Dutch (AP) v The Parole Board for Scotland & Anor [2013] ScotCS CSOH_172 (07 November 2013)

Dutch (AP) v The Parole Board for Scotland & Anor [2013] ScotCS CSOH_172 (07 November 2013)

Section 2(5)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 cannot be interpreted, by virtue of section 3 of the Human Rights Act 1998, to permit the Parole Board to direct release of a prisoner whose continued confinement breaches convention rights unless the Board is satisfied that confinement is no longer necessary for public protection. The statutory language is unequivocal and does not allow for implied exceptions based on convention rights breaches.

Citation
[2013] ScotCS CSOH_172
Parties
Petitioner: Kenneth Dutch; First Respondent: The Parole Board for Scotland; Second Respondent: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
07 November 2013
Procedural Posture
Judicial Review / First Hearing, Decision on Preliminary Issues
Outcome
petition dismissed insofar as directed at the Parole Board
Legal Topics
Parole, Life Imprisonment, Rehabilitation, Interpretation of Statutes, Compatibility With Convention Rights
Criminal Law Human Rights Law Public Law Parole Life Imprisonment Rehabilitation Interpretation of Statutes Compatibility With Convention Rights

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Parties

Kenneth Dutch

Petitioner

The Parole Board for Scotland

First Respondent

The Scottish Ministers

Second Respondent

Procedural Posture

Judicial Review / First Hearing, Decision on Preliminary Issues

Legal Issues

  1. 1 Whether section 2(5)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 can be interpreted to allow the Parole Board to direct release of a prisoner whose continued confinement breaches convention rights
  2. 2 Whether the Parole Board's refusal to release the petitioner is unlawful under the Human Rights Act 1998

Ratio Decidendi

Section 2(5)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 cannot be interpreted, by virtue of section 3 of the Human Rights Act 1998, to permit the Parole Board to direct release of a prisoner whose continued confinement breaches convention rights unless the Board is satisfied that confinement is no longer necessary for public protection. The statutory language is unequivocal and does not allow for implied exceptions based on convention rights breaches.

Court Disposition

petition dismissed insofar as directed at the Parole Board

Orders

  • first plea in law of the Parole Board sustained
  • petition dismissed against the Parole Board