MARC McDONALD FOR JUDICIAL REVIEW [2019] ScotCS CSOH_106 (18 December 2019)

MARC McDONALD FOR JUDICIAL REVIEW [2019] ScotCS CSOH_106 (18 December 2019)

The respondents unlawfully applied their policy rigidly without considering the petitioner's individual circumstances or informing him of the need to demonstrate exceptionality, resulting in unlawful fettering of discretion; however, the policy itself does not frustrate the statute and the difference in treatment between short-term and long-term prisoners is objectively justified under ECHR Article 14 with Article 5.

Citation
[2019] ScotCS CSOH_106
Parties
Petitioner: Marc McDonald; Respondents: Scottish Ministers
Jurisdiction
Scotland
Judgment Date
18 December 2019
Procedural Posture
Judicial Review / Final Judgment
Outcome
Petition partially granted
Legal Topics
Home Detention Curfew, Parole Board Referral, Fettering of Discretion, ECHR Article 5 and 14, Policy Interpretation
Administrative Law Human Rights Law Prison Law Home Detention Curfew Parole Board Referral Fettering of Discretion ECHR Article 5 and 14 Policy Interpretation

Case Brief

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Parties

Marc McDonald

Petitioner

Scottish Ministers

Respondents

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the respondents unlawfully fettered their discretion by rigidly applying policy on parole dossier submission timing
  2. 2 Whether the respondents' policy frustrates the effective operation of s 3AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993
  3. 3 Whether the policy breaches the petitioner's rights under ECHR Article 5 read with Article 14

Ratio Decidendi

The respondents unlawfully applied their policy rigidly without considering the petitioner's individual circumstances or informing him of the need to demonstrate exceptionality, resulting in unlawful fettering of discretion; however, the policy itself does not frustrate the statute and the difference in treatment between short-term and long-term prisoners is objectively justified under ECHR Article 14 with Article 5.

Court Disposition

Petition partially granted

Orders

  • Reduction of the decisions of 21 and 25 April 2019 for rigid application of policy without consideration of petitioner's circumstances
  • No reduction of the policy itself; policy does not frustrate statute