Challenging the Ongoing Injustice of Imprisonment for Public Protection: James, Wells and Lee v The United Kingdom

AuthorVanessa Bettinson,Gavin Dingwall
DOIhttp://doi.org/10.1111/1468-2230.12041
Publication Date01 Nov 2013
CASES
Challenging the Ongoing Injustice of
Imprisonment for Public Protection:
James, Wells and Lee vThe United Kingdom
Vanessa Bettinson*and Gavin Dingwall**
The Government has recently abolished Imprisonment for Public Protection, a highly contro-
versial form of indeterminate sentence. Yet, at the time of writing, nearly 6,000 inmates are still
serving such sentences, all of whom will have to convince a Parole Board that detention is no
longer necessary for the protection of the public. This paper evaluates recent European Court of
Human Rights jurisprudence which considered the legality of post-tariff detention in the absence
of suitable rehabilitative provision. The Court held that there would be a violation of Article 5(1)
if prisoners were held without access to such provision. Consideration is given to the implications
of this ruling for those serving such sentences and, more broadly, to the impact it may have on
risk-based sentencing policies.
Few sentences have been as widely criticised as Imprisonment for Public
Protection (IPP). Initial concerns centred around the ease with which an
offender could receive this new form of indeterminate sentence and the injustice
and systemic pressure that would ensue. These predictions were quickly realised
and the sentence was amended in 2008 and abolished by the coalition govern-
ment in 2012. However, as the sentence is indeterminate and the subsequent
amendments were not retrospective, thousands of prisoners are still serving IPP
sentences. A significant proportion of the current prison population will not
therefore be released until they can convince the Parole Board that they pose no
danger to the public if at liberty.
This paper considers recent case law from the European Court of Human
Rights (ECtHR) which highlights the difficulty prisoners face in satisfying this
test.1In particular, the case examined whether continued detention based on the
perceived risk that an offender represents to the public can amount to a violation
of Article 5(1) of the European Convention on Human Rights (ECHR), which
states that ‘Everyone has the right to liberty and security of person. No one shall
be deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law’. The court ruled that, whilst IPP sentences were
not unlawful, there would be a violation of Article 5(1) if prisoners were held
without access to appropriate rehabilitative treatment. Despite the finding that
*Lecturer in law at Leicester De Montfort Law School.
**Professor of Criminal Justice Policy at Leicester De Montfort Law School.
1James, Wells and Lee vThe United Kingdom [2012] ECHR 1706.
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© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(6) MLR 1094–1128
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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