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

The Supreme Court held that the principle established in James v United Kingdom — that where detention is justified solely by public protection the detained person must be afforded a real opportunity for rehabilitation — applies to detention during the extension period of an extended sentence. The Court recognised that article 5(1)(a) requires a relationship between the purpose of detention and its conditions, and that where detention is justified only by risk to the public reasonable measures aimed at reducing that risk should be in place.

Applying that principle to the facts, the court found that the appellant had been afforded reasonable opportunities to undertake offending‑behaviour work and other programmes, that delays in access to programmes were not so prolonged or unexplained as to make detention arbitrary, and that his continued detention resulted from his own misconduct rather than systemic failure to provide rehabilitation. The appeal was therefore dismissed.

Background and parties: The appellant was sentenced to an extended sentence (custodial term seven years, extension period three years). After early release on licence he was recalled for a further offence and remained in custody until the sentence expired. He claimed that, after recall, he was not provided with appropriate rehabilitation courses in breach of article 5 of the European Convention on Human Rights (as incorporated by the Human Rights Act 1998). The Scottish Ministers, the Parole Board (intervener) and the Advocate General for Scotland were respondents.

Procedural history: The appeal to the Supreme Court was from the Inner House of the Court of Session ([2015] CSIH 59). The Supreme Court heard argument and considered domestic authorities and the European Court of Human Rights jurisprudence, especially James v United Kingdom and subsequent Strasbourg decisions.

Issues framed:

• Whether article 5(1)(a) imposes a duty to afford a real opportunity for rehabilitation to prisoners detained under extended sentences during the extension period;
• If so, the scope of that duty and the applicable standard (arbitrariness under article 5(1)(a) as developed by the Strasbourg court versus the ancillary duty approach previously adopted domestically in Kaiyam);
• Application of that duty to the appellant’s factual history of courses, assessment and transfers.

Court’s reasoning: The court accepted Strasbourg authority that article 5(1)(a) requires the conditions and regime of detention to relate to the purpose of detention and that, where detention is justified solely by public protection, measures aimed at reducing risk and enabling rehabilitation must be in place. The court concluded that the rationale in James and later Strasbourg cases applies equally to detention during the extension period of an extended sentence because (i) detention during that period is not ordered by the sentencing court but depends on recall, (ii) detention in that period serves a preventive/public‑protection purpose rather than punishment, and (iii) the duration is potentially indeterminate and depends on change in the prisoner’s risk profile. The Supreme Court therefore aligned its approach with Strasbourg (moving away from the ancillary duty analysis used in Kaiyam) but emphasised the high threshold for finding an article 5(1) arbitrariness violation. Applying that test to the appellant’s case, the court found he had been given reasonable and tangible opportunities to engage in offending‑behaviour programmes, transfers and reviews; delays were explicable and not so significant as to render detention arbitrary; and his persistent misconduct, not systemic failure, explained his continued confinement.

Remedy and wider context: The court reiterated Strasbourg’s approach that, where a failure to provide rehabilitation renders detention unlawful, the appropriate remedy is ordinarily an order compelling provision of the opportunity and, in suitable cases, compensation; it does not mean automatic immediate release. The court emphasised that findings of unlawfulness on this ground will be rare.

Appeal dismissed. The Supreme Court held that article 5(1)(a) requires that prisoners detained during an extended sentence extension period because of public protection concerns must be afforded a real opportunity for rehabilitation, but on the facts the appellant had been afforded reasonable opportunities and his detention was not arbitrary. The court therefore dismissed the appeal.

On appeal from the Inner House of the Court of Session [2015] CSIH 59 to the Supreme Court [2017] UKSC 69. The Supreme Court considered the case in light of domestic authority R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 and recent Strasbourg jurisprudence including James v United Kingdom (2013) 56 EHRR 12 and subsequent ECtHR decisions.