In Ansari v Aberdeen City Council (2017) CSIH 5 the Inner House of the Court of Session held that the Council owed no relevant duty to Mr Ansari under ECHR 5 to provide a reasonable opportunity for him to rehabilitate himself, in accordance with R (Haney) v Secretary of State for Justice (2015) AC 1344. He claimed that both Scottish Ministers and the Council were in breach of that duty. The issue was whether a relevant case had been made against the Council. He argued that all public authorities were bound to act compatibly with ECHR rights, and that for the rights he claimed to be effective, both respondents should be subject to the duty to provide him with a reasonable opportunity for rehabilitation, having regard to the various statutory responsibilities on the Council. There was a risk of a gap he argued between the obligations arising in statute and the prisoner making progress in the phase of being partly in prison and partly outside prison.
Delivering the opinion of the Court, Lord Bracadale, who sat with Lady Paton and Lord Malcolm, said, at paragraph 26, that the duty in question was imposed on the State. It had the power to detain the prisoner relying on Article 5(1)(a), and implicitly also the duty to provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. The Scottish Ministers accepted that the duty is incumbent on them.
“In our view”, he continued, at paragraph 27, “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”. Since the Ministers accepted the duty on them, “no question of a duty gap arises”.
The fact that the Council was a public authority “does not create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances in which the [council is] not responsible for his imprisonment or release… 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”: paragraph 29.