Petition of Brian Hands Against The Parole Board of Scotland  CSOH 42
A man sentenced to life in prison who was granted community access before being returned to prison has lost a challenge against a subsequent decision by the Parole Board not to release him. The case was heard by the Court of Session at Edinburgh.
Brian Hands, who was convicted of murder and robbery in 1999, argued that the respondent had effectively imposed an impossible condition on his release, having not had regard to COVID-19 restrictions. The Court heard that Mr Hands had previously been refused early release on three earlier occasions. However, in 2019 he was moved to an open prison before later being granted community access where he lived with his mother.
He was returned to full imprisonment just four months later, after prison officers found non-prescription steroid pills in Mr Hands’ cell. He claimed they were a dietary supplement to combat weight loss. Whilst no charges were brought, the incident was key to the Parole Board’s decision to refuse his release in 2020. Furthermore, the Board had determined that Mr Hands had not spent enough time both in open conditions and in the community for it to be confident that he would be at low risk of offending or would not pose a danger to the wider community.
The petitioner submitted that at the time of the Board’s decision in 2020, it knew that prisoners were not being moved between prisons or communities in order to halt the spread of coronavirus in Scotland. This, he argued, amounted to an impossible condition because it meant that he would not be able to spend any time in open conditions. Thus, it would not be physically possible for him to satisfy the Board’s concerns. He further sought to argue that his rights under Article 3 of the ECHR were being breached as a result of this.
In response, counsel for the Parole Board of Scotland argued that the decision was not outrageous and did not defy logic or moral standards according to a reasonable person. It did not meet the legal test to be considered unreasonable, based on what the Board knew at the time of its decision. It was further argued that the decision was not incompatible with the petitioner’s human rights.
The opinion of the Court was delivered by Lady Carmichael. In dismissing the petition, the Court held that: “It is incorrect to say that the tribunal knew that the petitioner could not achieve a sustained
period in open conditions by the next review. The tribunal recognised that the matter was uncertain, and it was possible that he would not have achieved that. A fortiori it is wrong to say that the tribunal knew that the petitioner could never achieve a sustained period in open conditions, with the result that he, in effect, faced custody for an indefinite period.”
Having regard to the fact that the Board did not intentionally create a condition that could not be met, the Court dismissed this argument as made by the petitioner.
Regarding the argument concerning the petitioner’s ECHR rights, the court held that “The situation is not one in which the sentence is de facto incapable of reduction in the way described by the Strasbourg court. In Murray v Netherlands (2017), the applicant was assessed before sentence as needing treatment. There was no treatment or assessment of his treatment needs after sentence, with the result that there was no chance of a favourable outcome on the only periodic review that had taken place in his case. That is not the situation here.”
Accordingly, the petition was refused.