Brown v The Parole Board for Scotland, The Scottish Ministers and another

Article 5(1)(a) requires prisoners detained solely for public protection to receive a real opportunity for rehabilitation. A violation arises only in rare cases where, considering the detention as a whole, the lack of reasonable rehabilitative opportunities renders continued detention arbitrary.

The duty applies during the extension period of an extended sentence where detention depends on executive recall and continuing dangerousness. It does not apply on that basis during the court-imposed custodial term or imprisonment ordered for a further offence. A breach does not ordinarily require immediate release: it may be remedied by providing the missing opportunity, alongside access to release if the prisoner is no longer dangerous.

The appellant received an extended sentence comprising a seven-year custodial term and a three-year extension period. After release on licence, he reoffended and was recalled. He remained imprisoned until the extension period expired. He alleged that delays in providing rehabilitative courses rendered his detention unlawful under article 5(1)(a) of the European Convention on Human Rights.

The Lord Ordinary and the Inner House rejected his claim, the latter deciding the appeal at [2015] CSIH 59. The Supreme Court considered whether the article 5 duty to provide a real opportunity for rehabilitation applied to an extended sentence. It also reconsidered the approach adopted in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66.

1. Appeal dismissed unanimously. Lord Reed delivered the judgment, with which Lord Neuberger, Lady Hale, Lord Hodge and Lord Carloway agreed.

2. The court adopted the approach developed by the European Court of Human Rights in James v United Kingdom. Article 5(1)(a) itself requires a real opportunity for rehabilitation where continued detention is justified solely by the risk which a prisoner poses to the public. The court departed from the treatment in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 of the obligation as an ancillary duty implicit in article 5 as a whole.

3. The threshold is stringent. The court must assess the detention as a whole and the prisoner's general progression in the particular circumstances. Relevant matters include the prisoner's history and prognosis, the risks presented, other prisoners' competing needs, available resources, and the use made of rehabilitative opportunities. Article 5 neither requires immediate access to every course nor permits a court to characterise detention as arbitrary merely because management could have been better. Violations will be rare.

4. Unlawfulness arising from a failure to provide rehabilitation does not ordinarily entitle a prisoner to immediate release. It may be ended by requiring the authorities to provide a real rehabilitative opportunity. Release remains available through the competent body when the prisoner no longer presents the relevant danger.

5. The duty applies to detention during the extension period of an extended sentence, except where detention rests on an order under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 or another sentence. No court has ordered imprisonment during that period; detention depends on executive recall and the Parole Board's assessment of continuing risk. Its sole purpose is protection of the public from serious harm, and its duration can change in response to rehabilitation.

6. During the custodial term, or a period ordered under section 16, the prisoner is in the position of an ordinary determinate prisoner. The court-imposed term supplies the necessary justification under article 5(1)(a).

7. The appellant received repeated courses, reviews, sentence planning and opportunities to progress. The delay before repeating the Constructs course was not unreasonable in the overall context. His inability to secure release resulted principally from continuing violence, substance misuse and other misconduct. His detention was never arbitrary.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The court reached the same result as the courts below but revised the governing article 5 analysis.
2. Inner House of the Court of Session: The reclaiming appeal was refused in Brown v Parole Board for Scotland [2015] CSIH 59.
3. Lord Ordinary: The appellant's challenge was rejected. The citation is not stated in the judgment.