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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 6
P738/24
OPINION OF LORD SANDISON
in the petition of
GORDON BURNS
Petitioner
for
Judicial Review of the system operated by the Scottish Ministers to grant him his first grant
of temporary release
Petitioner: Leighton; Drummond Miller LLP
Respondent (Scottish Ministers): D. Ross, KC, Scullion; SGLD
25 January 2024
Introduction
[1]
Gordon Burns is a convicted prisoner serving a discretionary life sentence dating
from 31 October 2000. The punishment part of that sentence was nine years. He has
remained in custody since his conviction. Since March 2023 he has been confined at HMP
Greenock in what is called the National Top End section of the Scottish Prison Service estate.
He has been afforded occasions of special escorted leave and is awaiting the outcome of
consideration of his suitability for a community work placement. If he is assessed as
suitable for such a placement, he will require to obtain from the Scottish Ministers
something known as a First Grant of Temporary Release. He wishes to have unescorted
2
access to the community because he believes that that will be necessary to demonstrate to
the Parole Board for Scotland, the body which will ultimately determine whether he can be
released from custody on licence, that it is no longer necessary for the protection of the
public that he be required to remain in confinement. Having observed what has happened
to other prisoners of his acquaintance, and having obtained certain statistical information, he
is apprehensive that a ministerial decision on whether to approve any application for First
Grant of Temporary Release to him is likely to be inordinately delayed, particularly in
comparison with the process which another group of prisoners serving sentences of
indeterminate duration namely those subject to orders for lifelong restriction go through.
He also contends that it is unlawful for the decision on applications for First Grant of
Temporary Release to be made by Ministers (in practice, the Minister for Victims and
Community Safety) rather than by a non-political agent.
[2]
By way of this petition for judicial review, Mr Burns seeks declarator that the scheme
for the approval of First Grant of Temporary Release breaches his rights in terms of Article 5,
or else Article 14 with Article 5, or in any event Article 14 with Article 8 of the European
Convention of Human Rights; declarator that Rule 134 of the Prisons and Young Offenders
Institutions (Scotland) Rules 2011 (as amended) insofar as it requires approval of the Scottish
Ministers to a First Grant of Temporary Release is unlawful; and reduction of Rule 134
insofar as it requires approval of the Scottish Ministers to a First Grant of Temporary
Release.
Background
Relevant Provisions
[3]
The European Convention on Human Rights provides inter alia as follows:
3
"ARTICLE 5 Right to liberty and security
1.
Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law: (a) the lawful detention of a person after conviction by
a competent court;
...
4.
Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not lawful.
...
ARTICLE 8 Right to respect for private and family life
[1]
Everyone has the right to respect for his private and family life, his home and
his correspondence.
[2]
There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.
...
ARTICLE 14 Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status."
[4]
Rule 134 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011/331,
so far as material, is in the following terms:
"134.-- Eligibility of prisoners for temporary release
(1)
In this Part "temporary release" means any of the forms of temporary release
defined in Rule 136.
...
4
(4)
Subject to paragraph (5), a life prisoner is disqualified from obtaining
temporary release unless the Governor has obtained the prior consent of the Scottish
Ministers.
(5)
Any consent granted by the Scottish Ministers under paragraph (4)--
(a)
will apply to the first grant of temporary release and any further
grants of temporary release; but
(b)
will cease to have effect if the prisoner is subsequently assigned a
supervision level other than low supervision level."
Petitioner's submissions
[5]
On behalf of the petitioner, counsel submitted that discretionary life prisoners in the
petitioner's position would ordinarily require to progress in a certain manner through the
prison estate in order to have any realistic chance of being released. The standard
progression route was that a prisoner would complete any necessary rehabilitative
coursework and then transfer to the National Top End. There, he would be expected to take
Special Escorted Leaves for the first year and then obtain an external work placement in the
second year. It would ordinarily be anticipated that a prisoner would spend about two
years in the National Top End before transferring to the Open Estate where he would
continue with his work placement and might be granted further unescorted leave. Before
undertaking a work placement or any other form of unescorted leave he would require to
obtain a First Grant of Temporary Release. This would typically be about a year into the
prisoner being at the National Top End. Before transferring a prisoner from the National
Top End to the Open Estate the Scottish Ministers would consider the prisoner's case. There
required to be ministerial approval at the stage of First Grant of Temporary Release and
when a life prisoner went to the Open Estate.
5
[6]
Prisoners subject to orders for lifelong restriction would have the same general
progression pathway as discretionary life sentence prisoners, but did not require to obtain a
First Grant of Temporary Release from the Ministers. Instead, they required the approval of
the Risk Management Authority before any significant change to their Risk Management
Plan. They did not require ministerial approval for any transfer to the Open Estate, but that
(or community access) might require a change to their plan.
[7]
It was not clear to the petitioner what the relevant timeframes were. As a
discretionary life sentence prisoner, he had an understanding that prisoners subject to orders
for lifelong restriction seemed to be processed far more quickly than prisoners in his
position. There appeared to be a substantial time difference in the processing of the two
groups. Statistics had been obtained but were difficult to interpret meaningfully. The
petitioner was in a position to seek a First Grant of Temporary Release in November 2023.
His case had been considered by local prison staff, but it was unclear whether he would be
deemed suitable to apply, or be recommended for, such release.
[8]
In those circumstances, the petitioner complained of violation of his rights under the
European Convention on Human Rights. A prisoner subject to an order for lifelong
restriction who sought community access would probably require an amendment to his Risk
Management Plan. The task undertaken by the Risk Management Authority in considering
a revised or amended Plan was the same as that undertaken by the Scottish Ministers when
an application for First Grant of Temporary Release was considered. There was no good
reason for the task to be undertaken by a politician in respect of discretionary life prisoners.
There was no good reason for it to take a longer time in respect of such prisoners.
[9]
There were two elements to the petitioner's complaint: firstly, in comparison to
prisoners subject to orders for lifelong restriction, it was likely that consideration of his case
6
would take a disproportionately long period of time (this complaint was made under
Article 14 taken with 5 and 8), and secondly, consideration of his case would be undertaken
by a politician rather than by professional risk assessors and managers alone (this complaint
was made on the basis of Article 5 and separately Article 14 taken with 5 and 8).
[10]
In relation to Article 5, it required that deprivation of liberty should not be arbitrary.
An inherent part of the Article was the provision of a real opportunity for rehabilitation (as
only a certain class of prisoner, but the petitioner was within that class as a post-tariff
indeterminate sentence prisoner.
[11]
Decisions to allow a First Grant of Temporary Release were made by a politician.
Most if not all other decisions were made by civil servants on a non-political basis. There
was no proper justification for the involvement of a politician in the decision to grant or
refuse a First Grant of Temporary Release. The involvement of a politician did not provide
an adequate protection against arbitrariness. The only reason for involving a politician in
the decision-making process was in order that there could be some political content to that
decision. The decision should be an assessment of the risks posed by the petitioner and the
management of that risk. It should not have any political content. Temporary release of a
life prisoner would bear upon his prospects for release. Article 5 required a real opportunity
for rehabilitation, and making the provision of that opportunity dependent upon the will of
a politician did not provide a sufficient safeguard against arbitrary decision-making.
[12]
In relation to Article 14, an applicant required to show that the facts of the case fell
within the scope or ambit of another substantive Article, that he had status in terms of
Article 14, and that there was an absence of justification. The scope or ambit of a right for
the purposes of the potential application of Article 14 was wider than the substance of that
7
[72(i)]). Article 14 of the Convention was pertinent if "the subject matter of the disadvantage
... constitutes one of the modalities of the exercise of a right guaranteed ...", or if the
contested measures were "linked to the exercise of a right guaranteed ...": Markin v Russia
consideration for First Grant of Temporary Release fell within the ambit of Article 5. It also
fell within the ambit of Article 8, which related to conditions of detention over and above the
minimum restriction implicitly permitted by Article 5: Munjaz v United Kingdom [2012] MHLR 351
at [79] and [80]. Temporary release related to the temporary suspension of those
conditions on the prisoner and so fell within the ambit of Article 8.
[13]
Status was similarly given a wide interpretation, as in R (Stott) v Secretary of State for
(7205/07), [2010] ECHR 1106 at [56] and [62]. Sentence types were held to constitute an "other status" in Stott.
[14]
The petitioner further contended that he was in an analogous position to prisoners
subject to orders for lifelong restriction for these purposes. The particular nature of the
complaint was important and the comparison did not require to be exact; the cases merely
had to be relevantly similar: Clift at [66]. There was no logical difference in the assessment
of the risks posed by members of the compared groups, so the mechanisms used to consider
the risks that an indeterminate sentence prisoner posed when he was first released into the
community were relevantly similar: cf Clift at [67]. Once a prisoner was granted First Grant
of Temporary Release or his risk management plan was agreed, there was no distinction
made between the different types of sentence. The Inner House had held that prisoners
subject to orders for lifelong restriction were in an analogous position to discretionary life
prisoners for the purposes of the availability and timing of rehabilitative opportunities:
8
discriminated against in terms of Article 14 compared with other prisoners who were subject
to an order for lifelong restriction.
[15]
It was for the Scottish Ministers, if they wished, to prove that there was reasonable
and objective justification for the relevant difference in treatment. None existed. The
petitioner did not require to prove that he was particularly disadvantaged Clift at [66]
and lacked the information to do so.
[16]
If the court concluded that the petitioner ought to succeed to any extent, it should
put the case out by order to discuss the nature of any eventual remedy to be granted.
Respondents' submissions
[17]
On behalf of the respondents, senior counsel observed that the petitioner had become
eligible to be released on parole licence from 27 August 2017 but that the Parole Board had
not, as matters stood, ordered his release. He was thus a post-tariff discretionary life
sentence prisoner. In order to achieve his release, he would require to demonstrate to the
Parole Board that it was no longer necessary for the protection of the public that he should
be confined. While the Parole Board could in theory direct release from closed prison
conditions, there was an expectation that (both mandatory and discretionary) life sentence
prisoners, and prisoners detained pursuant to an order for lifelong restriction, would first be
tested through unsupervised access to the community, by way of "temporary release". The
first time a discretionary life sentence prisoner was given temporary release was known as
First Grant of Temporary Release.
[18]
This petitioner complained that it took such a prisoner longer to obtain temporary
release than it took for a prisoner subject to an order for lifelong restriction to obtain it. This
9
was said to be unlawful discrimination in terms of Article 14 of the European Convention on
Human Rights, read with Articles 5 and 8, because discretionary life prisoners and order for
lifelong restriction prisoners were in an analogous position and there was no objective
justification for the two cohorts being treated differently. The less favourable treatment
complained of was said to arise from the fact that the Risk Management Authority, which
was responsible for approving temporary release for prisoners subject to an order for
lifelong restriction, reached its decision faster than the Scottish Ministers, who were
responsible for approving temporary release for discretionary life sentence prisoners. The
petitioner also challenged the fact that in terms of Rules 134 of the Prisons and Young
Offenders Institutions (Scotland) Rules 2011 it was the Scottish Ministers who determined
whether to grant temporary release for the first time, and sought reduction of that Rule.
[19]
Those complaints were unfounded for three reasons. First, when looked at in the
round, and making appropriate allowances for differing individual circumstances,
discretionary life sentence prisoners were not as a matter of fact treated any less favourably
than prisoners subject to orders for lifelong restriction. There was no relevant delay or
discrimination. In particular, the ministerial stage of the decision-making process for
discretionary life prisoners only took, on average, four days. Both categories of prisoner
were subject to a rigorous risk assessment before being considered for temporary release,
and the processes for such assessment were parallel but different. That gave rise to the
second reason why the complaint was ill-founded: the difference in how the two categories
of prisoner were treated for the purpose of obtaining temporary release arose from the
legislation which created the order for lifelong restriction sentence and the attendant
responsibility of the Risk Management Authority for determining the temporary release of
prisoners subject to such orders. No objectionable discrimination could arise in such
10
circumstances. Thirdly, there was nothing objectionable in law about a Minister taking the
decision as to whether to grant temporary release, subject to the safeguards presented by the
ability to subject any such decision to judicial review. The court should therefore dismiss
the petition.
[20]
A discretionary life sentence could be imposed on conviction for any common law
crime other than murder, or for a statutory offence which carried a sentence of up to life
imprisonment. It was a sentence imposed because there was a need to protect the public
against offending by the prisoner which would not be adequately met by the imposition of a
determinate sentence; it was directed to ensuring that the prisoner would be kept in custody
until it was thought safe for him to be released: Murray v HM Advocate 2000 JC 102 at p 108.
At sentencing, the judge imposed a punishment part, calculated in accordance with
section 2A of the Prisoners and Criminal Proceedings (Scotland) Act 1993. After expiry of
the punishment part, the Scottish Ministers were required to release a discretionary life
sentence prisoner on licence if directed to do so by the Parole Board (section 2(4) of the 1993
Act). The Parole Board could not direct the Ministers to release such a prisoner on licence
unless it was satisfied that it was no longer necessary for the protection of the public that the
prisoner should be confined (section 2(5)(b) of the 1993 Act).
[21]
Orders for lifelong restriction were recommended as a new sentence in the Report of
the Committee on Serious Violent and Sexual Offenders (June 2000) and were designed
largely to replace the use of discretionary life sentences. The Risk Management Authority
had been created to establish, promulgate and continuously update best practice in risk
assessment and risk management. The relative legislative changes were introduced by the
Criminal Justice (Scotland) Act 2003, section 1 of which inserted sections 210B to 210H into
the Criminal Procedure (Scotland) Act 1995. Sections 3 to 10 of the 2003 Act established the
11
Risk Management Authority. Section 210F(2) of the 1995 Act provided that an order for
lifelong restriction constituted a sentence of imprisonment, or as the case may be detention,
for an indeterminate period. The High Court had to make an order for lifelong restriction
where, on the balance of probabilities, the risk criteria were met: section 210F(1). The risk
criteria were defined in section 210E as being that the nature or the circumstances of the
commission of the offence of which the convicted person had been found guilty, either in
themselves or as part of a pattern of behaviour, were such as to demonstrate that there was a
likelihood that he, if at liberty, would seriously endanger the lives, or physical or
psychological well-being, of members of the public at large.
[22]
Where a prisoner was subject to an order for lifelong restriction, various other
provisions of the 2003 Act applied. In particular, the prisoner had to be the subject of a Risk
Management Plan, which set out an assessment of risk and the measures to be taken for its
minimisation, and how such measures were to be co-ordinated (section 6(3) of the 2003 Act).
The Risk Management Authority was established under section 3 of the 2003 Act for the
purpose of ensuring the effective assessment and minimisation of risk in terms of
section 6(3). The preparation of a Risk Management Plan, where an offender was serving a
sentence of imprisonment, was carried out by the Scottish Ministers as `lead authority' in
accordance with section 7(1) of the 2003 Act. The Risk Management Plan had to be
submitted to the Risk Management Authority under section 8(4) of the 2003 Act for its
approval or rejection. If rejected, the Ministers had to revise the Plan and resubmit it to the
Authority. Where there had been, or there was likely to be, a significant change in the
circumstances of an offender, the Ministers had to review the Plan, amend it if necessary and
submit it to the Authority for its approval or rejection (section 9(5)-(7) of the 2003 Act). A
significant change in the circumstances of a prisoner would include a proposed transfer
12
from one prison to another or a proposed progression to less secure conditions, including
being granted temporary release.
[23]
Orders for lifelong restriction became available sentences on 20 June 2006. The same
provisions of the 1993 Act as regards calculating the punishment part and parole applied to
prisoners subject to orders for lifelong restriction as applied to discretionary life sentence
prisoners. As was noted in Brown v Scottish Ministers at [3]:
"Since their introduction it is unlikely that any discretionary life sentences will have
been imposed where OLRs were available but a discretionary life sentence remains a
competent sentence. A discretionary life sentence may be imposed, for example, in
respect of offences committed before [20 June 2006]. There are prisoners who are
currently serving discretionary life sentences. Some of those sentences were imposed
before [20 June 2006]. Some such sentences may have been imposed on or after that
date for offences committed before it, and discretionary life sentences may be
imposed in the future where the offences pre-date that date."
[24]
The substantive right which the petitioner claimed to have been infringed was that
protected by Article 14 of the European Convention on Human Rights, read with Articles 5
and 8. Article 5 secured the right to liberty and security of persons. Article 5(1)(a) provided
that a person should not lose his liberty save by being lawfully detained following a
conviction by a tribunal which is judicial in character. It was principally concerned with the
question of whether the detention of an individual was permissible, and its object and
purpose was to ensure that no one was dispossessed of his liberty in an arbitrary fashion:
Article 5(4) conferred an associated right and was the habeas corpus provision. It provided
indeterminate sentence prisoners with a right to a periodic review of the lawfulness of their
continued detention by a body of judicial character which was independent of both the
executive and of the parties to the case, and which had the power to order release: Weeks v
13
judicial body for the purposes of Article 5(4): Brown v Parole Board for Scotland at [61]. What
Article 5 required by way of an ancillary duty to provide rehabilitative opportunities for
prisoners was described by Lord Reed in Brown at [29] as follows:
"...an opportunity must be afforded to the prisoner which is reasonable in all the
circumstances, taking into account, among all of those circumstances, his history and
prognosis, the risk he presents, the competing needs of other prisoners, the resources
available and the use which has been made of such rehabilitative opportunity there
has been."
However, the threshold for establishing a violation of Article 5(1) on the basis of a failure to
provide a real opportunity for rehabilitation was a high one: Brown at [27].
[25]
Article 14 provided that the "enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status." In order to establish that different
treatment amounted to a violation of Article 14, it was necessary to establish four elements,
as summarised in the UK Supreme Court stage of Stott at [8]. Firstly, the circumstances had
to fall within the ambit of a Convention right; secondly, the difference in treatment must
have been on the ground of one of the characteristics listed in Article 14 or "other status";
thirdly, the claimant and the person who had been treated differently must be in analogous
situations; and fourthly, objective justification for the different treatment had to be lacking.
[26]
The ambit of a Convention right was a matter of assessment. The issue was whether
the disadvantage asserted "comprises one of the ways a state gives effect to a Convention
right"; and a "tenuous link" with a Convention right was not enough: M v Secretary of State
accepted that the subject matter of the case came within the ambit of Article 5, although not
of Article 8. If, contrary to that position, the petitioner's complaint did fall within the ambit
14
of Article 8, that Article required that any interference with the core right to respect for
private and family life must be "in accordance with the law". For the interference to be
lawful, the interference had to be sufficiently precise, accessible, and foreseeable. The
interference also required to be proportionate to the aim pursued, and the measure had to be
rationally connected to that aim. For present purposes, any interference would require to be
proportionate to the aim of protecting the public by managing the risk presented by the
petitioner. These tests were satisfied in the present case.
[27]
The Ministers further accepted that any difference in the treatment in relation to the
temporary release of discretionary life sentence prisoners as compared with those subject to
orders for lifelong restriction fell within the scope of Article 14 on the ground of "other
status".
[28]
It was for the person alleging discrimination to identify others in a relevantly similar
situation and for him to demonstrate that they had been treated differently and, in
particular, less favourably. In Gauci v Malta (2011) 52 EHRR 25 the European Court of
Human Rights reiterated at [67] that:
"...discrimination means treating differently, without an objective and reasonable
justification, persons in relevantly similar situations. However, not every difference
in treatment will amount to a violation of art.14. It must be established that other
persons in an analogous or relevantly similar situation enjoy preferential treatment
and that this distinction is discriminatory."
It was not, therefore, enough to show merely that the person in a relatively similar situation
had been treated differently; he must have been treated more favourably than the person
alleging the discrimination. In any event, a mere difference in treatment unaccompanied by
detriment might be relatively easy to justify.
[29]
As for determining whether persons were in an analogous situation, regard had to be
had to the particular nature of the complaint that was being made: Stott in the UK Supreme
15
Court at [98]. Just because it had been held that discretionary life sentence prisoners and
those subject to orders for lifelong restriction were in an analogous situation for one purpose
(Brown v Scottish Ministers), that did not mean that they were in an analogous situation for
other purposes. The position of the Ministers was that the petitioner did not satisfy the third
Stott requirement, namely that he and a prisoner subject to an order for lifelong restriction
were in analogous situations. If that was the case, there was no need to consider the fourth
element, viz. objective justification for the difference in treatment: see Stott, per Lord Hodge
at [182] and [196].
[30]
Based on Freedom of Information requests, firstly to the Risk Management Authority
asking about the average length of time it took for an amended Risk Management Plan to be
accepted, and secondly to the Scottish Prison Service asking about the average length of time
it took for First Grant of Temporary Release to be approved, the petitioner averred that it
took the Authority only five weeks, on average, to accept an amendment to a Plan, whereas
it took the Ministers 255 days to approve First Grants of Temporary Release in terms of
Rule 134 of the 2011 Rules. Those averments were correctly based on the responses
received, but did not reflect truly comparable situations. For both discretionary life sentence
prisoners and those subject to orders for lifelong restriction, it was for the relevant prison's
Risk Management Team to consider progression to less secure conditions or temporary
release, but there was no automatic entitlement to either expedient. Progression generally
depended upon an individual prisoner meeting set criteria and the Risk Management Team
being satisfied in relation to risk. The progression policy was described in the Scottish
Prison Service's document "Risk Management, Progression and Temporary Release
Guidance", read with its other publications "Progression Pathway for Indeterminate
16
Sentence Prisoners" and "Allocation of Prisoner Spaces and Offending Behaviour Treatment
Programmes Policy and Timing of Progression Pathways".
[31]
For both prisoner categories, a rigorous process of risk assessment was conducted by
the multi-disciplinary Risk Management Team before temporary release could be
recommended. If the Team was content, in principle, to recommend temporary release or
progression which would allow for temporary release, a further process of evaluation and
risk assessment was undertaken. For prisoners subject to orders for lifelong restriction, that
involved inter alia an amended Risk Management Plan being prepared for acceptance by the
Authority. For discretionary life sentence prisoners, it involved a process of quality
assurance undertaken by the Governor and Scottish Prison Service HQ before any
application for approval was submitted to the Ministers. The timescales sought from and
provided by the Authority pertained only to the final stage in the process for prisoners
subject to orders for lifelong restriction, namely the Authority's consideration of the
amended Plan, and did not include the process involved in preparing that Plan. The
timescales sought from and provided by the Scottish Prison Service, on the other hand,
pertained to the whole process of considering whether or not to grant temporary release,
which included the stages leading up to the submission to the Ministers and the time taken
for the Ministers to determine the application made to them. In the round, it took no longer
for the average discretionary life sentence prisoner to obtain First Grant of Temporary
Release than it took for the average prisoner subject to an order for lifelong restriction to be
granted temporary release pursuant to an amended Plan as accepted by the Authority. Each
category of prisoner was ultimately treated equally. The differences arose only in terms of
when and how the risk assessments and the assurance thereof were carried out, and who it
was who considered the recommendation as to temporary release. No policy or practice
17
adopted by the Ministers was less favourable to discretionary life sentence prisoners than to
prisoners subject to orders for lifelong restriction. There was no less favourable or
preferential treatment and so there was no relevant discrimination.
[32]
If, contrary to that submission, it was considered that there had been less favourable
treatment, discretionary life sentence prisoners were not in a relevantly analogous position
with prisoners subject to orders for lifelong restriction. In considering whether two groups
were in an analogous or relatively similar position, the focus had to be on the particular
nature of the complaint. This complaint was not about progression criteria or about
prioritisation for access to offending-related coursework. In such matters, namely the
manner in which the Scottish Prison Service's internal policies generally treated the two
groups of prisoners as regards progression in the generality, it was accepted that the
Ministers were obliged to treat them as being in an analogous situation. That followed from
the decision in the Inner House in Brown v Parole Board. However, that did not mean that
the two groups had to be being treated the same, or viewed as analogous, for all purposes.
The particular nature of the petitioner's complaint was that the Authority decided whether a
prisoner subject to an order for lifelong restriction could obtain temporary release faster than
the Ministers decided the same in respect of discretionary life sentence prisoners. His
complaint, therefore, was that he was discriminated against when compared to prisoners
who were subject to a different sentencing regime and approval for whose temporary
release was granted by a different body in a process which was outwith the control of the
Ministers. The imposition of an order for lifelong restriction came with statutory
consequences which did not apply to discretionary life sentence prisoners. Unlike in the
Brown v Scottish Ministers case, where prioritisation for coursework was the complaint, and
was a matter within the control of the Ministers, the involvement of the Authority in
18
managing, assessing, and minimising the risks posed by prisoners subject to orders for
lifelong restriction had been prescribed by the Scottish Parliament in the 2003 Act. Any
difference in treatment was mandated by the different sentencing regime and the relevant
statutory provisions regulating how the risks presented by prisoners were to be managed by
the Ministers and the Authority respectively. The petitioner's complaint was akin to that in
Stott, where the Supreme Court held at [195] that the differences between the sentencing
regimes were sufficient to prevent prisoners serving sentences under those different regimes
from being in an analogous position, a decision upheld by the ECtHR.
[33]
What the petitioner was really saying was that if he were a prisoner subject to an
order for lifelong restriction, he would be in a better position. That complaint was
irrelevant. Had the petitioner committed and been convicted of the same offences after
order for lifelong restriction sentences had become available, he might have received such a
sentence rather than a discretionary life one. However, at the time he was convicted, an
order for lifelong restriction was not an available sentence.
[34]
Various judicial decisions, all discussed in the judgments of Lady Black and
Lord Hodge in Stott, addressed the situation where a prisoner alleged discrimination under
Article 14 where he would have received a different sentence had he been convicted and
sentenced later:
[35]
prisoner serving a sentence of imprisonment for public protection alleging that he had been
discriminated against in comparison to a prisoner who had been sentenced to an extended
discretionary sentence, after the latter sentence had been introduced, because he was subject
to an indeterminate period of imprisonment while the other prisoner was not. Moses LJ
rejected that argument at [25]:
19
"...however he cloaks his application, the real complaint he advances is a challenge
to his original sentence. ... The reality of his argument is that he was sentenced
under a different regime. It is not coherent then to allege discrimination when
compared to other offenders sentenced under a different regime. They are not in an
analogous situation precisely because they were sentenced under a different regime
..."
[36]
sentenced on 20 December 2012 to imprisonment for public protection for offences to which
he had pleaded guilty in November 2012. Imprisonment for public protection had been
abolished prior to him being sentenced, but not for those convicted before 3 December 2012.
The prisoner claimed that the differentiation between him and a person convicted of an
identical offence on 4 December 2012 was unlawful under Article 14. The Supreme Court
rejected his complaint and held at [63]:
"...even if it be assumed in the appellant's favour that the mere date of conviction
can amount to a sufficient status, which is doubtful, the differential in treatment is
clearly justified. All changes in sentencing law have to start somewhere. It will
inevitably be possible in every case of such a change to find a difference in treatment
as between a defendant sentenced on the day before the change is effective and a
defendant sentenced on the day after it. The difference of treatment is inherent in the
change in the law. If it were to be objectionable discrimination, it would be
impossible to change the law."
[37]
extended sentence for sexual offences. This meant that he was subject to an extended licence
period and to indefinite notification requirements. He argued that, by virtue of a change in
the law, if he had been sentenced later, he would not have received an extended sentence
and would not therefore have been subject to the indefinite notification period at all, and
that that amounted to an unjustified difference in treatment and a violation of Article 14.
The ECtHR rejected the Article 14 complaint as manifestly ill-founded at [68]:
"...the different treatment complained of did not concern the length of the
applicant's sentence but rather the different sentencing regime applied to him as a
20
consequence of a new legislation...no discrimination [is] disclosed by the selection of
a particular date for the commencement of a new legislative regime."
[38]
The Supreme Court's conclusion at [144] in Stott, after considering these authorities,
was that in complaints derived from a change in the sentencing legislation, any differential
treatment caused purely by the commencement of that new legislative regime did not
constitute discrimination.
[39]
The petitioner's complaint ought properly to be characterised as deriving from the
change in the sentencing regime. Different statutory provisions determined who was
responsible for considering and approving a recommendation for temporary release; the
2003 Act for a prisoner subject to an order for lifelong restriction, and the 2011 Rules for the
discretionary life sentence prisoner. The petitioner's complaint was about the statutory
operation of these different types of sentences in the context of obtaining temporary release,
rather than about the internal workings of the prison service in managing prisoners who had
committed relatively similar types of offences. The two categories of prisoner were not in
that context in an analogous situation, which was fatal to an Article 14 challenge.
[40]
The further challenge was to the role of the Ministers in approving First Grant of
Temporary Release in terms of Rule 134(4) of the 2011 Rules. As a matter of practice, the
decision required by that Rule (along with a very limited other range of decisions affecting
prisoners) was taken by the relevant Minister rather than by civil servants. That practice
reflected the importance of the matter from the point of view of community safety. The
petitioner averred that there was no good reason for such a decision to be taken at the
political level rather than, as in most other cases, by an apolitical civil servant. However,
despite a vague reference to Article 5, there was no averred basis in law which underpinned
that complaint.
21
[41]
In any event, there was nothing intrinsically objectionable in Convention terms in
allowing the executive, subject to judicial review, to take the decision as to temporary
release. The decision in question was not the decision to release on parole licence, which
was a matter for the Parole Board as an independent quasi-judicial body, in satisfaction of
the requirements of Article 5(4). Rather, it was a decision several stages before the parole
decision. The nature and timing of a decision of the Ministers in relation to First Grant of
Temporary Release was susceptible to review by this court. That was a sufficient safeguard
against arbitrariness. The Ministers were considering a submission from the Scottish Prison
Service following several weeks of consideration by different individuals, from different
disciplines, experienced in the assessment of risk, and familiar with the circumstances of the
individual prisoner. The decision was not being taken in a vacuum. The last time a Minister
had declined to accept the Scottish Prison Service's recommendation in relation to First
Grant of Temporary Release for any applicant prisoner had been over six years ago. The
court should refuse to grant the orders sought in this regard.
[42]
In summary, the petitioner's challenge was misconceived. The court had no
evidence before it that there was any policy or practice that was less favourable to
discretionary life sentence prisoners than to those subject to orders for lifelong restriction,
and there was nothing at all in the complaint about the Ministers approving First Grant of
Temporary Release. The petitioner had no settled or established right to be granted First
Grant of Temporary Release: Morrice v Scottish Ministers [2022] CSOH 77 at [18]; and the
petitioner's individual circumstances, his management in custody, his progression within
the prison estate and the risks he presented, were all matters of judgment for the Scottish
Prison Service. If he was recommended for First Grant of Temporary Release in the future,
22
and either that was refused or there was unlawful delay in the question being determined, it
would be open to him to bring a fresh complaint.
Decision
[43]
The petitioner maintains firstly that, as a discretionary life prisoner, he is as a matter
of fact treated materially differently from prisoners subject to orders for lifelong restriction
in relation to the time likely to be taken for assessment of his suitability for community
release, and thus in relation to the total length of his journey towards release on parole. The
Ministers dispute that factual claim and that dispute cannot be resolved on the basis of the
material available to the court at this first substantive hearing in the petition. I proceed for
present purposes on the assumption that, if required to do so, the petitioner would be able
to prove such differential treatment. Although the parties dispute whether any difference in
treatment requires for the purposes of Article 14 also to be to the detriment of the
petitioner's group, I proceed for the purposes of this opinion on the basis that if the
petitioner was indeed to succeed in proving that that group was subject to delay in the
determination of its suitability for community release, that would (or at the very least might)
amount to a detriment to it. These assumptions would, however, only require to be tested
by some further form of procedure if the other elements of the petitioner's claim are
determined to be sound in law.
[44]
In assessing the merits of the petitioner's claim in law, the most recent and helpful
guidance in relation to the application of Article 14 of the ECHR is to be found in the
judgment of the Fourth Section of the European Court of Human Rights in Stott v United
Kingdom (Application No. 26104/19), The Times, January 3, 2024.
23
[45]
The first question is whether the matters of which the petitioner complains fall
within the ambit of Article 5, and additionally or alternatively of Article 8, of the
Convention. It was not disputed by the Ministers that they fall within the ambit of Article 5,
and I accept that they do: see Clift at [42] and Stott at [63]. The petitioner further maintains
that they fall within the ambit of Article 8. I do not accept that submission. Although the
ECtHR in Munjaz v United Kingdom made it clear under reference to Hirst v United Kingdom
rights guaranteed by Article 8 continue to apply to those in lawful custody save insofar as
necessarily curtailed by that custody, this element of the petitioner's case, properly analysed,
is not that his personal autonomy is adversely affected in any way by the delay of which he
complains other than that that delay is liable to extend the period during which he will
lawfully be deprived of his liberty. Even allowing for the broad approach to questions of the
ambit of Convention rights traditionally taken for the purposes of Article 14, that is a
complaint falling within the ambit of Article 5 (i.e. one concerned with the circumstances
pertaining to the duration of the deprivation of his liberty) rather than of Article 8 (i.e. one
concerned with the conditions to which he is subject while so deprived).
[46]
The next question (although it may be artificial and potentially misleading to regard
it as quite separate from other aspects of Article 14) is whether the fact that the petitioner is a
discretionary life prisoner confers upon him an "other status" within the meaning of
Article 14. Such status must amount to an identifiable characteristic though not necessarily
an innate or inherent characteristic which is the (or at least a) basis of the treatment
complained of. The ECtHR has generally given a wide meaning to "other status" (scarcely
surprising given that such other status is referred to in the French text of the Article as "toute
autre situation"), but the question divided the Supreme Court in Stott and, in the face of fierce
24
resistance on the part of the UK Government to the conclusion that such status existed on
the facts of that case, the ECtHR did not find it necessary finally to resolve the matter,
preferring at [97] to proceed merely on the assumption that a relevant status existed. While
the same approach could be taken in this case, I prefer to find, on the basis of the extensive
discussion of the matter by the ECtHR in the context of prisoners serving different types of
sentence in Clift at [55] to [63], that the status requirement is met in the present case;
discretionary life prisoners and prisoners subject to orders for lifelong restriction form
categories of prisoner distinct from each other on a wider basis than simply the different
treatment complained of in the present case, and that treatment of the petitioner is based on
the category assigned to him.
[47]
It is next necessary to consider whether the difference in treatment complained of is
applied to persons in analogous or relevantly similar (though not necessarily fully
analogous or identical) situations. The relevant analogy is to be drawn or repelled by
reference to the particular nature of the complaint: Clift at [66] and the cases cited therein.
[48]
The petitioner was given a discretionary life sentence because the sentencing judge
must have considered that there was a need to protect the public against offending by him
which would not adequately be met by the imposition of a determinate sentence. By
contrast (at least in point of form), an order for lifelong restriction is made where the High
Court is persuaded on a balance of probabilities, and after having considered specialist
advice on the matter, that the nature or the circumstances of the commission of the offence
of which the convicted person has been found guilty, either in themselves or as part of a
pattern of behaviour, are such as to demonstrate that there was a likelihood that he, if at
liberty, would seriously endanger the lives, or physical or psychological well-being, of
members of the public at large. Each of the two forms of sentence has its own discrete set of
25
rules, determining both when it may be imposed and its practical operation (the latter
including provisions detailing the form of process to be adopted for determining eligibility
for community release). It may properly be said in general terms that each deals with a
particular type of offender identified by law at one or other points in time and, in particular,
caters for the perceived risk posed by each type in different ways.
[49]
The complaint made by the petitioner concerns the process by which he may be
deemed eligible for community release, and in particular the length of time which he
maintains that that process may take in comparison with the process to which prisoners
subject to orders for lifelong restriction are required to go through to the same end. The
ECtHR in Stott observed at [102] that, in determining eligibility for early release, the nature
of the conviction and the sentence imposed may be relevant considerations, and that it could
not be said that the criteria for determining eligibility for early release are, or should be, in
principle the same for all categories of prisoner. It preferred the view that such eligibility
should be tailored to the dangerousness of particular offenders and the seriousness of their
offences. It went on to reject the suggestion that all offenders convicted of the same or
comparable offences must always be considered to be in an analogous situation in respect of
any complaint they may make, and reiterated that the similarity of situations must be
assessed from the perspective of the nature of the complaint made.
[50]
The court concluded at [104] that Mr Stott's status as a particular kind of prisoner
(i.e. one serving an extended determinate sentence in terms of the applicable English
legislation) was closely connected to his complaint about eligibility for early release and that
that type of sentence had been imposed upon him because he had committed serious
offences and was deemed to be dangerous, both of which factors it considered to be plainly
relevant to considerations of eligibility for early release and which might well be different in
26
the cases of prisoners subject to other types of sentence. That potential difference resulted in
the conclusion that prisoners subject to other types of sentence were not sufficiently similar
to prisoners in Mr Stott's type, and that it was inappropriate, given the wide differences
between the supposedly analogous sentence types in various ways, to single out in
particular the respective early release provisions as providing the requisite degree of
similarity.
[51]
On the other hand, in Clift the ECtHR noted at [67], in the context of another
complaint concerning early release provisions, that insofar as the assessment of the risk
posed by a prisoner eligible for early release was concerned, there was no distinction to be
drawn between various categories of prisoner, and that the methods of assessing risk and
the means of addressing any risk identified fell to be regarded in principle as being the same
for all categories of prisoners, accordingly finding the applicant to be in an analogous
position to the other groups of prisoners identified in that case. Likewise, in Brown v Scottish
Ministers, which concerned the availability of rehabilitation opportunities afforded to
discretionary life prisoners and those subject to orders for lifelong restriction respectively,
this court held that those two groups were in an analogous situation for that purpose, noting
at [29] that:
"Sections 2(2), 2A and 2B of the [Prisoners and Criminal Proceedings (Scotland) Act
1993] provide that the relevant punishment part for an OLR prisoner and for a
discretionary life sentence prisoner is to be calculated in precisely the same manner
and in a different manner from the relevant punishment part for a mandatory life
sentence prisoner. While it is correct that only an OLR prisoner will be the subject of
a statutory RMP, the progression pathways for all indeterminate sentence prisoners
as set out in respondents' Risk Management Progression and Temporary Release
Guidance document are indistinguishable for practical purposes. In the opinion of
the court these features are sufficient to demonstrate that the position of OLR
prisoners and discretionary life sentence prisoners do fall to be viewed as
analogous."
27
[52]
In the present case, the petitioner's complaint is neither about early release per se nor
(at least directly) about rehabilitation opportunities; as already noted, it is instead about the
process by which he may be deemed eligible for community release in comparison with the
process to the same end undergone by prisoners subject to orders for lifelong restriction.
While it is not necessary for present purposes to hold that the two groups of prisoners
should prima facie be treated in exactly the same manner for the purposes of "progression
pathways" or that the methods of assessing, and the means of addressing, risk should be the
same or very similar for each, their respective positions and interest in relation to being
permitted community release and thus access to the prospect of eventual release on parole
are sufficiently similar to qualify as analogous for the purposes of Article 14, for essentially
the same reasons as were canvassed by the respective courts in Clift and Brown v Scottish
Ministers.
[53]
It thus becomes necessary to consider the question of whether there exists objective
and reasonable justification for the difference in treatment between the two groups of
prisoners. Although the Ministers maintained in submission, under reference to Gauci v
Malta, that Article 14 was not engaged merely by differential treatment, and required
demonstration that an analogous group had been treated more favourably, I observe that the
ECtHR in Stott at [96] stated that "Once a difference in treatment has been demonstrated, the
burden is on the Government to show that there was an objective and reasonable
justification for it such that it was not incompatible with Article 14." Subject to the
observation that the difference in treatment must be based in whole or in part on the status
of the claimant rather than on anything else, I accept and adopt that approach. I also note
that, as already explained, I am in any event proceeding on the assumptions that the
petitioner is offering to prove a difference in treatment in comparison with prisoners subject
28
to orders for lifelong restriction and, implicitly, that that treatment is less favourable given
the additional delay which he maintains it entails.
[54]
In Stott, the ECtHR went on to observe at [96] and [106] to [109] that justification
would be lacking where the different treatment did not pursue a legitimate aim or if there
was not a reasonable relationship of proportionality between the means employed and the
aim sought to be realised, that in principle the contracting states enjoyed a wide margin of
appreciation in questions of prisoner and penal policy, and in particular in assessing
whether and to what extent differences in otherwise similar situations justified different
treatment, but that close scrutiny would be exercised where it was complained that domestic
measures had resulted in arbitrary detention.
[55]
In the present case, as in Stott, the aim pursued by the different sentencing regimes
applicable to the groups identified as analogous is to cater for different combinations of
offending and risk in ways deemed appropriate by law from time to time. That was
accepted as a legitimate aim in Stott, both in the ECtHR and in the UK Supreme Court see,
for example, Lady Black at [152] and it is not possible to see why the same view should not
apply to the circumstances presently under consideration.
[56]
The extent of the margin of appreciation enjoyed by the State in this field makes it
very difficult to maintain any argument that there is not a reasonable relationship of
proportionality between the aim pursued and the legislative measures put in place to realise
it Stott, per Lady Black at [153], Lord Hodge at [198]. The petitioner does not complain
about the circumstances in which he may be deemed eligible to apply for First Grant of
Temporary Release, or about the substantive assessment of the conditions upon which the
decision to afford it to him are based. Rather, his complaint is about a detail of the timing
taken to arrive at a decision within the specific regime to which he is subject, in comparison
29
to a corresponding detail of a subsequently-introduced statutory scheme to which others are
subject. A complaint based on differential treatment caused purely by the commencement
of a new legislative regime is, to put it mildly, an unpromising basis on which to allege
breach of Article 14: R v Docherty; Minter v United Kingdom. The task of the court is to
examine the different regimes as whole and ask whether the policy considerations
underlying those regimes reasonably correspond to their way of functioning overall, rather
than focussing on the particular operational minutiae which, by accident or design,
differentiate them Stott, per Lady Black at [154], Lord Carnwath at [181], Lord Hodge at
[202].
[57]
Looking at matters in that light, I conclude that the difference in treatment between
discretionary life prisoners and those subject to orders for lifelong restriction is reasonably
and objectively justified, and that there has accordingly been no breach of Article 14 in
conjunction with Article 5 of the ECHR. Although I have already held that the petitioner's
complaint does not fall within the ambit of Article 8, any case based on that Article in
conjunction with Article 14 would equally have failed, on essentially similar grounds.
[58]
The petitioner's second head of complaint is that the involvement of the Scottish
Ministers in the process of assessing him as suitable for community release constitutes a
breach of Article 5, or else of Article 14 taken with Articles 5 or 8. At the outset, I further
observe that, for the same reasons as have already been stated, Article 8 is not truly engaged
by this head of complaint.
[59]
In relation to Article 5, the ECtHR in Stott acknowledged at [102] that the question of
whether and when a person ought to be eligible for early release was not merely a factual
one, but might legitimately also depend on policy considerations. I consider that that
observation must equally, if not a fortiori, apply to decisions as to whether to afford a
30
discretionary life prisoner a First Grant of Temporary Release. There is nothing in the
authorities cited to me which might support the suggestion that in the context of a decision
potentially involving the exposure of the public to the risk presented by the first temporary
release of discretionary life prisoners (and remote from any final decision on permanent
release on licence) it would be impermissible for such policy considerations as may be
thought to touch upon the matter to be assessed by a member of the executive branch of
government in a democratic society, with political responsibility for the decision made
inexorably flowing from that. The primary aspect of the package of rights afforded by
Article 5 is undoubtedly protection against arbitrary detention, but any decision taken by a
Minister in relation to First Grant of Temporary Release is in principle subject to the
supervisory jurisdiction of this court, a primary element of which is the provision of
protection against arbitrary decisions by members of the executive. That is not to suggest
that recourse to judicial review will always in practice be easy or entirely satisfactory in
outcome, but its availability as a means of independent review of the propriety in public law
terms of a relative decision of a Minister provides a sufficient safeguard against arbitrariness
as to show that the petitioner's complaint based on breach of Article 5 alone lacks proper
foundation.
[60]
Turning to the suggestion that Article 14, taken with Article 5, provides the petitioner
with a valid ground of complaint, it is in this context unnecessary for the petitioner to
demonstrate any actual or reasonably apprehended breach of his Article 5 rights in order to
advance such a claim; he simply requires to demonstrate relevantly differential treatment
based on a "status" in relation to a matter within the ambit of a Convention right, in order to
advance a prima facie relevant case. Essentially for the reasons already stated, I consider that
the petitioner has put forward under this head of complaint a case that, in a matter falling
31
within the ambit of Article 5 suitably widely drawn for these purposes, he is treated
differently from an analogous group, namely prisoners subject to orders for lifelong
restriction, based on his status as a discretionary life prisoner.
[61]
Consideration must turn again, then, to the question of reasonable and objective
justification for that different treatment. The development and maintenance of different
sentencing regimes to cater for different combinations of offending and risk in what are
seen, over time, as appropriate ways is, as already noted, a legitimate State aim. The margin
of appreciation is equally wide in this context and, given the relatively minor matter of
which the petitioner complains against the background of the sentencing regime applicable
to him as a whole, the relationship between the aims being pursued by the existing
sentencing regimes and the differing measures put in place to realise them cannot be
described as unreasonably disproportionate.
[62]
I therefore again conclude that the difference in treatment between discretionary life
prisoners and those subject to orders for lifelong restriction on which this second head of
complaint focusses is reasonably and objectively justified, and that there has accordingly
been no breach of Article 14 in conjunction with Article 5 of the ECHR in this connection. If,
contrary to my view, a prima facie case based on Article 8 in conjunction with Article 14
might validly have been made in this connection, it would have fallen at the same hurdle.
Conclusion
[63]
It is not difficult to understand why the petitioner, deprived of his liberty and much
of the agency enjoyed by those who have not been imprisoned for the commission of serious
crimes, should readily conceive genuinely-held grievances in consequence of perceived
advantages enjoyed by others in similar situations. For the reasons stated, however, even if
32
those grievances are factually well-founded (which it has not been necessary for present
purposes to decide), they do not found a valid case for infringement of his Convention
rights. I shall accordingly sustain the respondents' first plea-in-law, repel the petitioner's
pleas, and dismiss the petition.
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