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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Laidlaw v Parole Board For Scotland, Re Judicial Review [2007] ScotCS CSOH_98 (12 June 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_98.html Cite as: [2007] CSOH 98, [2007] ScotCS CSOH_98 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 98 |
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P2873/06 |
OPINION OF LORD McEWAN in the Petition of DAVID LAIDLAW Petitioner; against THE PAROLE BOARD
FOR Respondents: for Judicial Review of
a decision of the Parole Board for ________________ |
Petitioner: Burns, Q.C.; Pirie; Balfour & Manson
Respondents: Cullen, Q.C.; Dunlop;
Hawkes;
M Sinclair, Solicitor for the Secretary of State
[1] In December 2001 after
trial in the High Court at Edinburgh this petitioner, a man aged 52, was
convicted of charges of rape upon a woman who was his former partner and the
mother of his son. It took place in her
home. Plainly, the experienced trial
judge took a very serious view of it. He
passed a sentence of six years imprisonment.
The petitioner lodged a Note of Appeal against conviction (I was told on
[3] Let
me now look in more detail at what happened here. With his appeal refused the petitioner was
returned to prison to serve his sentence.
At the appropriate time the Scottish Ministers referred his case to the
Board and the petitioner was told of this.
(All of this takes place in terms of the Parole Board Rules - see
Rules 3(1) and 4). A dossier is
compiled of his case (Rule 5) and he gets a copy for comments. In this case he submitted extensive comments
in writing (Rule 7). The petitioner
received his dossier on
"Matters to be taken into account by the
Board
In dealing with a case of a person, the Board may take into account any matter which it considers to be relevant, including, but without prejudice to the foregoing generality, any of the following matters:-
(a) the nature and circumstances of any offence of which that person has been convicted or found guilty by a court;
(b) that person's conduct since the date of his or her current sentence or sentences;
(c) the risk of that person committing any offence or causing harm to any other person if he or she were to be released on licence, remain on licence or be re-released on licence as the case may be; and
(d) what that person intends to do if he or she
were to be released on licence, remain on licence or be re-released on licence,
as the case may be, and the likelihood of that person filling those
intentions."
[4] Seized
of all this information, the Board made a decision to refuse release. It was given on
[5] I was referred to a number of cases, viz. R(C) v Parole Board [2001] 1 PLR 134; Carr v Secretary of State for Scotland 1998 SCLR 160; R v Secretary of State for the Home Department ex parte Harrold [1998] EWHC Admin.538; McBrearty v The Parole Board 19 December 2006 (unreported); Lillycrop [1996] EWHC Admin.281; R v Parole Board and Secretary of State for the Home Department ex parte Oyston [2000] 1 PLR 45; R v Secretary of State for the Home Department ex parte Zulfikar 27 July 1995 unreported (Div.Ct); South Buckinghamshire Council v Porter [2004] 1 WLR 1953. Passing reference was also made to Roberts v Parole Board [2005] UKHL 45 and Birrell v Parole Board 2006 CSOH 181.
[6] I listened to three arguments all of which were well presented and helpful to the Court. I deal with these in turn. Mr Burns began for the petitioner and what he told me I now summarise. He began by looking at in detail the various statements in the amended Petition. He highlighted certain factors. His client had been on interim liberation pending his appeal for almost two years. During that time he had been of good behaviour and caused no trouble to the complainer. Counsel accepted that the petitioner, who was in fact present in Court, continued to deny his guilt of the offences. He took me through parts of the dossier (No.7/1 of process) including the Report of the Trial Judge, noting that the jury verdict was a majority one. The detail of the various preparations prior to the Parole Board hearing on 18 July was accepted as accurate and properly done. He mentioned the involvement of the petitioner's solicitors (Bruce & Co) and the fact that his client had a supportive family and realistic prospects of employment. He also told me that the petitioner had made one application to the Scottish Criminal Cases Review Commission. That had been unsuccessful. He was now compiling another application.
[7] Senior counsel then looked at the reasons given by the Board in their letter. Of that he had this to say. The Board had carried out a risk assessment and concluded the risk of releasing him was unacceptable. The basis for that decision was that he was a "denier", had not participated in any offence related work when in prison and showed no victim empathy. The Board's reasons were very brief and appear to have proceeded only on the fact that he was a "denier" from which everything else flowed. That was basically wrong because it left out of account other balancing factors. To treat a denial as all but conclusive was wrong and rendered the decision as unreasonable. He referred me to Rule 8 in some detail and to the cases of Zulfikar and Oyston. It was basically wrong to say that risk could not be reduced to an acceptable level unless an offender admitted his guilt, showed empathy and went on offence related courses.
[8] In the present case two positive factors had been left out of account and were not mentioned in the reasons. The first was the admitted fact that when he was on interim liberation he had been of good behaviour. The Board were told this. It ought to have been mentioned in their reasons (Oyston). The second matter was that risk assessments were done in the reports by Farrier and Flannery. These were before the Board and showed the risk was low. They also attracted no mention, showing that no proper balancing exercise had been done. All of this pointed to the need for me to remit the matter to another Board to consider it afresh. That was done in McBrearty.
[9] Mr Burns ended by saying that even if the Board did take these matters into account the reasons failed to show that. He mentioned Carr as an example. He asked me to sustain his pleas to the extent of giving declarator and reduction as asked, and remitting the matter to be decided anew quam primum.
[10] In a short reply Mr Burns distinguished Harrold where there was only the one factor to rely on. The balance had not been properly done here. I was asked to look again at Oyston and the various decisions embraced under Lilleycrop.
[11] Mr Cullen appeared for the Board. He accepted that his first plea in law was no
longer apt as there was no dispute on the facts, he invited me to sustain his
second and third pleas. He took me first
to the 1993 Legislation and the 2001 Rules.
Under reference to these he traced the requirement to refer the case of
a long term prisoner to the Board, to the referral, dossier, interview and
hearing before the Board. Everything had
been done properly and the petitioner had had and had exercised his right to
make representations and be heard.
Counsel took me to Rule 8 of the rules and stated that the Board
had the widest discretion to consider "...any matter...." ..... "including but
without prejudice...."what was defined in paragraphs (a) to (d). The Board did consider all of these. They were all in the dossier. It was stressed then and later that the Rules
in
[12] Counsel then invited attention to the dossier (No.7/1). He emphasised the report of the trial judge which was highly relevant to the assessment of risk. The complainer had a son to the petitioner. The crime showed planning and lots of anger. A weapon was used in repeated brutal rapes. The "Indian" remark was stressed. In spite of the petitioner's evidence the judge categorised it as "...nothing less than horrific ....". No shame or remorse had been expressed. Against that the petitioner had stressed in every possible way his good behaviour when on interim liberation, his family support and settled plans for the future.
[13] The Board had all of these matters before it as well as the fact that he was and remained a "denier" with the absence of offence related work which that inevitably meant.
[14] The Board also had the two social background reports (Farrier and Flannery). Both of these independently expressed concern at his being a "denier" as well as the ongoing position of a desire to maintain contact with his son.
[15] Counsel then looked at the decision of 3 August in some detail. The passage before the recommendation showed that everything put before them had been considered. When the decision was fairly considered it was unimpeachable. A balancing exercise could be seen to have been carried out and the whole of Rule 8 addressed. It was impossible to say the decision was solely based on him being a "denier". The petitioner admitted he had no victim empathy and the Board had to take account of that. The risk assessments in the two background reports had properly been considered and a view taken about them. The Board had a duty to focus on public safety. The English cases such as Oyston proceeded on a different statutory basis which was more strictly couched.
[16] The Court had to rely on the experience of the Board and the Court did not have that experience. He referred me to the case of Lillycrop, itself a series of separate appeals. Counsel said that Carr was only a decision on its own facts and McBrearty was a good example of a case where the brief opinion showed that a Board had proceeded only on the basis that he was a "denier". Finally, he invited me to conclude from the Porter case that administrative decisions like this should not be fertile areas for the intense scrutiny of lawyers.
[17] Mr Hawkes for the Scottish Ministers adopted Mr Cullen's
arguments. He then added a separate
argument relating it to offence course work in prison. Under reference to No.14 of process he showed
the Court the various types of sex offender courses and at what prisons they
are available. Everyone is assessed but
"deniers" are not considered appropriate as that would be unproductive use of a
scarce resource. The petitioner was to
have gone to Peterhead but he refused the STOP course there and was sent to
[18] In this context he referred me to R(C), and to Harrold. In all cases before the Board there were
three interests, the prisoner, third parties and protection of the public. The last was preponderant. He referred me to Roberts and Birrell. I should sustain his second and third pleas.
[19] I turn to the cases and
want to begin by looking at what happened in Zulfikar because the case is unusual. These were two points with one of which
(strip search) I am not concerned. The
other concerned the decision of the Parole Board on his case dated
[20] The December decision appeared to confirm a decision some ten months earlier. The reason was a failure to address the issues that brought him into prison. Clarification of that had been sought from the Secretary of the Board (Mr Russell). It is clear from what the court said about that clarification that it was overly concerned about the fact that he was a "denier". It is also clear that there were unjustified concerns about his resettlement plans.
[21] The facts were very different from the present case and it is easy to see why the decision was quashed and remitted.
[22] Oyston was relied on by both parties and I can deal with it briefly for it is not really in dispute. The conviction was for rape of a young woman (see para 15). The prisoner continued to deny his guilt of the offence and had not undertaken course work when in prison. On the facts of the case there was a considerable body of material in favour of parole, the risk was low according to reports and there was evidence of a wish to change his risky and flamboyant lifestyle. The decision of the Board is seen at paragraph nine. It was almost entirely devoted to his being a "denier", showing lack of insight and having done no courses.
[23] The single judge quashed the decision and the Court of Appeal supported that. At para 13 Zulfikar was approved on the point that in the majority of cases it would be wrong to deny parole solely because of the prisoner's attitude to the offence. Two things were said. The prisoner was entitled to know that his proposed change of lifestyle had been considered. If it had been, something should have found expression in the reasons. At para 45 Bingham LCJ said that the decision letter suggested that his denial had been treated as "... all but conclusive against him ...".
[24] The case is of high authority, though the facts in the case
before me are very different. Also it
has to be observed that the Parole Rules in
[25] Lillycrop is a case
of some interest. It embraced three
appeals by different prisoners all serving sentences for sexual offences, all
continuing to maintain their innocence and all refusing offence related
work. It was argued that completing work
could be a positive factor but not completing could not be taken as a negative.
That argument was rejected (para
14). What the
[26] C was referred to. In that case the prisoner had committed a serious sexual offence against his daughter which he continued to deny and refused to undertake offence related work. Of interest was the fact that his current fiancée had a daughter. The decision was upheld even though all matters in favour of the prisoner had not been expressed in the decision. The board had not fallen into the trap of saying he was at risk because he was a "denier".
[27] I next look at Harrold. That was not a case involving a Parole Board or release of a prisoner. It related to a refusal to alter the security classification of a high risk Category A armed robber. He was a "denier" and had refused to undertake offence related work. He was doing this as he was still appealing his conviction and any admission would compromise that. The way the Review Team looked at it was to say that lack of work meant that there was no positive evidence to allow assessment of the risk of re-offending. As there was no other evidence produced by the prisoner all that was left was the original offence. The decision taken had to act on the evidence available to it. In the opinion of the judge (paras 22 and 23) it was not the duty of the Team or Secretary of State to look for other possibilities when the prisoner had not suggested any.
[28] The two Scottish cases referred to in detail do not really assist. In Carr the Parole Board had recommended release. The Secretary of State, in a very brief intimation to the prisoner, told her that he refused to accept that. The Lord Ordinary had little difficulty in concluding that no clear and cogent reasons had been given. Also, it appeared that the Minister had applied a general policy rather than looking at the facts of the case before him. McBrearty was only provided to me in an abbreviated opinion. It does not narrate the actual decision complained of, only the judge's comment that it related almost entirely to a continued failure to admit guilt. The decision was reduced and to that extent is consistent with some of the English cases. The facts in the case before me have been more fully gone into, and are, of course, quite different.
[29] Two other cases should be mentioned. In Roberts there were many issues far outwith the case now before me. The importance of the decision for present purpose lies in what was said about reconciling the conflicting interests arising in cases before the Board. These were categorised as a triumvirate of interests (para 76 Lord Woolf) or a triangulation (paras 122, 128Lord Carswell). The triangle is the prisoner, third parties and the general public. It has to be accepted that protection of the public is the most important (see paras 46 Lord Woolf and 94 Lord Steyn). I made reference to all of this in Birrell at para 40 and have no reason to alter that view which larger courts have made clear.
[30] What then do I make of all of this. In my opinion the decision of this Board and the reasons given cannot be challenged as unlawful or unreasonable on the facts of this case. It is true that some matters may not have been expressly mentioned and that a different Board might have expressed matters more fully or even reached a different view. That, however, is nothing to the point. It is perfectly clear that this Board has properly considered all matters remitted to it and reached a reasoned decision.
[31] The Board must be presumed to have considered the whole of the
dossier against the representations made to it for the Petitioner. As Mr Cullen said that is "a given". I agree with him. They have clearly had regard to the terms of
Rule 8, the careful report of the trial judge and attached much importance
to it. They were entitled to do so. It was the most serious offence and the
presence of the complainer and the son in the area to which the petitioner will
return cannot be ignored. Both
background reports indicate a low risk.
A low risk is, however, not "no risk" and the report from Farmer in
particular expresses "concern" because of his continued denial of guilt and
lack of work. The Board has balanced and
taken account of the positive factor of his support network on release. That is expressed. In my opinion they were not only entitled,
but bound to take account of his being a "denier" and having done no offence
related work. What is most important is
his attitude in prison as the time approaches for his release. The prison has a duty to prepare him for safe
release as best it can. To that end the
Board must have, if possible, material before it to make an objective assessment
of the risk. That, as Mr Hawkes said, is
the purpose of the various courses. Here
there can be no such material due to the petitioner's attitude. He is not being refused parole because he is
a "denier" but because, in part, there is a lack of material in one area to
assist the risk assessment. That, I
venture to say, is the proper way to look at this point. These points, all expressed briefly in the
reasons, are in my view more important than his good behaviour some five years
ago when on interim liberation and
awaiting an appeal. The Board has made
no mention of that and in my view cannot be faulted for making that omission.
[32] In view of the careful arguments of counsel I should add a few more remarks. The cases tell me that the Board must presume the guilt of the prisoner no matter how much and how often he continues to deny his guilt. That may be the more so if he has tried one or several avenues of appeal without success. The verdict of the jury at trial has to be respected. They must next have regard to all the facts of the case before them. Cases will vary and some facts may be more important than others. In my view, unless the contrary is clearly shown or expressed, it has to be assumed that a Board has taken account of all these matters and conducted a proper balancing exercise. In all of this context the Board must have regard to all the relevant Rules which govern their decision. They must have regard to what I have earlier called the triumvirate or triangle of interests of which the protection of the public from risk is the most important. Risk has to be objectively assessed.
[33] Against all of this they have to give reasons which will be readily understandable to the prisoner and his advisers. Ideally these should be short, simple and easy to follow. In a few cases they may have to find lengthier expression. I do not think that they have to be an essay or appear like a court judgment with analysis and counter analysis. The Board is busy. It has many cases and regard has to be had to these practical considerations.
[34] Although given in the context of planning, I adopt with respect what was said in Porter by Lord Brown of Eaton-under-Heywood at paragraphs 35 to 36. In his speech he stressed inter alia that not every matter had to be reflected in reasons given, as if the parties had been unaware of the issues and the arguments. In my opinion his wise words apply to the case before me. (I also agree with what was said much earlier on this point in Lillycrop at para 21 and Oyston at para 46).
[35] I would add further this. The English jurisprudence about "deniers" is now quite dated and the principle is reasonably clear. I have to assume that Parole Boards, who do have legal composition, are aware of these matters and will act accordingly. It would be most surprising if they fell into that kind of basic error. For the reasons I have already given, in this case they are not in error.
[36] I shall accordingly repel the first plea-in-law for the petitioner. No motion was made on the second plea and I will repel that also. I will sustain the second and third pleas-in-law for both respondents and find it unnecessary to deal with their remaining pleas. The petition will accordingly be refused. There has already been a lengthy hearing on expenses and I will put the case out By Order to allow that to be concluded in the light of my present decision.