R Brian Dilks v The Secretary of State for Justice The National Probation Service (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 15 January 2015 |
| Neutral Citation | [2015] EWHC 11 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 January 2015 |
| Docket Number | Case No: CO/1121/2014 |
[2015] EWHC 11 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET
Mr Justice Hickinbottom
Case No: CO/1121/2014
and
Philip Rule (instructed by de Maids Solicitors and Advocates) for the Claimant
Simon Pritchard (instructed by the Treasury Solicitor) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 12 November and 17 December 2014
Introduction
The Claimant is a serving life prisoner, who completed the minimum custodial term or tariff of his sentence in 2010. However, he has still not yet been released.
In this claim, he contends he was not provided reasonably promptly with a place in open conditions and subsequently a place on temporary licence overnight in premises approved under section 13 of the Offender Management Act 2007 ("Approved Premises", or "APs"), because, in breach of his domestic law duties and obligations under the European Convention on Human Rights ("ECHR"), the Secretary of State failed to make reasonable provision for systems and resources to enable life and other indeterminate sentence prisoners ("ISPs") such as they require to demonstrate that they no longer present an unacceptable risk to the public. Although the Claimant has by now been afforded both facilities, the delay in providing him with these places has (he says) caused a knock-on effect, so that his ultimate release date has also been delayed.
Before me Philip Rule appeared for the Claimant, and Simon Pritchard for the Secretary of State. At the outset, I thank them for their comprehensive and helpful submissions.
The Legal Background
An individual sentenced to life imprisonment will not necessarily or usually spend the rest of his natural life in prison. Such a sentence has two elements. First, there is a minimum period spent in custody, determined by the court on the basis of the nature and gravity of the offence committed and the individual's own circumstances. Second, there is an indefinite period beyond that minimum during which the prisoner may be released on licence, but only when he is assessed as no longer presenting an unacceptable risk to the public. That assessment is made by the Parole Board. By section 28(5) of the Crime (Sentences) Act 1997, the Secretary of State is required to release a prisoner if he has served the minimum term and the Parole Board has directed his release. However, by section 28(6), the Parole Board shall not direct release unless "the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined". In other words, post-tariff, the prisoner will be the subject of preventative detention unless and until he can persuade the Parole Board that his risk to the public has been reduced to an acceptable level.
To satisfy the Board as to reduction of risk, a prisoner needs an evidential foundation. In practice, this is likely to include evidence of attendance at and successful completion of courses designed to address his violent and/or sexual offending behaviour; and evidence that he has had his progress and eventually readiness for permanent release into the community (subject to the conditions of a life licence) tested by phased release from closed to open prison conditions, and then Release on Temporary Licence ("ROTL"). There are various types of ROTL, including resettlement day release ("RDR"), resettlement overnight release ("ROR") and childcare resettlement leave. Successful RDR is usually a precursor and precondition of ROR.
From 2005 (when it was introduced by section 225 of the Criminal Justice Act 2003) to 2012 (when it was abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012), another form of indefinite sentence was available, namely Imprisonment for Public Protection ("IPP"), which had the same, two-part structure as a life sentence, and was also subject to section 28(5) and (6) of the 2003 Act. It was in effect a life sentence, for most intents and purposes. However, it was available for a wider variety of offences, and resulted in a very large and rapid increase in the number of ISPs. By 2008 the number of prisoners serving such sentences had doubled. Given the nature of IPP, and the circumstances in which it would be appropriate, this dramatic rise in the numbers of ISPs was foreseeable and, indeed, inevitable.
The rise in the ISP population resulted in a well-chronicled strain on prison resources, notably in providing prison courses and places in open conditions that were likely to be prerequisites for an individual's release on life licence. As Lord Carswell remarked in R (James, Lee and Wells) v Secretary of State for Justice [2009] UKHL 22 (" James HL") at [23], not only were the difficulties encountered "entirely foreseeable", but:
"Pellion was piled upon Ossa when for some unfathomable reason it was decided that the new [IPP] scheme would be resource-neutral and so sufficient facilities necessary for IPP prisoners to demonstrate their fitness for release were not made available."
Lord Judge CJ similarly emphasised (at [121]) that:
"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."
These difficulties gave rise to delays in ISPs progressing towards release, and a series of judicial reviews in which the focus of complaint was the systemic failure of the Secretary of State to provide sufficient courses and places on the progressive stages towards release. It was contended that that failure was in breach of the common law duty owed to ISPs by the Secretary of State to ensure that they have a fair opportunity to demonstrate that they satisfy the criteria upon which the Parole Board recommends release; and also in breach of his obligations under article 5 of the ECHR. Article 5, so far as relevant, provides:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
…
…
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. 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"
The human rights breach, if proved, was important in practice, as it added to the available potential remedies. For the common law breach, the only available remedies were a mandatory injunction to require the Secretary of State to comply with his public law duty and provide appropriate courses or places to the relevant individuals, if he had still not done so; and a declaration that he had acted unlawfully. The breach of human rights, it was said, entitled any affected prisoner to an order for release from state detention because it had become arbitrary in article 5 terms, and damages, remedies not available at common law.
James HL concerned three prisoners who, several years after the end of the minimum custodial term, were still in local high security prisons without access to recommended rehabilitative courses. In the House of Lords, the Secretary of State did not challenge the proposition that it was implicit in the statutory scheme for IPP in section 225 of the 2003 Act that he would make provision which allowed prisoners a reasonable opportunity to obtain release. At [3] of his judgment, Lord Hope summarised that duty as one "to provide the systems and resources that prisoners serving [indeterminate] 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".
As Lord Dyson MR later indicated (in R (Kaiyam and Haney) v Secretary of State for Justice [2013] EWCA Civ 1587 at [28]), that is the only public law duty to be derived from James (hence its common appellation as "the James public law duty"); although, out of the same or similar circumstances, other common law obligations of the Secretary of State may be engaged, notably:
i) The duty to act rationally in a Wednesbury sense. Where there is a breach of the James public law duty, this duty will usually (if not inevitably) be breached, because it is irrational to have a policy of making release of an ISP dependent upon him undergoing treatment courses, being in open conditions etc, without making reasonable provision for such courses and places ( R (Cawser) v Secretary of State for the Home Department [2004] EWCA Civ 1522 at [19], [30] and [34] per Simon Brown LJ, and R (Weddle) v Secretary of State for Justice [2013] EWHC 2323 (Admin)).
ii) The duty of the Secretary of State to act in accordance with his own policy ( R (Lumba) v Secretary of State for the Home Department [2012] UKSC 12 at [35]). As we shall see, the Secretary of State has a number of policies to ensure ISPs have a reasonable opportunity to progress towards release.
The Claimant in the case before me relies upon breaches of not only the Jam...
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