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Local authority owed no prisoner rehabilitation duties, Inner House rules

31 January 2017

A prisoner serving a discretionary life sentence has failed in an attempt to have a local authority made responsible for an alleged breach of duty to provide a reasonable opportunity for rehabilitation and to demonstrate that he no longer presented an unacceptable danger to the public.

Three Court of Session judges upheld a decision of the Lord Ordinary that Aberdeen City Council owed no relevant duty to Yousef Ansari under article 5 of the European Convention on Human Rights, which states the right to liberty. In the case of Haney (2015) the UK Supreme Court accepted that it was implicit in article 5 that the state was under a duty to provide a reasonable opportunity for a prisoner serving a long term sentence, including a life sentence, to rehabilitate himself and demonstrate that he no longer presented an unacceptable danger to the public.

Mr Ansari, whose punishment part of nine years expired in 2005 but who remained in custody, claimed that Aberdeen City Council and the Scottish ministers were each in breach of duty under article 5, the former by imposing such restrictive conditions on his release from open prison that he was deprived of the opportunity of demonstrating that any risk he posed had been reduced, and that he was almost bound to fail to comply and thus be downgraded from the open estate. Further, they had failed to assist him in obtaining suitable accommodation during home leave.

The hearings to date concerned only whether a relevant case had been made against the local authority. Mr Ansari argued that all public authorities were bound to act compatibly with Convention rights, and that for the rights he claimed to be effective, both respondents should be subject to the duty to provide him with a reasonable opportunity for rehabilitation, having regard to the various statutory responsibilities on the council. There was a risk of a gap between the obligations arising in statute and the prisoner making progress in the phase of being partly in prison and partly outside prison.

Delivering the opinion of the court, Lord Bracadale, who sat with Lady Paton and Lord Malcolm, said that the duty in question was imposed on the state. It had the power to detain the prisoner relying on article 5(1)(a), and implicitly also the duty to provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. The Scottish ministers accepted that the duty is incumbent on them.

"In our view", he continued, "the Lord Ordinary was correct to hold that the local authority is in a different position. It is not responsible for the detention or release of the prisoner. It is not required to justify the continued detention for public protection reasons. The role of the local authority is to provide assistance in certain areas of the rehabilitation process before and after release. In carrying out its role in relation to rehabilitation of a prisoner the local authority operated on behalf of the Scottish ministers".

Since the ministers accepted the duty on them, "no question of a duty gap arises". The petitioner accepted that they would be jointly responsible and liable for any proven relevant failings on the part of the council. The fact that the council was a public authority "does not create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances in which the [council is] not responsible for his imprisonment or release... The local authority having no responsibility for the decision to continue the detention of the petitioner, there is no basis for reading into article 5 an implied duty incumbent on it to facilitate his release".

Click here to view the opinion of the court.

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