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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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45.  Turning then to Laws LJ’s decision (in Walker), he observed (para 36) that:

“Cawser’s case closes off the possibility of argument in this court that the continued detention of a lifer past his tariff expiry date, incurred by reason of a failure to provide offending behaviour courses, might be held to breach article 5(1) of the Convention. But the case was a trailer for another argument, that such a state of affairs might in some circumstances amount to a violation of the rule of reason, the requirement of rationality in public decisions which the common law imposes.”

I have already dealt with the remaining part of his judgment concerning the position at common law.

46.  The Court of Appeal’s judgment below included the following passages:

“61. …So long as the prisoner remains dangerous, his detention will be justified under article 5(1)(a) whether or not it is subject to timely periodic review that satisfies the requirements of article 5(4). If, however, a very lengthy period elapses without such a review a stage may be reached at which it is right to conclude that the detention has become arbitrary and no longer capable of justification under article 5(1)(a).

69. The primary object of the IPP sentence is to protect the public, not to rehabilitate the offender. Detention of [the claimants] will cease to be justified under article 5(1)(a) when the stage is reached that it is no longer necessary for the protection of the public that they should be confined or if so long elapses without a meaningful review of this question that their detention becomes disproportionate or arbitrary. That stage has not yet been reached. Failure to comply with the obligations of article 5(4) will not, of itself, result in infringement of article 5(1)(a). Nor will delay in the provision of rehabilitative treatment necessary to obviate the risk that they would pose to the public if released.

72. This appeal has demonstrated an unhappy state of affairs. There has been a systemic failure on the part of the Secretary of State to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the relevant provisions of the 2003 Act to function as intended. So far as the two claimants [Walker and James] are concerned the appropriate remedy is limited to declaratory relief. For the reasons that we have given, however, the prevailing situation is likely to result in infringement of article 5(4) and may ultimately also result in infringement of article 5(1).”

47.  In his extempore judgment in Lee and Wells’s case, Moses LJ (at para 23) drew

“a distinction between those cases where it cannot be ascertained whether the prisoner is a danger or not and those cases where he can be judged to remain a danger, notwithstanding the failures to provide him with the opportunity to reduce or to eliminate the level of danger and of showing that he has done so".

He had observed (at para 22):

“The position of a prisoner whose level of dangerousness cannot be ascertained is the same as one who ceases to be a danger. The original justification for the sentence, namely his dangerousness, has ceased to exist.”

In those circumstances, he said, there would be a breach of article 5(1). In the event he decided that neither Mr Lee nor Mr Wells could establish an article 5(1) breach since in each case he thought the evidence available to the Parole Board sufficient to enable them to reach a conclusion on dangerousness.

48.  In determining the objectives of an IPP it is important to have in mind the provisions of section 142 of the 2003 Act. Section 142(1)(c) requires that amongst the purposes of sentencing to which ordinarily the Court must have regard are “the reform and rehabilitation of offenders". Until, however, the IPP scheme came to be amended with effect from 14 July 2008, this provision was specifically disapplied to IPP sentences by section 142(2)(c). It appears that this may have been overlooked in the course of the judgments below. Clearly the Court of Appeal was correct (at para 69 quoted at para 46 above) to say that the primary object of IPPs is to protect the public, not to rehabilitate the offender. But other passages in the judgment suggest that they regarded rehabilitation at least as an objective of the sentence and seemingly Laws LJ so regarded it—see, for example, his para 49 quoted at para 32 above. It was not.

49.  My noble and learned friend, Lord Judge, the Lord Chief Justice, has explained in his opinion the detailed history of this legislation and I do not propose to repeat it. Amongst the objects of the Belgian statute considered in Van Droogenbroeck (para 40 quoted at para 41 above) was “to provide [the Government] with the possibility of endeavouring to reform [recidivists]". The IPP legislation to my mind goes no further than this: the Government has the opportunity to introduce treatment courses but “the provision of rehabilitative treatment necessary to obviate the risk” (para 69 of the Court of Appeal’s judgment quoted at para 46 above) is not amongst the specific legislative objectives. Suffice it to say that in my judgment a decision not to release an IPP prisoner because the Parole Board remain unsatisfied of his safety for release could never be said to be inconsistent with the “objectives of the sentencing court” (Weeks para 49) or to have “no connection with the objectives of the legislature and the court” (Van Droogenbroeck para 40).

50.  Whilst it is correct to say (as Laws LJ said at para 47 of Walker) that “it is not to be presumed against the prisoner that he will still be dangerous after his tariff expires", and whilst the Parole Board’s task is essentially one of evaluating all the evidence rather than deciding whether the prisoner has discharged a burden of proving his safety for release, the default position under section 28(6)—in contrast to the position under the Criminal Justice Act 1991 in the case of extended sentences: R (Sim) v Parole Board [2004] QB 1288—is that the prisoner is to remain detained unless the Board are satisfied he can be safely released. I simply cannot accept what Moses LJ said at paragraph 22 of his judgment in Lee and Wells (see para 47 above). Rather I am in full agreement with what Lord Judge says in paragraph 103 of his opinion: detention beyond the tariff period is justified because the sentencing court decided that the prisoner would continue to be dangerous at the expiry of the punitive element of the sentence; the necessary predictive judgment will have been made.

51.  In my opinion, the only possible basis upon which article 5(1) could ever be breached in these cases is that contemplated by the Court of Appeal at paras 61 and 69 of their judgment (quoted at para 46 above), namely after “a very lengthy period” without an effective review of the case. The possibility of an article 5(1) breach on this basis is not, I think, inconsistent with anything I said either in Noorkoiv or in Cawser. Cawser, it is important to appreciate, was a case all about treating the prisoner to reduce his dangerousness, rather than merely enabling him to demonstrate his safety for release. To my mind, however, before the causal link could be adjudged broken, the Parole Board would have to have been unable to form any view of dangerousness for a period of years rather than months. It should not, after all, be forgotten that the Act itself provides for two-year intervals between references to the Parole Board. Whatever view one takes of the position under article 5(4) (to which I turn next), in my judgment there can be no question of a breach of article 5(1) in the case of any of these appellants.

Issue 3: Article 5(4)

52.  Has article 5(4) been breached in the case of all or any of these appellants? Article 5(4) provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

As noted at para 30(iv) above, the Secretary of State conceded a breach of Mr Lee’s article 5(4) rights and Moses LJ found a continuing breach in Mr Wells’s case too—a finding which has not been appealed. In Mr James’s case the Court of Appeal (paras 67 and 68) held that there was likely to be a breach of article 5(4) on the basis that when he came to have his first post-tariff review (which had been adjourned pending the outcome of the Secretary of State’s appeal from Collins J’s order for his immediate release), he would not have done the necessary courses to be “in a position to show any reduction of risk” and so “would not be able to make a meaningful challenge to the lawfulness of his sentence". The Parole Board’s review would, therefore, be “an empty exercise".

53.  Although Miss Lieven QC contends that there never was in fact an article 5(4) breach in Mr James’s case prior to his release on 14 March 2008, I understand the Secretary of State to continue to concede that article 5(4) will be breached when, but only when, it has been impossible for the Board to undertake any meaningful review of risk. Generally, Miss Lieven submits, there will be sufficient material before the Board to enable an effective review to be carried out without the prisoner having undergone any courses at all. In this connection she draws attention to rule 6 of the Parole Board Rules 2004 which requires the Secretary of State to provide the Board and the prisoner before the review with certain specified information and reports including (under Part B of Schedule 1 to the Rules) “pre-trial and pre-sentence reports examined by the sentencing court on the circumstances of the offence", “an up-to-date home circumstances report", and, perhaps most relevantly for present purposes, “current reports on the prisoner’s risk factors, reduction in risk and performance and behaviour in prison, including views on suitability for release on licence as well as compliance with any sentence plan". The Parole Board dossier will always contain a good deal of information. Even when, as in Mr James’s own case, it never became possible to provide the Board with a full risk assessment (that, said a prison report of 2 April 2007, would only be done at the sentence planning stage at the first stage lifer centre when it was likely that Mr James would need to undertake CALM and PASRO courses to ensure risk reduction), the Parole Board was in fact able to determine risk and order his release largely through the evidence of an independent psychologist commissioned by Mr James himself, funded under his legal aid certificate. The Court of Appeal’s forecast was thus belied.

54.  Plainly, however, there will be (or at least will have been) occasions when, unless the prisoner could undertake a course necessary to demonstrate his safety for release, it would be impossible for the Board to reach any judgment as to his dangerousness so that the review would in that sense be an empty exercise and the default position of continued detention would inevitably result. In such cases I understand the Secretary of State still to concede that article 5(4) is breached.

55.  In paragraph 66 of its judgment below the Court of Appeal drew a distinction between “the role of treatment in changing the prisoner so that he ceases to be dangerous and the opportunity that treatment provides for assessing whether the prisoner is dangerous". Sometimes in argument these were characterised respectively as “the substantive role of treatment” and “the evidential role of treatment". I do not pretend to find this distinction altogether easy, particularly with regard to certain courses, and I note that Mr Owen’s printed case describes the “not knowing/not treating” distinction as “unworkable in practice.” But put this aside: much of the argument rests on it. The Secretary of State’s concession extends only to the evidential role of treatment. In other words, for a review to be meaningful, the prisoner must have been given a fair chance of demonstrating that he had ceased to be dangerous; he need not, however, have been given the chance of actually ceasing to be dangerous. Lack of resources may provide a complete answer to any complained-of lack of courses to reduce dangerousness (subject to a public law irrationality challenge in respect of systemic failures)—see Cawser. But it provides no answer to the complained-of lack of courses necessary to demonstrate the prisoner’s existing safety for release—see Noorkoiv. That certainly is the argument advanced by the appellants.

56.  The Parole Board, however, intervening in these appeals as an Interested Party, submits that the Secretary of State’s concession, qualified though it is, still goes too far and that article 5(4) has not in fact been breached in any of these cases. Mr Pushpinder Saini QC submits on the Board’s behalf that, provided only the prisoner can have a review of his case at tariff expiry, as Noorkoiv requires, and that the dossier required by rule 6 of the Parole Board Rules is made available to the Board, article 5(4) is satisfied. Even if the material before the Board leaves it unable to form any clear view of the prisoner’s continuing dangerousness, it will be able to decide the lawfulness of his continued detention. Necessarily the decision will be that detention continues to be lawful because the Board cannot be satisfied that the prisoner is safe to release. But article 5(4) will not have been breached. Article 5(4), submits the Board, is concerned with procedure, not substance.

57.  In support of his argument Mr Saini relies strongly upon Cawser where not only did Mr Owen concede that his article 5(4) challenge there was “hopeless” but the Court explained at length why that was so. My own judgment referred both to domestic authority and to the Strasbourg Court’s decision in Ashingdane v United Kingdom (1985) 7 EHRR 528, about a detained mental patient, as establishing that article 5(4) is simply not concerned with suitable treatment or conditions. There can, for example, be no article 5(4) challenge to the Secretary of State’s refusal to accept a Parole Board’s recommendation to transfer a prisoner to open conditions with a view to improving his prospects of release—see R v Secretary of State for the Home Department ex parte Gunn [2000] Prison Law Reports 62 and R (Burgess) v Secretary of State for the Home Department [2000] Prison Law Reports 257. The court below, submits Mr Saini, erred in holding (at para 65) that Cawser affords no assistance on the article 5(4) issue arising here.

58.  To my mind, however, Cawser cannot bear the full weight Mr Saini seeks to put upon it. It is not to be regarded as having decided the very point arising here. Cawser, as I have already said (para 51 above), was concerned essentially with the substantive role of treatment rather than its evidential role. The article 5(4) complaint here is not that the Secretary of State has failed to make IPP prisoners less dangerous but rather that he has failed to enable them to demonstrate to the Parole Board that they are already safe to release. Does article 5(4) require not only that the Board is available to decide whether the prisoner has satisfied it that he can safely be released but also that the Secretary of State has enabled him to establish this—in the words of the court below (para 65), has enabled him to make “a meaningful challenge to the lawfulness of his detention". That is the critical issue for your Lordships and for my part I confess to having found it a difficult one to decide.

59.  The appellants’ argument is a strong one. What is the point of having a Parole Board review of the prisoner’s dangerousness once his tariff period expires unless the Board is going to be in a position then to assess his safety for release? In some cases at least, it is accepted, that will not be so: the Board will be unable to reach a judgment on dangerousness. The review is then “an empty exercise” and article 5(4) must be regarded as breached: the right to take “proceedings” will have been rendered worthless; the Board will not have decided the “lawfulness” of the continuing detention since that depends entirely upon whether the prisoner continues to be dangerous and ex-hypothesi that is something the Board will have been unable to judge.

60.  In the end, however, I have come to the contrary view. I have concluded that article 5(4) requires no more than that “a court” (the Parole Board) shall speedily decide whether the prisoner continues to be lawfully detained, and this will indeed be the case unless and until the Board is satisfied of his safety for release (or so long has elapsed without any effective review of his dangerousness that the article 5(1) causal link must be presumed broken as discussed above). I accept that article 5(4) requires the basic rule 6 dossier to be made available: without this the Board simply cannot function. But I cannot accept that article 5(4) requires anything more in the way of enabling the Board to form its judgment. Not infrequently, your Lordships were told, the Board and the Secretary of State find themselves disagreeing as to just what, if any, further material is necessary to enable the Board to decide the question of dangerousness. The Board want the prisoner to undergo another course to ensure that this, that or the other aspect of his offending has been satisfactorily addressed. The Secretary of State thinks this unnecessary and suggests that the Board is well able to decide the question on the material available. Sometimes the prisoner himself wants the review postponed on the basis that soon he will be better able to demonstrate his safety for release whereas were he now to fail he might have to wait two years for the next review. Regularly, your Lordships were told, the Board is threatened with an article 5(4) challenge unless it requires from the Secretary of State some further report or information designed to improve the prisoner’s prospects of release.

61.  I have reached the conclusion that article 5(4) simply has no part to play in all this. As Mr Saini submits, it is concerned with procedure, not substance. Certainly, as the Court said in Brogan v United Kingdom (1988) 11 EHRR 117 (a case concerning the detention of terrorist suspects in Northern Ireland):

“By virtue of paragraph (4) of article 5, arrested or detained persons are entitled to a review hearing upon the procedural and substantive conditions which are essential for the ‘lawfulness’, in the sense of the Convention, of their deprivation of liberty. This means that, in the instant case, the applicants should have had available to them a remedy allowing the competent court to examine not only compliance with the procedural requirements set out in section 12 of the 1984 [Prevention of Terrorism] Act but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention.”

In the same way, however, as the remedy of habeas corpus was found to satisfy that entitlement in Brogan, so too in my opinion the Parole Board review scheme satisfies it here. Clearly the Board is able to examine the substantive question of the prisoner’s dangerousness. The fact that on the material before the Board the prisoner may be unable to demonstrate his safety for release no more involves a breach of article 5(4) than that those detained in Northern Ireland may have been unable on a habeas corpus challenge to refute the reasonableness of the suspicion grounding their arrest.

62.  Nothing in the Strasbourg jurisprudence appears to me to support the appellants’ article 5(4) argument here. I have cited (at para 41) paragraph 40 of the Court’s judgment in Van Droogenbroeck dealing with the article 5(1) complaint. Although the article 5(4) complaint succeeded there, this was only because the Board for Recidivists which carried out the review process lacked the characteristics of a court. In short, none of the authorities put before the House suggest any requirement under article 5(4) for the detainee to be assisted, other than procedurally, in challenging the lawfulness of his detention. It may be that Strasbourg would be prepared to go further than they have. Consistently, however, with the approach dictated by R (Ullah) v Special Adjudicator [2004] 2 AC 323, 350, para 20 (and the many subsequent endorsements of that approach), I would leave any such development to the ECtHR itself.

63.  I would accordingly hold that Mr James’s article 5(4) claim must fail. It follows that I regard Mr Lee’s and Mr Wells’s article 5(4) claims as also having been unsustainable. Since, however, the former was conceded and the latter held established and unappealed, the House has no alternative but to remit their consequential claim for damages to the Administrative Court for assessment. Article 5(5) provides that: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” Unless the claimants can establish that, had they been given the opportunity to demonstrate their safety for release, they would have been (or at least would have had a real chance of being) released, it is difficult to see how they could be entitled to any substantial award of damages. That, however, must be a matter for the judge below, not your Lordships.

Issue 4: Relief

64.  If your Lordships agree that the appellants fail on all three of the above issues, no question of relief arises (save only as to the remission of Mr Lee’s and Mr Wells’s article 5(4) claims for compensation in the manner just indicated). Plainly, however, had the appellants succeeded on their article 5(1) claims, section 6(2)(a) of the Human Rights Act 1998 would have presented them with acute difficulty. Section 6 provides:

“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if - (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; . . .”

Given section 28 of the 1997 Act, it is difficult to see how either the Secretary of State or the Parole Board could have acted differently in these cases so that it would not have been unlawful for them (under domestic law, as opposed to the UK under international law) to act incompatibly with article 5(1). Section 3 of the 1998 Act could not help—see, for example, R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837. The Secretary of State suggested that he could exercise discretion under section 30 of the 1997 Act to release prisoners detained incompatibly with article 5(1) so that section 6(2) of the 1998 Act would not after all apply. Section 30(1) provides:

“The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.”

It would seem to me a very remarkable use of that power to do as the Secretary of State suggests. For the reasons given, however, all this is academic and I prefer to express no further view upon the question.


65.  In the result all three appeals fail and must be dismissed. I cannot, however, part from this case without registering a real disquiet about the way the IPP regime was introduced. It is a most regrettable thing that the Secretary of State has been found to be—has indeed now admitted being—in systemic breach of his public law duty with regard to the operation of the regime, at least for the first two or three years. It has been widely and strongly criticised, for example by the Select Committee on Justice. Many of the criticisms are to be found in the judgments below and I shall not repeat them. The maxim, marry in haste, repent at leisure, can be equally well applied to criminal justice legislation, the consequences of ill-considered action in this field being certainly no less disastrous. It is much to be hoped that lessons will have been learned.


The individual circumstances of the three appellants

Jeffrey Lee

66.  Mr Lee is aged 43. On 2 September 2005 at Bolton Crown Court he was sentenced to IPP (for the minimum term of 9 months—half the nominal determinate sentence—less time on remand) for burglary with intent to do unlawful damage: on 13 April 2005 in a drunken rampage he had caused criminal damage to a flat in which his former wife and young children were present, being arrested and remanded in custody the following day. His tariff period was, therefore, 163 days expiring on 12 February 2006. He had a total of eight previous convictions, including offences of assault occasioning actual bodily harm and criminal damage. His only previous custodial sentence, however, had been two months imprisonment for breach of a community punishment order.

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