BROWN AGAINST THE SCOTTISH MINISTERS [2022] ScotCS CSIH_48 (14 October 2022)

BROWN AGAINST THE SCOTTISH MINISTERS [2022] ScotCS CSIH_48 (14 October 2022)

OLR prisoners and discretionary life sentence prisoners are in analogous positions for the purposes of Article 14 ECHR; the Scottish Ministers' policy of allocating a later critical date to OLR prisoners for access to rehabilitative programmes is not objectively justified, as it is not rationally connected to the stated aim of fair resource distribution and is disproportionate; the policy unlawfully discriminates against OLR prisoners in breach of Article 14 ECHR.

Citation
[2022] ScotCS CSIH_48
Parties
Petitioner and Reclaimer: Andrew Brown; Respondents: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
14 October 2022
Procedural Posture
Judicial Review (reclaiming Motion/appeal) / Inner House, Court of Session, Decision on Appeal From Lord Ordinary
Outcome
Reclaiming motion allowed; decision of Lord Ordinary on prioritisation policy overturned.
Legal Topics
Discrimination Under ECHR Article 14, Prisoner Rehabilitation, Allocation of Rehabilitative Programmes, Parole Eligibility, Sentencing Policy
Public Law Prison Law Human Rights Law Discrimination Under ECHR Article 14 Prisoner Rehabilitation Allocation of Rehabilitative Programmes Parole Eligibility Sentencing Policy

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Parties

Andrew Brown

Petitioner and Reclaimer

The Scottish Ministers

Respondents

Procedural Posture

Judicial Review (reclaiming Motion/appeal) / Inner House, Court of Session, Decision on Appeal From Lord Ordinary

Legal Issues

  1. 1 Whether the Scottish Ministers' policy on prioritisation of access to rehabilitative work for OLR prisoners is unlawfully discriminatory under Article 14 ECHR when compared to discretionary life sentence prisoners
  2. 2 Whether there is objective justification for treating OLR prisoners differently from discretionary life sentence prisoners in allocation of rehabilitative programme waiting lists

Ratio Decidendi

OLR prisoners and discretionary life sentence prisoners are in analogous positions for the purposes of Article 14 ECHR; the Scottish Ministers' policy of allocating a later critical date to OLR prisoners for access to rehabilitative programmes is not objectively justified, as it is not rationally connected to the stated aim of fair resource distribution and is disproportionate; the policy unlawfully discriminates against OLR prisoners in breach of Article 14 ECHR.

Court Disposition

Reclaiming motion allowed; decision of Lord Ordinary on prioritisation policy overturned.

Orders

  • Case to be put out by order for discussion as to the appropriate order(s) to be pronounced.