Court of Session: Murderer’s prison conditions fair

22 January 2016 by

Hands v Scottish Ministers [2016] CSOH 9, 15th January 2016 – read judgment

The Outer House of the Court of Session has refused a petition for judicial review brought by a convicted murderer against decisions made by the Scottish Prison Service (SPS) about his prison conditions and supervision level.

The Facts

Brian Hands was convicted of murder in February 1999 and sentenced to life imprisonment. When the punishment part of his sentence expired, the SPS decreased his supervision requirements from medium to low and upgraded him from closed conditions to ‘national top end’ conditions (allowing him to go on community placements and family visits). In August 2014, the petitioner began a work placement in a carpet store with a view to moving to open conditions in early 2015. However, a recorded telephone conversation in which the petitioner had referred to ‘Rangers tops’ (a common name for blue valium tablets) caused the SPS to believe that he was involved in the introduction and distribution of illicit substances within the prison. Evidence from the carpet store suggested that the petitioner had used a mobile phone contrary to the conditions of the placement. Following a hearing in October 2014 it was decided that the petitioner would be downgraded to closed conditions and that his supervision requirements would be increased from low to medium.

The Petitioner’s Arguments

Hands argued that the decision-making procedure was unfair, and therefore the decisions to return him to closed conditions and increase his supervision requirements were unlawful. The respondents were under a common law duty to act fairly, particularly when carrying out a function which affected the liberty of persons affected by their decision.

A number of complaints were made about the decision-making process, including a failure to comply with the relevant prison rules, inadequate disclosure of information relating to the decisions, vague allegations, a failure to properly investigate the circumstances surrounding the decisions, a lack of adequate reasons, a failure to obtain and consider representations from the petitioner, and a lack of proper analysis of the evidence. When considered together, it was evident that the petitioner did not have a fair hearing at all.

The Judgment

The judge rejected these arguments, finding that the respondents had satisfied the procedural requirements imposed on them. Looking at the procedure as a whole, it was not “actually unfair”.

The allegation of a breach of the prison rules related to rule 21(4) of the Prisons and Young Offenders Institutions (Scotland) Rules 2011. Rule 21(4) provided that in relation to decisions about a prisoner’s supervision level, the governor of the prison must consider any representations made by the prisoner. Pointing to a form signed by the governor which, it was alleged, confirmed the decision to change his supervision arrangements, Hands argued that he had been unable to make representations. However, this argument misunderstood the nature of the form. The governor had merely indicated the supervision level which he was “minded to assign” and had left it open to the petitioner to make representations before a final decision was made. Hands had subsequently refused to make representations on the misguided assumption that a decision had already been made and that any representations would amount to mitigation only. The latter claim made no sense as the decision to change the petitioner’s supervision level could not be mitigated.

In relation to the petitioner’s complaint about a lack of disclosure and the vagueness of the case against him, the judge observed that there were specific allegations against Hands. It was alleged that he had discussed ‘Rangers tops’ during a telephone conversation and that he had access to a mobile phone during his placement. When these allegations were put to the petitioner at the hearing, he could have provided an explanation for them. He had subsequently argued that his cousin had purchased football strips from an auction but this explanation was not provided at the time. The allegation that he had used a mobile phone at the carpet store was either true or untrue. The petitioner claimed that it was untrue. This was his defence and he presented it. No further disclosure was required and no greater clarity could be provided.

The petitioner’s other complaints were also dismissed. It was unnecessary for the respondents to investigate the drugs allegation further as they proceeded on the basis of the evidence taken from the petitioner’s telephone conversation for which an explanation was not provided at the time. The basis of the decisions to downgrade the petitioner and increase his supervision levels was clear with no lack of plain and intelligible reasons.

Finally, the argument that there was no proper analysis of the evidence was, in effect, a challenge to the substance of the respondent’s decisions. It was not open to the petitioner to make such a challenge in judicial review proceedings and, in any event, the respondents were entitled to reach the conclusions they did on the evidence before them.

There was no dispute in this case over the relevant common law principles. It was accepted that the respondents were under a duty to act fairly and that the requirements of procedural fairness were context specific. Nor was there any real dispute between the parties as to what fairness required in this particular case. In the end, the case turned on what were essentially factual issues regarding the procedure that had been followed with the court dismissing various complaints as unfounded.

by Thomas Raine

1 comment;


  1. Murderers in prisons are treated very well compared with children taken into care.They are allowed to phone out to relatives and to discuss their cases with family and other visitors.
    Children in the 7-12 sort of age group who are taken from their parents by police and social workers are put into fostercare with strangers and then have their mobile phones and laptops/tablets confiscated to isolate them from family and friends.
    When parents are eventually allowed contact visits the children and also their parents are forbidden to discuss their cases,coming home,or any criticism of those who have removed them .
    Yes murderers in prisons are treated much better than children taken into State care !

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editors: Darragh Coffey
Jasper Gold
Editorial Team: Rosalind English
Angus McCullough KC
David Hart KC
Martin Downs
Jim Duffy
Jonathan Metzer

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe

Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: