Brown v The Parole Board for Scotland, The Scottish Ministers and another (Scotland) [2017] UKSC 69

A prisoner serving an extended sentence for culpable homicide was recalled to custody after reoffending on licence. He claimed inadequate rehabilitation courses breached article 5 ECHR. The Supreme Court dismissed his appeal, holding the rehabilitation duty applies to extended sentences but was not breached.

Facts

The appellant was convicted of culpable homicide in January 2006 after fatally stabbing another youth and received an extended sentence of ten years, comprising a seven-year custodial term and a three-year extension period. He completed several rehabilitation programmes during his custodial term, including Anger Management and Constructs, and was released on licence in April 2010 after serving two-thirds of the custodial term.

In August 2010 he stole a car while under the influence of alcohol. His licence was revoked and he was recalled to custody in September 2010. He continued to engage in violent behaviour in prison, including assaults. The Board recommended he be reassessed for the Constructs course and undertake the Violence Prevention programme. There were delays in his access to courses, partly due to transfers between prisons and waiting lists. He eventually completed the Constructs course (April 2013) and CARE programme (September 2013) before being transferred to open conditions. After further misconduct involving illicit substances, he served the remainder of his sentence and was released on 4 August 2015.

Issues

The principal issue was whether the duty under article 5 ECHR to provide prisoners with a real opportunity for rehabilitation, as established in James v United Kingdom, applies to prisoners serving extended sentences. A secondary issue was whether the Supreme Court should depart from its earlier approach in R (Kaiyam) v Secretary of State for Justice in light of subsequent Strasbourg jurisprudence.

Arguments

Appellant

Counsel for the appellant emphasised that during the extension period the court does not impose any specific period of imprisonment to be served; detention depends on executive and Parole Board decisions, analogous to life and IPP sentences. The appellant complained that inadequate rehabilitation courses had been provided following recall.

Respondents

The Parole Board, the Scottish Ministers and the Advocate General submitted that the principle established in James had only been applied to life and IPP sentences. They emphasised that an extended sentence is determinate, with the court fixing the extension period, and that section 210A(2) of the 1995 Act refers to the aggregate as "a sentence of imprisonment".

Judgment

Realignment with Strasbourg

Lord Reed (with whom the other Justices agreed) reviewed the Strasbourg jurisprudence, particularly James v United Kingdom, the subsequent line of cases including Kaiyam v United Kingdom, and the Grand Chamber decision in Murray v Netherlands. The court concluded that the analysis in James now formed part of a clear and constant line of decisions. The Supreme Court accordingly departed from its reasoning in Kaiyam, which had located the rehabilitation duty as an "ancillary duty" implicit in article 5 as a whole, and adopted the European Court’s approach that the duty arises under article 5(1)(a).

This realignment had three significant consequences: (i) the obligation arises only after the punishment/tariff element has been served, not throughout detention; (ii) the standard is one of arbitrariness, which is more stringent than reasonableness; and (iii) the Secretary of State’s own assessment of what is reasonable is not conclusive. The court also clarified that a violation of article 5(1) arising from failure to provide rehabilitation courses does not entail an obligation to secure immediate release; the appropriate remedy is provision of the opportunity, with monetary compensation where appropriate.

Application to extended sentences

The court held that the rehabilitation duty applies to prisoners detained during the extension period of an extended sentence (other than by virtue of a section 16 order or concurrent sentence). Such detention is materially different from a determinate sentence: no court has ordered detention during that period; the purpose is solely public protection; and detention depends on decisions by the Scottish Ministers and the Parole Board. The reasoning in James, that conditions of detention must relate to the purpose of detention to avoid arbitrariness, applies equally.

Application to the facts

The court found there was no breach. The appellant had been provided with multiple courses throughout his detention, regular case conferences, annual Parole Board reviews, and transfers to less restrictive conditions. Although there were delays, including a period between May 2012 and January 2013 before the Constructs course began, these were not such as to render his detention arbitrary. The court accepted the prison authorities’ use of a consistent national prioritisation scheme for course allocation. The failure of the appellant ultimately to secure release was attributable to his own misconduct, not to failures of the prison authorities.

Implications

The judgment realigns domestic law with Strasbourg jurisprudence by locating the rehabilitation duty within article 5(1)(a) rather than treating it as an ancillary duty implicit in article 5. The threshold for establishing a violation is high — the European Court itself indicated that such cases "will be rare". Assessment must be of the prisoner’s general progression through the system viewed as a whole, not particular delays examined in isolation.

The decision extends the rehabilitation duty to prisoners detained during the extension period of extended sentences, recognising that such detention shares with IPP and life sentences the features of indefinite duration (within statutory limits), a purely preventive purpose, and dependency on assessment of changing risk. The duty does not apply to detention during the custodial term, or to detention ordered under section 16 of the 1993 Act, where the prisoner is in an analogous position to those serving determinate sentences.

The judgment is significant for prison authorities, the Parole Board and prisoners serving extended sentences. It clarifies that the duty is to provide a reasonable opportunity in all the circumstances, considering the prisoner’s history, risk, competing demands, available resources, and use made of opportunities provided. Article 5 does not require maximisation of provision, nor does it allow courts to characterise as arbitrary any case that might have been better managed. The decision also confirms that, even where a breach is established, the remedy is not release but provision of the opportunity, with potential monetary compensation.

Verdict: Appeal dismissed. The Supreme Court held that although the duty under article 5(1)(a) to provide a real opportunity for rehabilitation does apply to prisoners detained during the extension period of an extended sentence, that duty had not been breached on the facts of the appellant’s case.

Source: Brown v The Parole Board for Scotland, The Scottish Ministers and another (Scotland) [2017] UKSC 69