Extended sentence prisoner fails in "rehabilitation opportunity" appeal

An extended sentence prisoner who was recalled to prison after committing a futher offence following his early release, has failed in a claim that he had not been provided with appropriate rehabilitation courses following his recall, contrary to article 5 of the European Convention on Human Rights.

The Supreme Court today unanimously dismissed an appeal by Billy Brown against a decision of the Court of Session that there had been no violation of article 5 of the Convention in his case.

In doing so the court adopted the approach of the European Court of Human Rights in Kaiyam (2016), which had taken a different line to the Supreme Court in the same case – stating that its own position had been "significantly different from, and more demanding than, the duty imposed by the Convention".

Lord Reed, with whom Lord Neuberger, Lady Hale, Lord Hodge and Lord Carloway (who sat with the court during its visit to Edinburgh in June) all agreed, said that the Strasbourg court's approach did not entail an obligation under the Convention to secure the applicant’s immediate release (as had been an earlier concern of the Supreme Court), as other remedies existed which could remedy the lack of opportunity for rehabilitation. Accordingly, the court should now adopt the same approach to the interpretation of article 5(1)(a) as the ECtHR in James (2013), and cease to treat the obligation to provide opportunities for rehabilitation as an ancillary obligation implicit in article 5 as a whole. He noted, however, that a high threshold had to be surmounted in order to establish a violation of the obligation.

In the present case, in light of the various opportunities for rehabilitation provided to the appellant, "there can be no doubt... that the appellant was provided with a real opportunity for rehabilitation" during his custodial sentence and his extended sentence. The appellant was not left "in limbo" without sentencing planning and without any attempt to provide him with an opportunity to rehabilitate himself. On the contrary, there were courses provided and completed, regular planning meetings, efforts made to find appropriate rehabilitative work, and transfers to less restrictive conditions. "The problem which resulted in the appellant’s serving the whole of his sentence was not the failure of the prison authorities to provide appropriate courses, but his own misconduct."

There was no question of his detention during the extension period, or at any other point during his sentence, having been arbitrary.

Click here to access the judgment.