‘It’s complicated’: Court of Session considers duty to offer an opportunity to rehabilitate

2 July 2015 by Fraser Simpson

Photo credit: Guardian

Reid, Re Judicial Review, [2015] CSOH 84 – read judgment.

The Outer House of the Court of Session has refused a prisoner’s claim for damages resulting from an alleged  failure to afford him a reasonable opportunity to rehabilitate himself.

by Fraser Simpson

For a refresher on the Scottish Court system, see David Scott’s post here.

This case follows a Supreme Court judgment last year in which it was affirmed that under Article 5 ECHR there exists an implied duty to provide prisoners with a reasonable opportunity to rehabilitate themselves and to show that they are no longer a danger to the public (R (on the application Haney and Others) v. The Secretary of State for Justice, [2014] UKSC 66). According to the Supreme Court, a failure to satisfy this duty does not affect the lawfulness of the detention but it does entitle the prisoner to damages.

Factual Background

The Petitioner, Mr Reid, was found guilty of culpable homicide (the Scottish equivalent of manslaughter) in September 1967. He was considered to be suffering from mental deficiencies and was placed in the State Hospital; a psychiatric hospital providing treatment in high security conditions. Mr Reid was given a pass to leave the hospital in 1986. During that period of leave he assaulted and attempted to abduct a young girl. Subsequently, he was sentenced to three further years of imprisonment and returned to the State Hospital. The authorities considered both of these offences to be of a sexual nature, but this was contested by Mr Reid. Records from his time in the State Hospital showed a continued pattern of “reactive, aggressive and sexually inappropriate behaviour”.

In 2010, Mr Reid’s case was referred to the High Court of Justiciary, sitting as an appeal court, at the request of the Scottish Criminal Cases Review Commission. The court held that a miscarriage of justice had occurred when Mr Reid was placed in the State Hospital in 1967. As a result, Mr Reid was transferred to HMP Glenochil on 27 November 2012. The decision is available here.

Upon his arrival at Glenochil the authorities had to adopt a management plan in order to assess how best to rehabilitate Mr Reid. In March 2013, the Programme Case Management Board finalised Mr Reid’s management plan. The plan included the need for him to take part in the “Controlling Anger, Regulating Emotions” programme (“CARE”) and also a programme directed towards sex offenders known as the “Good Lives” programme. Mr Reid maintained that he was not a sex offender and was not required to undertake the “Good Lives” programme, but his appeals were unsuccessful.

Mr Reid eventually undertook the CARE programme from January 2014 until March 2014, and a report, finalised in August 2014, stated that he had made limited progress as a result of his low levels of understanding and literacy, as well as the denial of his behaviour whilst in the State Hospital.

The Programme Case Management Board thereafter decided that the situation was complex enough to warrant consideration by the Risk Management Tribunal. The Tribunal decided on 18 March 2015 that there was range of complicating factors that had limited progress in Mr Reid’s case. These included the time he had spent in the State Hospital, his mental condition, and his continued refusal to accept previous crimes as “sexual” in nature. In order to assess the next steps in terms of his rehabilitation, the authorities needed to carry out a Psychological Risk Assessment.

Additionally, prior to the decision of the Tribunal, Mr Reid’s Parole Board hearing on 10 March 2015 had been postponed. This was due to a failure to find a Local Authority to take responsibility for him should he be released, despite repeated attempts to secure such agreement from Fife Council.

Mr Reid’s Submissions

The petitioner’s submissions included a number of specific complaints, as well as a general complaint about his management following his move to prison in November 2012. He pointed to delays in starting and completing the CARE programme and in recognising the need for a Psychological Risk Assessment. Additionally, Mr Reid complained about the postponement of his parole hearing due to the failure to find a Local Authority to take responsibility for him upon his release. Mr Reid submitted that these delays and failings resulted in a failure to satisfy the duty established in Haney. He added, more generally, that the process had gone on too long and that insufficient priority had been attached to his needs.

Respondent’s Submissions

The Scottish Ministers (acting through the Scottish Prison Service) emphasised the fact-specific nature of the case. Any delays in this case were as a result of a combination of the actions of the petitioner and the complicated and rare situation in which he found himself having spent a large period of time in the State Hospital prior to admission to prison. Further, the decision to pursue a Psychological Risk Assessment, which is rarely required, only became evident after discussions post-completion of the CARE programme.

Decision

Lord Glennie considered the claims to relate to matters of judgement and the court would only interfere if those decisions appeared irrational or highly unreasonable. In relation to the delays relating to the commencement and reporting of the CARE programme, Lord Glennie held that the petitioner’s complaints had no real basis. The delays were reasonable considering Mr Reid’s complicated past and also the need to carefully evaluate his progress during the programme in order to properly recommend the next steps in his rehabilitation.

In a similar vein, the delays surrounding the request for a Psychological Risk Assessment were not unreasonable or irrational. Mr Reid’s situation was complicated as a result of his prolonged stay in the State Hospital and his continued refusal to accept the sexual nature of his previous crimes.

Finally, the requirement to secure a Local Authority to take responsibility of Mr Reid was not absolute. The respondent had taken reasonable steps to secure agreement from Fife Council. Despite the fact that the absence of such an agreement had resulted in the postponement of the Parole Board hearing in March 2015, in reality there was very little chance that Mr Reid would have been released had that hearing taken place. Consequently, Lord Glennie held that the respondents had not failed to satisfy their duty to afford Mr Reid the opportunity to rehabilitate himself. The decisions taken  were in no way unreasonable or irrational.

Lord Glennie stated that the failure to succeed on any of the specific grounds meant Mr Reid’s more general complaint was difficult to maintain. The time taken to in Mr Reid’s case was reasonable considering the complicated facts of the situation. Accordingly, this complaint also failed.

Comment

In considering whether the actions of the prison authorities have fallen short of satisfying the duty established in Haney, there is a clear need to consider each individual case on its facts. The situation following the move from a prolonged period in the State Hospital clearly caused complications for the authorities that resulted in delays in adopting a specific management plan for Mr Reid.

Lord Glennie refused to comment on the level of damages that would have been awarded had Mr Reid been successful. However, he agreed that the sums awarded in Haney (£500 for a one year delay) provided sensible guidance for future damages claims in this context.