R (Cawser) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Simon Brown,Lord Justice Laws,Lady Justice Arden
Judgment Date05 November 2003
Neutral Citation[2003] EWCA Civ 1522,[2004] UKHRR 101
Docket NumberCase No: C3/2003/0301
Date05 November 2003

[2003] EWCA Civ 1522



(Mr Justice Mackay)



Lord Justice Simon Brown

Lord Justice Laws And

Lady Justice Arden

Case No: C3/2003/0301

The Queen (on the application of Cawser)
Secretary Of State For The Home Department

Tim Owen Esq, QC & Kris Gledhill Esq (instructed by Bhatt Murphy & Co) for the Appellant

Rabinder Singh Esq, QC & Sam Grodzinski Esq (instructed by The Treasury Solicitor) for the Respondent

Lord Justice Simon Brown

For many years now the Prison Service has been providing treatment courses for sex offenders, the Sex Offender Treatment Programme ("SOTP") since 1992 and the Extended Sex Offender Treatment Programme ("ESOTP") since 1997. Only very exceptionally will a life sentence prisoner convicted of sex offences be able to secure his release without have successfully attended one or both of these courses. There are not, however, enough of them. Sometimes prisoners are kept waiting for many months until a course is available. This appellant was such a prisoner. He had to wait 21 months from November 2001, when he was approved as suitable for an ESOTP until August 2003 when a place became available at Shepton Mallet. This delay must inevitably have delayed his likely release date: the tariff part of his sentence had expired in August 200Hence this challenge, advanced both under domestic public law and pursuant to Article 5 of the European Convention on Human Rights ("ECHR").


Permission to apply for judicial review was refused by Mackay J on 10 February 2003. As Mr Owen QC for the appellant recognises, that refusal was inevitable having regard to a number of authorities in point. On 7 April 2003, however, Buxton LJ gave permission to appeal (and directed that the substantive challenge be heard in this court) on the basis that:

"[T]he applicant is entitled to have considered before the Full Court the extent to which, if at all, policy as to the provision of training that is or is potentially related to release decisions, including policy as to resource-allocation is susceptible to judicial scrutiny, more particularly under Article 5."


With that briefest of introductions let me now set out the facts of the case to the limited extent necessary to identify and resolve the issues arising, issues which are acknowledged now to be academic with regard to this appellant (since he is already on a relevant course) but which are said to remain of importance to many others still awaiting treatment courses.


The appellant is a man of 51 with a number of convictions. In December 1978 he was convicted of the rape of a 13 year old girl and sentenced to a 12 year term of imprisonment (reduced on appeal to 9 years). In 1998 his partner separated from him when she found out about this conviction. When later they met to discuss the separation there was an argument after which the appellant drove her into the countryside and raped her in his car. He had been drinking.


On 17 February 1999 the appellant was found guilty of rape and was subsequently sentenced to life imprisonment under the automatic sentence provisions contained in s2 of the Crime (Sentences) Act 1997 (now s109 of the Power of Criminal Courts (Sentencing) Act 2000). The tariff was set at 2 1/2 years (presumably on the basis that a determinate sentence for the offence would have been five years) which, as stated, expired in August 2001.


Release is a matter for the Parole Board pursuant to s28 of the Crime (Sentences) Act 1997. The appellant's first Parole Board review was held in September 2001. The Board noted the progress that had been made during the sentence but observed that "serious concerns remain, and further work is yet to be done". The work related to issues of alcohol use, victim empathy and sexual offending. In these circumstances the Board did not direct the appellant's release and recommended that his next review take place the following year.


On 29 November 2001 a Prison Service psychologist reported that the appellant was suitable for an ESOTP and that he wished to undertake this at the earliest opportunity.


On 15 April 2002 the appellant's solicitors wrote to the Lifer Unit noting that he was keen to attend an ESOTP but had been informed that there was no place available until 2003 or possibly 2004.


The appellant's sentence plan recorded on 8 May 2002: "Needs to expedite a move to an establishment that offers the ESOTP".


At the appellant's second Parole Board review held on 11 December 2002 the Board noted the absence of the course work and expressed the hope that it be undertaken as soon as possible.


On 6 January 2003 the respondent Home Secretary set the date for the appellant's next Parole Board review for December 2004 but noted "should you complete the Extended SOTP course before December 2004, then we may be able to bring your review date forward".


As already stated, the appellant was not placed on an ESOTP course until August 2003.


As explained in a statement submitted in these proceedings by Mr Watts, a senior officer of the Prison Service Life Unit, the ESOTP is a therapeutically complex course designed for additional treatment to those higher risk prisoners who have already completed the SOTP ("core programme") but who require further work to reduce risk. Resources required to provide the course are considerable. Generally it consists of 68 two-hour sessions with two to four sessions per week. There are said to be very few individuals with the appropriate skills available to provide the course. In the year ending April 2003 12 ESOTP courses were run in ten prisons. In the present year (ending April 2004) this has been increased to 19 planned courses providing a total of 152 places in eleven prisons. The courses are provided to both life prisoners and determinate sentence prisoners and there are, says Mr Watts, therapeutic advantages in running courses with a mix of both. As to the allocation of places on the courses, Mr Watts states:

"Places on ESOTP courses are allocated based on risk level, sentencing length/PED [Parole Eligibility Date] and motivation, within the context of a mix of determinate sentence prisoners and lifers normally being allocated to each programme (with the exception of Shelton Mallet which is an all lifer prison). Lifers who are considered ready, suitable and willing to undertake this work are prioritised, so far as possible, using their tariff expiry date as the main factor."


The appellant's solicitors queried that statement and asked:

"[I]s priority given to those who are approaching tariff expiry or to those who have served longer than their tariff period, based on the length of time served over tariff? Finally, can you confirm whether lifers are given priority over determinate sentenced prisoners and how priority is determined between those two groups."


The respondent replied:

"Treatment Managers make decisions about individual cases, based on the criteria set out previously. Subject to this, lifers with expired tariffs would take priority over those approaching tariff in the interests of fairness. Lifers will not necessarily have priority over determinate sentence prisoners, particularly if a determinate sentence prisoner is approaching his release date."


As noted at the outset, the appellant's essential complaint is that he had to wait a long time for his place on a treatment course and in the result his likely release date has been substantially delayed. By s28(6)(b) of the Crime (Sentences) Act 1997 the Parole Board is precluded from directing a life prisoner's release unless it is "satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined".


Although Mr Watts suggests that "no accredited programme should be seen as a necessary pre-condition of release", he acknowledges that:

"[T]he advantage of attending an accredited programme is that there is participation in a structure activity tailored to particular risk factors, and which has individual assessment and monitoring of change built in to it. It is therefore much easier for an offender to demonstrate he has addressed particular risk factors and that he has achieved a change via an accredited programme."


The appellant's solicitor is hugely experienced in this field and states:

"It has been my experience that prisoners convicted of sexual offences who do not attend the relevant course (SOTP and ESOTP) find it almost impossible to satisfy the test of release on licence. There are a few cases that I am aware of relating to determinate prisoners …. However, I am not personally aware of any lifer convicted of a serious sexual offence who has been able to secure release without attending offending behaviour programmes to address sexual offending".


A life sentence consists of a tariff or punitive period (which only very exceptionally will be life) followed by a preventive period during which the prisoner ought to be released as soon as he can satisfy the Parole Board that he no longer remains a danger. The importance of keeping the preventive period as short as possible was underlined by this court's decision in R (Noorkoiv) -v—Home Secretary [2002] 1 WLR 3284, holding that Article 5(4) of ECHR required the Secretary of State and the Parole Board to put in place a new system for pre-tariff expiry date oral hearings to ensure that, whenever possible, those no longer dangerous can be released on or very shortly after their tariff expiry...

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