Extended sentence prisoner's claim on lack of rehabilitation work rejected

A prisoner serving an extended sentence has failed in a claim for damages against the Scottish ministers based on an alleged failure to facilitate his rehabilitation through suitable courses in prison.

Billy Brown, who was sentenced to 10 years with a custodial element of seven years for culpable homicide, had been released on licence in 2010 but recalled to prison following the commission of further offences. His case was thereafter reviewed regularly but he was not released until the expiry of his extended sentence date, having incurred a "significant number" of governor's reports during his imprisonment.

Appealing against a decision by the Lord Ordinary to refuse his petition for judicial review, he argued that the effect of the subsequent UK Supreme Court decision in Haney [2014] UKSC 66, along with European Human Rights cases, was that there was an implied ancillary duty under article 5 of the Convention (right to liberty and security of person) to facilitate his rehabilitation and release. His continued incarceration was justified only for the protection of the public and minsters owed him a duty to provide appropriate opportunity to progress, which might include courses which the Parole Board had identified as appropriate and necessary.

However the court (Lord Menzies, Lady Clark of Calton and Lord McGhie) rejected his contention. Lady Clark of Calton, delivering the court's opinion, distinguished the cases founded on as the prisoners in question were subject to inderminate sentences. An extended sentence was a determinate sentence the expiry date of which was fixed by the court, at which the prisoner had to be released no matter how great a risk to the public he might be considered to present. Where a person is lawfully sentenced to a determinate term of imprisonment, there was (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during the term imposed on the ground that it infringed article 5.4.

Had the petition succeeded, damages would have been limited to £500 as the petitioner did have access to some rehabilitative work both before and after his mandatory release, and "His response to rehabilitation and progress within the prison can only be described as unimpressive."

Click here to view the opinion.