Lifelong restriction prisoner not unfairly denied rehabilitation

A convicted rapist subject to an order for lifelong restriction has failed in court proceedings to have it declared that the Scottish ministers breached his human rights by failing to provide an opportunity to rehabilitate himself and show that he was no longer dangerous.

David Beattie, who was made subject to the lifetime order in 2012 following his third rape conviction, with an earliest release date in 2019, claimed that ministers had failed to assess him for rehabilitative course work and that their policy of prioritising other cases would prevent him being able to demonstrate to the Parole Board that he no longer represented an unacceptable danger to the public.

In judicial review proceedings he asked the Court of Session to declare that the ministers' actions and failings were unlawful and in breach of his right to liberty under article 5 of the Human Rights Convention, taken with the protection against discrimination in article 14.

The petitioner founded on the 2015 Supreme Court case of Haney, which ruled that it was implicit in article 5 that the state was under a duty to provide an opportunity for rehabilitation, and for a prisoner to establish that he was safe for release at or within a reasonable time after he became eligible for consideration. He argued that as he was more than halfway through the fixed term part of his sentence and there was not enough time left for him to properly progress through the system that would prepare him for release, the ministers were in breach of the domestic law and/or his human rights.

Further, the ministers' policy of prioritising assessment for course work by reference to a prisoner's first possible release date was irrational because of the different patterns of management as between long term prisoners, life term prisoners and those subject to orders for lifelong restriction: to achieve fairness the process should begin earlier for the latter two categories.

Lord Armstrong in the Outer House ruled that the petition was premature as regards to failure to assess the petitioner. Whether there had been a breach of duty depended on factors some of which had to be assessed over the period up to and beyond his earliest release date. While there could be cases in which it would be clear in advance of such a date that there had been a breach of duty, it could not be determined at this stage of the petitioner's sentence that this was such a case, or in any event that it would remain uncorrected.

As regards the ministers' policy, the test of unreasonableness was a high one. The judge accepted the ministers' argument that waiting lists for rehabilitative coursework were subject to change, and that a system that provided earlier dates for prisoners like the petitioner would operate to the prejudice of other categories. “On that basis,” he held, “I am persuaded that the prioritisation policy currently adopted does not fall outwith the range of options reasonably open to the respondents.”

The Convention case based on discrimination failed because it had been settled in the UK courts that the type or length of a prisoner's sentence did not confer on him a “status” that might be recognised for purposes of discrimination. In any event there was an objective and reasonable justification for adopting the current policy. Nor could it be said that there had been a breach of article 5 “such as to bring about a system which could be said to expose the petitioner to arbitrary detention".

In the result the petition was dismissed.

Click here to view Lord Armstrong's opinion.