R (James and Others) v Secretary of State for Justice ; R (Walker) v Secretary of State for Justice; R (Wells) v Parole Board

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date20 August 2007
Neutral Citation[2007] EWHC 2027 (Admin)
Docket NumberCO/4143/2007
Date20 August 2007

[2007] EWHC 2027 (Admin)





Mr Justice Collins


The Queen on the Application of Brett James
Secretary of State for Justice

Mr P Weatherby (instructed by Messrs Switalski's Solicitors) appeared on behalf of the Claimant

Mr P Patel (instructed by the Treasury Solicitor) appeared on behalf of the Defendant


This claim for judicial review is before me as a rolled-up hearing, that is to say to decide whether permission be granted and, if permission is granted, to deal with the substantive claim immediately. I should say that I propose to grant permission. Indeed, it is plain, for reasons that will become apparent, that the claim is, as the law now stands, clearly arguable but the question is what I should then do. Mr Patel on behalf of the Secretary of State submits that the appropriate course would be to stay consideration of the substantive claim pending the decision of the Court of Appeal in a case called Walker v Secretary of State for Justice, which covers some but not all the same ground as is raised in this case. Mr Weatherby, on behalf of the claimant, submits that the appropriate course would be for me to grant relief in the form of a mandatory order that the claimant be released from detention but accepts that, pending the Court of Appeal decision in Walker, it would be right for me to stay that order and wait to see what the Court of Appeal decides.


The circumstances are that the claimant is a prisoner who is subject to a sentence of Imprisonment for Public Protection (IPP). That was imposed for an offence of causing grievous bodily harm with intent. He has a poor record, including a number of offences of violence, and it appears that his problem is largely drink: he drinks too much and he then becomes violent, and that has led to a number of appearances before the court. In those circumstances, the judge before whom he appeared was persuaded that he should be sentenced to IPP because he was clearly dangerous, particularly when he drank. But it was a case in which the tariff imposed was a relatively short one; in fact it was a period of one year and 295 days. That 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.


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.


The point as to the lawfulness of the failure of the prison service to provide the necessary courses came before the Divisional Court last term and the court, consisting of Laws LJ and Mitting J, handed down its judgment on 31st July. It was bound by a decision of the Court of Appeal in R (Cawser) v Secretary of State for the Home Department [2004] UKHRR 101. That was a case in which the argument was that the failure to provide the necessary resources was a breach of Article 5 of the European Convention on Human Rights. The Court of Appeal by a majority, consisting of Simon Brown and Laws LLJ, decided that it was not. But in Cawser it was noted that counsel for the Secretary of State, Mr Rabinder Singh QC, had conceded or accepted 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 a course, but that, it was argued, was solely a public law duty to act rationally to which the Secretary of State was subject and detention could not become unlawful under Article 5(1) even were there no provision made for such courses. That then was the issue in Cawser and that was the decision that was reached. Of course, Cawser predated the IPP sentence.


The court, Laws LJ giving the only reasoned judgment, based the decision that the Secretary of State had acted unlawfully upon domestic law, not upon the Convention. Indeed, what effectively the court decided was that the failure to provide the necessary courses was to fail to follow what Parliament clearly intended in the legislation and that failure was a breach of the common law. What the court said in this context appears towards the end of the judgment, starting in paragraph 44. Laws LJ said this:

"The correct outcome of these proceedings does not in my judgment depend on an evaluation of the Secretary of State's actions in seeking to ameliorate the present position of short tariff lifers, nor in any appreciation of the cost of complying versus the cost of not complying with the PSO 4700 policy. It lies in deeper considerations. It requires, first, an understanding of the difference in nature between the two elements of an indeterminate sentence. This may be thought to be obvious enough; and superficially, it is. 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. (Deterrence is also, of course, a preventive notion: and having nothing to do with distributive or proportionate justice, it makes an odd bedfellow for retribution. But that is thin ice where we do not have to step.)

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."

He then went on to make the point that dangerousness had to be judged by the sentencing judge at the date that he imposed the sentence and that did not mean, and could not mean, that by the time he had served his tariff the prisoner was necessarily still to be regarded as dangerous. Indeed, the whole purpose of the legislation presupposed, as the court indicated, that there would be provided the necessary facilities in prison to enable an individual to undertake such courses as would have the effect of preventing him from continuing to be dangerous. The idea would be to eliminate, or at least to reduce to an acceptable level, the risk to the public resulting from that individual. To incarcerate him and to do nothing because the resources were not...

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