Hands v Scottish Ministers  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.
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 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.