Prisoner fails in compelling ministers to conduct assessment
Sep 2, 2020
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.