Shaun McPhee appeared for the successful petitioner in McInally v The Scottish Ministers [2026] CSOH 21 , a rare case in which the Court of Session found a violation of a prisoner’s right to liberty. 

Outer House

The petitioner was sentenced to an Order for Lifelong Restriction in 2022.  He must complete rehabilitative programmes to have any prospect of being released from prison but has had no access to programmes during his sentence.

Lord Colbeck stated that whilst the threshold for finding a breach of article 5 is high, this was one of the rare cases that met it.  The court granted declarator that the Scottish Ministers had breached the petitioner’s article 5 rights by failing to properly plan his sentence and afford him reasonable access to rehabilitative opportunities, and awarded damages of £1000.

Inner House

The same petitioner earlier brought a petition on similar grounds which was refused permission to proceed due to time bar, as it was presented more than three months after the punishment part of his sentence had ended.

Shaun also represented the petitioner in his appeal to the Inner House, McInally v The Scottish Ministers [2026] CSIH 2

The Inner House recognised the appeal raised a question of general importance, namely the approach to time bar in cases involving ongoing delay, and took the opportunity to give clarifying guidance.  Though the court refused the appeal as the earlier petition had been superseded by the later, it noted the first petition enjoyed a real prospect of success and it was equitable to extend the time limit.

In both cases, Shaun appeared with Keith Stewart KC, instructed by James Smith of McGreevy & Co and Laura McDonagh of Drummond Miller.