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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 83
P309/20
OPINION OF LORD RICHARDSON
In the Petition
WILLIAM FREDERICK IAN BEGGS
Petitioner
for
Judicial Review of a decision of the Parole Board for Scotland dated 8 January 2020
Petitioner: Loosemore; Drummond Miller LLP
Respondent: Lindsay KC; Brodies LLP
Interested Party: Scullion; Scottish Government Legal Directorate
17 November 2023
Introduction
[1]
The petitioner is a prisoner in Her Majesty's Prison Edinburgh. He is currently
serving a life sentence for murder. The petitioner completed the punishment part of his
sentence on 27 December 2019.
[2]
On 8 January 2020, an oral hearing of the Tribunal of the Parole Board took place in
respect of the petitioner. On the same day, the Tribunal refused the petitioner's application
for parole.
2
[3]
In the present proceedings, the petitioner seeks to challenge the decision of the
Tribunal on two grounds. Both the Parole Board, as respondent, and the Scottish Ministers,
as an interested party, were represented at the hearing before me.
The legal framework
[4]
A life sentence is mandatory for a person who is convicted of murder. The
sentencing judge will set a mandatory punishment part. In the petitioner's case, this was
20 years. Once the punishment part has been served, the offender's continued
imprisonment is based on whether the Board considers that it is necessary for the protection
of the public (see section 2(4) and (5) of the Prisoners and Criminal Proceedings (Scotland)
Act 1993).
[5]
In Ryan v Parole Board for Scotland 2022 SLT 1319 the Inner House recently provided
guidance as to how the application of the statutory test should be approached (at
paragraph 14):
"(i)
the court must adopt anxious scrutiny of the decision;
(ii)
it can interfere if the reasoning falls below an acceptable standard in public
law;
(iii)
The duty to give reasons is heightened if expert evidence is being rejected;
(iv)
The longer the prisoner serves beyond the tariff `the clearer should be the
Parole Board's perception of public risk to justify the continued deprivation
of liberty involved';
(v)
While a cautious approach is appropriate when public protection is in issue,
as time passes it is not only legitimate but necessary for there to be
appropriate appreciation of the impact of confinement well beyond tariff and;
(vi)
The decision maker should ensure that it is apparent that this approach has
been adopted and its reasoning should provide clarity as to why confinement
remains necessary in the public interest."
3
[6]
The Court went on to say the following of the Board's task:
"[15] The Parole Board is entrusted with a sensitive task. It must carry out a
delicate balancing exercise. Whilst the use of a shorthand, such as `life and limb',
may be useful this should not obscure or embellish the statutory test. Reference to a
`life and limb' test has often been used to contrast with asking merely the inadequate
question whether the individual would remain offence free. The Parole Board must
take a 360° view taking account of all relevant factors. In our view the matter was
well expressed by Lord Phillips of Worth Matravers in R (Brooke) v Parole Board,
para 53, as follows:
`Judging whether it is necessary for the protection of the public that a
prisoner be confined is often no easy matter. The test is not black and white.
It does not require that a prisoner be detained until the board is satisfied that
there is no risk that he will re-offend. What is necessary for the protection
of the public is that the risk of re- offending is at a level that does not
outweigh the hardship of keeping a prisoner detained after he has served the
term commensurate with his fault. Deciding whether this is the case is the
board's judicial function.'"
The Tribunal's decision
[7]
In setting out the reasoning for its decision, the Tribunal began by stating that,
having considered the evidence, it was satisfied that it was necessary for the protection of
the public that the petitioner be confined.
[8]
The Tribunal set out that it had taken account of the following factors (at
paragraph 48):
"a)
the circumstances of the index offence and any offending history;
b)
the assessed levels of risk and needs described at paragraphs 44-46;
c)
conduct since sentence, and intentions if released;
d)
all relevant information in the dossier; and
e)
the evidence heard at the hearing."
[9]
The reference in sub-paragraph (b) to the assessed levels of risk and needs was to
three assessments of the petitioner which were summarised by the Tribunal
at paragraphs 44 to 46 of the decision as follows:
4
"44.
Using LS/CMI, William Beggs is assessed as presenting a moderate level of
risk and needs.
45.
Using the Stable 2007 risk assessment tool, Mr Beggs is assessed as presenting
a moderate level of risk.
46.
The 2015 PRA suggests that Mr Beggs presents a high risk of sexual
reoffending."
[10]
The remaining reasoning of the Board was set out in paragraphs 49 to 52 of the
decision:
"49.
Mr Beggs [sic] index offence was described by the trial Judge as a `most
horrific crime'. The libel of which he was convicted included that he penetrated his
victim's hinder parts with his private member, and that he murdered him. He then
dismembered his victim's body and disposed of it at various locations. Mr Beggs has
previous convictions for unlawful wounding at Teesside Crown Court, and assault
to severe injury, permanent disfigurement and to the danger of life at the High Court
at Kilmarnock. The latter conviction led to a sentence of imprisonment for a period
of 6 years.
50.
The Tribunal recognise that Mr Beggs maintains his innocence of his index
offence, and that he has largely avoided misconduct reports in prison. However, he
has also refused to comply with offence-focused work which has been identified as
necessary, on the basis of the terms of the charge of which he was convicted. His
refusal has been notwithstanding the availability of the course (MFMC) to those who
deny their offences. This leaves Mr Beggs with unaddressed offence-focused needs,
and has restricted professionals' insight into his offending and the triggers for it.
51.
Mr Beggs has also not been tested in less secure conditions. Mr Smith
suggested that there was little point to such testing, but the Tribunal did not accept
this submission. Mr Beggs has been out of the community for 20 years. The last time
he was in the community he committed his index offence, and the Tribunal are also
aware that he relocated to the Netherlands when he became aware that police were
looking for him. In such circumstances, Mr Beggs' reintegration back to the
community must be done with great care. The Tribunal would expect testing to
begin with special escorted leaves, and then increase slowly as was considered
appropriate. He should be extensively tested by whatever means are available. It is
important for him to build up the relationships which will support and monitor him
in the community, and it is also important that these relationships are fully tested
prior to his release. The Tribunal note that both the PBSW and CBSW do not support
release without such testing, and the Tribunal agreed with their position.
52.
The Tribunal carefully considered Mr Smith's submissions in relation to a
short review period. However, standing the Tribunal's view that Mr Beggs should
complete offence-focused work and then be extensively tested prior to his release,
5
the Tribunal concluded that a short review period would serve no purpose.
Mr Beggs will now be clear what work he should do to support his application for
release, and this work is likely to take more than the 24 month review period selected
by the Tribunal."
Petitioner's submissions
[11]
Counsel advanced two separate grounds of challenge.
First, the petitioner argued, at common law, that the Tribunal's decision was
vitiated by a material error of law in that the Tribunal failed appropriately to
identify and weigh relevant factors and has failed adequately to explain how
it weighted these factors in its decision;
Second, the petitioner argued that the decision is unlawful as it is in
contravention of Article 5(4) of the European Convention on Human Rights.
The petitioner's first ground of challenge
[12]
The petitioner's first ground of challenge turns on the Tribunal's treatment of the
Psychological Risk Assessment of the petitioner from 2015 which is referred to in
paragraph 46 of the decision (above at [9]).
[13]
It was apparent from paragraph 48(b) of the decision that the Tribunal had taken
account of the 2015 Psychological Risk Assessment. However, there was no explanation in
the decision of what the Tribunal had made of it.
[14]
Counsel noted that the Tribunal had referred to the index offence together with the
petitioner's previous convictions (in paragraph 49). Counsel accepted that the index offence
was plainly extremely serious but pointed out that it had occurred more than 20 years ago.
The Tribunal required to consider the up-to-date position. Thereafter, in paragraphs 50
and 51 the Tribunal sets out two matters which might reduce the level of risk represented by
6
the petitioner. These were, first, for the petitioner to complete the "Moving Forward Making
Changes" course, something which he has, so far, declined to do. The second was for the
petitioner to be tested in less secure conditions. However, the critical point was that the
Tribunal had not clearly articulated what it considered was the level of risk currently
presented by the petitioner.
[15]
One was left with the references made by the Tribunal to the risk assessment tools
in paragraphs 44 to 46 and, in particular, counsel focussed on the reference to the
2015 Psychological Risk Assessment in paragraph 46. In the petitioner's submission, this
assessment should have been expressly disregarded as it was 5 years old. It was not
relevant to the task of the Tribunal to assess the current risk presented by the petitioner.
[16]
Counsel submitted that it was not particularly significant whether one characterised
what the Tribunal had done as having considered an irrelevant factor, namely the
2015 Psychological Risk Assessment, or as having attached undue weight to it. The critical
point, so far as the petitioner was concerned, was that the Tribunal had made express
reference to the 2015 Psychological Risk Assessment and had highlighted that it assessed the
petitioner as presenting a high risk of sexual reoffending. However, having made the
reference, the Tribunal had given no explanation of what it took from the assessment.
[17]
In this regard, counsel drew my attention to an affidavit sworn by Dr Peter Pratt, a
consultant Clinical and Forensic Psychologist. In his affidavit, Dr Pratt discloses that he has
worked in high secure hospital settings since 1976. He currently works almost full time as
an expert witness in the areas of serious crime and child protection. In his affidavit, Dr Pratt
opined that psychological reports such as the 2015 Psychological Risk Assessment have a
"shelf life" of nine months to a year. This is because risk assessment is dynamic, variable
7
and needs to be reviewed at appropriate intervals. On this basis, Dr Pratt concludes that
"little, if any, weight" should be attached to the 2015 Psychological Risk Assessment.
[18]
Finally, counsel submitted that, in the event that the Tribunal had considered that the
2015 Psychological Risk Assessment was out-of-date, then it was open to the Tribunal to
continue the hearing to enable a new assessment to be made. The carrying out of a new
assessment could have been achieved in a shorter period than the two year review period
selected by the Tribunal.
[19]
Although not the subject of oral submissions, in the written Note of Argument
lodged on his behalf (which was adopted by counsel), an additional argument was
advanced on behalf of the petitioner. This was to the effect that the Tribunal had placed
undue weight on the fact that the petitioner had not undertaken the recommended offence-
focussed work namely, "Moving Forward: Making Changes" (see paragraph 50 of the
decision). Although the Tribunal had recognised that the petitioner maintained his
innocence, the Tribunal had, it was said, failed to consider the "objectively reasonable basis"
for the petitioner's position. This basis was said to be set out in an Opinion of Counsel dated
21 December 2018 which was produced. When this basis was considered, the petitioner's
failure to complete such a course was not relevant to the assessment of his current risk to the
public.
The petitioner's second ground of challenge
[20]
The petitioner's second ground of challenge was based on his right, in terms of
Article 5(4) ECHR, to have the lawfulness of his detention decided by a court. Counsel
accepted that the Tribunal of the Parole Board had been held many times to be a court for
the purposes of Article 5(4) (see, for example, O'Neill v HM Advocate 1999 SLT 958 at 961H-I,
8
Lord Justice General (Rodger)). Counsel also recognised that section 40(1) of the
Management of Offenders (Scotland) Act 2019 (which came into force on 1 October 2020)
stated:
"40
Continued independence of action
(1)
The Parole Board is to continue to act as an independent tribunal when
exercising decision-making functions by virtue of Part 1 of the 1993 Act (or decision-
making functions by virtue of another enactment relating to the same things)."
[21]
However, the petitioner submitted that, in the particular circumstances of the present
case, the Tribunal had not acted as an independent and impartial court. Counsel was careful
to make clear that she was not suggesting that any individual concerned had been
deliberately unfair. It was a question of how matters appeared. She urged me to take a
careful cumulative view of the following factors.
[22]
The first factor relied upon by the petitioner were the circumstances in which the
Chief Executive of the Parole Board for Scotland, Colin Spivey, had come to attend the
petitioner's hearing. The Chief Executive was the highest ranking civil servant at the Board
and a person employed by the Scottish Government. It appeared that the petitioner had
received advance notice that Mr Spivey intended to attend his hearing. At the beginning of
the hearing, the petitioner's legal representative objected to the attendance of Mr Spivey on
the basis of the managerial role he played for the Board. Having heard and considered these
submissions, the Tribunal allowed Mr Spivey to attend subject to certain conditions.
Against this background, it was submitted that the attendance of Mr Spivey created an
objective lack of independence between the Tribunal and the Scottish Ministers.
[23]
The second factor was the role played by the Chairperson of the Parole Board,
John Watt, in the petitioner's trial and subsequent appeal. It was acknowledged that the
Chairperson had recused himself from the petitioner's case. However, it was submitted that
9
by so acting the Chairperson had highlighted his prior involvement in the petitioner's case.
My attention was also drawn to the role that the Chairperson had, in terms of the 1993 Act
(as amended), to make recommendations in respect of the reappointment of members (see
Schedule 2, paragraph 2HA(4) of the 1993 Act) and in respect of having regard to
participation of members (see Schedule 2, paragraph 2J of the 1993 Act). It was accepted
that there was no suggestion of any deliberate undermining of the petitioner's hearing.
However, it was submitted that this factor contributed to a perception of a lack of
independence and impartiality.
[24]
The third factor was an alleged absence of robust measures to ensure confidentiality
in prisoners' correspondence with the Parole Board. In this regard, reference was made to
an affidavit prepared by the petitioner which referred to two occasions on which
correspondence addressed to him from the Parole Board had been opened by members of
Scottish Prison Service Staff. It was submitted that this was a further illustration of the way
in which the Parole Board and the Scottish Government (as the Scottish Prison Service) were
"intertwined".
[25]
The fourth factor was said to be lack of a clear dividing line to ensure "that
administratively and legislatively" the Parole Board is objectively independent from the
Scottish Government. In this regard, reference was made to the fact that the Parole Board
used administrative and physical facilities provided by the Scottish Prison Service.
[26]
The final factor was said to be the absence of an available mechanism for the review
of the Tribunal's decision. It was acknowledged that there is no general requirement for
such review in terms of Article 5. However, it was submitted that the particular
circumstances of the present case highlighted that the issues highlighted in the other factors
would have been mitigated if the Parole Board were, for example, to be transferred to the
10
Scottish Tribunals system and provided a route of appeal. The transferral of the Parole
Board to the Scottish Tribunals had been considered by the Scottish Government in the
consultation process that preceded the 2019 Act but not, ultimately, proceeded with.
Reference was made to paragraphs 298 to 304 of the Policy Memorandum which
accompanied the Bill which became the 2019 Act.
Respondent's submissions
[27]
Senior counsel for the Parole Board began by moving me to dismiss the petition. He
made clear that he would address the petitioner's first ground of challenge and the first two
factors relied on by the petitioner in support of the second ground of challenge. Counsel for
the Scottish Ministers was going to address the issues of institutional independence raised
by the petitioner.
The petitioner's first ground of challenge
[28]
Senior counsel submitted that the Tribunal had correctly applied the test set out in
section 2(5)(b) of the 1993 Act. The decision clearly set out three reasons for its decision to
refuse the petitioner's application for parole. These were: first, that the petitioner had been
convicted of an extremely violent offence (paragraph 49); second, that he had failed to carry
out any offence-focussed work (paragraph 50); and, third, he had never been tested in less
secure conditions (paragraph 51). Senior counsel submitted that the familiar test of the well
informed reader from Wordie Property Co Ltd v Secretary of State of Scotland 1984 SLT 345 was
satisfied.
[29]
The three reasons given by the Tribunal were clear and did not include the
2015 Psychological Risk Assessment. The Assessment was not one of the determining
11
factors identified by the Tribunal. Against this background, senior counsel submitted that
the petitioner's criticisms of the Tribunal's treatment of the Assessment were essentially a
criticism of the weight attributed by the Tribunal to that assessment. In this regard, senior
counsel drew my attention to what was said by Lord Clark in a previous case involving the
petitioner Beggs v Scottish Ministers [2018] CSOH 72 at paragraph 37:
"37.
Lord Keith stated (764G-H) that: `... it is entirely for the decision maker to attribute
to the relevant considerations such weight as he thinks fit, and the courts will not
interfere unless he has acted unreasonably in the Wednesbury sense.'
Lord Hoffman observed (780F-G) that: `Provided that the planning authority has
regard to all material considerations, it is at liberty (provided that it does not lapse
into Wednesbury irrationality) to give them whatever weight the planning authority
thinks fit or no weight at all.'
Accordingly, the weight to be given to any particular factor is a matter for the
decision maker, but the decision remains subject to the test for irrationality. Thus, to
succeed on the issues concerning weight, the petitioner requires to show that
individually or cumulatively, and taken along with the factors said to have been
omitted from consideration, the alleged attachment of excessive or insufficient
weight resulted in a decision which was irrational in the sense described by
Lord Diplock [referring to CCSU v Minister for the Civil Service [1985] AC 374
at 410G]."
[30]
Senior counsel submitted that, viewed from this perspective, the first ground of
challenge made by the petitioner must fail as it could not be said that the Tribunal's
treatment of the 2015 Psychological Risk Assessment was irrational. The Assessment
formed part of the Parole Dossier before the Tribunal and the Tribunal could not be
criticised for considering it.
[31]
Senior counsel also drew attention to the fact there had been discussion of the
2015 Psychological Risk Assessment before the Tribunal. At paragraph 22 of the Tribunal's
decision the following is recorded:
12
"22.
Ms Dwyer confirmed that the last Psychological Risk Assessment (PRA) had
been prepared in 2015, by Marc Kozlowski. She explained that nothing had changed
since that time."
Senior counsel explained that Ms Dwyer was the petitioner's Lifer Liaison Officer. She did
not have psychological expertise but was a specialist prison officer trained to deal with
matters of parole. The decision also recorded the fact that there had been discussion before
the Tribunal of the fact that the petitioner had brought judicial review proceedings in respect
of the 2015 Psychological Risk Assessment which were ongoing at the date of the Tribunal
[32]
Senior counsel highlighted that the petitioner had not challenged the Assessment on
the basis of its age before the Tribunal. Clearly as at the date of the Tribunal's hearing,
neither the petitioner nor the Tribunal had the benefit of Dr Pratt's affidavit. In any event,
senior counsel submitted that Dr Pratt's opinion did not establish that the Tribunal's
consideration of the 2015 Assessment, such as it was, represented an objectively verifiable
error of fact. Dr Pratt's opinion did not go so far.
[33]
As to the suggestion that the Tribunal ought to have continued the hearing for the
preparation of an updated Psychological Risk Assessment, senior counsel pointed out that
the petitioner's representatives had not made such a motion. It was notable that at the
hearing the petitioner had, for the first time and against the background of his ongoing
dispute over the 2015 Assessment, agreed to engage with psychology in the preparation of a
new report. In any event, even if the Tribunal had taken such a step and a further
assessment had been prepared, both the failure to carry out offence-focussed work and the
lack of testing in less secure conditions would remain and, on the Tribunal's reasoning,
would require to be addressed. Against this background it could not be said that no
13
reasonable Tribunal would have failed to continue the hearing to enable a further
Assessment to be carried out.
[34]
In relation to the Opinion of Counsel which was relied upon by the petitioner, this
had been obtained in connection with a further appeal by the petitioner against his
conviction. It was simply not relevant to the question of risk with which the Tribunal was
concerned. It provided no explanation as to why the petitioner had failed to engage with
the "Moving Forward: Making Changes" course.
The petitioner's second ground of challenge
[35]
Senior counsel submitted that neither of the first two factors relied upon by the
petitioner in respect of the second ground of challenge meant that the Tribunal had failed to
act as an independent and impartial court.
[36]
In respect of the attendance of the Parole Board's Chief Executive, Colin Spivey, at
the hearing, senior counsel explained that he had wished to attend the hearing as an
observer. This was not unusual for staff members to attend hearings as part of their ongoing
training. The Tribunal had acted reasonably and properly in allowing the petitioner's
representative an opportunity to set out any objections to the Chief Executive's attendance.
The Tribunal had then taken time to consider the issue before setting out their reasoning:
"10.
The Tribunal adjourned to consider the attendance of Mr Spivey. Upon
resumption, the Tribunal advised that it decided to authorise the attendance of
Mr Spivey. It would be made clear to Mr Spivey that he was attending as an
observer, and could not participate in the proceedings. Mr Spivey would also leave
the Tribunal room at the conclusion of the Tribunal, but before the members
commenced their deliberations. During the Tribunal he would be seated in view of
Mr Smith and Mr Beggs, to provide assurance that he restricted himself to observing
the proceedings. The Tribunal were of the view that these safeguards, together with
the non-disclosure agreement signed by Mr Spivey removed any unfairness or
perception of unfairness.
14
11.
Mr Spivey then entered the Tribunal. He was reminded that he was
attending simply as an observer, and should not participate in the proceedings in
any way."
[37]
If one considered this, as one was required to, from the perspective of a fair minded
and well informed observer, there was no real possibility that the Tribunal was not
independent and impartial (see Helow v Secretary of State for the Home Department 2009 SC
(HL) 1 at paragraphs 1 and 2).
[38]
As to the involvement of the Parole Board's Chairperson, John Watt, senior counsel
drew my attention to an affidavit which had been prepared by Mr Watt. It was clear from
that affidavit that Mr Watt had had no involvement in the consideration of the petitioner's
application for parole. Mr Watt had recused himself as soon as he became aware that the
petitioner's application was coming up for consideration. This was not disputed by the
petitioner.
[39]
The affidavit also set out Mr Watt's role as Chairperson of the Parole Board. Senior
counsel submitted that the Chairperson was primus inter pares. He had no management
authority or control over other members of the Board. He did not assign members to
particular panels. This was done by a dedicated case scheduler.
[40]
Senior counsel understood that the criticism being made of Mr Watt was that by
recusing himself at the first opportunity he had made matters worse by alerting others to his
prior involvement. On this basis, it was difficult to see what Mr Watt was supposed to have
done. Furthermore, it was not clear what further interest Mr Watt was thought to have in
the petitioner's case more than 20 years after his conviction. In any event, given Mr Watt's
recusal, there was no basis for saying that there had been any infringement of the
petitioner's rights under Article 5(4) ECHR.
15
Interested party's submissions
[41]
Counsel for the Scottish Ministers made clear that his sole interest in the petition was
to challenge the contention that the Tribunal of the Parole Board was not a court in terms of
Article 5(4) ECHR. In summary, he submitted that the petitioner's submissions had no merit
and nothing had been presented to revisit or overturn a well settled issue.
[42]
Counsel submitted that the Strasbourg Court had clearly set out the requirements of
a "court" for the purposes of Article 5(4) ECHR. He made reference to Weeks v United
(2010) 50 EHRR 7 at paragraphs 94 to 95. Counsel submitted that the following principles could be
derived from the Strasbourg jurisprudence. First, as Article 5(4) itself made clear, an
individual detained must be entitled to bring proceedings to have the continued lawfulness
of his detention determined speedily by a court. Second, the court in question need not be a
traditional court, but it must be a body of a judicial character offering certain appropriate
procedural guarantees. Third, the body concerned must be impartial and independent from
both the executive and the parties to the case. Fourth, the body must have the power to
order release, a power to make recommendations was not sufficient. Finally, there was no
requirement in terms of Article 5 to set up an appellate jurisdiction.
[43]
Counsel then made submissions as to the Parole Board. In its current form, the
Parole Board was established by the 1993 Act as amended. The 1993 Act set out the Parole
Board's power to order the release of a prisoner (Section 1(3), Section 2(4) and (5)).
Schedule 2 of the 1993 Act made provision as to the Board including, among other things,
security of tenure of members of the Board (paragraphs 2A and 3). In this regard, counsel
submitted that paragraph 2HA(4) of Schedule 2, which had been referred to by the
petitioner (see paragraph [23] above), restricted the circumstances in which a
16
recommendation by the Chairperson could be made. Such a recommendation could only be
made either as a result of a failure by the member to comply with the terms and conditions
of appointment or if the number of members was such that other members were no longer
required by the Board. Counsel took me to the terms and conditions of members and
submitted that these made clear that members were independent office holders. This
approach mirrored, for example, the approach taken to legal members of Scottish Tribunals.
[44]
Based on a consideration of the relevant legislation, counsel highlighted the
following: the Parole Board's members were appointed by an independent body; the tenure
of Parole Board's members were protected by significant statutory safeguards; and the
Board's proceedings before the Tribunal were the subject of detailed procedural rules which
include rights in relation to disclosure, the right to make representations and be represented.
Counsel also drew attention to the fact that, as the present proceedings demonstrated,
decisions of the Tribunal of the Parole Board could be challenged by way of judicial review
which represented an additional safeguard.
[45]
On this basis, counsel noted that it was unsurprising, in his submission, that the
Parole Board (and its equivalent in England and Wales) had been repeatedly and
consistently described as being a court in terms of Article 5(4) in decisions of the Supreme
Court (see, for example, Brown v Parole Board for Scotland 2018 SC (UKSC) 49 at paragraph 61;
R (on the application of Pearce) v Parole Board for England and Wales [2023] AC 807 at
paragraph 3). As against this, the petitioner had put nothing forward to cast doubt on these
arrangements.
[46]
In respect of the case specific factors relied on by the petitioner, counsel submitted
that the petitioner had failed to explain how, in the circumstances, the attendance of the
chief executive, whose role was of an administrative and financial nature, called into
17
question in any way the independence or impartiality of the Tribunal. The same could be
said of the fact that the Chairperson had been previously been involved in the prosecution of
the petitioner.
[47]
Finally, in relation to the issue of the confidentiality of prisoners' correspondence
with the Parole Board, counsel understood that on two occasions correspondence addressed
to the petitioner had been opened, in error, by prison service staff. This had occurred
because the correspondence had not been labelled as coming from the Parole Board. As a
result of this issue having been highlighted (by the petitioner raising judicial review
proceedings), action had been taken to ensure that it would not happen again. This
involved the Parole Board clearly labelling the correspondence and instructions being given
to prison service staff in this respect. However, counsel submitted that the petitioner had
entirely failed to explain how these incidents cast doubt on the independence and
impartiality of the Parole Board as a whole.
Decision
[48]
I do not consider that either of the grounds of challenge set out in the petition is
established.
The first ground of challenge
[49]
The first ground of challenge focusses, primarily, on the treatment by the Tribunal of
the 2015 Psychological Risk Assessment. The principal criticism is that the Tribunal placed
undue weight on that Assessment because, so it is argued, it was so out of date that little or
no weight should have been placed on it.
18
[50]
I agree with the submission by senior counsel for the Parole Board that the correct
test for this type of situation was set down by Lord Clark at paragraph 37 of his judgment in
Beggs v Scottish Ministers (above at [29]). In other words, the petitioner requires to show that
the weight attached by the Tribunal to the 2015 Psychological Risk Assessment was
irrational in the sense of being
"so outrageous in its defiance of logic or accepted moral standards that no sensible
person who had applied his mind to the question to be decided could have arrived at
it" (CCSU v Minister for the Civil Service [1985] AC 374 at 410G)
[51]
The first problem with this argument is that it is not apparent from the decision that
the Tribunal placed any particular weight on the 2015 Assessment. The three principal
reasons for the Tribunal's decision are given in paragraphs 49, 50 and 51 (see paragraph [10]
above). These were: first, the horrific nature of the offence of which the petitioner was
convicted together with his other previous convictions; second, that, as a result of his
refusal to undertake the "Moving Forward: Making Changes" course, the petitioner had
unaddressed needs; and, third, that the petitioner not been tested in less secure conditions.
[52]
By contrast, the 2015 Assessment is simply referred to in the decision as being one of
the factors which the Tribunal "took into account" (at paragraph 48 of the decision). Viewed
from this perspective, the petitioner's position comes to be that the Tribunal's decision is to
be regarded as irrational because the Tribunal even made this reference to the
2015 Assessment.
[53]
I have no hesitation in rejecting this argument. The 2015 Assessment formed part of
the petitioner's dossier. It was referred to during the course of the hearing before the
Tribunal both by Ms Dwyer, the petitioner's Lifer Liaison Officer and the petitioner's
representative. I consider that the Tribunal would have been more open to criticism had
they failed to mention the 2015 Assessment.
19
[54]
The subsidiary criticism advanced by the petitioner was that the Tribunal's reasoning
was inadequate because the Tribunal had not properly articulated what it made of the
2015 Assessment.
[55]
I consider that this criticism of the Tribunal is also misconceived for two reasons.
[56]
First, essentially, the Tribunal is being criticised for not dealing in its decision with
an argument as to weight to be attached to the 2015 Assessment which was not advanced
before it. That argument was advanced before me based on the affidavit of Dr Pratt which
was also not before the Tribunal
[57]
Second, and more fundamentally, the petitioner's argument fails properly to take
account of the nature of the task which the Parole Board requires to carry out. As the Inner
House made clear in paragraph 15 of Ryan (above at [5] and [6]), the test which the Parole
Board requires to carry out is not easy and is not black and white. It requires 360° view
taking account of all relevant factors. As such, the Tribunal requires to take a holistic
approach. In my opinion, it would be unreasonable to expect the Tribunal in its decision to
break down what it made of each of the multiplicity of factors before it.
[58]
Ultimately, the critical question to be asked in assessing the reasoning of the
Tribunal's decision is that the well informed reader should be in no real and substantial
doubt as to the reasons for the decision and the material considerations that were taken into
account in making it (Wordie above at [28]). I am entirely satisfied that the Tribunal's
decision meets this test. The material factors which were determinative are clearly set out in
paragraphs 49 to 51 of the decision.
[59]
There are two final issues raised by the petitioner as part of the first challenge which
I require to address. Both can be dealt with shortly.
20
[60]
First, there is the petitioner's criticism that the Tribunal failed to continue the hearing
to enable an updated Psychological Risk Assessment to be prepared. I do not consider that
the Tribunal can properly be criticised for this. At the time of the hearing, the issue of the
impact of the age of the 2015 Assessment had not been raised. Furthermore, this criticism
fails to take account of the fact that the issues identified by the Tribunal in paragraphs 50
and 51, which determined its decision, were what drove the selection of a 24 month review
period.
[61]
Secondly, there is the petitioner's criticism of the Tribunal for placing weight on the
petitioner's failure to complete offence-focussed work. The basis for this criticism is said to
be that the Tribunal failed to take account of material lodged by the petitioner (including
counsels' opinion) which showed the objectively reasonable basis for the fact that he
maintains his innocence. This argument is entirely misconceived. The fact that the
petitioner maintains his innocence does not detract from the fact that this offence-focussed
work was identified as being necessary in his case. As the Tribunal makes clear in the
decision, the "Moving Forward: Making Changes" course in question is available to those
who maintain their innocence.
The second ground of challenge
[62]
The petitioner' second ground is that, in light of the factors relied upon, the Tribunal
of the Parole Board in its actions in this case has not acted as an independent and impartial
court. Accordingly, the petitioner submits that his rights under Article 5(4) ECHR have been
infringed. In advancing this argument, counsel for the petitioner stressed two things. First,
she was careful to make clear that the petitioner was not suggesting that there had been any
deliberate unfairness by any individual concerned. Second, she stressed that the petitioner's
21
challenge was based on there being a lack of an appearance of independence and
impartiality in his particular case (see Weeks at paragraph 62; and Campbell and Fell v
[63]
On this basis, I consider that, by analogy, Lord Hope's guidance as to the fair minded
observer considering the real possibility of bias in Helow at paragraphs 2 and 3 is of
particular assistance:
"[2]
The observer who is fair minded is the sort of person who always reserves
judgment on every point until she has seen and fully understood both sides of the
argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v
Johnson (p509, para 53). Her approach must not be confused with that of the person
who has brought the complaint. The `real possibility' test ensures that there is this
measure of detachment. The assumptions that the complainer makes are not to be
attributed to the observer unless they can be justified objectively. But she is not
complacent either. She knows that fairness requires that a judge must be, and must
be seen to be, unbiased. She knows that judges, like anybody else, have their
weaknesses. She will not shrink from the conclusion, if it can be justified objectively,
that things that they have said or done or associations that they have formed may
make it difficult for them to judge the case before them impartially.
[3]
Then there is the attribute that the observer is `informed'. It makes the point
that, before she takes a balanced approach to any information she is given, she will
take the trouble to inform herself on all matters that are relevant. She is the sort of
person who takes the trouble to read the text of an article as well as the headlines.
She is able to put whatever she has read or seen into its overall social, political or
geographical context. She is fair minded, so she will appreciate that the context
forms an important part of the material which she must consider before passing
judgment."
[64]
Were the fair minded observer described by Lord Hope to consider the particular
factors relied upon by the petitioner in this case, I have no doubt that she would not
consider that there was a real possibility that the Tribunal was not independent and
impartial.
[65]
I consider that the fair-minded observer would take as her starting point the fact that,
in terms of its institutional framework, the Tribunal of Parole Board for Scotland had been
held to be, consistent with the requirements of Article 5(4), a judicial body which is
22
independent of the Scottish Ministers and impartial in its duties (see Brown above at
paragraph 45; and Hutton v Parole Board for Scotland 2021 SLT 591 at paragraphs 12 and 52).
[66]
From this starting point, I do not consider that any of the factors relied upon by the
petitioner, either individually or collectively, would cause her to conclude that there was an
appearance of a lack of independence or impartiality.
[67]
In respect of each of the first two factors: the attendance of the Chief Executive at the
hearing; and the prior involvement of the Chairperson (see paragraphs [22] and [23] above),
one imagines the fair-minded observer asking herself so what? In neither case does the
petitioner explain why either factor would create an appearance of a lack of independence or
impartiality.
[68]
In the case of the attendance of the Chief Executive, the petitioner's position seems to
amount to no more than he objected to Mr Spivey's attendance and the Tribunal overruled
this objection and allowed Mr Spivey to attend subject to conditions (see paragraph [36]
above). This decision, while adverse to the petitioner, simply does not constitute an
objective basis for considering that there is a lack of independence or impartiality.
[69]
In the case of the Chairperson, standing his immediate and entirely appropriate
recusal, the petitioner's position seems to boil down to the role that the Chairperson played
with respect to his fellow members of the Parole Board and, in particular, his power to make
a recommendation, in certain circumstances, in relation to their reappointment (see
paragraphs 2J and 2HA(4) of Schedule 2 of the 1993 Act). I do not consider that there is any
substance in either of these points. The affidavit prepared by the Chairperson, which was
not challenged, makes clear that he does not assign members to particular parole panels. It
also explained that the Chairperson has had no involvement in the consideration by the
Board of the petitioner's application for parole. As to the Chairperson's duties and powers
23
contained in Schedule 2 of the 1993 Act, properly understood, I do not consider that these
have any impact at all on the question of the Board's independence and impartiality.
[70]
I consider that the third factor founded upon by the petitioner, the two occasions on
which correspondence between the petitioner and the Board was opened by Prison Service
staff, is so lacking in specification as to be of little relevance. Based on the explanation that
was provided to me by counsel for the Scottish Ministers (see paragraph [47] above), which
was not disputed by the petitioner, I do not consider that this administrative oversight by
the Prison Service staff in any way calls into question either the independence or
impartiality of the Parole Board.
[71]
This leaves the final two factors relied upon by the petitioner being: first, the alleged
lack of a clear dividing line to ensure "administratively and legislatively" the Parole Board is
objectively independent from the Scottish Government; and second, the absence of an
available mechanism for review of the Tribunal's decision (see paragraphs [25] and [26]
above). These factors are general and relate to the overall legislative and institutional
framework in which the Parole Board is placed. No circumstances particular to the
petitioner's case are identified in relation to either of these factors.
[72]
Standing my conclusions in respect of the first three factors together with the
authoritative guidance provided in respect of the Parole Board for Scotland (see above
at [65]), I do not consider that either the fourth or fifth factors alter my conclusion that
whether taken individually or cumulatively, the factors identified by the petitioner would
not lead the fair-minded observer to conclude that there was a real possibility that the
Tribunal lacked either independence or impartiality.
24
Order
[73]
Accordingly, I will sustain the third plea-in-law for the respondent and the second
plea-in-law for the interested party and refuse the petition. I will reserve all questions of
expenses meantime.
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