Brown v The Parole Board for Scotland, The Scottish Ministers and Another: SC 1 Nov 2017

The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence and, after a breach, recalled. Having served the full original sentence, he now complained that the failure to provide rehabilitation courses in prison denied him any possibility of release.
Held: The appeal failed. There had been no article 5(1)(a) violation.
The UK courts had hitherto (in (Kaiyam) imposed a higher standard than that required by the ECtHR, which found that article 5(1)(a) does not require a real opportunity for rehabilitation during the tariff period, since this represents the punishment part of the sentence. It was right that the standards should be re-aligned, and cease to treat the obligation to provide opportunities for rehabilitation as an ancillary obligation implicit in article 5 as a whole.
The instant case concerned a prisoner serving an extended sentence. Similar standards should be applied, and have regard to the indefinite, not unlimited, detention during the extension, the purpose of protecting the public from serious harm, and the possibility of change in response to opportunities for rehabilitation. The rationale in James that rehabilitation opportunities had to be available to IPP prisoners where they were detained solely because of the risk they pose to the public, applies to prisoners detained during the extension period of an extended sentence.
In the instant case, the prisoner had been given real opportunities for rehabilitation during both parts of his sentence. The failings had arisen from his own misconduct.

Baroness Hale of Richmond PSC, Lord Reed, Lord Hodge JJSC, Lord Neuberger of Abbotsbury, Lord Carloway
[2017] UKSC 69, [2017] HRLR 16, 2018 SC (UKSC) 49, [2017] 3 WLR 1373, 2018 SCLR 76, [2018] 1 All ER 909, 2017 SLT 1207, [2018] AC 1, 2017 SCCR 540, [2017] WLR(D) 732, 2017 GWD 35-550, UKSC 2016/0079
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2017 06 14 am Video, SC 20117 06 14 pm Video, SC 20 06 15 am Video
European Convention on Human Rights 5, Human Rights Act 1998, Criminal Procedure (Scotland) Act 1995 210A
Appeal fromIn Reclaiming Motion By Brown v The Parole Board for Scotland and The Scottish Ministers SCS 31-Jul-2015
(Extra Division Inner House) The scope of this appeal relates to the impact of article 5 of the European Convention on Human Rights (‘ECHR’) in circumstances where the petitioner and reclaimer (‘the reclaimer’) is serving an extended sentence under . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
CitedAshingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
CitedBouamar v Belgium ECHR 29-Feb-1988
Hudoc Violation of Art. 5-1; Violation of Art. 5-4; Just satisfaction reserved; Judgment (Just satisfaction) Struck out of the list (friendly settlement)
A person detained as a juvenile in need of . .
CitedBrand v The Netherlands ECHR 11-May-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1 ; Non-pecuniary damage – financial award
The court set out a list of cases in which a person can be deprived of liberty without . .
CitedSaadi v United Kingdom ECHR 29-Jan-2008
(Grand Chamber) The applicant sought judicial review of the decision to detain him for a short period while his asylum claim was being subject to fast-track processing. The decision was made pursuant to a policy under which all asylum claimants . .
CitedKaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
CitedKaiyam, Regina (on The Application of) v Secretary of State for Justice Admn 21-May-2013
The claimant, serving a sentence of imprisonment for public protection, challenged the failure by the respondent to provide him with access to the rehabilitative work which would allow him to seek early release.
Held: The claim failed. . .
CitedSecretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
CitedJames, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .

Cited by:
CitedStott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 01 November 2021; Ref: scu.598452