Brett JAMES, Nicholas WELLS and Jeffrey LEE v the United Kingdom - 25119/09 [2010] ECHR 2219 (20 December 2010)

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Application nos. 25119/09, 57715/09 and 57877/09
by Brett JAMES, Nicholas WELLS and Jeffrey LEE
against the United Kingdom
lodged on 7 May 2009, 27 October 2009 and 27 October 2009

1. The first applicant, Mr Brett James, is a British national who was born in 1985 and lives in Wakefield. He is represented before the Court by Ms E. Restall, a lawyer practising in Bradford.

2. The second applicant, Mr Nicholas Wells, is a British national who was born in 1983 and is currently detained. He is represented before the Court by Ms R. Walsh, a lawyer practising in Bolton.

3. The third applicant, Mr Jeffrey Lee, is a British national who was born in 1965 and is currently detained at HMP Kirkham. He is represented before the Court by Mr M. Pemberton, a lawyer practising in Wigan.

4. The facts of the case, as submitted by the applicants, may be summarised as follows.

5. On 4 April 2005, and by virtue of section 225 of the Criminal Justice Act 2003 (“the 2003 Act”), indeterminate sentences for the public protection (“IPP sentences”) were introduced. These sentences are indeterminate sentences (i.e. sentences of no fixed length), and, like sentences of life imprisonment, require the recommendation of the Parole Board in order for the prisoner to be released. A minimum term which has to be served before a prisoner can be released, known as the “tariff”, is fixed by the sentencing judge. In cases involving IPP prisoners, it would appear that in practice the tariff is generally short (i.e. of less than five years’ duration).

6. When IPP sentences were first introduced, they were mandatory in all cases where an individual had been convicted of a “serious offence” (defined in the 2003 Act) and was deemed by the sentencing judge to be at risk of committing a “specified offence” (also defined in the 2003 Act). Risk was to be assumed in cases where the individual in question had previously been convicted of a relevant offence, unless the sentencing judge considered it unreasonable to conclude that there was a risk of further specified offences being committed.

7. The consequence of the entry into force of the IPP sentence was that a large number of individuals were sentenced to an IPP. Although it had been intended that the new provisions would be resource-neutral, it soon became clear that existing resources were insufficient and the large number of IPP prisoners swamped the system in place for dealing with those serving indeterminate sentences.

8. The IPP system was subsequently amended by the Criminal Justice and Immigration Act 2008 (“the 2008 Act”) to deal with the problems encountered. In particular, the IPP sentence was no longer mandatory. Further, it now only applies to cases where, if imposed, the tariff would be fixed at more than two years.

9. The domestic law, including the changes introduced by the 2008 Act, is set out in greater detail below (see paragraphs 122-134).

10. On 28 September 2005, the first applicant pleaded guilty in the Crown Court to unlawful wounding with intent. He had previous convictions from the age of seventeen for, amongst other things, battery, common assault, affray, disorderly behaviour, racially abusive behaviour and assault occasioning actual bodily harm. He was sentenced to an IPP pursuant to section 225 of the Criminal Justice Act 2003, with a tariff of two years less time spent on remand. His tariff was therefore one year and 295 days.

11. After being sentenced, Mr James remained at his local prison, HMP Doncaster, and while there took all courses that he was able to take. The courses he completed included an alcohol awareness course, an IT course, a first aid course and a Think First course. Parole Board reports indicated that he should also undertake the ETS (Enhanced Thinking Skills) course, the ASRO (Addressing Substance Related Offending) course and the CALM (Controlling Anger and Learning to Manage it) course, none of which were available to him at HMP Doncaster.

12. On 31 May 2006 the chairman of the Independent Monitoring Board (a statutory body established to monitor the welfare of prisoners) wrote to Mr James’ solicitors saying that Mr James had completed all the courses that were available to him at HMP Doncaster and that he was unable to move to a first stage lifer prison to complete the rest of the courses needed for release because all the places at the first stage lifer prisons were full.

13. On 8 September 2006, the Lifer Governor at HMP Manchester wrote to Mr James’ solicitors explaining that he was thirty-fifth on the first stage lifer prison waiting list. He said:

“As you will be aware we must now treat Indeterminate Public Protection (IPP) sentenced prisoners as lifers and they are all serving short tariff sentences ... The massive influx of IPPs along with other sentenced lifers from our courts has inflated our lifer/IPP numbers to 160 (and increasing) against a profiled maximum of 131. This increase above our profiles numbers, without any additional resources, has meant that we have not been able to accept anyone from our first stage waiting list for almost a year.

Unfortunately, this trend shows no sign of slowing down and I cannot predict when we might be able to accommodate Mr James.”

14. On 9 January 2007 Mr James’ solicitors wrote to the Secretary of State explaining his situation and requesting that he be transferred to a first stage lifer prison in order to complete the relevant courses, or that the courses be made available to him at HMP Doncaster. The letter highlighted that the applicant’s tariff would expire in seven months and that he wished to complete the relevant courses before tariff expiry and his Parole Board hearing.

15. On 12 January 2007, the Lifer Governor at HMP Manchester wrote saying that the number of lifer/IPP prisoners had increased to 192:

“The increase in Lifer/IPP numbers and the fact that most of these individuals have come to us with short tariffs means that we now seem to do mostly report writing and are largely unable to get on with our ‘real’ job of risk assessment and sentence planning work.”

16. On 3 March 2007 Mr James’ case was referred to the Parole Board in accordance with the standard procedure.

17. The Progress Report Summary prepared for the Parole Board by Mr James’ Indeterminate Sentences Manager at HMP Doncaster, dated 2 April 2007, stated:

“... The Court obviously considered Mr James to be a danger to the public when it imposed an Indeterminate Sentence for Public Protection, but that risk would seem to have been reduced somewhat both by his increasing maturity and by the work he has already undertaken. A full assessment will only be done at the Sentence Planning stage, at his First Stage Lifer Centre, and the suggestion is that he is likely to need to undertake CALM and PASRO [Prison: Addressing Substance Related Offending] courses prior to release in order to ensure that his risk is reduced to an acceptable level. He professes himself happy to do these. “

18. Under the heading “Recommendation for allocation or release”, the report continued:

“As Mr James has not as yet had his Sentence Plan or undertaken any work related to his offending, I cannot with any confidence recommend him for release or for transfer to open conditions.”

19. On 21 May 2007 Mr James applied to the High Court for permission to seek judicial review of the management and treatment of prisoners by the Secretary of State in light of the failure to provide him with the relevant courses to address his offending behaviour.

21. Handing down his judgment in the judicial review proceedings on 20 August 2007, Mr Justice Collins outlined the background to the judicial review application as follows:

“2. ... [Mr James’] tariff expired on 20th July of this year and the result is that he is now detained solely as a result of the IPP on the basis that he is dangerous. He has therefore the right to apply to the Parole Board for his release on the basis that he is no longer to be regarded as dangerous and that therefore the continued detention would not be justified.

3. In order to make a meaningful submission to the Parole Board, it was necessary that he undertake courses to seek to deal with his problems, particularly those of drink and anger management. There are such courses which are made available by the prison service. Unfortunately, the resources have not been provided to enable such courses to be provided for such as the claimant, who has a short tariff period. Indeed, he has been incarcerated at Doncaster Prison, which is a local prison, and which does not have the facilities for the necessary courses. He has, as I understand it, undertaken a short course in relation to alcohol and an equally short one in relation to anger management but it is recognised that they would be likely to be insufficient to provide the necessary information to the Parole Board and the Parole Board would be likely to be in the same position as the Board was in the case of Wells (which was dealt with by the Divisional Court together with Walker). In that case, the Board, when Wells, who was a post-tariff prisoner, came before it, commented that he had not undertaken any offence focused work, which was not his fault because he wanted to do so, but it was not the remit of the Parole Board to make up the deficiencies of the prison service and, because he had not been able to do any of the appropriate courses, he was unable to demonstrate any reduction in risk from the time that he was sentenced. That, Mr Weatherby submits, is likely to be the approach of the Parole Board, before whom the claimant at the moment has a hearing fixed, as I understand it, for 14th September next.”

22. Collins J, relying on the decision of the Divisional Court in Walker v. the Secretary of State (“Walker” – see paragraphs 51-54 below), declared Mr James’ detention unlawful and ordered his release, but stayed relief pending an appeal by the Secretary of State. He did not decide on Mr James’ argument that there had been a violation of Article 5 § 4 as a result of the failure to provide the courses, although he recognised the possible force of the argument and indicated that it would be “desirable” for the Court of Appeal to consider it.

24. On 14 September 2007 the Parole Board convened to consider Mr James’ case. His representative applied for a deferral of the hearing on the grounds that the absence of a satisfactory life sentence plan and the non-availability of relevant offending behaviour courses meant that the Parole Board would be unable to carry out a sufficiently informed risk assessment to decide whether the test for release was satisfied, referring to the conclusions of the Parole Board in Wells and Walker. He further noted that the case of Walker was pending before the Court of Appeal. In the circumstances the Parole Board agreed that the hearing before them would serve no useful purpose and directed that the hearing be deferred until after the determination of the appeal in Mr James’ case and in the case of Walker. The Parole Board hearing was re-listed for January 2008.

25. The Court of Appeal heard the appeal in Mr James’ case together with the appeal in Walker in November 2007.

26. On 21 December 2007 Mr James was transferred to HMP Lindholme, a first stage prison.

27. On 1 February 2008 the Court of Appeal allowed in part the appeal of the Secretary of State in Mr James’ case, holding that his continued detention following the expiry of his tariff was not unlawful under common law in light of the express terms of section 225 of the 2003 Act and section 28 of the 1997 Act (see paragraphs 122-126 and 135-138 below); and that the detention would not cease to be justified under Article 5 § 1 (a) of the Convention until it was no longer necessary for the protection of the public that Mr James be detained or so long had elapsed without a meaningful review of the question that the detention had become disproportionate or arbitrary. However, it upheld the finding that the Secretary of State has breached his public law duty.

28. Lord Phillips of Worth Matravers CJ, delivering the judgment of the court, explained:

“1. These appeals raise three important questions concerning the Parole Board. The first is whether the Secretary of State has acted unlawfully by failing to provide for measures to allow and encourage prisoners serving indeterminate sentences for public protection (‘IPPs’) to demonstrate to the Parole Board by the time of the expiry of their minimum terms (often referred to as ‘tariff periods’) that it is no longer necessary for the protection of the public that they continue to be detained ... The second question is whether, if the Secretary of State has acted unlawfully in this way, it follows that the detention of an IPP prisoner after the expiry of the minimum term is unlawful ... The third question is whether the conduct of the Secretary of State has, in the case of Mr James, infringed his rights under Article 5(1) and Article 5(4) of the European Convention on Human Rights (‘ECHR’) ...”

“35. The primary object of the IPP is clear from the wording of sections 224 and 225 of the CJA [Criminal Justice Act] 2003. It is to detain in prison serious offenders who pose a significant risk to members of the public of causing serious harm by further serious offences until they no longer pose such a risk.”

37. In Cawser [see paragraphs 158-161 below] the Secretary of State conceded that it would be irrational to have a policy of making release dependent upon the prisoner undergoing a treatment course without making reasonable provision for such courses. Mr Jay told us that the Secretary of State did not resile from this concession. He submitted, however, that the concession did not avail the respondents for the following reasons. It was for the Parole Board in the exercise of its independent judgment to decide whether to release an IPP prisoner. It was not a decision for the Secretary of State. Further, it was for the Board to decide what evidence satisfied it that an IPP prisoner should be released. If it made release dependent upon prisoners undergoing treatment courses, which it did not, this would be unlawfully to fetter its discretion.

39. We found Mr Jay’s submissions lacking in realism. Courses are provided because experience shows that these are usually necessary if dangerous offenders are to cease to be dangerous. It is for this reason that performance of the appropriate courses is likely to be a prerequisite to a prisoner satisfying the Parole Board that he has ceased to be dangerous ... The reality is that the possibility for dangerous prisoners both to cease to be dangerous and to show that they have ceased to be dangerous lies largely in the hands of the Secretary of State. It has been his policy to provide the necessary courses and to do so within a time scale that gives lifers a chance to demonstrate that they are safe for release by the time that they complete their tariff periods, or reasonably soon thereafter.”

31. Referring to the decision of the Secretary of State to bring into force the provisions introducing IPP sentences without having first ensured that there existed the necessary resources to give effect to the policy that would ordinarily have given IPP prisoners a fair chance of demonstrating to the Parole Board, once the time for review arrived, that they were no longer dangerous, he continued:

“40. ... This cannot simply be regarded as a discretionary choice about resources, which is pre-eminently a matter for the government rather than the courts. We are satisfied that his conduct has been in breach of his public law duty because its direct and natural consequence is to make it likely that a proportion of IPP prisoners will, avoidably, be kept in prison for longer than necessary either for punishment or for protection of the public, contrary to the intention of Parliament (and the objective of Article 5 of which Parliament must have been mindful).”

32. Having established that the Secretary of State had breached his public law duty in failing to provide the necessary courses, the Court went on to examine the lawfulness of the continued detention. On this question, Lord Phillips noted:

“47. [Counsel for the Parole Board’s] most forceful point was a submission that he shared with Mr Jay. The 2003 Act makes express statutory provision for the circumstances in which IPP prisoners may be released. The Divisional Court’s judgment would require them to be released in disregard of the express requirements of the Act. We can see no answer to this point. Section 225 of the 2003 Act makes the release of IPP prisoners subject to the provisions of the 1997 Act. The provisions of section 28 of the 1997 Act that we have already set out provide for the circumstances in which an IPP prisoner must be released once he has served the tariff period. 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.”

33. Lord Phillips accordingly concluded that IPP prisoners who had completed their tariff terms were lawfully detained.

34. As to whether there was a violation of Article 5 § 4 in Mr James’ case, Lord Phillips stated:

“66. In considering the question it is necessary to distinguish 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. Does failure to undergo treatment mean that the Parole Board is not in a position to reach a considered view as to whether a prisoner remains dangerous, or is the fact that a prisoner has not received treatment a relevant factor to which the Board will have regard when considering the risk posed by the prisoner but which does not prevent the Board from reaching a reasoned conclusion as to that risk? Without a sentence plan and monitoring of the prisoner’s performance against that plan, realistically the outcome of any review by the Parole Board will be a foregone conclusion.”

35. He concluded that the fact that the claimants remained in the local prison to which they were first sent would not formally prevent a review by the Parole Board. However, as a matter of substance rather than form, any such review would, in the circumstances of the case, be an empty exercise. He found this to be an unacceptable situation which, if it continued, was likely to result in a breach of Article 5 § 4.

36. Addressing the possibility of a violation of Article 5 § 1 arising on the basis that Article 5 § 4 had been violated, Lord Phillips endorsed the observations of the Court of Appeal in the case of R (Noorkoiv) v. Secretary of State for the Home Department) (see paragraphs 154-157 below) and added:

“61. The legality of the post-tariff period of an indeterminate sentence imposed for the public protection is dependent upon the prisoner remaining a threat to the public. Article 5(4) requires this legality to be subject to periodic review by a body with the qualities of a court. If, in the period between two such reviews, a prisoner ceases to be dangerous, this will not mean that his detention in the remainder of that period infringes Article 5(1). That Article must be read in conjunction with Article 5(4) so as to produce a practical result. If, however, a review is unreasonably delayed and it is shown that, by reason of the delay, the prisoner has been detained after the time that he should have been released, that period of detention will constitute an infringement of Article 5(1). 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).”

37. On the question of the compliance with Article 5 § 1 of the continued detention in the applicant’s case, Lord Phillips continued:

“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 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) ...”

39. Mr James appealed to the House of Lords against the judgment of the Court of Appeal. His appeal was eventually joined with the appeal in the cases of Mr Wells, the second applicant, and Mr Lee, the third applicant.

40. While the appeal was pending, a full Parole Board review in respect of Mr James took place on 14 March 2008. Mr James had still been unable to undertake the recommended courses. The Parole Board had before it, in addition to the hearing dossier, a victim contact report; MALRAP (Multi Agency Lifer Risk Assessment Panel) minutes dated January 2006; a report by an external psychologist dated 7 March 2008; a progress report from an HMP Lindholme Life Manager, dated 12 March 2008; and a report prepared by the intended supervising probation officer dated 12 March 2008. The Parole Board also heard oral evidence.

41. At the hearing, Mr James requested his release and undertook to comply with the proposed licence conditions. The Secretary of State was of the view that Mr James should remain in closed conditions for the completion of the coursework. The Parole Board noted that a release plan had been constructed for Mr James involving his accommodation at a hostel and further cognitive skills work, relapse prevention work and the completion of the CALM course to be conducted in the community. Following the hearing, the Parole Board directed Mr James’ release on licence, explaining:

“The panel noted the strong recommendations for your release and therefore took some time to gain an understanding from you of your responses and attitudes; they were satisfied, within your intellectual boundaries, that you have achieved a level of understanding and insight which mean that you will willingly engage with the careful structure of the Westgate hostel which has been outlined for you. The panel recognised that further work is required ... but after careful consideration of all available evidence the panel saw that work as developmental more than core risk reduction and agreed ... that your risk of violent offending has now reached a level such that it could safely be managed within the community ...

In making their decision the panal recognised that their decision was exceptional: however, the reasons for their conclusions have been clearly set out ...”

43. On 6 May 2009 the House of Lords published its judgment in the three linked appeals (see paragraphs 100-119 below), finding that there had been no violation of Article 5 §§ 1 or 4 in Mr James’ case.

44. Mr Wells was convicted of the attempted robbery of a taxi driver. He had previous convictions from 1997 onwards for both violent and acquisitive offences, linked to the misuse of drugs. On 14 November 2005 he was sentenced at Bolton Crown Court to an IPP sentence with a tariff of 12 months less 58 days spent on remand (consecutive to an extended sentence with a custodial term of 12 months imposed at the same court on 15 August 2005 for offences of criminal damage, theft, common assault and assault with intent to resist arrest) and a concurrent sentence of two years for possession of a class B drug.

45. In March 2006 HMP Forest Bank, the local prison where Mr Wells was at that time detained, reported that he was motivated to address his offending behaviour but was having difficulties in prison including seven adjudications against him. The report recommended that he engage in programmes for PASRO, ETS, CALM and Victim Awareness. None of these, however, were available to him at HMP Forest Bank.

46. Mr Wells’ tariff expired on 17 September 2006. A Parole Board hearing was fixed for 25 October 2006. However the dossier in his case was not available and was only received by his solicitor and the Home Office on 9 November 2006. As a result, the hearing did not take place. Further Parole Board hearings were fixed for 18 January 2007 and 29 March 2007 but had to be deferred because insufficient Parole Board members were available. A hearing was subsequently fixed for 9 May 2007.

47. On 23 March 2007 Mr Wells issued an application for judicial review seeking an order that his case should be heard by the Parole Board forthwith, relying on Article 5 § 4 of the Convention.

48. On 19 April 2007, on the Parole Board’s concession, Sullivan J made a declaration that Mr Wells’ rights under Article 5 § 4 had been violated and ordered the Parole Board to hear Mr Wells’ case on 9 May 2007. He adjourned the judicial review proceedings for evidence to be served and for consideration to be given to whether it would be appropriate to grant any further declaratory relief.

49. The Parole Board heard Mr Wells’ case on 9 May 2007. However, on 15 May 2007 it decided not to direct Mr Wells’ release, noting:

“... Whilst in custody you have accumulated a number of adjudications both for drug taking and for bad behaviour. You have not undertaken any offence-focussed work. It is fair to say that that is not your fault. There are no appropriate offending behaviour courses at your current prison. The Panel accept your evidence that you would like to undertake such courses. However, this will require your move to another prison, which the prison authorities have failed to arrange ...

In her most recent report your home probation officer states that your risk will remain high until you have satisfactorily completed appropriate courses, such as
P-ASRO, ETS, CALM and Victim Awareness and Empathy.

In evidence that probation officer urged the panel to release you so that you could undertake these courses in the community subject to strict conditions ...

Unfortunately it is not the remit of the Parole Board to make up for the deficiencies of the prison service. We are charged with a duty not to release life prisoners while their risk of serious offending remains high. Because you have not been able to do any of the appropriate courses you are unable to demonstrate any reduction in risk from the time of your sentence. Because your risk remains high, the Panel cannot direct your release as requested.”

50. Following the decision of the Parole Board, the applicant pursued the judicial review proceedings, arguing that his continued detention was unlawful. His case was joined with the case of Walker. However, at the hearing Mr Wells’ counsel indicated that she was content to await the delivery of the judgment in Walker and then put in amended judicial review grounds or seek a fresh judicial review permission if either such course seemed appropriate

51. On 31 July 2007, the Divisional Court handed down its judgment in the judicial review proceedings regarding Mr Walker (Laws LJ delivering an opinion with which Mitting J agreed). Outlining, first, how the IPP system was supposed to operate, Laws LJ said:

“26. ... In my judgment it is clear that at the time the 2003 Act was passed there was a settled understanding shared by government together with relevant agencies and professionals that upon the coming into force of the new sentencing provisions in the 2003 Act, not least IPP, procedures would be put in place (so far as not already in place) to ensure that initiatives, in particular courses in the prison, would be available to maximise the opportunity for lifers to demonstrate they were no longer a danger to the public by the time their tariff expired or as soon as possible thereafter, so as to allow the lifer’s release once that was shown. Such an understanding was, I think, a premise of the legislation: it was certainly inherent in the way the legislation was intended to work in practice, and was intended to be given effect by the Secretary of State’s policy set out in PSO 4700 [see paragraphs 139-145 below].”

“28. ... Statistics helpfully given by Mr Robson [Deputy Head of the Public Protection Unit at the National Offender Management Service] ... show that the number of serving lifers was 5,475 on 30 November 2003 (the 2003 Act was passed on 18 December 2003), 5,807 on 31 March 2005 (s.225 came into force on 4 April 2005) and 8,977 on 31 March 2007. Mr Robson accepts there was an increase in the lifer population of 31% in 2006. On 20 April 2007 there were 2,547 prisoners serving IPP (the median tariff for IPP prisoners at April 2006 was 30 months). Yet the number of funded first stage and second stage prison places, within the meaning of PSO 4700, has not risen since April 2005 (though the number of core offending behaviour courses has risen from 13,265 in 2004/2005 to 16,959 in 2006/2007) ...

Mr Robson believes ... that in present circumstances the Prison Service can deal ‘satisfactorily’ with about 6,500 lifers. IPP prisoners with a tariff of less than five years are languishing in local prisons where, as Mr Robson acknowledges ..., there are few offending behaviour programmes ... The stark consequence is that IPP prisoners, or at least a very high proportion of them, at present have no realistic chance of making objective progress, with the assistance of appropriate initiatives within the prison, towards a real reduction or even elimination of their risk factor by the time their tariff expires.”

53. Laws LJ considered the justification for detention of prisoners both pre-and post expiry, noting:

“44. ... The tariff element fulfils the aims of punishment, which in this context are usually said to be retribution and deterrence. The post-tariff element fulfils the aim of public protection: protection from the danger which the criminal poses. This is said to be preventive rather than punitive ...

45. However the bare distinction between punishment and protection does not reveal the reality of the difference between the two elements in the sentence which matters for present purposes. This reality lies in the way in which the prisoner’s detention during the currency of each element is to be justified. I do not mean formally justified. Both elements – the whole sentence – are formally justified by the order of the sentencing court ... I mean substantially justified, or justified in reason, by reference to the aims or purposes served by each element, as I have described them.

46. The prisoner’s detention for the tariff period is justified in this sense at the outset. The tariff is a matter of proportionate justice, fixed at the time of sentence. It represents the trial judge’s considered decision as to the time the prisoner must serve to satisfy the imperatives of punishment. No further justification is needed. By contrast the justification that is required for his detention after the tariff’s expiry, as the preventive element begins and continues, is of an altogether different character. This further detention is not at all justified by or at the time of sentence, for the very reason that the extent to which, or the time for which, the prisoner will remain a danger is unknown at the time of sentence. It can only be ascertained on a continuing basis, by periodic assessment. Nothing else can justify this further detention. The justification for detention during the tariff period is of course spent; it is spent the moment the tariff expires.

47. His being a danger to the public is of course a statutory condition of the prisoner’s being liable to IPP. It is important to have in mind that s.225(1)(b) of the 2003 Act requires the sentencing court to assess the presence or absence of danger, and its extent, at the time of sentence; not at any other time. Accordingly, 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 (see ss.28(5)(b) and 28(6)(b) of the 1997 Act). 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 ... Periodic reviews by the Parole Board (or any person or institution) 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.”

55. An OASys (Offender Assessment System) report dated 18 December 2007 rated Mr Wells as at high risk of reconviction and as posing a high risk of harm to the public.

56. On 29 March 2008 Mr Wells was recommended for the same courses as had been recommended two years previously and which still remained unavailable to him.

58. On 29 May 2008 Mr Wells’ supervisor recorded his “almost intolerable” frustration with his lack of progress.

59. Mr Wells issued a second judicial review application on 4 June 2008, arguing that his continued detention constituted a breach of his rights under Article 5 §§ 1 and 4. His case was joined with that of the third applicant in the present case, Mr Lee.

61. On 25 July 2008 Lord Justice Moses handed down his judgment in the judicial review proceedings involving Mr Wells and Mr Lee. He indicated at the outset:

“2. Their cases highlight the fundamental difficulty inherent in IPP sentences where short minimum terms have been imposed. That difficulty has now been recognised by the amendment to the law. That fundamental difficulty was the failure to ensure that there were in place methods not only of timely assessment as to whether a prisoner remained dangerous, but also systems, such as accredited courses which would enable a prisoner to reduce or extinguish his level of dangerousness and to demonstrate that he had done so to the satisfaction of the Parole Board.”

“10. Thus it is essential to identify the objectives which were sought to be achieved by the original imposition of the IPP. The primary objective is to protect the public and not to rehabilitate (see paragraph 69 of Walker) but, though that is the primary objective, that is by no means the sole purpose of the sentence. There is to be derived as corollaries from that primary objective the purpose that no prisoner is to be detained beyond the tariff period in circumstances where he is judged by regular review no longer to be a danger. If the purpose is to protect the public, that purpose can no longer be pursued where he is judged under the statutory scheme by the Parole Board no longer to be a danger. Further, that purpose itself carries with it the correlative purpose endorsed by the Court of Appeal in its support of that which fell from Laws LJ at first instance [in Walker – see paragraphs 51-54 above], that the statutory scheme was designed to make available to IPP prisoners a regime by which they would be given a fair chance of ceasing to be and showing that they had ceased to be dangerous ...”

17. The objectives of the statutory scheme may thus be identified as primarily to protect the public from a prisoner identified as being dangerous when the original sentence is imposed, but also as being to give him a fair chance of ceasing to be dangerous and of demonstrating that he has ceased to be dangerous.

18. It is important to recall that those objectives carry with them the acceptance that there can be no assumption that, although a prisoner has been regarded as dangerous at the time when the original sentence has been imposed, he will remain dangerous throughout his time in prison ...

19. This proposition must of course not be carried too far. The time which had passed between the original determination when the sentence is imposed and the continued detention may be such that it is a justifiable conclusion that a prisoner remains a danger. Alternatively, his behaviour in prison may provide ample justification for such a conclusion ...

63. Moses LJ emphasised that the primary justification for a prisoner’s continued detention post-tariff was that he represented a danger to the public and continued:

“21. ... The very reason why this is so is that the primary justification for a prisoner’s detention under sentences of this kind is that he is a danger, and those tasked with the responsibility of assessing that danger are the Parole Board under section 28(6) of the Crime (Sentences) Act 1997. Accordingly, if the Parole Board is in a position to judge that the prisoner remains a danger, it cannot direct his release, even if the reason it reaches its conclusion is through no fault of the prisoner’s own, but rather because the Secretary of State has deprived him of the opportunity of reducing his level of dangerousness or of demonstrating that he has ceased to be a danger. In circumstances where the Parole Board is entitled on the material before it to reach a conclusion that the prisoner remains a danger, there can be no breach of article 5(1). The primary objective and rationale for his continued detention remains.

22. But this position must be contrasted with one where, by reason of the lack of course work, the Parole Board cannot determine the level of dangerousness. In such circumstances, the prisoner is not to be assumed to have remained a danger. If the Parole Board cannot determine the issue and it is no longer known whether the prisoner continues to be a danger or not, the justification for continuing to detain him no longer exists, and there will be a breach of article 5(1). 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.

23. The answer to the instant cases and many cases like them lies in drawing 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. But in making that decision, it is important to recognise that the court is not in the position of the Parole Board to reach a judgment on which side of the line the case falls. The Parole Board will have available many sources of information which it can deploy in order to be satisfied, as it must be, before it directs release, that the prisoner is no longer a danger.

24. This court must also acknowledge that the Parole Board may itself have to decide the same question as this court in a judicial review such as this. If the Board is not in a position to know whether the prisoner is a danger or not, then it could not, for the purposes of section 28(6), be satisfied that it is no longer necessary for the protection of the public that he should be confined.

25. Thus, before this court, there would have to be clear evidence that the failure to provide the opportunity of going on courses and of being assessed with up-to-date information has led to a situation that it can safely be concluded either that the prisoner is not a danger or that it cannot be ascertained whether it is a danger or not.”

64. In respect of Mr Wells, he concluded that there had been no breach of Article 5 § 1, noting:

“31. ... The evidence shows that Mr Wells has been frustrated by the lack of progress which was inevitable following the loss of opportunity to go on those courses which he sought to attend. It is dispiriting to record that position when one appreciates that he is still a very young man and was only 22 when the sentence was originally passed. But the fact of the matter remains that the evidence before this court is that on assessment he remains at risk of reconviction, a risk assessed as high/medium with some risk of violent offences. Until he undergoes the accredited work, his past, coupled with his prison behaviour, affords what is described as an indication of the nature of the ongoing risk. It requires no imagination to appreciate that the frustration which has led to his bad behaviour in prison has no doubt been aggravated by the fact that he has been unable to undergo the necessary programmes of work. But that of itself does not break the link between the purpose for which the original sentence was passed and his continuing detention. There is no basis for saying that the current level of dangerousness cannot be ascertained, and, in those circumstances, no basis for saying that the link between the original sentence and his continued detention has been broken.”

65. However, he found that the continuing failure to provide the relevant courses following the declaration of Sullivan J amounted to a breach of Article 5 § 4 of the Convention.

66. Mr Wells appealed the finding that there had been no breach of Article 5 § 1. The Secretary of State did not appeal the finding that there had been a breach of Article 5 § 4.

67. Mr Wells subsequently completed the PASRO course (between 22 August and 26 September 2008) and the ETS course (between 28 October and 3 December 2008).

68. On 11 December 2008 the Court of Appeal adjourned the appeal for inquiries to be made about a “leap-frog” appeal from the decision of Moses J direct to the House of Lords. On 17 December 2008 Moses J certified that the two cases involved points of law of general public importance in respect of which the judge was bound by the Court of Appeal decision in Walker and James (see paragraphs 27-38 above) and which were fully considered by the Court of Appeal in that appeal. In light of that certification, the Court of Appeal adjourned the application for leave to appeal pending consideration by the House of Lords. The House of Lords heard Mr Wells’ appeal, together with the appeals of Mr James and Mr Lee, between 27 and 29 January 2009.

70. Mr Wells subsequently completed the CALM course (between 6 January 2009 and 3 March 2009).

71. On 6 May 2009 the House of Lords published its judgment in the three linked appeals (see paragraphs 100-119 below) and found that there had been no violation of Article 5 § 1 in Mr Wells’ case. It also disagreed with the unappealed finding of Laws LJ that there had been a violation of Article 5 § 4.

72. A Parole Board hearing took place in Mr Wells’ case on 6 November 2009. The Parole Board directed that Mr Wells be released on 30 December 2009.

On 23 February 2010 Mr Wells was recalled to custody for breaching the conditions of his licence. He currently remains in custody.

73. On 13 April 2005, in a drunken rampage, Mr Lee caused criminal damage to a flat in which his former wife and young children were present. He was arrested and remanded in custody the following day. He had a total of eight previous convictions, including offences of assault occasioning actual bodily harm and criminal damage. Following his conviction, on 2 September 2005 Mr Lee was sentenced at Bolton Crown Court to an IPP sentence with a tariff of nine months less time spent on remand for burglary with intent to do unlawful damage. His tariff period was therefore 163 days.

74. A probation officer’s pre-sentence report assessed Mr Lee as a medium risk of reconviction but a high risk of causing serious harm to Mrs Lee “or alternatively any other woman with whom he may form a close attachment”. A consultant forensic psychiatrist, Dr Wilson, said that during childhood Mr Lee had developed a range of emotional and behavioural problems with poor temper control and a limited ability to cope with stress and he could therefore be said to suffer from a personality disorder with a mixture of dissocial, emotionally unstable and obsessional traits.

75. Following sentence, reports at his local prison, HMP Forest Bank, described Mr Lee as motivated to change and actively seeking out offending behaviour programmes. However, none of the relevant courses were available to him.

77. A Parole Board hearing took place on 30 June 2006 and the Board decided not to direct Mr Lee’s release. The Parole Board noted that:

“The risk factors identified by Dr Wilson have yet to be addressed by attendance at offending behaviour programmes. Through no fault of your own these have not been available, but the Panel note your willingness and motivation to engage in the same.”

“... the alcohol and violence risk factors must be addressed in closed conditions before your risk is sufficiently reduced to enable you to be transferred to open conditions.”

79. In a report dated 13 August 2007, the prison probation officer reported that “due to the current overcrowding and difficulties with allocation of IPP prisoners to first stage lifer prisons, Mr Lee has not had the opportunity to sit a sentence plan Board” and that he needed accredited courses.

80. The Parole Board fixed a further review of Mr Lee’s case to take place in January 2008. However, the hearing was postponed due to the failure of the authorities to provide the necessary assessments and reports.

81. Mr Lee issued a judicial review claim on 27 February 2008 alleging that his detention breached Article 5 §§ 1 and 4. His case was joined with that of the second applicant, Mr Wells.

82. On 7 March 2008 Mr Lee was transferred to HMP Wymott where a number of assessments were carried out. On 20 June 2008 it was recommended that Mr Lee be assessed for the Healthy Relationships Programme (“HRP”) to explore what psychological risk factors were present.

83. In the context of the judicial review proceedings, the Secretary of State made the following concession:

“the defendant concedes that Mr Lee has not had a speedy review of the lawfulness of his detention and thus there has been a breach of article 5(4) in this case.”

84. As noted above (see paragraphs 61-65 above), judgment in the judicial review claim was handed down on 25 July 2008. Specifically as regards Mr Lee’s claim, Moses LJ found:

“43. ... it is accepted that the very serious failure to provide those courses which he should have attended not only to reduce his level of dangerousness but to demonstrate that he had done so, have not been available to him. I should also recall that he would not now have ever been sentenced to IPP under the new regime. The question now, however, is whether it can be ascertained that he remains or does not remain dangerous. The reports available show a dramatic change in his attitude and in his character. He has, it is no exaggeration, proved a model prisoner. He has, as the external probation officer recalls, been very disappointed that he has not attended those courses which he ought to attend and, so the external probation officer says, his current risk level ‘could be more readily assessed through the review of his performance during one or other of the above accredited programmes’. The other reports laid before him show a reduced score of a medium risk under the OASYS system. There are other comments that he has come to terms with the severance of his relationship with his former wife which had led to the original offences.

44. There is, therefore, ample material to suggest that he is not a danger, but I have to remind myself that that assessment is the function of the Parole Board, and not of this court. It is that reminder which Ms Lieven QC, on behalf of the Secretary of State, suggested should lead to my refraining from reaching any conclusion because, on this very day, the Parole Board is considering the question under section 28(6) whether it is satisfied that Lee’s continued detention is not necessary because he no longer represents a danger to the public.

45. This submission, in my view, fails to recognise an important distinction. Of course it is for the Parole Board to determine whether he remains a danger or not, and it is also important, as I have already indicated, that this court recognises that the Parole Board itself might say that it does not know whether he remains a danger or not, and thus cannot be satisfied for the purposes of section 28(6). But this court is required to determine a quite distinct question, namely whether the continued detention of Lee is lawful. It cannot defer that question to the Parole Board. This court must thus determine, on the evidence before this court, whether this is a case where the evidence shows that, by reason of the failures in the system, it is not possible to determine whether he is dangerous or not. I appreciate that there will be an overlap evidentially: the Parole Board may not be satisfied because of absence of material, of the conditions which alone permit release for the purposes of section 28(5). But that evidential overlap should not deflect this court from determining the different question as to whether the continued detention can no longer be justified by the original decision that the prisoner was dangerous.”

85. On the facts of the case, Moses LJ concluded that there had been no violation of Article 5 § 1 in Mr Lee’s case:

“46. In Lee’s case, there is, as I have said, much material to show a recognisable difference in the level of danger from that which pertained when he was originally sentenced. But that is not an end of the matter. There has been laid before the court material from a forensic psychologist in training based at Her Majesty’s Prison Wymott. That psychologist has reached the conclusion that there are areas relevant to Mr Lee’s risk of committing violence within the domestic context in the future which, as she puts it, need to be targeted, and until those matters have been ‘targeted’, she takes the view that the overall risk of domestic violence is medium to high ... Given that conclusion ... she recommends further treatment under an accredited programme known as the Healthy Relations Programme in closed conditions. It will be for the Parole Board to say whether it agrees with that conclusion, and the hearing before the Parole Board will no doubt permit not only that conclusion to be challenged, but also the process by which she reached that conclusion ...

47. All of that leads to my conclusion that it is not possible on the material before me to say that it cannot be ascertained whether Mr Lee remains a danger or not, and thus the causal link between the original sentence and his continuing detention has been broken. In those circumstances, I decline to find in his case also a breach of article 5(1).”

86. Mr Lee appealed the finding of Moses LJ that there had been no violation of Article 5 § 1 in his case. His appeal was “leap-frogged” to the House of Lords together with the appeal of Mr Wells.

87. Also on 25 July 2008 the Parole Board reviewed Mr Lee’s case. However, it deferred its decision until receipt of Moses LJ’s judgment (which it did not receive until 6 October 2008).

88. On 18 September 2008, Mr Lee was transferred to HMP Erlestoke to be assessed for the moderate version of the HRP.

89. On 24 October 2008 the Parole Board again deferred its review of the case until after Mr Lee’s assessment for and, if appropriate, completion of the moderate HRP. It was anticipated that this would be done by January 2009.

90. Mr Lee was due to commence the three month HRP programme on 30 October 2008. In the event, he did not do so, for reasons which are in dispute between the parties.

91. On 1 December 2008 a report by a psychologist in training recorded that there were aspects of the course which Mr Lee did not wish to undertake because of his concern about their impact on his mental health as he had previously suffered from depression. She concluded that Mr Lee should complete an accredited domestic violence programme preceded by motivational enhancement work. However, such motivational enhancement work was not available at HMP Erlestoke in the short term.

92. The Parole Board issued a decision on 22 December 2008 expressing concern about recent developments in the following terms:

“In summary, it would appear that Mr Lee’s current sentence plan is that he should remain in closed conditions in HMP Erlestoke doing nothing to reduce his risk until he is prepared voluntarily and without support to ask to see ... a psychologist and then persuade that psychologist that he is sufficiently motivated to undertake the Moderate HCP, that he is then assessed as suitable for that programme and then await the next available place on that course and then completes that programme. This impasse could continue indefinitely. The Secretary of State and those concerned with Mr Lee’s sentence and current status as a category C prisoner do not appear to have considered whether it is proportionate to continue to detain Mr Lee.”

93. On 12 January 2009, the Parole Board adopted another decision, in which it summarised the position regarding Mr Lee:

“Mr Lee will not be offered one-to-one work nor will he be provided with motivational work to assist him in overcoming his fears about taking the moderate HRP. The offender manager has not made any proposals as to the way forward save that, if Mr Lee unilaterally changes his mind and demonstrates (in ways not specified) that he is prepared to take the moderate HCP, he can then be assessed for that programme and, if assessed as suitable, take the programme and as part of that programme be risk assessed. The initial assessment for suitability is not a risk assessment but merely a programme selection process to test motivation and ability to understand and participate in the programme. No timetable for this open-ended sentence pathway is offered and Mr Lee’s future in closed conditions is apparently both open ended and not subject to any finality save for that provided for by the Parole Board at the current or any future review hearing.”

94. As noted above, on 6 May 2009 the House of Lords published its judgment in the three linked appeals (see paragraphs 100-119 below). It found that there had been no violation of Article 5 § 1 in Mr Lee’s case. It further disagreed with the concession of the Secretary of State that Article 5 § 4 had been breached.

95. A hearing of the Parole Board took place on 7 May 2009. Prior to the hearing, Mr Lee was assessed by a senior forensic psychologist. His concerns regarding the HRP were discussed and he demonstrated a willingness and motivation to participate in the HRP. It was therefore arranged that Mr Lee would commence the HRP “in the near future” at HMP Erlestoke, with a view to completion in October 2009 and a report being available by January 2010. The hearing was adjourned to the first reasonably practicable date after 22 February 2010.

96. A Parole Board hearing took place in Mr Lee’s case on 29 March 2010. In a reasoned decision dated 7 April 2010, the Parole Board declined to direct Mr Lee’s release but recommended a transfer to open conditions. The Parole Board noted:

“... In summary, having balanced your interests in sentence progression against the interests of public protection, the panel were satisfied that sufficient evidence exists that your risk of violent offending has been reduced to a level such that ... it is safely manageable in open prison conditions. The panel did not consider that sufficient evidence of risk reduction exists to enable them to make a direction that you be released; there is a necessity, in the panel’s view (in the interests of public protection), for there to be a period of testing and gradual reintegration into the community before release.”

97. The Secretary of State authorised a transfer to open conditions on 4 May 2010.

98. On 1 October 2010 Mr Lee was transferred to HMP Kirkham. The delay in the transfer was due to transportation problems in the prison estate.

99. A further parole review is scheduled to begin in February 2011 and to conclude with an oral hearing in August 2011.

100. On 6 May 2009 the House of Lords unanimously dismissed the applicants’ appeals. Lord Judge outlined the nature of the IPP and the statutory framework:

“98. In summary, IPP may be ordered whether or not an adult offender has previous convictions, if in the judgment of the court he is dangerous. However in making the assessment in relation to an offender with relevant previous convictions, there is an assumption that he is to be assessed as dangerous, unless this conclusion would be unreasonable ...”

“100. Among the many changes to the sentencing framework brought about by the 2003 Act, section 142(1) requires every court passing sentence to have regard to five specific purposes of sentencing. These are

(e) the making of reparation by offenders to persons affected by their offences.

Importantly for present purposes, by section 142(2)(c) section 142(1) is expressly disapplied to sentences imposed under ‘any of sections 225-228 of the Act (dangerous offenders),...’. The reason is plain. The first and obvious purpose of these provisions is the protection of the public from the risks posed by dangerous offenders.

101. The second purpose is punishment. It is a well understood responsibility of the sentencing court that, as part of and integral to the IPP, it must address and specify the punitive element of the sentence, that is, the minimum term to be served by the offender before any question of his release may arise. This is the ‘relevant part’ of the sentence or its ‘minimum term’. This second element of the sentence requires an assessment of the appropriate level of punishment which, irrespective of and ignoring any risk to the public posed by the offender, properly reflects the seriousness of the instant offence, or the combination of the offence and one or more offences associated with it, in the light of the aggravating and mitigating features. Thereafter, to ensure consistency with the release provisions which apply to those serving determinate sentences, the punitive term falls to be halved ...

102. It is plain therefore that there are two elements to the IPP sentence. The first is the appropriate measure of punishment for the offender’s crimes; the second is the protection of the public from the further and indefinite risk he represents. The punitive element of the sentence is not concerned with the potential dangerousness of the offender, and the minimum term or tariff period should not be longer than commensurate with the seriousness of the crime: future risk is addressed by the protective element of the IPP. If there is no predictive risk that, in the sense specified in section 225(2)(b) as explained in R v Lang and others, the defendant will be dangerous at the end of the tariff period, an IPP would be unjustified. There would be no sufficient risk of serious harm to members of the public for the purposes of the statute ... [I]f therefore the tariff period sufficiently addresses the element of future danger, an IPP would be inappropriate and should not be ordered. This principle was recently confirmed in R v Terrell [2008] 2 CAR (S) 49 where it was decided that an IPP should not be passed where other available sentences, including, for example, a sexual offences prevention order, would minimise the risk otherwise presented by the offender.

103. As the court is required to make an informed predictive assessment at the date of sentence, and the justification for detention beyond the tariff period is found in the judgment of the court that an IPP is indeed necessary, I respectfully disagree with the views expressed by Laws LJ in the Divisional Court in R (Walker) that what he described as ‘further detention’ after the expiry of the tariff period was ‘not at all justified by or at the time of sentence, for the very reason that the extent to which, or the time for which, the prisoner will remain a danger is unknown at the time of sentence ... The justification for detention during the tariff period is of course spent; it is spent the moment the tariff expires’. For the same reasons I am unable to accept the observations of Moses LJ in R (Lee) and R (Wells) in the Administrative Court, no doubt reflecting the earlier judgment of Laws LJ, that ‘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 my judgment detention beyond the tariff period is justified just because the sentencing court has 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.

105. The statutory regime for dealing with indeterminate sentences is predicated on the possibility that, save for those for whom the punitive element of the sentence requires that life imprisonment should indeed mean imprisonment for the rest of the offender’s natural life, prisoners may be reformed or will reform themselves. A fair opportunity for their rehabilitation and the opportunity to demonstrate that the risk they presented at the date of sentence has diminished to levels consistent with release into the community should be available to them. The IPP sentence does not require the abandonment of all hope for offenders on whom it is imposed. They are not consigned to penal oblivion. To the contrary, common humanity, if nothing else, must allow for the possibility of rehabilitation. As Lord Phillips CJ, in the Court of Appeal, giving the judgment of the court observed, at paragraph 41:

‘We also accept that those who promoted the 2003 Act and Parliament that enacted it must have anticipated that the lifer regime ... would be available to IPP prisoners so as to give them a fair chance of ceasing to be, and showing that they had ceased to be, dangerous. This was the context in which the legislation was enacted. To use Laws LJ’s phrase ..., it was “a premise of the legislation”‘.

In this context, this premise of the legislation is not however synonymous with its purpose. As we have seen, the statutory structure applicable to IPPs provides for two purposes, commensurate punishment and public protection.

106. We cannot be blind to the realities. The reality for the offender subject to IPP is that the prison regime in which he may (or may not) be provided with the opportunity for rehabilitation is dependent on the structures provided by the Secretary of State. The similar reality for the Parole Board is that the material on which to form its decision that the offender may (or may not) have ceased to represent a public danger is equally dependent on the regime structured for this different purpose by the Secretary of State.”

101. Several of their Lordships commented on the problems incurred following the entry into force of the legislation introducing IPPs. Lord Hope of Craighead said:

“3. There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection (‘IPPs’) by section 225 of the Criminal Justice Act 2003. He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention. The Divisional Court (Laws LJ and Mitting J) granted a declaration to that effect on 31 July 2007: R (Walker) v Secretary of State for Justice [2007] EWHC 1835 (Admin); [2008] 1 All ER 138. Its decision was affirmed on 1 February 2008 by the Court of Appeal (Lord Phillips of Worth Matravers CJ, Dyson and Toulson LJJ): R (Walker) v Secretary of State for Justice (Parole Board intervening) [2008] EWCA Civ 30; [2008] 1 WLR 1977. The Secretary of State has not appealed against that declaration. Very properly, he accepts that it was implicit in the statutory scheme of sections 224 and 225 of the Criminal Justice Act 2003 that he would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released. As Miss Lieven QC for the Secretary of State put it, the scheme was such that it was not rational for him to fail to do so.”

“23. ... 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.”

“24. ... 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.’”

“65. ... 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.”

“118. It was an inevitable consequence of the legislation, and the application of the statutory presumption in section 229(3) of the Act, that even when the punitive element appropriate to the offender’s crimes was measured in months rather than years, IPP would arise for consideration. Sentencing judges loyally followed the unequivocal terms of the statute and very many more defendants than anticipated were made subject to IPPs. However no extra resources were made available to address the consequent and inevitable increase in the number of inmates subject to indeterminate custody. The result is the seriously defective structures identified in these appeals. Numerous prisoners have continued to be detained in custody after the expiration of the punitive element of their sentences, without the question either of their rehabilitation or of the availability of up to date, detailed information becoming available about their progress (or lack of it). The National Offender Management Service acknowledges ‘that the need to ensure a proper allocation of resources across the prison estate has meant that a number of those serving IPP sentences have not had as full an opportunity to progress within the system as had been hoped’. This is hardly an exaggeration.

121. The preparation for the inevitable consequences of the new sentencing provisions relating to IPPs was wholly inadequate. To put it bluntly, they were comprehensively unresourced. The deficiencies are, at last, being made good ...

122. Notwithstanding the undoubted improvements in the processes effected following the Lockyer Review, the appellants and indeed other prisoners were victims of the systemic failures arising from ill considered assumptions that the consequences of the legislation would be resource-neutral. Having applied the identical policies and rules relating to life imprisonment to IPPs, the Secretary of State failed to provide the resources to implement them. As tariff periods expired, nothing had been done to enable an informed assessment by the Parole Board of the question whether the protection of the public required the prisoner’s continued detention ...”

106. As to whether there had been a violation of Article 5 § 1 of the Convention, Lord Hope noted:

“11. It is not, and cannot be, suggested that the appellants’ detention during the tariff period was incompatible with their right under article 5(1) of the Convention not to be deprived of their liberty. Their detention was in consequence of an order made lawfully after conviction by a competent court in accordance with a procedure prescribed by law: see article 5(1)(a). So the requirement of ‘lawfulness’ in the sense of conformity with domestic law was fully satisfied. More generally, the Strasbourg court has said repeatedly that the purpose of article 5 is to protect the individual from arbitrariness ... The court’s assessment of the minimum term that the prisoner must serve before he is considered for release provides that protection.

12. The situation changes as soon as the prisoner has served the minimum term, which is the measure of his punishment. As the Strasbourg court pointed out in Weeks v United Kingdom ..., the causal link required by article 5(1)(a) might eventually be broken if a position were to be 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. The objective that justifies continued detention at this stage is public protection. The sentencing judge makes no assessment of the extent to which, if at all, the prisoner will represent a danger to the public once he has served the minimum term. That matter is left entirely to the determination of the Parole Board. It is for the Board to assess whether the causal link with that objective that is required by article 5(1)(a) remains in place or has been broken because it is no longer necessary for the prisoner to be confined.

13. In Stafford v United Kingdom ... the Strasbourg court said that, once the punishment element of the sentence, as reflected in the tariff, has been satisfied, the grounds for the continued detention must be considerations of risk and dangerousness. Section 28(6)(b) of the 1997 Act meets this requirement. The way that it does so is to require the Parole Board to be satisfied that it is no longer necessary for the protection of the public for the prisoner to be confined before it can direct his release under section 28(5). In Van Droogenbroeck v Belgium ... the court said that a detention which was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and hence incompatible with article 5 if the position were reached in which decisions for the prisoner’s detention were based on grounds that had no connection with the objectives of the legislature ...

14. It is hard to see, however, how there could ever be an absence of the causal connection that is required by ‘lawfulness’ in terms of article 5(1)(a) in the case of a prisoner whose case has been referred to, and is still under consideration, by the Parole Board. The indeterminate sentence which he received was passed on the ground that there was a significant risk to members of the public of serious harm occasioned by the commission by him of further offences of the kind specified in Schedule 15 to the 2003 Act. The essence of it was the need for the public to be protected against that risk. His continued detention cannot be said to be arbitrary, or in any other sense unlawful, until the Parole Board has determined that detention is no longer necessary. As soon as it makes that assessment the causal connection is, of course, broken. A direction must then be given in terms of the statute that he be released on licence. But continued detention that results from any decisions that the Parole Board may issue before that stage is reached must be attributable to the original ground for it. The causal connection will not be broken until the Parole Board, on whom the responsibility rests under the statute, has determined otherwise.”

“15. It is just possible to conceive of circumstances where the system which the statutes have laid down breaks down entirely, with the result that the Parole Board is unable to perform its function at all. In that situation continued detention could be said to be arbitrary because there was no way in which it could be brought to an end in the manner that the original sentence contemplated. But the failures for which the Secretary of State accepts responsibility, while highly regrettable, cannot be said to have created a breakdown of that extreme kind. The appellants’ cases were referred by him to the Parole Board as the statute required. A favourable consideration of them may have been delayed, but performance of its task of monitoring their continued detention was not rendered impossible. Mr Lee and Mr Wells remain in custody because the Board was not yet satisfied that they are no longer a risk to the public. The causal link with the objectives of the sentencing court has not been broken. I would hold that the Secretary of State’s failure in his duties of administration did not violate the appellants’ rights under article 5(1)(a).”

108. Lord Brown, considering whether there was a causal connection between the original sentence and the applicants’ continuing detention, stated:

“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?”

109. After considering previous judgments of the Court of Appeal in Noorkoiv and R (Cawser) v. Secretary of State for the Home Department (see paragraphs 154-161 below), and the findings of the Court of Appeal in Mr James’ case (see paragraphs 27-38 above), he continued:

“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 paragraph 69 in James and Walker] 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 [in Walker] so regarded it – see, for example, his para 49 quoted at para 32 above. It was not.

49. ... 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 [James and Walker]) 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 ... – 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 ... 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 [in James and Walker], 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.”

111. On the question of compliance with Article 5 § 1, Lord Judge agreed with the conclusions of Lord Brown and added:

“126. For the reasons already given, there is no doubt that, based on the order of the sentencing court, the continued detention of persons subject to IPP after the expiry of their tariff periods is lawful. In relation to article 5(1) the question which arises is whether the breach of the Secretary of State’s public law duty should lead to the conclusion that the causal link between the original conviction and the continuing detention has been broken. ... If one of the purposes of an IPP were rehabilitation, and if the continued detention after the expiry of the tariff period were dependent on a specific finding by the Parole Board that it would be inappropriate to direct the prisoner’s release it would then, of course, be arguable that the causal link between the IPP and any later detention of the appellants was broken. As I have endeavoured to demonstrate from an analysis of the structure of the legislation, that proposition is ill founded.”

112. He considered that his view was reinforced by the decisions of the Court of Appeal in Noorkoiv and Cawser (see paragraphs 154-161 below), before concluding:

“128. I should perhaps add that, like Lord Brown, I should not exclude the possibility of an article 5(1) challenge in the case of a prisoner sentenced to IPP and allowed to languish in prison for years without receiving any of the attention which both the policy and the relevant rules, and ultimately common humanity, require.”

b. Their Lordships’ findings as to the alleged violation of Article 5 § 4

113. The question whether there had been a violation of Article 5 § 4 of the Convention remained live solely in respect of Mr James, the Secretary of State having not appealed the finding of the High Court that there had been a violation in Mr Wells’ case and having conceded a violation in the case of Mr Lee. Lord Hope considered that:

“17. Article 5(4) ... does not guarantee a right to judicial control of the legality of all aspects or details of the detention: Ashingdane v United Kingdom (1985) 7 EHRR 528, para 52. But detainees are entitled to a review hearing upon the procedural and substantive conditions which are essential for the lawfulness of their deprivation of liberty ... The Strasbourg court has held, in the case of vagrants and persons of unsound mind whose lawful detention is permitted by article 5(1)(e), that the very nature of the deprivation requires a review of lawfulness to be available once a certain period has elapsed since the detention began and thereafter at reasonable intervals ... It has applied this principle to recidivists and habitual offenders detained at the government’s disposal to protect society and provide the executive with an opportunity of endeavouring to reform them ...

18. In A and others v United Kingdom, Application No 3455/05 (unreported), 19 February 2009, paras 202-203, the Grand Chamber set out the principles arising from its case law. It described article 5(4) as a lex specialis in relation to the more general requirements of article 13 as to an effective remedy. The notion of ‘lawfulness’ has the same meaning as in article 5(1). The review which article 5(4) guarantees should be wide enough to bear on those conditions which are essential for the ‘lawful’ detention of a person according to article 5(1). The reviewing ‘court’ must not have merely advisory functions but must have the competence to ‘decide’ the ‘lawfulness’ of the detention and to order release if the detention is unlawful. The requirement of procedural fairness under article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. But it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question.

19. I do not detect any departure from these principles in the procedure that the statutes lay down or the role that is performed by the Parole Board. An issue as to the lawfulness of the continued detention of an IPP prisoner is raised as soon as his tariff period has expired. At that point and at reasonable intervals thereafter he becomes entitled to a review by a judicial body of its lawfulness. Lawfulness depends on there being a causal link between the objectives of the sentencing court and the prisoner’s remaining in custody. Section 28(7) of the 1997 Act, as applied to a person serving an IPP by section 34(2)(d) of that Act as amended, meets that requirement. The function of the Parole Board is to determine whether it is no longer necessary for the protection of the public that the prisoner should be confined and, if it is of that opinion, to direct his release. The Parole Board has all the powers that it needs to carry out that assessment on the expiry of the tariff period and thereafter at reasonable intervals. The question is what more is demanded of this system if the guarantee of an effective remedy in a case where continued detention has become unlawful that article 5(4) provides is to be satisfied.”

“20. The way the Parole Board conducts itself must meet the requirement of procedural fairness. But, as the Grand Chamber said in A and others v United Kingdom, para 203, this requirement does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. This suggests that it is a matter for the judgment of the Parole Board to decide what information it needs to make its assessment and on the timetable it should adopt for conducting its review. It will be difficult for a prisoner to establish that he does not pose a risk to the public if he is not provided with the courses or assessments that are normally needed to persuade the Board that his detention is no longer necessary. But this does not mean that he is denied access to the Board when his case has been referred to it. It is open to him to argue his case for release, and to have his position noted, although the contents of his dossier for the time being fall short of what is desirable. Furthermore, determination of the question when it is safe for an IPP prisoner to be released is likely, in many cases, to be a gradual process as the issue is so obviously fact sensitive. Delays are apt to occur for all sorts of reasons even in the best resourced system. Continued detention will only become unlawful when the Board decides that it is no longer necessary for the protection of the public that the prisoner should be confined. Until that stage is reached each step that the Board takes in the review process confirms the lawfulness of the detention.

115. He concluded that there had been no violation of Article 5 § 4 in the circumstances of the cases before the court, noting:

“21. In R (Walker) v Secretary of State for Justice (Parole Board intervening) [2008] 1 WLR 1977, para 67 the Court of Appeal said that, if Mr Walker were to be unable to make a meaningful challenge to the lawfulness of his sentence at the time his case was heard by the Parole Board, a review of his case would be an empty exercise that would be likely to result in a breach of article 5(4). In para 68 it made the same assessment of the position in the case of Mr James. I cannot find anything in the jurisprudence of the Strasbourg court that goes that far. Article 5(4) requires that a system must be in place for making that assessment at reasonable intervals which meets the requirement of procedural fairness. How that system works in practice in any given case is a matter for the Parole Board itself to determine. It is open to it to decide how much information it needs, to conclude that for whatever reason the information that is available for the time being is inadequate and to set its own timetable for the information that it needs to be made available. It is entitled to expect co-operation from those who are responsible for the management of the sentence in meeting its requirements. But a failure to meet them does not of itself mean that there will be a breach of article 5(4). As in the case of article 5(1)(a), it will only be if the system which the statutes have laid down breaks down entirely because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary that the guarantee that article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages.”

“52. ... 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 [for the Secretary of State] 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 ... 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’ ... 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 ...

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.

58. ... 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’ ...

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 ...

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.”

“132. In my opinion article 5(4) is not directed to the operational inadequacies of a prison regime which may make it impossible for the prisoner to address his offending in the hope of or with a view to his reform and rehabilitation. In the context of the exercise of the Parole Board’s section 28(6) responsibilities, article 5(4) addresses the prisoner’s ability to take proceedings to demonstrate that his continued detention is no longer justified just because the basis on which it would otherwise continue no longer applies: in short, that the risk he represented at the date of sentence has dissipated. It is not the forum for addressing complaints about the inadequacies of the prison regime in relation to the provision of opportunities for reform and rehabilitation, or the consequences of the Secretary of State’s breaches of his public law obligations. They may be and are addressed in judicial review proceedings. As the ECtHR observed in Ashingdane v United Kingdom [1985] ECHR 8225/78, (1985) 7 EHRR 528 ‘Article 5(4) does not guarantee a right to judicial control of the legality of all aspects or details of the detention’. The same reasoning can be discerned in the judgment of the ECtHR in Van Droogenbroeck. This conclusion appears to me to be logically consistent with the legislative structure which applies to those sentenced to IPP.

133. That leaves the question of the exercise by the Parole Board of its section 28(6) responsibilities if and when the consequence of the deficiency in the arrangements made by the Secretary of State is the absence of sufficient material with which to make a fully informed but fresh assessment of risk. At the risk of repetition, there can be no problem with continued lawfulness of the prisoner’s detention. The possibility of a judicial challenge to its continuation can only arise if and when the Secretary of State has failed to comply with a release direction by the Parole Board. The question whether the Parole Board believes itself to be sufficiently informed is a matter for the Parole Board. We know that the criticisms by the Chairman of the Board of the operation of the IPP regime contributed to the setting up of the Lockyer Review and the subsequent improvements in the process. If the Parole Board failed to comply with its own public duty, or if complaints legitimately made by the Board were ignored by the Secretary of State, then the Administrative Court might see fit to intervene, to direct either the Parole Board better to fulfil its responsibilities, or the Secretary of State to comply with the reasonable requests by the Parole Board for improvements to the IPP regime, sufficient to enable the Parole Board to be satisfied that it can fully discharge its own section 28(6) public law responsibilities. The precise form of order would be for debate but an appropriate declaration would probably suffice.

134. In expressing myself in this way, I am not to be taken to being encouraging applications by prisoners for judicial review on the basis that the prisoner may somehow direct the process by which the Parole Board should decide to approach its section 28(6) responsibilities either generally, or in any individual case. These are question pre-eminently for the Parole Board itself. Although possessed of an ultimate supervisory jurisdiction to ensure that the Parole Board complies with its duties, the Administrative Court cannot be invited to second-guess the decisions of the Parole Board, or the way it chooses to exercise its responsibilities. Your Lordships were told that the Board is frequently threatened with article 5(4) challenges unless it requires the Secretary of State to provide additional material. Yet it can only be in an extreme case that the Administrative Court would be justified in interfering with the decisions of what, for present purposes, is the ‘court’ vested with the decision whether to direct release, and therefore exclusively responsible for the procedures by which it will arrive at its decision.

135. In my opinion these appeals should be dismissed. I agree with Lord Brown’s conclusions about the proper disposal of article 5(4) claims by the appellants.”

118. Although no violation of Article 5 § 1 was found in the applicants’ cases, and thus the question of remedies did not fall to be decided, some views were nonetheless expressed as to the availability of remedies had the court held that there was a violation of Article 5 § 1. Lord Hope noted:

“4. Steps have been taken to address the problem and the legislation has now been amended ... So the issue to which these appeals are directed is not performance of the public law duty but the consequences of the breach. What remedies, if any, are available? Mr James is no longer in custody, so the remedy which he seeks is compensation for delay in his being released. Mr Lee and Mr Wells, on the other hand, are still serving their sentences. The Parole Board is not yet satisfied in their cases that it is no longer necessary for the protection of the public that they should be confined: see section 28(6)(b) of the Crime (Sentences) Act 1997. They attribute this to the Secretary of State’s failure to make provision for them to be able to demonstrate to the Parole Board that this is no longer necessary. They seek a direction that they should be now released, and they also seek compensation for delay.

5. It is plain that the remedies which the appellants seek are not available to them at common law ...

7. That being the position at common law, attention has been directed instead to the appellants’ Convention rights. Access to those rights is afforded in domestic law by the Human Rights Act 1998, so it is through the perspective of its provisions that this part of the argument must be addressed. Section 3(1) provides that, so far as it is possible to do so, the legislation must be read and given effect in a way which is compatible with the Convention rights, and section 4(2) provides that if the court is satisfied that a provision is incompatible with a Convention right it may make a declaration of that incompatibility. The appellants have not asked your Lordships to read or give effect to section 225(4) of the 2003 Act and section 28(6) of the 1997 Act in a way that differs from the ordinary meaning of those provisions. Nor in their written cases did they seek a declaration of incompatibility. In the course of his oral argument Mr Owen suggested that a declaration of incompatibility might be appropriate, but he accepted that the problem which had arisen in his clients’ cases was due to a failure of administration. He was unable to say that the incompatibility of which he complained was inherent in the legislation itself. That being so, I cannot see that there is any basis in this case for a declaration of incompatibility.

8. The question then is whether the appellants are able to show that the Secretary of State has acted in a way which was incompatible with their Convention rights. If he has, his act is made unlawful by section 6(1) of the Human Rights Act 1998. This in turn opens up the possibility of obtaining a judicial remedy under section 8, which enables the court to award damages. But regard must also be had to section 6(2)(a) of the 1998 Act, which provides that section 6(1) does not apply to an act if, as a result of one or more provisions of primary legislation, the public authority could not have acted differently. The effect of that provision is to narrow the scope for argument as to the respects in which the Secretary of State’s conduct was unlawful within the meaning of section 6(1).

9. Section 28(7) of the 1997 Act provides that a prisoner to whom that section applies may require the Secretary of State to refer his case to the Parole Board at any time after he has served the minimum term ordered by the sentencing judge. It has not been suggested by the appellants that the Secretary of State was in breach of that duty in their cases. The effect of section 28(5), which provides that it is the duty of the Secretary of State to release the prisoner on licence when directed to do so by the Parole Board, is that he has no power to release the prisoner until the Parole Board gives him that direction. Notwithstanding the criticisms that may be made of the Secretary of State’s failure to provide the means by which the appellants could demonstrate to the Parole Board that their continued detention was no longer necessary, the terms of the legislation are such that it cannot be said that he was acting unlawfully in not releasing them until directed to do so by the Parole Board. The court, for its part, would not be acting unlawfully if it too declined to order their release until the Parole Board was satisfied that it was no longer necessary for the protection of the public that they should be confined. Section 6(2)(a) of the 1998 Act leads inevitably to these conclusions.”

“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.”

120. Before the entry into force of the IPP provisions in the Criminal Justice Act 2003 on 4 April 2005, section 80 of the Powers of Criminal Courts (Sentencing) Act 2000 already provided for a longer than commensurate sentence to be passed on dangerous offenders. Under section 80(2)(a), where the sentence in respect of any offender was not fixed by law, the sentence was to be for such term (not exceeding the permitted maximum) as in the opinion of the court was commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it. Under section 80(2)(b), where the offence was a violent or sexual offence, the sentence was to be “for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender”.

121. Any longer than commensurate sentence imposed under section 80(2)(b) remained a determinate (i.e. fixed) sentence and release was subject to the ordinary principles which applied to determinate sentences.

122. IPPs were introduced with effect from 4 April 2005 by section 225 of the 2003 Act. Under section 225(1), that section applies where:

“(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and

(b) the court is of the opinion that there is significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.”

123. “Serious offence”, defined in section 224(2), covers 153 specified categories of violent or sexual offences punishable by imprisonment for life or for ten years or more. Section 224(3) defines “serious harm” as “death or serious personal injury, whether physical or psychological”. The term “specified offences” is defined in section 224(1) and (3); almost all “specified offences” involve danger to life or limb or interference with sexual autonomy.

(a) the offence is one in respect of which the offender apart from this section be liable to imprisonment for life, and

(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,

125. At the relevant time, section 225(3) provided that in a case not falling within subsection (2), the court “must impose a sentence of imprisonment for public protection”.

126. Section 225(4) defines a sentence of imprisonment for public protection as:

“... a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences.”

127. Section 229 of the 2003 Act applies where a person has been convicted of a specified offence and it falls to the court to assess whether there is a significant risk to members of the public of serious harm by the commission by the offender of further specified offences posed by an offender. At the relevant time, section 229(2) provided that in making its assessment where the applicant had not previously been convicted of any relevant offence, the court:

“(a) must take into account all such information as is available to it about the nature and circumstances of the offence,

(b) may take into account any information which is before it about any pattern of behaviour of which the offence forms part, and

128. Where the offender had previous relevant convictions, that is convictions for any specified offence, section 229(3) provided that:

“...the court must assume that there is [a significant risk to members of the public of serious harm by the commission by the offender of further specified offences], after taking into account–

(a) all such information as is available to it about the nature and circumstances of each of the offences,

(b) where appropriate, any information which is before it about any pattern of behaviour of which any of the offences forms part, and

the court considers that it would be unreasonable to conclude that there is such a risk.”

“(3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under ... the 1997 Act, consider–

and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member.

(4) The Board must deal with cases as respects which it gives directions ... on consideration of all such evidence as may be adduced before it.

(5) Without prejudice to subsections (3) and (4), the Secretary of State may make rules with respect to the proceedings of the Board, including proceedings authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times.

(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions ...; and in giving any such directions the Secretary of State must have regard to–

(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.”

130. Section 142(1) of the 2003 Act imposes a general obligation on every court passing sentence to have regard to five specific purposes of sentencing, namely:

(e) the making of reparation by offenders to persons affected by their offences.”

131. However, section 142(2)(c) expressly disapplies section 142(1) to sentences imposed under “any of sections 225-228 of the Act (dangerous offenders) ...”, which includes offenders sentenced to an IPP sentence.

132. The 2003 Act was amended by the Criminal Justice and Immigration Act 2008. In particular, IPP sentences are no longer mandatory: amended section 225 now provides that in a case not falling within subsection (2), the court “may impose a sentence of imprisonment for public protection” if the condition in subsection (3A) (“at the time the offence was committed, the offender had been convicted of an offence specified in Schedule 15A”) or subsection (3B) (the tariff which would be set together with time spent on remand is at least two years) is met. Schedule 15A sets out a list of 50 serious offences in England and Wales, Scotland and Northern Ireland.

133. Section 229, regarding the assessment of dangerousness, was also amended by the 2008 Act. It provides that in making the assessment of whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, whether the individual in question has previous conviction or not, the court:

“(a) must take into account all such information as is available to it about the nature and circumstances of the offence,

(aa) may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,

(b) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (aa) forms part, and

135. The Parole Board is responsible for the release of prisoners sentenced to life imprisonment. Under section 28(5) of the Crime (Sentences) Act 1997 (“the 1997 Act”):

(a) a life prisoner to whom this section applies has served the relevant part of his sentence, and

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

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

137. 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.”

138. Section 34(1)(2)(d) of the 1997 Act (as amended by the 2003 Act) clarifies that “life prisoner” includes a person serving an IPP.

139. The Secretary of State’s policy on the management and treatment of life sentence prisoners, including IPP prisoners, is primarily contained in the “Lifer Manual” PSO (Prison Service Order) 4700 (“PSO 4700”).

“4.1.1 A typical male lifer will generally go through the following stages of his life sentence in custody prior to release on licence:

While no two life sentences will be identical, the majority of life sentences will conform to this general pattern. It will be necessary, however, to fast-track short-tariff lifers (see 4.13 below) if they are to have the opportunity to be released on tariff expiry if risk factors permit ...”

“4.3.14 ... Wherever possible, lifers should be allocated to a cell on a landing [sc. in the local prison] where there are other long or medium-term prisoners. In most cases newly sentenced lifers will remain there to await a vacancy in a First Stage lifer prison. Local prisons are an integral part of the lifer system and it is at this stage that Life Sentence planning begins.”

“In local prisons the following sections of the Life Sentence Plan must be completed for every newly sentenced lifer:

“... The intention is that lifers will move on from their local prison to a First Stage prison within approximately six months of the date of their sentence subject of the availability of places. Local prisons should provide lifers with information about the role and location of First Stage prisons.”

“is generally from 18 months upwards, but ... may be reduced for some prisoners especially those with short tariffs or those who are making exceptionally good progress.”

“4.13.1 Short tariff lifers are normally regarded as those who have a tariff of five years or less ...

4.13.2 Lifers with short tariffs are managed differently from lifers with longer tariffs because of the overall objective to release lifers on tariff expiry if risk factors permit. The statutory entitlement to a review by the Parole Board may for a short tariff lifer be triggered relatively shortly after conviction... The essential elements of the policy for short tariff lifers and arrangements for their management through their period in custody are as follows:

They must be prioritised for offending behaviour programmes according to the length of time left till tariff expires. The same principle must apply for all lifers, so that length of time to tariff expiry is taken into account when allocating offending behaviour programme resources. In other words, lifers must be given every opportunity to demonstrate their safety for release at tariff expiry.” (original emphasis).

146. The Secretary of State has also issued directions to the Parole Board pursuant to section 239 of the 2003 Act. Direction 6, issued in 2004, provides, in so far as relevant:

“In assessing the level of risk to life and limb presented by a lifer, the Parole Board shall consider the following information, where relevant and where available, before directing the lifer’s release, recognising that the weight and relevance attached to particular information may vary according to the circumstances of each case:

(d) whether the lifer has made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence;

(h) the lifer’s awareness of the impact of the index offence, particularly in relation to the victim or victim’s family, and the extent of any demonstrable insight into his/her attitudes and behavioural problems and whether he/she has taken steps to reduce risk through the achievement of life sentence plan targets...” (original emphasis)

147. During the passage of the 2003 Act through Parliament, Baroness Scotland, then Minister of State at the Home Office, explained the new provisions:

“The new sentence will ensure that such offenders cannot be released until their risk is considered manageable in the community. It therefore provides for indeterminate custody for that small group of offenders for whom a determinate sentence would not provide a sufficient guarantee of public safety. However, that must be seen in the context of everything that we are trying to achieve in prisons; that is, first, to address the nature of the underlying offending behaviour and, secondly, to try and rehabilitate, if rehabilitation is possible, some of the more serious offenders through training, education and opportunities. I have mentioned that once an offender is in prison, there will be an assessment of the nature of his difficulties and the risks that he poses so that, while he is in prison, we can seek to address those problems.

... I reassure the noble Lord that we intend to make sure that all prisoners benefit from the risk assessment procedure. If we are able to roll it out, and we hope to be able to do so over a period of time, the Prison Service will have the kind of tools necessary to make the assessment which will help to bring about change, but which will also identify those people who may not be as amenable to change as we would like and who therefore continue to pose a risk to members of the public.”

a. Report by the Chief Inspector of Prisons on HMP Doncaster dated November 2005

“The Prison Service has withdrawn the enhanced thinking skills programme for reasons of economy. This meant that there were no programmes for prisoners who are likely to spend a significant part of their sentence at Doncaster. This was particularly important for those who had received the new Indeterminate Sentence for Public Protection (ISPP). For these prisoners, who often have short tariff dates, the absence of any opportunity to address offending behaviour inevitably meant that they risked a longer time in custody.”

149. The Lockyer Review was commissioned by the Secretary of State to assess the seriousness of the problems facing those serving IPP sentences and to make recommendations for improving the situation. At page 22, the report states:

“The current reliance on the lifer management arrangements for dealing with all IPP prisoners has failed. IPPs are stacking in local prisons and are not moving to establishments where their needs can be assessed or better met.”

“1. IPPs are dealt with through the lifer system: they spend time in local prisons until space is found at a first stage life centre; intensive assessment is conducted at the first stage lifer centre; IPPs are then transferred on within the training estate for further interventions.

2. The reliance on a small number of specialised lifer centres creates a bottleneck. This prevents timely access to interventions necessary to reduce risk in some cases. Over 2500 ISPs (of which 1500 are IPPs) are currently being held in local prisons since space in lifer centres is simply unavailable and turnover is slow.”

151. In the case of Lang and others, the Court of Appeal considered the statutory provisions introducing the IPP sentence. On the question of “significant risk” under section 225 of the 2003 Act, Rose LJ noted:

“7. Significant risk must be shown in relation to two matters: first, the commission of further specified, but not necessarily serious, offences; and, secondly, the causing thereby of serious harm to members of the public. If there is a significant risk of both, either a life sentence or indeterminate imprisonment for public protection must be imposed on an adult (section 225(2) and (3)). It must be a life sentence if the offence is one for which the offender is liable to life imprisonment and the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify imprisonment for life (section 225(2)); otherwise it must be imprisonment for public protection (section 225(3)) ... By section 229(3), where an offender aged 18 or over has previously been convicted of a specified offence, the court must assume there is a significant risk under sections 225 and 227 unless this would be unreasonable after taking into account information about the nature and circumstance of each offence, any pattern of behaviour of which any offence forms part and the offender.”

152. He considered that the word “significant” entailed a higher threshold than mere possibility of occurrence. In making the assessment, account had to be taken of the nature and circumstances of the current offence, the offender’s history of offending and whether the offending demonstrated any pattern, social and economic factors in relation to the offender and the offender’s thinking, attitude towards offending and supervision and emotional state.

153. In Johnson and others the Court of Appeal, in the context of a number of appeals against sentence, examined the dangerous offender provisions in section 225 of the 2003 Act. The court observed:

“... Before analysing the relevant provisions, we should emphasise that even a cursory glance at them makes it plain that the sentence is concerned with future risk and public protection. Although punitive in its effect, with far reaching consequences for the offender on whom it is imposed, strictly speaking it does not represent punishment for past offending. As any such assessment of future risk must be based on the information available to the court when sentence is passed, the potential for distraction from the real issue is obvious. Nevertheless, when the information before the court is evaluated, for the purposes of this sentence, the decision is directed not to the past, but to the future, and the future protection of the public.”

a. R (Noorkoiv) v. Secretary of State for the Home Department) [2002] 1 WLR 3284]

154. Mr Noorkoiv had been sentenced to life imprisonment with a
five-year tariff. His tariff expired on 21 April 2001 and his Parole Board hearing was fixed for 21-22 June 2001. This was due, first, to the fact that the Secretary of State routinely referred cases to the Parole Board in batches and, second, to the practice of the Parole Board to make more effective use of its resources by scheduling hearings for prisoners detained at a particular prison at the same time. The claimant complained about the three-month delay in his case being heard by the Parole Board following the expiry of his tariff.

155. Delivering its judgment on 30 May 2002, the Court of Appeal concluded that the Secretary of State’s routine delay at the time in referring cases to the Parole Board breached Article 5 § 4 but not Article 5 § 1.

“54. Discretionary life sentences are imposed for the very reason that the sentencing court cannot be satisfied that the prisoner will no longer be a danger when the tariff part of his sentence ends ... That being their rationale, it seems to me impossible to suggest that at the tariff expiry date there ceases to be ‘a sufficient causal connection between the conviction and the deprivation of liberty’ (Weeks paragraph 42). There is no question of the ‘decision not to release on that date’ being ‘inconsistent with the objectives of the sentencing court’ so as to transform the detention into ‘a deprivation of liberty that was arbitrary’ (Weeks paragraph 49). True, paragraph 49 contemplates that the required causal link might ‘eventually’ be broken. To my mind, however, 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.”

“61. Insofar as the European Convention of Human Rights has a role to play in this appeal, it is Article 5(4) which is relevant and not Article 5(1). 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.”

b. R (Cawser) v. Secretary of State for the Home Department [2004] UKHRR 101

158. In Cawser, the Court of Appeal considered the effect of a failure to provide a sex offenders rehabilitation course to a prisoner convicted of a sexual offence. The claimant argued that the Secretary of State was under a duty (albeit one qualified by any lack of resources) to provide sufficient courses to enable life sentence prisoners who might benefit from them to undertake such a course with a view to a Parole Board review in the light of it at or as soon as possible after their tariff expiry date. But for this, he claimed, the prisoner’s continued detention was disproportionate and arbitrary and thus contrary to Article 5 § 1 (a).

“32. See too my own judgment in Noorkoiv at paragraphs 52-54 where I observed that although the required causal connection between the conviction and the deprivation of liberty might eventually come to be broken so as to give rise to a breach of Article 5(1), that would be so only very exceptionally and ‘mere delay in Article 5(4) proceedings, even after the tariff expiry date, would not in my judgment break the causal link.’ 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.”

160. Laws LJ agreed that there was no violation of Article 5 § 1 in the circumstances of the case:

“44. But here Article 5(1)(a) imposes no duty on the Secretary of State as such; no other provision of the Convention is engaged; all one has – whether by reference to domestic principle or the Strasbourg jurisprudence – is 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 failure to meet the condition, ought no longer to be regarded as justified by the original sentence of the criminal court. Such a residual possibility cannot in my judgment arise by reference to any judicial perception that scarce resources in the hands of the administration might have been better deployed by the Secretary of State; far less by any such perception that greater resources ought to have been made available. Such approaches confine the functions of the democratic arms of government without that being justified (as sometimes it is indeed justified) either by the principles of the common law or our duty to safeguard the Convention rights.”

161. Arden LJ, however, considered that there could be circumstances in which a breach of Article 5 § 1 could arise, but found that such circumstances were not present in the claimant’s case:

“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 arguable 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. In that event there would be a breach of article 5(1)(a) even if the original sentence had not expired. In an extreme case there would also be a violation of article 3 if the delay was prolonged and the effect of the delay was to cause mental distress to the prisoner of the severity required by this article. These are, however, very extreme situations which I would not expect to occur in practice.”

162. The United Nations Report on Life Imprisonment 1994 notes, at paragraph 38:

“Specific treatment programmes thus serve a dual function: they offer the prisoner an opportunity for self-examination, whereby he or she can confront previous or present problems and they provide the prison staff with a better opportunity to understand particular behavioural patterns.”

“In the absence of structured treatment programmes, long term prisoners are left on their own to find the means with which to cope with their sentences. This has detrimental effects, not only for the prisoner but also for the prison authorities in that a situation of ‘them’ and ‘us’ often develops ...”

“International instruments on imprisonment and human rights suggest that the deprivation of liberty may only be justified if accompanied by review and assessment procedures that operate within commonly accepted judicial standards. Indeterminate life sentencing cannot be allowed to open the door for arbitrary detention. Fair, unprejudiced assessment programmes offer possible checks against this.”

Mr James complains under Article 5 § 1 that his detention following the expiry of his tariff was unlawful. Under Article 5 § 4, he complains that there was no meaningful review of the legality of his detention for the nine months he was detained post-tariff as a result of the failure to operate a system properly to assess the risk. He seeks compensation for the post-tariff detention pursuant to Article 5 § 5.

Mr Wells and Mr Lee complain under Article 5 § 1 that their detention following the expiry of their tariff was unlawful. Under Article 5 § 4, they complain that there was no meaningful review of the legality of their detention post-tariff as a result of the failure to operate a system properly to assess the risk. Finally, they complain under Article 13 that even if they had succeeded in their challenge to their detention, they would not have been able to secure release because of the provisions of primary legislation.

(a) the unappealed finding of the High Court that Mr Wells’ rights under Article 5 § 4 had been violated?

(b) the concession of the Secretary of State in the proceedings involving Mr Lee that his rights under Article 5 § 4 had been violated?

(c) the fact that Mr James was released at his first full Parole Board review in March 2008, despite not having undertaken the recommended courses.

(a) what was the effect of the failure of the Secretary of State to ensure availability of recommended courses?

(b) did Mr Wells and Mr Lee enjoy a review of their detention by a body which had power to order their release if it concluded that the detention was incompatible with Article 5 § 1?

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You are here: BAILII >> Databases >> European Court of Human Rights >> Brett JAMES, Nicholas WELLS and Jeffrey LEE v the United Kingdom - 25119/09 [2010] ECHR 2219 (20 December 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/2219.html Cite as: [2010] ECHR 2219

European Court of Human Rights