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
CourtHouse of Lords
Judgment Date06 May 2009
Neutral Citation[2009] UKHL 22,[2009] UKHRR 809

[2009] UKHL 22


Appellate Committee

Lord Hope of Craighead

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Mance

Lord Judge

Secretary of State for Justice
James (FC)
(Appellant) (formerly Walker and another)
R (on the application of Lee) (FC)
Secretary of State for Justice

and one other action

Appellant (James):

Pete Weatherby

Melanie Plimmer

(Instructed by Switalskis)

Appellant: (Lee):

Tim Owen QC

Nick Armstrong

(Instructed by Stephensons LLP)

Appellant (Wells):

Tim Owen QC

Nick Armstrong

(Instructed by Russell & Russell)


Nathalie Lieven QC

Steven Kovats

(Instructed by Treasury Solicitors)

Interveners (Parole Board):

Pushpinder Saini QC

Dan Squires

(Instructed by Treasury Solicitors)


My Lords,


I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Brown of Eaton-under-Heywood and Lord Judge, the Lord Chief Justice. I gratefully adopt their admirable description of the legislative and factual background. For the reasons they give, with which I agree, I would dismiss all three appeals.


It may helpful if, by way of an introduction to the issues that they examine in much greater detail, I were to provide a sketch of the landscape within which the arguments that are before the House must be considered and give some brief reasons of my own for the conclusions that I have reached. Submissions were made about the Secretary of State's duties in public law and the appellants' rights under articles 5(1) and 5(4) of the European Convention on Human Rights. The scope for argument differs under each of those heads, and so does the opportunity that each offers for an effective remedy.

The public law duty


There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection ("IPPs") by section 225 of the Criminal Justice Act 2003. He failed to provide the systems and resources that prisoners serving those 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. The Divisional Court (Laws LJ and Mitting J) granted a declaration to that effect on 31 July 2007: R (Walker) v Secretary of State for Justice [2007] EWHC 1835 (Admin); [2008] 1 All ER 138. Its decision was affirmed on 1 February 2008 by the Court of Appeal (Lord Phillips of Worth Matravers CJ, Dyson and Toulson LJJ): R (Walker) v Secretary of State for Justice (Parole Board intervening) [2008] EWCA Civ 30; [2008] 1 WLR 1977. The Secretary of State has not appealed against that declaration. Very properly, he accepts that it was implicit in the statutory scheme of sections 224 and 225 of the Criminal Justice Act 2003 that he would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released. As Miss Lieven QC for the Secretary of State put it, the scheme was such that it was not rational for him to fail to do so.


Steps have been taken to address the problem and the legislation has now been amended, as my noble and learned friends have explained. So the issue to which these appeals are directed is not performance of the public law duty but the consequences of the breach. What remedies, if any, are available? Mr James is no longer in custody, so the remedy which he seeks is compensation for delay in his being released. Mr Lee and Mr Wells, on the other hand, are still serving their sentences. The Parole Board is not yet satisfied in their cases that it is no longer necessary for the protection of the public that they should be confined: see section 28(6)(b) of the Crime (Sentences) Act 1997. They attribute this to the Secretary of State's failure to make provision for them to be able to demonstrate to the Parole Board that this is no longer necessary. They seek a direction that they should be now released, and they also seek compensation for delay.


It is plain that the remedies which the appellants seek are not available to them at common law. The Secretary of State's breach of his public law duty to have a system in place which provided prisoners with a reasonable opportunity to demonstrate that they are no longer dangerous does not confer on individuals who are affected by this breach a right to damages. Mr Owen QC for Mr Lee and Mr Wells submitted that they were entitled to writs of habeas corpus. But he accepted that he was unable to challenge the legality of the warrant which authorised their continued detention. As Simon Brown LJ said in R v Oldham Justices, Ex p Cawley [1997] QB 1, 13, where there has been a criminal conviction the courts have firmly excluded collateral attack by habeas corpus, holding that the only proper remedy lies by way of appeal. Sentences of imprisonment for public protection are sentences for an indefinite period, subject to the provisions of Chapter II of Part II of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences: Criminal Justice Act 2003, section 225(4). There is no entitlement to release until release has been directed by the Parole Board, and a direction to that effect cannot be given until the Board is satisfied that detention is no longer necessary for the protection of the public. Mandatory orders may be obtained to ensure that the system works properly. But it is not open to the courts to set that system aside by directing release contrary to the provisions of the statute.


For this reason I cannot agree with Laws LJ's finding in the Divisional Court that, to the extent that the prisoner remains incarcerated after tariff expiry without any current and effective assessment of the danger that he does or does not pose to the public, detention is unlawful: [2008] 1 All ER 138, 154f-g. In terms of the statute, his detention is lawful until the Parole Board gives a direction for his release. The default position, as Mr Pushpinder Saini QC put it in his helpful intervention for the Parole Board, is that until the direction is given protection of the public requires that the prisoner should be confined.

Convention rights


That being the position at common law, attention has been directed instead to the appellants' Convention rights. Access to those rights is afforded in domestic law by the Human Rights Act 1998, so it is through the perspective of its provisions that this part of the argument must be addressed. Section 3(1) provides that, so far as it is possible to do so, the legislation must be read and given effect in a way which is compatible with the Convention rights, and section 4(2) provides that if the court is satisfied that a provision is incompatible with a Convention right it may make a declaration of that incompatibility. The appellants have not asked your Lordships to read or give effect to section 225(4) of the 2003 Act and section 28(6) of the 1997 Act in a way that differs from the ordinary meaning of those provisions. Nor in their written cases did they seek a declaration of incompatibility. In the course of his oral argument Mr Owen suggested that a declaration of incompatibility might be appropriate, but he accepted that the problem which had arisen in his clients' cases was due to a failure of administration. He was unable to say that the incompatibility of which he complained was inherent in the legislation itself. That being so, I cannot see that there is any basis in this case for a declaration of incompatibility.


The question then is whether the appellants are able to show that the Secretary of State has acted in a way which was incompatible with their Convention rights. If he has, his act is made unlawful by section 6(1) of the Human Rights Act 1998. This in turn opens up the possibility of obtaining a judicial remedy under section 8, which enables the court to award damages. But regard must also be had to section 6(2)(a) of the 1998 Act, which provides that section 6(1) does not apply to an act if, as a result of one or more provisions of primary legislation, the public authority could not have acted differently. The effect of that provision is to narrow the scope for argument as to the respects in which the Secretary of State's conduct was unlawful within the meaning of section 6(1).


Section 28(7) of the 1997 Act provides that a prisoner to whom that section applies may require the Secretary of State to refer his case to the Parole Board at any time after he has served the minimum term ordered by the sentencing judge. It has not been suggested by the appellants that the Secretary of State was in breach of that duty in their cases. The effect of section 28(5), which provides that it is the duty of the Secretary of State to release the prisoner on licence when directed to do so by the Parole Board, is that he has no power to release the prisoner until the Parole Board gives him that direction. Notwithstanding the criticisms that may be made of the Secretary of State's failure to provide the means by which the appellants could demonstrate to the Parole Board that their continued detention was no longer necessary, the terms of the legislation are such that it cannot be said that he was acting unlawfully in not releasing them until directed to do so by the Parole Board. The court, for its part, would not be acting unlawfully if it too declined to order their release until the Parole Board was satisfied that it was no longer necessary for the protection of the public that they should be confined. Section 6(2)(a) of the...

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