Does Article 5 apply to extended sentences?

24 August 2015 by

Photo credit: Guardian

Photo credit: The Guardian

Brown v Parole Board for Scotland, [2015] CSIH 59 – read judgment

Scotland’s civil appeal court, the Inner House of the Court of Session, has refused a prisoner’s appeal for damages resulting from an alleged failure to afford him a reasonable opportunity to rehabilitate himself during his extended sentence.

by David Scott

The case is the latest in the fallout from the Supreme Court’s judgment last year in R (on the application Haney and Others) v. The Secretary of State for Justice, [2014] UKSC 66 (summarised here), affirming an implied ancillary duty under Article 5 of the ECHR to provide prisoners facing indeterminate sentences with a reasonable opportunity to rehabilitate themselves and show that they are no longer a danger to the public. Following the ECtHR’s judgment in James Wells and Lee v United Kingdom (2013) 56 EHRR 12, the Supreme Court held that failure to satisfy this duty does not affect the lawfulness of the detention, but that it does entitle the prisoner to damages.

The Haney case has already been considered by the Scottish judiciary, in the case of Reid, Re Judicial Review, [2015] CSOH 84 (see Fraser Simpson’s summary here). Reid concerned an offender indeterminately detained under the Mental Health (Scotland) Act 1960.

Factual Background

Mr Brown was convicted of culpable homicide on January 2006. He was given an extended sentence of 10 years under section 210A of the Criminal Procedure (Scotland) Act 1995. It provides for an extension to a sentence “for the purpose of protecting the public from serious harm from the offender”. Mr Brown’s sentence comprised a custodial term of 7 years and an extension of 3 years. During the extension, Mr Brown could be considered for release by the Parole Board.

After serving two-thirds of his custodial term, Mr Brown was automatically released on license on 1 April 2010.

On 18 August 2010, Mr Brown stole a car while under the influence of alcohol, and on 28 September 2010 was recalled to prison under the terms of his sentence. On 30 September 2010 he was convicted and sentenced to 40 days’ imprisonment, to run concurrently with the remainder of his sentence. He thus became eligible for release from 18 October 2010.

Throughout the custodial and extended periods of Mr Brown’s sentence he took part in a number of rehabilitation projects. While his case was repeatedly considered by the Extended Sentence Prisoner Tribunal, he was not released until 2 August 2015 when his extended sentence expired.

In 2013, Mr Brown raised an action of judicial review against the Parole Board and the Scottish Ministers for refusing to order his release. In the present appeal it was accepted by both parties that the original submissions before the Lord Ordinary were now irrelevant following the development of the law by the Supreme Court in Haney. The question was whether the ancillary duty established in Haney applied in cases of extended sentences, and whether that duty had been breached in Mr Brown’s case. 

Mr Brown’s submissions

Mr Brown submitted that from 8 October 2010 (the date when the custodial portion of his sentence ended) he was entitled to rely on the implied duty to facilitate his progress towards release. The crux of Mr Brown’s argument was that there was “no reason in policy or principle” to distinguish between the indeterminate sentences in Haney and the extended portion of Mr Brown’s sentence – both were discretionary based on the threat posed to the public by the offender. Due to the alleged failure to meet this duty, Mr Brown argued he was entitled to damages.

The Scottish Government’s submissions

The Parole Board did not make submissions to the Court, but the Scottish Ministers submitted that Mr Brown’s sentence should be seen as determinate, considering that he would be released at its end regardless of his rehabilitation. The ancillary duty established in Haney applies only to life and indeterminate sentences in those cases release will only be considered if detention is no longer required for public protection.

The respondent further continued that, should the Inner House feel the duty did apply, the case should either be decided or referred back to the Lord Ordinary, considering Haney was not before the first instance judge. In either case, it argued Mr Brown had been given access to “a substantial amount” of rehabilitative coursework both before and after his release on license, had exhibited problems in custody, and had made poor use of these rehabilitative opportunities. As such, any ancillary duty under Article 5 had not been breached.


The first question before the Court was how to classify the extended sentence. It agreed with the respondent that an extended sentence should be considered determinate, placing particular weight on two factors.

First, the fact that the prisoner would be released at the end of his sentence “even if the prisoner is considered to be a serious threat to public safety” suggested the extension was more akin to a determinate sentence.

Second, while acknowledging similarities between the types of release provisions which apply to prisoners serving a determinate sentence after the date of mandatory release and those serving an indeterminate sentence, the Court highlighted that there is a different decision-maker in the two situations. In the case of extended sentences, it is the court which has determined the end term as the maximum length of the sentence which must be served and a convicted person knows, at the date of sentence, the last possible date when he must be released. Where an indeterminate sentence is imposed, the court does not fix any final date for release, and release cannot be obtained without the prisoner satisfying someone, other than the court, that he no longer presents a danger to the public. As such, Mr Brown’s sentence could be distinguished from the indeterminate sentence in Haney.

However, the question remained whether the ancillary duty should still apply in relation to such determinate sentences. The Court, relying on the admissibility decision of Brown v The UK (Application 968/04), stated that Strasbourg caselaw clearly demonstrated a distinction in the application of Article 5. That case concerned a UK national, sentenced to an eight-year determinate sentence for supplying heroin. He argued that his return to prison following a breach of his licence conditions was unlawful and disproportionate and that there was insufficient causal connection between his recall and the his original detention. His submission that his situation was analogous to those on life sentence and restricted patients on release from hospital was rejected by the Court, which held:

The lawfulness of…detention does not depend, in Convention law terms, on whether or not he ceases to be at risk of re‑offending. The fact that the applicant before the end of the sentence may expect to be released on licence does not affect this analysis. When such a prisoner is recalled his detention is again governed by the fixed term imposed by the judge conforming with the objectives of that sentence and thus within scope of article 5(1)(a) of the Convention.

The Inner House held that the same fundamental reasoning is clear in James and Haney and thus there was no breach of Article 5.


Of particular interest in this case was the reliance by the reclaimer on the dissenting judgment of Lady Hale in R (On the application of Whiston) v Secretary of State for Justice (2015) AC 176, which at paragraph 55 reads:

…while I entirely accept that there is no analogy between a determinate and an indeterminate sentence, so as to require a review while the prisoner is still in prison, the analogy between the recall of a determinate sentence prisoner who was entitled to be released and the recall of an indeterminate sentence prisoner is much closer.

As the old adage goes, “yesterday’s dissent is tomorrow’s majority opinion”. Yet the decision of the Inner Session seems convincing.

First, the Parole Board was in control of the prisoner’s release as soon as he was recalled following his automatic release, and thus there is little qualitative difference between him serving the remainder of his custodial sentence and the further extended portion. The comparison with Brown v UK is illustrative here (and is, in fact, what the Inner House relied upon to deal with Lady Hale’s argument). The court, when dealing with a determinate sentence, sets a date beyond which the offender must be released, and the prisoner is automatically released two-thirds of the way through his sentence. If he offends again, he is recalled to serve the remainder of his sentence or released at the discretion of the Parole Board. In an extended sentence, the end date is extended by the court due to the potential risk to the public posed by the offender. In both cases these end dates are definitively determined by the court, and thus fall with Article 5(1)(a). In an indeterminate sentence, however, it is only the Parole Board who can order the offender’s release.

Considering eventual release is guaranteed regardless of the offender’s rehabilitation, and provided of course that there is no evidence that rehabilitation has been actively or negligently withheld from the prisoner to the point where release would be made impossible, it is difficult to see how the implied ancillary duty under Article 5 could be extended and breached here. Such an issue is, in fact, being challenged as we speak in the case of Quinn, Re Judicial Review [2015] CSOH 110. In that case, the petitioner, serving a life sentence, alleges that prioritisation of rehabilitation programmes functionally left him no opportunity to rehabilitate himself before the end of his tariff date (the point where the prisoner can be considered for release). While the Outer House did strike out a number of the petitioner’s claims – in particular those of a more general nature concerning prison policy towards all offenders serving life sentences – it left open the opportunity for a second hearing if “the orders sought by the petitioner could be framed in satisfactory terms”. Perhaps this case will further clarify the scope of the duty, in particular where it is acknowledged that there is insufficient time left for the prisoner to seek effective rehabilitation.

In general, however, when one considers the issues of resource allocation inherent in these rehabilitation programmes, the current system would seem to fall well within the UK’s margin of appreciation.

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