The Court of Session has held that the Parole Board acted unfairly in its parole decision for Dean Ryan, a recalled life prisoner. The Parole Board relied on Mr. Ryan’s use of an illicit pain killer as evidence of a link to serious organised crime and of the risk to “life and limb”.  The Parole Board’s reasoning also failed to exclude rape allegations of which Mr. Ryan had been acquitted by a jury.

The petitioner was represented by AM Advocate’s Simon Crabb, instructed by James Smith, McGreevy & Co, and Laura McDonagh, Drummond Miller.

The petitioner had been convicted in 1994 of murder when he was seventeen years old. He was given a life sentence with a punishment part of 8 years. Following completion of his punishment part, he had been released on licence twice. In August 2017, he was recalled to prison for a second time following two allegations of rape made against him. Mr. Ryan went to trial and was acquitted of both charges by a jury.

On 17 March 2022, the petitioner sought his release on licence. The respondent’s tribunal refused to direct his release. The petitioner sought to judicially review that decision.

The decision under challenge

The petitioner was a low supervision prisoner who had no outstanding intervention needs. In November 2021, he was removed from the progression list following two misconduct reports. The petitioner had failed a drugs test and had tested positive for a painkiller. He had also been found in possession of a bottle which he had intended to use to circumvent the prison drug testing procedures. The petitioner told the tribunal he had a sore back and took the pain killer rather than wait for a doctor’s appointment.

The tribunal heard evidence from the petitioner’s social workers. Neither recommended his release on licence. The prison based social worker told the tribunal that because of the recent failed drugs test the petitioner was just within the “very high” risk bracket of the LSCMI assessment. No risk of serious harm assessment had been carried out because the petitioner did not meet the criteria.

Having considered the oral evidence and dossier, the majority of the tribunal decided that the petitioner’s continued confinement was necessary for the protection of the public. There were concerns about his decision making and ability to manage any licence conditions.

The tribunal’s decision minute also raised concerns about the petitioner’s use of illicit substances in prison. The tribunal stated that:

“[174] Using drugs is of itself illegal. It requires the purchase of drugs from individuals involved in the sale and distribution of them. The majority of the drug trade is governed by serious organised crime. By its very nature those involved in serious organised crime present a significant and continuing risk of violence to the public. This applies to every stage of the drug trade: from production, to drug supply chains, to drug use. It is a risk from which the public require protection as it can, and often does, pose a risk of serious harm and to “life and limb […]

[175] The risk posed to the public by Mr. Ryan’s involvement in drugs in both prison and the community cannot therefore be underestimated by the Board.”

The tribunal also “accepted completely” the social workers’ rationale for the petitioner posing a risk of serious harm to the public. The prison based social worker had not been able to discuss the rape charges with the petitioner. He was concerned that there was a “whole new area of risk I’ve not been able to address.” The community based social worker also referred to the “very serious and violent sexual offending” when explaining why the petitioner had the propensity to use serious violence.

The Parole Board acted unfairly

Lord Tyre, in his opinion, commented that had the respondent’s tribunal only based its decision on the petitioner’s inability to manage his own risks and to comply with supervision, it would be “hard to impugn its fairness”.

However, the respondent’ tribunal had gone further and acted unfairly in its consideration of the petitioner’s illicit drug use:

“[33] [….] the difficulty arises because of the observations of the tribunal regarding the link between the drug trade and serious organised crime [….] The context, it will be recalled, is the petitioner’s use, as an end user, of an illicit prescription drug. Although the tribunal notes elsewhere that the petitioner is on a methadone programme it is nowhere suggested that that aspect of his drug use causes him to pose a risk. It must be concluded, reading paragraphs 174 and 175 together, that the tribunal regarded the petitioner’s use of the illicit drug while in prison as constituting involvement in serious organised crime, and therefore of posing a risk of serious harm to the public. In my opinion that logical progression does not stand up to scrutiny and falls below an acceptable standard of reasoning as a part of the justification for continuing to confine the petitioner so long after tariff expiry.”

Similarly, the respondent had acted unlawfully by failing to distinguish between undisputed facts from which legitimate inferences can be drawn and allegations which have been rejected as unproved:

“[31] Reference was made during argument to the distinction drawn in R (Pearce) (above) between, on the one hand, established or undisputed constituent facts associated with an overarching allegation, which could of themselves provide indications of risk and, on the other hand, assessment of the seriousness of the nature of an allegation with some evidential basis, which could according to the Court of Appeal amount to embarking down the route of “no smoke without fire”. That distinction appears to me to apply with greater force where, as here, the allegations in question have been subjected to scrutiny in criminal proceedings and have been found not to have been proved to the requisite standard of proof. In that situation, a careful separation must be made between the established or undisputed facts from which legitimate inferences can be drawn and the allegations which have been rejected as not proved.”

Simon is regularly instructed in public law and human rights judicial reviews for both petitioners and respondents. Recent successes include cases on the use of anxious scrutiny, the standard of reasons, and the use of special advocates in parole cases.