R (James, Lee and Wells) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judgment Date | 06 May 2009 |
| Date | 06 May 2009 |
| Court | House of Lords |
House of Lords
Lords Hope, Carswell, Brown, Mance and Judge
P Weatherby and M Plimmer (instructed by Switalskis) for James; T Owen QC and N Armstrong (instructed by Stephensons LLP) for Lee and (instructed by Russell &Russell) for Wells; N Lieven QC and S Kovats (instructed by the Treasury Solicitor) for the Secretary of State; P Saini QC and D Squires (instructed by the Treasury Solicitor) for the Parole Board as Intervenor.
Whether a failure to provide offending behaviour work to prisoners detained for public protection meant that detention was unlawful at common law or under Art 5(1) ECHR; the role of Art 5(4) and whether it was breached.
Mr James (J) was sentenced to Imprisonment for Public Protection (IPP) under s225 Criminal Justice Act 2003; the tariff was set at 1 year and 295 days and expired in July 2007. He was detained at HMP Doncaster, and had had access only to brief courses on alcohol misuse and anger management, and reports for the review of his case by the Parole Board did not recommend his release in light of the absence of offending behaviour work. The judge ([2008] Prison Law Reports 60) held that the failure to provide courses for IPP prisoners was unlawful, frustrated the purpose of Parliament and disabled the prisoner from being able to show that he was no longer dangerous, and so the detention of the prisoner at the end of the tariff period was unlawful and could not be upheld by a court: accordingly, the J's release was ordered, though stayed pending an appeal to the Court of Appeal. On appeal the case was linked with a case involving a Mr Walker, who was in a similar situation, in relation to whom the High Court had declared ([2008] Prison Law Reports 49) that the Secretary of State had acted unlawfully by failing to provide for measures to allow and encourage IPP prisoners to demonstrate to the Parole Board by the expiry of their tariffs that it was no longer necessary for the protection of the public for them to be confined.
The Court of Appeal upheld the declaration granted in Mr Walker's case, but overturned the order to release J: it held that, given that the primary object of the IPP sentence was to detain dangerous offenders, that the completion of offending-behaviour courses was likely to be a prerequisite to persuading the Parole Board as to release, and so the failure to provide such courses breached a public law duty because its direct and natural consequence was the avoidable detention of prisoners who might have been released; but that detention remained lawful if public protection so required, and there would be no breach of Art 5(1)(a) ECHR unless there was so long a delay between meaningful reviews of detention that it became disproportionate or arbitrary. The Court of Appeal also commented that Art 5(4) meant that the prisoner had to have a meaningful chance to reduce risk and so demonstrate that release should follow, and that an empty exercise of reviewing detention when there had been no change because of the absence of offending-behaviour work was likely to breach Art 5(4). J was released by the Parole Board in March 2008.
Messrs Lee (L) and Wells (W) were also sentenced to IPP, and had not undertaken any courses by the time their short tariffs expired in February and September 2006 respectively. The judge found that Art 5(1) would not be breached so long as the Board was able to assess whether the risk posed justified detention, or a court on judicial review proceedings could assess whether there remained a link with the original basis for detention, and was not breached on the facts; but that the failure to provide courses breached Art 5(4) in W's case; it was conceded that Art 5(4) was breached in L's case. Neither had been released by the Board, but both had been transferred to prisons where they had access to courses.
On appeal to the House of Lords, the Secretary of State conceding that there had been a breach of the public law duty to provide treatment courses, the issues arising were whether the post-tariff detention of the appellants breached the common law, or Arts 5(1) and/or 5(4) ECHR, and the appropriate relief. The Secretary of State contended that the absence of offending-behaviour courses could not render the detention unlawful at common law or under Art 5(1); the claimants contended that there was a breach of Art 5(1) and J contended that there was also unlawfulness at common law. In relation to Art 5(4),
the Secretary of State conceded that it would be breached if the failure to provide course work meant that it was not possible for the Board to assess risk (such that the prisoner would inevitably remain in detention because of the lack of evidence of a reduction in risk); but the Board submitted that there would be no breach of Art 5(4) if it was possible to reach a conclusion that the level of risk required detention.
Lord Hope of Craighead:
1. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Brown 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 3 appeals.
2. 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 Arts 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
3. 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 s225 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 (Wells and Walker) v Secretary of State for JusticePLR
[2008] Prison Law Reports 49. Its decision was affirmed on 1 February 2008 by the Court of Appeal (Lord Phillips, Dyson and Toulson LJJ): R (Walker and James) v Secretary of State for Justice (Parole Board intervening)PLR[2008] Prison Law Reports 63, [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 ss224 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.
4. 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 s28(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.
5. 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 CawleyELR[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 Ch II of Part II of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences: Criminal Justice Act 2003, s225(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.
6. For this reason I cannot agree with Laws LJ's finding in...
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