The UK Supreme Court has ruled that the duty to afford prisoners a real opportunity for rehabilitation extends beyond those subject to life sentences to include extended sentence prisoners serving the extended parts of their sentences.
The court issued its judgment in Brown v The Parole Board for Scotland and others  UKSC 69 on 1 November 2017.
The decision follows the historic first sitting of the Supreme Court in Edinburgh in June.
The principal issue arising in the appeal was whether the duty under Article 5 of the European Convention to provide prisoners with a real opportunity for rehabilitation applies to prisoners serving extended sentences.
In a departure from its earlier ruling, the Supreme Court has aligned its approach in relation to Article 5 with that of the European Court of Human Rights, holding that a prisoner who is detained during the extension period of an extended sentence is owed an obligation to be provided with a real opportunity for rehabilitation. Despite the sea-change in the court’s reasoning, there was no question of this particular appellant’s detention having been arbitrary in the circumstances of the particular case before the court. Accordingly, the appeal was dismissed.
Lord Reed, with whom Lord Neuberger, Lady Hale, Lord Hodge and Lord Carloway agreed, ruled at paragraph 62 that:
“Having regard to…the indefinite (albeit not unlimited) duration of detention during the extension period, its preventive purpose, and the possibility of change in response to opportunities for rehabilitation – the reasoning which led the European court to decide in James, in the context of IPP sentences [i.e. indeterminate sentences for public protection], that Article 5(1)(a) imposed an obligation to provide the prisoner with a real opportunity for rehabilitation is equally applicable.”
Robert Carr and Gary Burton of Anderson Strathern were the instructing solicitors for the successful intervener, the Parole Board for Scotland, who were represented at the hearing by Roddy Dunlop QC and Jacqueline Fordyce, Advocate.