two errors but nothing turns on that).

[11] A transfer of his status could be made by Scottish Ministers provided he agreed. Counsel accepted that some regard had to be had to what the then Home Secretary (Jack Straw) had said in a Parliamentary answer on 28 October 1997 (No. 6/1 of process). However, the refusal here was irrational.

[12] Counsel then began an argument on the Convention which he resumed on 27 May on an amended petition. It was to this effect. Provided the petitioner could show that he qualified under article 14 read with article 5, then the onus was on the respondents to show why discrimination was justified. He referred me to DH v Czech Republic (2008) 47 EHRR 3, a decision of the Grand Chamber. That was a case about education and ethnic discrimination. Closer to the present facts was Clift v Secretary of State [2007] 1 AC 484 and before the European Court as Clift v UK 22 November 2010. The court found that he was within the definition of "other status". There were analogous prisoners. Clift succeeded since there was no objective justification for the way his case was considered. I was referred to paragraphs 6, 36 and 55 onwards. AL (Serbia) v Secretary of State [2008] 1 WLR 1434 as also looked at. (An article 8 case). The test under article 14 was a high one. Here the method of assessing prisoner risk was the same but the petitioner was being treated differently. Any close scrutiny did not reveal any legitimate aim. There was no proportionality between the means adopted and any aim even allowing a wide margin of appreciation in criminal cases.

[13] In his concluding remarks Mr Leighton gave me some more detail about what had actually happened to his client at the party where the assault took place. He added that there was no risk of many prisoners wanting to come for early release (the "floodgates" argument). There were only five Jersey prisoners in Scotland and forty nine UK prisoners in Jersey. If the authorities now in Jersey say release at half way is fair, why should not Scotland. If the matter depended on comity, as it did, then how could the Scottish attitude be a proportionate response. Finally, he said that the case of Magee was not in point.

[14] He moved me to sustain all his pleas-in-law (bar No. 6) and make the orders sought in the prayer.

[15] Miss Ross moved me to dismiss the petition and refuse the orders sought.

[16] She began by looking at vires (powers). In general the sending jurisdiction determined the basis of the sending. The consent to receive then depended on practice and co-operation (a form of comity). The relevant legislation was silent on much of the mechanics and reliance had to be placed on Mr Straw's statement to the House.

[17] The 1997 Act was then looked at in some detail especially Schedule 1 at paragraphs 1(2)(b); 5(1), (2) and (3); 6(1); 7(1); 15(2) and 16, and the 1998 Order (No.2798), para.18 referring to Scotland. The background to all this was inter alia to allow proximity to family and ease of visiting. Also relevant could be the size of prison population and resources. Reasons for transfer could disappear or change. To have prisoners restricted made for ease of administration. At present transfers from Jersey were handled by London and in the present case the petitioner had in writing consented to his transfer as a restricted prisoner. The legislation was silent as to who had power to vary conditions unless by consent. (I was also referred to the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 No. 1748) [a very complex set of rules].

[18] Nothing was set up about transfers or powers of internal decisions. It depended on experience and practice between prisons and it was not prescriptive; and provided it was reasonable it could not be challenged. However, there was 16 years of experience under the Act and before that for a longer time. What was clear was that the Scottish Ministers had no power to vary conditions at their own hand. What they could do was accept one proposed to them. That unwritten power was clear.

[19] Accordingly a petition seeking to make use of these powers was inept or at least in doubt.

[20] Counsel then looked in detail at No. 6/1 of process, viz the statement of Jack Straw (to Parliament in a lengthy answer in 1997. It covered five discrete matters namely in summary the purpose of the transfer, family and visiting, adverse prisoner behaviour, compassionate reasons and lastly but importantly the length of time to be served. These were the proper factors to consider though not enshrined in any statute. Now this petitioner already had the advantage of being in Scotland and it was plain from the letter of 20 March that the decision taken had followed the fifth canon of Mr Straw's statement. That was a proper reason to adopt. The petitioner was not disadvantaged by receiving what he had signed up to. It would be unfortunate if people were encouraged to transfer in order to secure earlier release. That would be a kind of "prison tourism or shopping".

[21] I was then referred to R (Nelson) v Secretary of State [2011] EWHC 2468 Admin at paragraphs 14.1 and 14.5 - a case also involving a transfer from Jersey to England.

[22] I was then taken to the change of policy in Jersey in 2013 which effectively fettered that country's discretion on transfer. It may have been done to save money or to encourage prisoners to leave and an examination of Nos. 6/4, 6/5 and 6/7 of process showed it was bound up with finance and repatriation into Europe. However, the respondents had never been consulted about it and only discovered it when the petitioner made his request known.

[23] Moving finally to the European dimension and the Convention, Miss Ross said that she did not accept that being a prisoner amounted here to "other status" under article 14. He was not in an analogous position to a Scottish prisoner; and in any case if there had been discrimination it was proportionate.

[24] She first referred me to Gerger v Turkey 1999 at paragraphs 12 and 66. It concerned article 5 and 14 and a different parole release date. It was a terrorist case.

[25] In that case it was held merely to be a prisoner was not "other status" and (para 69) there was no discrimination.

[26] R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, and in the European Court, June 2010, was referred to. I was asked to look at Lord Bingham at paras 28 and 38 and in Europe para 61 and 73 to 78. The House of Lords had held that Clift did not have other status but the European Court found that he did due to the length of his sentence. Whereas in Clift all prisoners had to have a risk assessment, here any decision to vary only applies to Jersey prisoners and the only true comparator would be another Jersey prisoner.

[27] Counsel referred me to Magee v UK (2001) 31 EHRR 35 which involved an Irish terrorist, articles 6 and 14. It was argued that as he was Irish and arrested there he was treated differently from someone arrested in England. The Court held that it was perfectly proper for different geographical areas to have different procedures.

[28] Moving finally to the Convention and article 14 counsel said under reference to AL (Serbia) cit sup that in criminal matters it was enough to give a rational explanation (paras 29, 30). The same test could be seen in Clift (para 73). The respondents' legitimate aim was to be read in article 18 of the answers to the petition. Here they had sought a position of neutrality with no bonus and no penalty. The petitioner was here and nearer his family. The refusal in the letter of 20 March was easy to understand and the release date required no scrutiny as to calculation. Reliance on the Parliamentary Statement was entirely sound.

[29] For present purposes I do not think it wise or necessary to deal in detail with the 1997 Act and what followed it. This is not in any way meant as disrespectful to Miss Ross's careful analysis of it, but because none of it was disputed. What is clear are the following matters. Much of what happens depends on comity and practice. There has to be consent on both sides to a transfer and the Act is silent on many areas where it might have been thought that powers would be laid down. What is clear to me, however, mainly from what is not said, is that the respondents do not have power at their own hand to alter a restriction. They can agree to one proposed to them and in my view have to have proper reasons for doing so or refusing to do so.

[30] In this case the issue narrowed as to whether they had proper reasons.

[31] Let me now look briefly at some of the cases.

[32] AL (Serbia) concerned a new policy allowing certain asylum seekers to remain indefinitely due to increasing claims and backlogs. The claimants as young single adults were refused leave, and challenged under articles 8 and 14. It was found that there was a difference in treatment but that it was a proportionate response and justified. It can be noted at paras 29 and 30 the court gave tests of how to judge a response. The case before me is not in the "suspect" category and in my view a "rational explanation" is enough. Gerger v Turkey was a terrorist case involving article 14 and 15. Apparently the laws of Turkey treated terrorists less favourably than other criminals. No discrimination was found. Merely to be a prisoner did not equate him with others because of his particular offence.

[33] DZ concerned education of ethnic Roma children. They were placed in special schools. The applicants asked for retesting and to be educated without discrimination. The court found discrimination and amended damages. It is clear (177) that once a difference in treatment is shown it is for the Government to justify it.

[34] Magee I think does not help the petitioner. Again merely to be a prisoner is not enough for "other status" and within a country it is not wrong to have different procedural ways of dealing with people.

[35] The case of Nelson involved a clash between two temporary release schemes both of which were refused to the prisoner. In fact he was not entitled to the benefit of the Jersey scheme at all and that was why the claim failed. The judge (obiter I think) observed (14.5) that it was not for the court to weigh up the niceties of benefits and detriments of transfers.

[36] Finally I come to Clift. He was a long term prisoner serving 18 years for attempted murder. He alleged discrimination in this way. Life prisoners and those serving less than 15 years could be released by the parole board. He, however, also had to obtain the consent of the Secretary of State. The House of Lords with some hesitation (para 28 and 38) found against him as he was not comparable to life prisoners. The European Court, however, (para 61), adopted a narrower construction of that and not one based on the gravity of the offence. They went on to find that the intervention of the Secretary of State was an "indefensible anomaly" (para 77) and lacked "objective justification" (para 78).

[37] What then is to be done in the present case. In my opinion the short answer is to be found by an examination of the decision letter No. 6/12 of process. At common law if the decision taken shows that he has taken account of relevant matters and not taken any regard of irrelevant matters then provided the decision is not perverse it will be supported. Here the only matter considered was the final part of Mr Straw's statement about an Act where much has to depend on practice and experience and to a degree comity. It is impossible to take the view that the letter writer was not entitled to follow that non-prescriptive policy of 1997. It is perfectly true that 15 years later Jersey altered its policy in relation to a matter which required the consent of the sending and receiving jurisdictions. That was a unilateral act and cannot fetter the discretion of other UK authorities. That in my view is the short answer to the petition. The failure to vary is not irrational or unreasonable, nor have the respondents fettered their discretion. It would be quite wrong for the decision to be considered de novo, and the petition will be dismissed.

[38] However, the matter does not end there. When articles 14 and 5 are considered I do not think this petitioner has "other status". The fact that he is a prisoner is not enough alone. There would have to be a proper comparator and here there is none. He is a Jersey prisoner and as such did not come with the same expectations as a Scottish prisoner. The change of policy in Jersey is nothing to the point and cannot bind the respondents. I think that the case of Magee is in point for this, as in Gerger. I hold that there is no discrimination.

[39] However, if that is wrong then I have to look for a rational explanation of what the respondents have done AL (Serbia) para 30 and Clift para 73. Because of the type of case it is I would afford a wide margin of appreciation to the responsible authorities. I was told the legitimate aim for good prison administration was to adopt a position of neutrality and not allow either bonus or penalty. To some degree "prison shopping or tourism" was to be discouraged. The decision letter is easy to understand and the arithmetic of release dates is not complex or controversial. All these factors show a rational explanation. I do not have the experience or administrative knowledge of prisons or transfers myself to make a judgment of my own. What is obvious to me is that what happened here was a proportionate response to the circumstances; and for those reasons also the petition falls to be dismissed.

[40] I should add that I heard a separate argument on vires against the petition. I express no concluded view on that since the petition fails for other reasons just given.

[41] There are two final things I will add. Almost at the end Mr Leighton expressed regret that as Jersey did not now seem to want the long release date for the petitioner, it seemed disproportionate under the Convention not to alter his status. I have some sympathy with that but I think the other reasons I have given outweigh it.

[42] Lastly it should be noted that in the Straw statement it is, strictly read, the sending "Secretary who has to consider time spent". It may be asked if this excludes others from the decision. I do not think that it does when there is no guidance in the Act and practice and commonsense has to rule. In any event I heard no precise argument on the point.owHowe