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Judgments - Secretary of State for Justice (Respondent) v James (FC) (Appellant) (formerly Walker and another) R (on the application of Lee) (FC) (Appellant)

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22.  I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Hope Craighead, Lord Brown of Eaton-under-Heywood and Lord Judge. For the reasons which they have given I too would dismiss these appeals and make the order proposed by Lord Brown.

23.  I would only add that this case provides yet another example of the problems caused by over-prescriptive sentencing legislation. The draconian provisions of section 225 of the Criminal Justice Act 2003, leaving no room for the exercise of any judicial discretion, created entirely foreseeable difficulties when sentences for imprisonment for public protection were passed with short tariff terms. Pelion was piled upon Ossa when for some unfathomable reason it was decided that the new scheme would be resource-neutral and so sufficient facilities necessary for IPP prisoners to demonstrate their fitness for release were not made available. Fortunately section 13 of the Criminal Justice and Immigration Act 2008 has improved the situation materially, but it is to be hoped that future sentencing legislation will be framed in such a way as to avoid the pitfalls into which these misguided provisions fell.


My Lords,

24.  Indeterminate sentences for public protection (“IPPs”) were introduced with effect from 4 April 2005 by section 225 of the Criminal Justice Act 2003. Essentially they were a new form of mandatory life sentence to be imposed upon conviction of any one of 153 specified categories of violent or sexual offences punishable by imprisonment for ten years or more if the court thought there to be a significant risk of serious harm to members of the public by the commission of further specified offences. Rapidly IPPs swamped the prison system with increasing numbers of life sentence prisoners (up from 5,807 on 31 March 2005 to 10,911 on 31 March 2008), many with comparatively short tariffs, all of which took the Ministry of Justice’s National Offender Management Service (NOMS) by surprise. In the result, for much if not all of the time until 14 July 2008 when section 225 came to be amended by section 13 of the Criminal Justice and Immigration Act 2008, NOMS were quite unable to give effect to the Secretary of State’s published policy in Prison Service Order 4700: to give all life sentence prisoners “every opportunity to demonstrate their safety for release at tariff expiry.”

25.  Section 28(5) of the Crime (Sentences) Act 1997 provides that as soon as a life prisoner has served the tariff period of his sentence and the Parole Board has directed his release “it shall be the duty of the Secretary of State to release him on licence". Section 28(6) provides:

“The Parole Board shall not give a direction under subsection (5) above . . . unless—

(a) the Secretary of State has referred the prisoner’s case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

For convenience I shall refer to condition (b) as “safety for release” or “safe to release". Section 28(7) provides that a life prisoner may require the Secretary of State to refer his case to the Parole Board at any time after tariff expiry and “(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference".

26.  Put shortly, there were neither the systems nor resources available, particularly with regard to short tariff IPP prisoners, to undertake the required assessments and prepare sentence plans so as to identify the relevant risk factors and how to address them, to provide the necessary courses, to move prisoners from local prisons to training prisons where appropriate courses could be undertaken, and generally to enable prisoners to demonstrate their safety for release, let alone treat and correct their offending behaviour. The undoubted consequence was that a number of short tariff IPP prisoners, once their tariff dates expired, even assuming they were then safe to release, would have been unable to demonstrate this to the Board (which sometimes is only possible through their undertaking coursework), and that a further number remained unsafe to release because they had not had the opportunity to undergo courses designed to eliminate or at least reduce the risk they posed.

27.  The appellants are three such prisoners. Mr Lee and Mr Wells (whose tariffs respectively were of nine months expiring on 12 February 2006, and twelve months expiring on 17 September 2006) remain detained albeit now in training prisons and undergoing or able to undergo the necessary courses. Mr James’s tariff of two years expired on 20 July 2007 and on the Parole Board’s direction he was released on 14 March 2008. Since, however, their individual circumstances are not central to the disposal of these appeals I have thought it convenient to summarise them by way of an appendix to this judgment.

28.  Before identifying the issues for your Lordships’ determination it is convenient next to note the Secretary of State’s acknowledgment that it was implicit in the statutory scheme that he would make reasonable provision to enable IPP prisoners to demonstrate to the Parole Board (if necessary by completing treatment courses) their safety for release, and his concession that during the systemic failure to make such provision he was accordingly in breach of his public law duty.

29.  The issues before the House are:

  (i) Was (is) the post-tariff detention of all or any of the appellants   unlawful at common law?

  (ii) Was (is) the post-tariff detention of all or any of the   appellants in breach of article 5(1) of the European Convention   on Human Rights (the Convention)?

  (iii) In the case of all or any of the appellants, has there been   delay in determining their safety for release such as to breach   article 5(4) of the Convention?

  (iv) If any of these issues are resolved in favour of the appellants,   what (if any) relief should the Court grant?

It will readily be appreciated that your Lordships’ decision on these issues will affect not just these three appellants but hundreds, perhaps thousands, of other IPP prisoners, past and present.

30.  It is, I think, helpful at this point to indicate the course of proceedings in these various cases thus far. There have been four relevant decisions.

  (i)  R (Wells) v Parole Board [2008] 1 AER 138—the       decision of the Divisional Court (Laws LJ and Mitting J)     on 31 July 2007 on the hearing of conjoined judicial       review applications respectively by Mr Wells against the     Parole Board and a Mr Walker against the Secretary of     State. Mr Wells at the hearing decided not to pursue his     application but rather to await the outcome of Mr Walker’s     case and if appropriate make a fresh application. On Mr     Walker’s application the court declared that the Secretary     of State had acted unlawfully by failing to provide for       measures to allow and encourage prisoners serving IPPs to     demonstrate to the Parole Board by the expiry of their       minimum terms that it was no longer necessary for the       protection of the public for them to be confined, and that     as soon as a prisoner’s minimum term expired his       detention was unlawful unless its continuation was       justified by a current and effective assessment of the       danger he posed (Mr Walker at the time was still within     the tariff period of his sentence). I shall refer to this as     Law’s LJ’s decision since he gave the only reasoned       judgment.

  (ii)  James v Secretary of State for Justice [2007] EWHC 2027     (Admin)—Collins J’s decision of 20 August 2007, a       month after Mr James’s tariff expired. Applying Laws     LJ’s decision, Collins J ordered Mr James’s immediate     release subject to a stay pending the determination of the     Secretary of State’s appeals in both cases.

  (iii)  R (Walker) v Secretary of State for Justice [2008] 1 WLR     1977—the decision of the Court of Appeal (Lord Phillips     of Worth Matravers CJ, Dyson and Toulson LJJ) on 1       February 2008 on the hearing of the Secretary of State’s     appeals (the Parole Board intervening) respectively from     Laws LJ’s decision in Mr Walker’s case and Collins J’s     decision in Mr James’s case. Essentially the Court of       Appeal upheld Laws LJ’s declaration as to the         Secretary of State having acted unlawfully but held that     the Court had erred in holding that this breach of       duty under public law rendered the imprisonment of IPP     prisoners unlawful once they had served their tariff       periods. The Court of Appeal accordingly set aside the     order for Mr James’s release. Mr James (but not Mr       Walker) now appeals to your Lordships by leave granted     on 24 November 2008.

  (iv)  Lee and Wells v Secretary of State for Justice [2008]       EWHC 2326 (Admin)—Moses LJ’s decision, sitting as a     single   judge of the Administrative Court, on 25 July 2008,     dismissing Mr Lee’s and Mr Wells’s claims under article     5(1), noting the Secretary of State’s concession that there     had been a breach of Mr Lee’s rights under article 5(4),     and holding there to be a continuing breach of Mr Wells’s     article 5(4) rights. Mr Lee had claimed judicial review on     27 February 2008; Mr Wells (as foreshadowed in the      Divisional Court in Walker) had issued a fresh claim on 4     June 2008. Mr Lee and Mr Wells now appeal to the       House by leave granted on 15 January 2009 following a     leapfrog certificate granted by Moses LJ with the consent     of the parties pursuant to section 12 of the Administration     of Justice Act 1969.

Issue (1): The position at common law

31.   Given the Secretary of State’s admitted breach of his public law duty to give IPP prisoners every opportunity to demonstrate their safety for release at tariff expiry, was (is) their post-tariff detention unlawful at common law?

32.  Laws LJ so held in Walker. The most directly relevant passages of his judgment are these:

“47. . . .when sentence is passed it is not to be presumed against the prisoner that he will still be dangerous after his tariff expires, let alone months or years later. He may or may not be. Whether he is or not, and therefore whether his continuing incarceration is justified or not, can only be determined by reference to up-to-date (at the very least reasonably up-to-date) information enabling the decision-maker, the Parole Board, to form a view of the question of risk in his case. To the extent that the prisoner remains incarcerated after tariff expiry without any current and effective assessment of the danger he does or does not pose, his detention cannot in reason be justified. It is therefore unlawful.

48. . . . The Crown has obtained from Parliament legislation to allow—rather, require: the Court has no discretion—the indefinite detention of prisoners beyond the date when the imperatives of retributive punishment are satisfied. But this further detention is not arbitrary. It is imposed to protect the public. As soon as it is shown to be unnecessary for that purpose, the prisoner must be released . . . Accordingly there must be material at hand to show whether the prisoner’s further detention is necessary or not. Without current and periodic means of assessing the prisoner’s risk the regime cannot work as Parliament intended, and the only possible justification for the prisoner’s further detention is altogether absent. In that case the detention is arbitrary and unreasonable on first principles, and therefore unlawful.

49. Such a consequence would not be averted merely by prompt and regular sittings of the Parole Board. The law has already insisted on those: Noorkoiv’s case. . . .Periodic reviews by the Parole Board . . . only have value to the extent that they are informed by up-to-date information as to the prisoner’s progress. So much is at least required. But so also are measures to allow and encourage the prisoner to progress, for without them the process of review is a meaningless one. . . . Reducing the risk posed by lifers must be inherent in the legislation’s purpose, since otherwise the statutes would be indifferent to the imperative that treats imprisonment strictly and always as a last resort. Whether or not the prisoner ceases to present a danger cannot be a neutral consideration, in statute or policy. If it were, we would forego any claim to a rational and humane (and efficient) prison regime. Thus the existence of measures to allow and encourage the IPP prisoner to progress is as inherent in the justification for his continued detention as are the Parole Board reviews themselves; and without them that detention falls to be condemned as unlawful as surely as if there were no such reviews.”

33.  Paragraph 49 appears to go even further than paragraphs 47 and 48 and to hold that continuing post-tariff detention is unlawful not merely when up-to-date material is not available to enable the Parole Board to form a view on risk, but also when risk-reducing courses or treatment have not been made available to the prisoner. But put that aside.

34.  Before the Court of Appeal Mr Weatherby sought to uphold these findings; Mr Owen QC expressly did not. Mr Weatherby continues to submit that Laws LJ was right to hold detention in the circumstances postulated to be unlawful at common law. In my judgment, however, the argument is unsustainable. As the Court of Appeal pointed out at paragraph 47, section 225(4) expressly makes IPP prisoners subject to the release provisions in section 28 of the 1997 Act and:

“Central to this is the requirement that the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. It is not possible to describe a prisoner who remains detained in accordance with these provisions as ‘unlawfully detained’ under common law. The common law must give way to the express requirements of the statute.”

35.  Were the post-tariff prisoners in question to be regarded as unlawfully detained, inevitably they would have to be released. But this would breach the 1997 Act. As Mr Weatherby acknowledges, it would also carry the consequence that, even were an IPP prisoner found by the Parole Board on a delayed consideration of his case to be plainly dangerous, the Court on a subsequent challenge would be obliged to order his release since his detention would have been unlawful during the earlier period when, through the Secretary of State’s systemic failures, there was no “current and effective assessment of the danger” he posed.

36.  It is one thing to say—as, indeed, is now undisputed—that the Secretary of State was in breach (even systemic breach) of his public law duty to provide such courses as would enable IPP prisoners to demonstrate their safety for release and, to some extent at least, courses enabling them to reduce the risk they pose, duties inherent in the legislation (the legislation’s “underlying premise” as Laws LJ described it); quite another to say that such breach of duty results in detention being unlawful. I respectfully agree with the Court of Appeal that it does not.

37.  The remedy for such breach of public law duty—indeed the only remedy, inadequate though in certain respects it may be—is declaratory relief condemning the Secretary of State’s failures and indicating that he is obliged to do more. Mandamus could not, I think, be ordered: it would be impossible to articulate the nature and extent of the obligation with sufficient precision. Once the systemic failure is ended (as certainly it is by now), no further relief is appropriate. Past failures do not sound in damages at common law. It is accordingly unnecessary to decide just when the systemic failure was brought to an end.

Issue 2: Article 5(1)

38.  During the period of systemic failure, was post-tariff detention in breach of article 5(1)? Article 5(1) provides:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

       (a) the lawful detention of a person after conviction   by a competent court . . .”

For detention to be justified under article 5(1)(a) there must be “sufficient causal connection between the conviction and the deprivation of liberty” (Weeks v United Kingdom (1987) 10 EHRR 293, para 42).

39.  Weeks itself concerned the recall to prison of a life sentence prisoner (sentenced aged 17 for armed robbery) for “a series of incidents involving minor violence” whilst on licence. The Court said at para 49:

“Applying the principles stated in the Van Droogenbroeck judgment, the formal legal connection between Mr Weeks’s conviction in 1966 and his recall to prison some ten years later is not on its own sufficient to justify the contested detention under article 5(1)(a). The causal link required by subparagraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. ‘In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5’ [a quotation from Van Droogenbroeck, to which I shall return].”

The Court there rejected the argument that the causal link was broken. Accepting that there were grounds for believing “the applicant’s continued liberty would constitute a danger to the public and to himself” (para 51), it observed (para 50):

“As a matter of English law, it was inherent in Mr Weeks’s life sentence that, whether he was inside or outside prison, his liberty was at the discretion of the executive for the rest of his life (subject to the controls subsequently introduced by the 1967 Act, notably the Parole Board). This the sentencing judges must be taken to have known and intended. It is not for the Court, within the context of article 5, to review the appropriateness of the original sentence . . . “

40.  Before turning to Van Droogenbroeck, it is instructive first to contrast Weeks with the later decision in Stafford v United Kingdom (2002) 35 EHRR 32, another case concerning a life sentence prisoner recalled from licence, this time a murderer recalled for fraud. In Stafford the Court found the link broken, stating (para 81):

“The Court finds no sufficient causal connection, as required by the notion of lawfulness in article 5(1)(a) of the Convention, between the possible commission of other non-violent offences and the original sentence for murder in 1967.”

41.  Van Droogenbroeck v Belgium (1982) 4 EHRR 443 concerned a recidivist, sentenced to two years imprisonment for theft and subjected to a further order that he be “placed at the Government’s disposal” for ten years pursuant to a 1964 “Social Protection” Act. The Court there rejected the article 5(1) complaint but, importantly in the present context, said this (para 40):

“In fact, sight must not be lost of what the title and general structure of the 1964 Act, the drafting history and Belgian case law show to be the objectives of the statute, that is to say not only ‘to protect society against the danger presented by recidivists and habitual offenders’ but also ‘to provide [the Government] with the possibility of endeavouring to reform [them]'. Attempting to achieve these objectives requires that account be taken of circumstances that, by their nature, differ from case to case and are susceptible of modification. At the time of its decision, the court can, in the nature of things, do no more than estimate how the individual will develop in the future. The Minister of Justice, for his part, is able, through and with the assistance of his officials, to monitor that development more closely and at frequent intervals but this very fact means that with the passage of time the link between his decisions not to release or to re-detain and the initial judgment gradually becomes less strong. The link might eventually be broken if a position were reached in which those decisions were based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5.”

42.  Plainly the objectives of an IPP include the prisoner serving the tariff period of his sentence. No one disputes that. Almost equally plainly, they include the continued detention of the prisoner until he can be safely released. Do they, however, as the appellants contend, also include the prisoner’s reform and rehabilitation, more particularly the provision of risk-reducing courses or treatment? And, if so, did the Secretary of State’s systemic failure to provide these mean that the causal link between the sentence and the prisoner’s continuing detention became broken? Alternatively, is the link broken by a prolonged failure to enable the prisoner to demonstrate whether or not he is safe to release?

43.  Two earlier Court of Appeal authorities must be noted before consideration of the decisions now under appeal: R (Noorkoiv) v Secretary of State for the Home Department) [2002] 1 WLR 3284 and R (Cawser) v Secretary of State for the Home Department [2004] UKHRR 101, both concerning automatic life sentence prisoners. Noorkoiv established that the Secretary of State’s routine delay at the time in referring cases to the Parole Board under section 28(7) of the 1997 Act breached article 5(4) but not article 5(1). Lord Woolf CJ said (para 61):

“Article 5(1) is not relevant because the justification for the detention of a prisoner sentenced to life imprisonment (whether discretionary or automatic or mandatory) is that sentence and not the fixing of the tariff period.”

At paragraph 54, having acknowledged that paragraph 49 of Weeks contemplates that the required causal link might “eventually” be broken, I suggested that “that would be so only in very exceptional cases. Mere delay in article 5(4) proceedings, even after the tariff expiry date, would not in my judgment break the causal link.”

44.  Cawser established that, whilst it would be irrational to have a policy of making release dependent upon a prisoner undergoing a treatment course without making reasonable provision for such courses, it would be solely this public law duty to act rationally to which the Secretary of State is subject; detention in these cases would not become unlawful under article 5(1) even were no provision made for such courses. Cawser had had to wait 21 months before (two years after his tariff expiry date) a place became available to him on an extended sex offender treatment programme. This had inevitably delayed his likely release date. At para 32 of my judgment, after referring to Noorkoiv, I continued:

“If the Parole Board’s delay in deciding on the prisoner’s continuing dangerousness does not break the causal link, still less in my judgment would it be broken by a delay in providing (or a failure to provide) treatment which itself may or may not thereafter serve to establish the absence of continuing dangerousness.”

Laws LJ (para 44) contemplated “the residual possibility that the Secretary of State might impose a condition on the release of a post-tariff prisoner so hard of fulfilment that his continued detention, for the failure to meet the condition, ought no longer to be regarded as justified by the original sentence of the criminal court.” Arden LJ, having referred in particular to Van Droogenbroeck, concluded (para 54):

“provisionally it seems to me that if due to a lack of resources the Secretary of State cannot provide a place on a treatment course for someone in the applicant’s position for an inordinately long period, it may be argued that the reason for the prisoner’s continued detention was not the original conviction or the objectives of the sentence but rather the refusal of the Secretary of State to allocate adequate resources.”

I shall have to return later to Noorkoiv and Cawser in relation to the article 5(4) argument.

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