Brown v Parole Board for Scotland & ors

The Supreme Court (sitting in Scotland for the first time) has handed down an important judgment in relation to the scope of Article 5(1) of the ECHR and the rehabilitative opportunities that are made available to indeterminate sentence prisoners. 

The Court decided to reverse the approach that it had only relatively recently adopted in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66.  It held that the decision in Kaiyam had imposed a duty on prison authorities which was significantly different from and more demanding than the duty imposed by the ECHR (at [42]).  It held that Kaiyam should not be followed and that the Strasbourg line of authority which imposed a lower duty was to be preferred (at [44]).  The effect of this is that the duty to provide rehabilitative opportunities under the ECHR arises only in relation to prisoners serving indefinite sentences, and only after the tariff period of their sentence has expired (at [39]). The Court held that for prisoners such as the Appellant who were serving an “extended sentence” (i.e. a sentence with an extended licence period to reflect their risk to the public), the duty arose only during any period of detention during the extended licence period (at [62]-[63).

The Supreme Court also took the opportunity repeatedly to emphasise the high threshold that needs to be crossed to find a breach of Article 5(1) in relation to a failure to provide rehabilitative opportunities (and noted that the threshold is higher than was found in Kaiyam) – it is a threshold of arbitrariness and not reasonableness (at [11], [20]-[21], [31], [34], [35]-[36] and [40]-[45]). 

The Court also noted that Article 5 does not entitle a court to characterise as arbitrary detention any case which it concludes might have been better managed (at [83]).

Lord Keen of Elie QC, Tom Weisselberg QC and David Lowe acted for the Advocate General for Scotland