Art.5, OLRs and rehabilitation
A petitioner brought a case for judicial review claiming that he had not been granted reasonable opportunity to demonstrate to the Parole Board for Scotland that his imprisonment was no longer necessary for the protection of the public. As such he claimed that his Article 5 right under the European Convention on Human Rights had been violated. The court recognised that under Article 5 the state has a duty to provide an opportunity reasonable for a prisoner with an order for lifelong restriction to rehabilitate himself and to demonstrate that he no longer presents an unacceptable risk to the public. However it was also acknowledged that periods of delay due to resources, number of prisoners and limits on facilities are likely in any prison system. The discussion focused on whether there had been unlawful delay in taking the steps necessary for the petitioner’s progression to a national top end facility or to the open prison estate from where he could make progress towards satisfying the Parole Board for Scotland. The court found that while it was difficult to know at what point a delay became a violation of Article 5 the period in this case was just over three months and given the circumstances this could not be identified as a violation of Article 5. As such, the petitioner failed to show that he had been prevented an opportunity reasonable to demonstrate that he was no longer a danger to the public and the petition was dismissed.