Summaries of opinions (judgments) provide a short explanation of judicial decisions in order to assist understanding and may be published in cases where there is wider public interest. They provide the main findings, but do not form part of the reasons for the decision.

The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.

Prisoner fails in compelling ministers to conduct assessment


Sep 2, 2020

A prisoner serving an Order for Lifelong Restriction (OLR), has failed in his attempt to compel Scottish Ministers to carry out a “community facing risk assessment” in order to increase his chances of release.


Thomas O’Leary, who is assessed as a high risk of re-offending, was jailed for an indeterminate period in 2014, in relation to vicious assaults on former partners. He was released by the Parole Board for Scotland in December, after a Tribunal ruled that he was no longer a danger to the community. However, Glasgow City Council sought his recall within days, claiming that he was not safe to be released until a community facing risk assessment was in place, showing that he could safely be managed in the community.

O’Leary brought a judicial review to the Court of Session against the Scottish Ministers and Glasgow City Council. He claimed that their refusal to prepare a risk assessment setting out what measures could be taken to reduce his risk of re-offending, in the event that the Parole Board again decide to release him, breached his legitimate expectation that such an assessment be carried out, and infringed his human rights by treating him less favourably than prisoners who are not subject to an OLR. Scottish Ministers opposed the move, arguing that the risk management plan, which every OLR prisoner must have, assessed him as a high risk of re-offending and who could only safely be managed in custody.

The judge, Lord Braid, held that O’Leary’s rights had not been breached. He ruled that the prisoner could have no legitimate expectation that a community facing risk assessment be carried out. His only legitimate expectation could be that a risk management plan was prepared, as it had been. Glasgow City Council’s breach report did not amount to a representation to O’Leary that a community facing risk assessment should be prepared, simply that he should not be released until his risk management plan assessed him as being manageable in the community. Further, although the Parole Board for Scotland had, since then, asked for further information about how O’Leary could be managed in the community, neither they, nor the Court, could compel Scottish Ministers to prepare the risk management plan on any particular basis. Lord Braid also held that O’Leary’s human rights had not been breached, in that he was not in an analogous situation to other prisoners, who were not subject to an OLR.

Lord Braid further ruled that Glasgow City Council owed no duty to O’Leary, their only function being to provide reports to Scottish Ministers, which they had done.

The full opinion of the Court can be accessed via the Scottish Courts and Tribunals Service website.  

Summaries of Opinions provide the main findings, but do not form part of the reasons for the decision. The full judgment published on the Scottish Courts and Tribunals website is the only authoritative document.