R (on the application of Walker) v Secretary of State for Justice; R (on the application of James) v Secretary of State for Justice [2008] EWCA Civ 30, [2008] All ER (D) 15 (Feb)
Court of Appeal, Civil Division
Lord Phillips CJ, Dyson and Toulson
LJJ
1 February 2008
The failure of the secretary of state to implement his policy to provide courses and training to prisoners, within a time frame that gives prisoners serving indeterminate sentences for public protection (IPPs) a chance to demonstrate that they are safe for release by the time that they have completed their tariff period, or reasonably soon thereafter, is in breach of the rights of those prisoners. However, detention of IPP prisoners who have completed their tariff terms is not unlawful of itself.
Robert Jay QC and Steven Kovats (instructed by the Treasury Solicitor) for the secretary of state.
Rabinder Singh QC and Dan Squires (instructed by the Treasury Solicitor) for the Parole Board.
Tim Owen QC and Hugh Southey (instructed by Irwin Mitchell) for W.
Pete Weatherby and Melanie Plimmer (instructed by Switalskis) for J.
Three linked cases before the court raised issues concerning the Parole Board. The first question concerned whether or not the secretary of state had acted unlawfully by failing to provide measures to allow and encourage IPP prisoners to demonstrate to the board, by the time of the expiration of their minimum terms, that it was no longer necessary for the protection of the public that they continue to be detained.
Two of the cases concerned prisoners who were referred to as “short tariff lifers”, on the ground that they had received their IPPs with minimum terms of no more than five years’ detention. The lower courts held that the secretary of state had acted unlawfully by failing to provide such measures. The second question was whether or not, if the secretary of state had acted unlawfully in that manner, it followed that the detention of an IPP prisoner after the expiration of the minimum term was unlawful.
The Divisional Court had referred to the Crime (Sentences) Act 1997 (C(S)A 1997) and the Criminal Justice Act 2003 (CJA 2003). It was also contended that the conduct of the secretary of state had infringed certain of the claimants’ rights under Art 5(1) or 5(4) (right to liberty and security of person) of the European Convention on Human Rights (the Convention). It was submitted that the failure to enable a claimant to undertake meaningful offending behaviour work or other preparation for an application to the Parole Board violated Art 5(1)(a), because it affected his prospects of release in due course.
LORD PHILLIPS (GIVING THE JUDGMENT OF THE COURT):
The primary object of the IPP was to detain in prison serious offenders who posed a significant risk to members of the public of causing serious harm by further serious offences until they no longer posed such a risk. The secretary of state submitted that he was not under any relevant duty to provide any treatment or training in prison. While he provided a number of courses for and assessments of prisoners there was no basis for saying that there was an underlying premise that he would provide IPP prisoners with the maximum opportunity to demonstrate to the Parole Board that it was no longer necessary to confine them for the protection of the public.
His lordship found those submissions lacking in realism. Courses were provided because experience showed they were usually necessary if dangerous offenders were to cease to be dangerous. It was for that reason that attending the appropriate courses was likely to be a prerequisite for a prisoner satisfying the board that he had ceased to be dangerous.
The reality was that the possibility for dangerous prisoners both to cease to be dangerous and to show that they had ceased to be dangerous, lay largely in the hands of the secretary of state. It had been his policy to provide the necessary courses and to do so within a timescale that gave lifers a chance to demonstrate that they were safe for release by the time that they completed their tariff periods, or reasonably soon thereafter.
Public law duty
The failure of the secretary of state to give effect to that policy could not simply be regarded as a discretionary choice about resources, which was pre-eminently a matter for the government rather than the courts.
His conduct had been in breach of his public law duty because its direct and natural consequence was to make it likely that a proportion of IPP prisoners would, 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 Art 5 of which Parliament had to have been mindful). His lordship turned to the question of whether or not the imprisonment of IPP prisoners who had served their tariff terms was unlawful. CJA 2003 made express statutory provision for the circumstances in which IPP prisoners might be released. The Divisional Court’s judgment would require them to be released in disregard of the express requirements of CJA 2003.
There was no answer to that point. Section 225 of CJA 2003 made the release of IPP prisoners subject to the provisions of C(S)A 1997. Central to that was the requirement that the Parole Board was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined. It was not possible to describe a prisoner who remained detained in accordance with those provisions as “unlawfully detained” under common law. The common law had to give way to the express requirements of the statute.
Accordingly, the finding of the lower courts that IPP prisoners who had completed their tariff terms were unlawfully detained was erroneous. His lordship added per curiam that detention of the prisoners would cease to be justified under Art 5(1)(a) of the Convention when it was no longer necessary for the protection of the public that they should be confined or if so long had elapsed without a meaningful review of that question that their detention had become disproportionate or arbitrary.
Failure to comply with the obligations of Art 5(4) would not, of itself, result in infringement of Art 5(1)(a).
