Ansari v Aberdeen City Council & Others  CSIH 5
30 January 2017
The reclaimer was a prisoner seeking to judicially review alleged failures to provide him with reasonable opportunities for rehabilitation, relying on the decision of the Supreme Court in R (Kaiyam) (sub nom Haney) v Secretary of State for Justice  AC 1344. In Haney, the Supreme Court had found the duty to provide such opportunities for rehabilitation to be an ancillary duty, implicit within the scheme of Art. 5 ECHR, not going to the lawfulness of detention but potentially sounding in damages for breach. The respondent to the reclaiming motion, the second respondent to the petition, was a local authority with certain ‘thoroughfare’ responsibilities for the reclaimer in the event of his release. The petition had proceeded to a first hearing before the Lord Ordinary on the sole issue of whether the so-called ‘Haney duty’ applied to a local authority such as the respondent. The Lord Ordinary found that the duty did not apply, and the reclaimer appealed that decision to the Inner House on the basis that local authorities formed part of the ‘state’ subject to Art.5 ECHR and the approach of the Lord Ordinary rendered the reclaimer’s rights under that provision ineffective. The respondent resisted the appeal essentially on the grounds advanced before the Lord Ordinary, namely that the only party on whom the ‘Haney duty’ could lawfully and logically be imposed having regard to the structure of Art.5 ECHR was the party requiring to rely on the relevant exception, namely central government - in this case, the Scottish Ministers. The Inner House, in refusing the reclaiming motion and adhering to the Lord Ordinary’s decision, noted that:
“Although in his submissions the petitioner referred to the statutory obligations on the first respondents, he did not found on breach of the statutory provisions as giving rise to a cause of action. In the judicial review he relied solely on a breach of his rights in terms of Article 5 ECHR. Article 5.1 is designed to prevent arbitrary detention. Any deprivation of liberty must fall within one of the exceptions set out in sub paragraphs (a)-(f) and must be lawful. So far as material for present purposes Article 5 provides:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
In James, Wells and Lee v UK (2012) 56 EHRR 399 the Fourth Section of the European Court of Human Rights recognised that in the context of Article 5.1 in the case of persons, such as the petitioner, who, having served the punishment element of their sentences, are in detention solely because of the risk they pose to the public, a concern may arise if there are no “special measures, instruments or institutions” in place, other than those available to ordinary long term prisoners, aimed at reducing the danger they present and at limiting the duration of their detention to what is strictly necessary in order to prevent them from committing further offences (paragraph 194). The court was satisfied that in cases concerning indeterminate sentences of imprisonment for the protection of the public, “a real opportunity for rehabilitation was a necessary element of any part of the detention which was to be justified solely by reference to public protection” (paragraph 209). It noted that rehabilitation is one of the purposes of detention. The court summarised its view at paragraph 218:
“The Court reiterates that the right to liberty is of fundamental importance. While its case-law demonstrates that indeterminate detention for the public protection can be justified under Article 5.1(a), it cannot be allowed to open the door to arbitrary detention. As the court has indicated above, in circumstances where a government seek to rely solely on the risk posed by offenders to the public in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders."
 In Haney the UK Supreme Court accepted the conclusion of the Fourth Section in James. It considered that the Supreme Court could and should accept as implicit in the scheme of Article 5 that the state is under a duty to provide an opportunity, reasonable in all the circumstances, for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. This duty could not be found in the express language of either Article 5.1(a) or 5.4, but should be implied as an ancillary duty to facilitate release which did not affect the lawfulness of the detention, but sounded in damages if breached. The court stated that such a duty could readily be implied as part of the overall scheme of Article 5, read as a whole.
 It follows from the analysis in James and Haney that the duty is imposed on the state. The state has the power to detain the prisoner relying on Article 5.1(a). Implicit in the overall scheme of Article 5 is the duty on the state, which is responsible for the detention of the prisoner, to provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. In the case of a prisoner serving a life sentence in Scotland, detention after the expiry of the punishment part is justified solely by reference to public protection. The Scottish Ministers detained and continue to detain the petitioner after the expiry of his punishment part. The provision of an opportunity for rehabilitation is a necessary element of detention justified solely by reference to public protection. The duty to provide that opportunity (described in Haney as a “duty to facilitate release” (para 38)) is inextricably linked to the reliance on public protection to justify the detention. Thus, as the Scottish Ministers accept, the duty is incumbent on them.
 In our view 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, as noted in the National Objectives for Social Work Services in the Criminal Justice System: Standards – Throughcare (2004) at paragraph 5:
“Local authority social work departments exercise responsibilities on behalf of the Secretary of State in respect of prisoners eligible for release on licence.”
The Scottish Ministers accept that they have a duty in terms of Haney to the petitioner. Thus, in this judicial review the petitioner has the opportunity for recourse against the Scottish Ministers. In these circumstances no question of a duty gap arises. Indeed, in answer to a question from the court counsel for the petitioner stated that the Scottish Ministers would be jointly responsible and liable for any proven relevant failings on the part of the respondents. It is difficult to reconcile this with the submission that, absent a Haney duty incumbent on the local authority, the petitioner would be without an effective remedy.
 It is common ground that the first respondents constitute a public authority for the purposes of section 6 of the Human Rights Act 1998 and are bound to act in accordance with the Convention. We agree with the submission advanced on behalf of the first respondents that in itself this does not create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances in which the first respondents are not responsible for his imprisonment or release.
 We reject the submission advanced on behalf of the petitioner that the various statutory responsibilities of the first respondents should be interpreted in such a way as to create an obligation on the first respondents to provide reasonable opportunities for rehabilitation as required in Haney. If and when appropriate it might be open to a prisoner to challenge a failure on the part of a local authority to fulfil its statutory responsibilities but the petitioner has not gone down this route in this judicial review. It is not open to him to attempt to convert a breach of a specific statutory provision into a breach of a Haney Article 5 ECHR duty. 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.
 In the result the reclaiming motion is refused, for essentially the same reasons as those expressed by the Lord Ordinary.”
Lesley Irvine of Axiom Advocates acted for the respondent before the Lord Ordinary, and was Junior Counsel for the respondents in the Inner House.
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