Local authorities, Article 5 and the rehabilitation of prisoners


Photo credit: Guardian

Ansari, Re Judicial Review, [2015] CSOH 168 – read judgment.

The Outer House of the Court of Session has held that the duty imposed under Article 5, ECHR to afford prisoners a reasonable opportunity to rehabilitate themselves, recognised by the Supreme Court in R (on the application Haney and Others) v. The Secretary of State for Justice, [2014] UKSC 66, does not extend to local authorities.


The petitioner, Yousef Ansari, is currently serving a sentence of life imprisonment. The punitive part of his sentence, set at nine years, expired in March 2005. In his petition for judicial review, Mr Ansari claimed that the local authority, Aberdeen City Council, and the Scottish Government, had failed to afford him a reasonable opportunity to rehabilitate himself. A duty to offer opportunities for rehabilitation had been previously recognised as implicit in the scheme of Article 5 by the Supreme Court in Haney (see previous UKHRB post here). The hearing before Lord Glennie was restricted to the question whether the council owed such a duty.

Mr Ansari’s case

The starting point for the petitioner was the duty recognised in the Supreme Court decision in Haney. He argued that the duty required both the provision of opportunities for rehabilitation, which was the responsibility of the Scottish Ministers, and the provision of opportunities for the prisoner to demonstrate that they no longer posed an unacceptable risk to the public. This latter aspect of the Haney duty required the active cooperation of the local authority. Mr Ansari argued that Aberdeen City Council had failed to satisfy this duty. Whilst in the “Open Estate”, he was provided with the opportunity to return to the community – an important step in proving he no longer posed a threat. However, during this reintegration he was placed under extensive supervision by the local authority which, in his submission, undermined his ability to demonstrate he posed a reduced risk to the public.

Additionally, his ability to be temporarily released into the community was contingent upon the ability to provide the local authority with an appropriate “home leave” address. Mr Ansari claimed that during the vetting process the local authority had incorrectly considered his brother’s residence as inappropriate. Further, if no other address had been suitable, the local authority had a duty to provide him with accommodation under Part II, Housing (Scotland) Act 1987. On his case, these shortcomings had prevented Mr Ansari from temporarily returning to the community and therefore denied him the opportunity to demonstrate that he posed a reduced risk to the public.

In the alternative, Mr Ansari submitted that the duty would, in any event, extend to the local authority. The duty was imposed upon the “state” and, by virtue of s.6, Human Rights Act 1998, this would extend to public bodies such as Aberdeen City Council. As a result, they were bound by the requirements of Article 5, which included the duty recognised in Haney.

Imposing the Haney duty on the local authority, from the petitioner’s perspective, was a natural conclusion. Whilst the functions of the Scottish Ministers and the local authority differed, they both played an important role in the rehabilitation of Mr Ansari. A number of functions of the local authority, especially in the process relating to preparation for release, could not be carried out by the Scottish Ministers acting through the Scottish Prison Service. Extending the duty to provide reasonable opportunities for rehabilitation to the local authority would ensure that the Haney duty was “practical and effective” due to the important “real and practical sense” in which the local authority was involved in Mr Ansari’s rehabilitation.

The City Council’s submissions

The first respondent submitted that they did not owe the petitioner any duty under Article 5 as interpreted in Haney. The duty to provide opportunities for rehabilitation is not a freestanding duty, but instead stems from the decision of the state to detain an individual following conviction by a competent court. In James, Wells, and Lee v. the United Kingdom, [2012] ECHR 1706, the European Court of Human Rights recognised that part of the purpose of an indeterminate sentence was to rehabilitate the prisoner. Consequently, the Supreme Court in Haney recognised the need to provide reasonable opportunities to rehabilitate in the event that the state attempts to justify continued detention under Article 5(1)(a). The first respondent submitted that as they had no power to detain the prisoner, or order his release, it would be inappropriate to impose such a duty upon them.


Lord Glennie held that the duty recognised in Haney could not be extended to Aberdeen City Council. In line with submissions made by counsel for the first respondent, Lord Glennie held that the Haney duty is only imposed on states in the event that they have detained a prisoner and rely upon Article 5(1)(a) as justification. However, the local authority is in an entirely different position and has no powers to detain or release the prisoner. The first respondent was not required to justify the detention of the prisoner and, therefore, there was no reason to impose the Haney duty upon them.

In the petitioner’s submissions, reference was made to Lord Glennie’s decision in Reid, Re Judicial Review, [2015] CSOH 84 (read previous UKHRB post here). In Reid, Lord Glennie held that as part of the duty recognised in Haney, the Scottish Ministers had a duty to take “reasonable steps to procure” the cooperation of the local authority during the rehabilitation process (see paragraph 30). Lord Glennie clarified that in providing various services to the Scottish Ministers that aid the rehabilitation process, the local authority could only be considered to owe a duty to the Scottish Ministers, not the individual prisoner. As a result, Reid provided no support for the submission that the Haney duty should be extended to the local authority.

Lord Glennie also noted that certain statutes may impose specific duties upon a local authority. For example, s.27, Social Work (Scotland) Act 1968 (detailing the functions relating to the supervision and care of those released from prison) and the Housing (Scotland) Act 1987 outlined relevant functions and duties of the local authority. However, these did not assist the argument that the general Haney duty arising from the operation of Article 5 could extend to the local authority. These duties existed independently from any duty to afford opportunities for rehabilitation. Any failures relating to these duties could be challenged by Mr Ansari in separate proceedings.

The Round Up: The right to die battle – last rites, or the long game?

_75775977_150348420Laura Profumo delivers the latest human rights happenings.

In the News:

Right to die campaigners have sustained yet another setback, following the judgment of R (AM) v General Medical Council last week.


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


Photo credit: Guardian

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.

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.

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No extradition for Shrien Dewani – for now

The Government of the Republic of South Africa v Shrien Dewani- Read decision

The extradition to South Africa of Shrien Dewani, the man accused of murdering his wife on honeymoon there in 2010, has been delayed pending an improvement in his mental health.

The case made headlines in 2010, when the story broke of a honeymooning couple who had been ambushed in the township of Gugulethu, South Africa. Mr Dewani told police he had been travelling in a taxi which was ambushed by two men. He described being forced from the car at gunpoint and the car driving away with his wife still inside. She was found dead shortly after.  However, evidence emerged which led the South African authorities to believe that Mr Dewani had initiated a conspiracy with the taxi driver and the men who ambushed the taxi to murder his new wife. Consequently, they sought his extradition from the UK, to which he had returned, to face a trial for murder.

In an appeal to the High Court from a decision by a Senior District Judge that Mr Dewani could be extradited, Mr Dewani made two arguments:
1.    Prison conditions in South Africa were such that his Articles 2 (right to life) and 3 (prohibition on torture, inhuman and degrading treatment) Convention rights would be violated if he were extradited;

2.    His mental health and risk of suicide were such that his should not be extradited. Continue reading

Unjustified Delay in Parole Hearing Breached Prisoner’s Human Rights

R (on the application of Daniel Faulkner) v Secretary of State for Justice and Anor [2010] EWCA Civ 1434 – Read Judgment

The Court of Appeal has upheld the appeal of prisoner who spent 10 more months in prison than he should have, due to unjustified delay in having his case heard by the Parole Board. The court found that there had been an infringement of his rights under Article 5(4) of the European Convention on Human Rights (ECHR).

In 2001 Daniel Faulkner was convicted of causing grievous bodily harm with intent (an offence under section 18 of the Offences Against the Person Act 1861). As this was his second offence of this nature, he was sentenced to custody for life, with the minimum period he had to spend in custody being set at two years, eight and a half months. That period expired on 18th April 2004 and he became eligible for parole.

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