IN RECLAIMING MOTION BY BILLY JOHN BROWN (AP) AGAINST (FIRST) THE PAROLE BOARD FOR SCOTLAND AND (SECOND) THE SCOTTISH MINISTERS [2015] ScotCS CSIH_59 (31 July 2015)

IN RECLAIMING MOTION BY BILLY JOHN BROWN (AP) AGAINST (FIRST) THE PAROLE BOARD FOR SCOTLAND AND (SECOND) THE SCOTTISH MINISTERS [2015] ScotCS CSIH_59 (31 July 2015)

The implied ancillary duty under Article 5 ECHR to provide a reasonable opportunity for rehabilitation does not apply to prisoners serving extended (determinate) sentences, even after recall following mandatory release. The distinction between determinate and indeterminate sentences is fundamental: only indeterminate sentences justify continued detention solely for public protection without a fixed release date. As the petitioner's sentence was determinate, no such duty arose, and thus there was no breach.

Citation
[2015] ScotCS CSIH_59
Parties
Petitioner and Reclaimer: Billy John Brown; First Respondent: The Parole Board for Scotland; Second Respondent: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
31 July 2015
Procedural Posture
Reclaiming Motion (appeal) in Judicial Review / Appeal (reclaiming Motion) From Lord Ordinary's Refusal of Petition
Outcome
Appeal refused
Legal Topics
Article 5 ECHR (right to Liberty), Extended Sentences, Rehabilitation of Prisoners, Mandatory Release, Recall to Prison, Damages for Breach of Convention Rights
Human Rights Law Criminal Law Prison Law Article 5 ECHR (right to Liberty) Extended Sentences Rehabilitation of Prisoners Mandatory Release Recall to Prison +1 more

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Parties

Billy John Brown

Petitioner and Reclaimer

The Parole Board for Scotland

First Respondent

The Scottish Ministers

Second Respondent

Procedural Posture

Reclaiming Motion (appeal) in Judicial Review / Appeal (reclaiming Motion) From Lord Ordinary's Refusal of Petition

Legal Issues

  1. 1 Does the implied ancillary duty under Article 5 ECHR to provide a reasonable opportunity for rehabilitation apply to prisoners serving extended (determinate) sentences after recall?
  2. 2 If so, was there a breach of that duty in the petitioner's case?
  3. 3 If there was a breach, what is the appropriate remedy in damages?

Ratio Decidendi

The implied ancillary duty under Article 5 ECHR to provide a reasonable opportunity for rehabilitation does not apply to prisoners serving extended (determinate) sentences, even after recall following mandatory release. The distinction between determinate and indeterminate sentences is fundamental: only indeterminate sentences justify continued detention solely for public protection without a fixed release date. As the petitioner's sentence was determinate, no such duty arose, and thus there was no breach.

Court Disposition

Appeal refused

Orders

  • Reclaiming motion refused
  • Lord Ordinary's interlocutor refusing the petition adhered to