R (Kaiyam) v Secretary of State for Justice

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeMaster of the Rolls,Lord Justice Underhill,Lady Justice Macur
Judgment Date09 December 2013
Neutral Citation[2013] EWCA Civ 1587
Date09 December 2013
Docket NumberCase No: C4/2013/1572 & C1/2013/1147

[2013] EWCA Civ 1587

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION,

ADMINISTRATIVE COURT

MR JUSTICE SUPPERSTONE

CO/10470/2012

C1/2013/1147

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MRS JUSTICE LANG

CO/414/2012

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Master of the Rolls

Lord Justice Underhill

and

Lady Justice Macur

Case No: C4/2013/1572 & C1/2013/1147

C4/2013/1572

Between:
The Queen on the Application of Faisal Kaiyam
Appellant
and
The Secretary of State for Justice
Respondent
The Queen on the Application of Keith Haney
Appellant
and
The Secretary of State for Justice
Respondent

C4/2013/1572

Pete Weatherby QC and Vijay Jagadesham (instructed by Burton Copeland LLP) for the Appellant

Tom Weisselberg and Hanif Mussa (instructed by Treasury Solicitor) for the Respondent

C4/2013/1147

Hugh Southey QC and Jude Bunting (instructed by Michael Purdon Solicitors) for the Appellant

Tom Weisselberg and Hanif Mussa (instructed by Treasury Solicitor) for the Respondent

Master of the Rolls
1

These two appeals concern claims arising from the continued detention of the appellants following the expiry of the "minimum terms" or "tariff periods" of their indeterminate terms of imprisonment. Once a minimum term of imprisonment has been served, the respondent is obliged to refer the case to the Parole Board and he must thereafter continue to do so at regular intervals until the prisoner is released. The Parole Board is required to direct that the prisoner is released once it is satisfied that it is no longer necessary for the protection of the public that he or she should remain in detention.

2

Mr Haney is currently serving an automatic life sentence, which was imposed on 13 November 2003 following his conviction for robbery. His minimum term of three years expired on 13 November 2012. He claims damages and a declaration that the respondent has violated his rights under articles 5(1) and 14 of the European Convention on Human Rights ("the Convention") as a result of the delay in his transfer to open prison conditions (such transfer being a condition for his being realistically considered suitable for release by the Parole Board). He makes two complaints. First, he says that his continuing detention has been arbitrary and in breach of article 5(1). Secondly, he says that his detention has been in breach of article 14 in conjunction with article 5 in that he has been treated less favourably than a comparable "post-tariff" prisoner solely on the basis of his status as a "pre-tariff" ISP.

3

Mr Kaiyam was sentenced to imprisonment for public protection on 30 July 2006 for a minimum term of 2 years and 257 days. That sentence was imposed for a number of offences including robbery. His minimum term expired on 3 April 2009. He complains of the respondent's delay in providing him with a suitable course which would afford him a reasonable opportunity to reduce the risk of his reoffending and thereby persuade the Parole Board to direct his release. He claims that the resultant prolonged period of his detention gives rise to a breach of article 5(1) of the Convention in respect of which he claims damages and a declaration. He also claims that the delay in providing a suitable course constitutes a breach of a public law duty at common law in respect of which he claims declaratory relief (but not damages).

4

All these claims were rejected in the courts below. Both Lang J (in the case of Mr Haney) and Supperstone J (in the case of Mr Kaiyam) held that the decision of the House of Lords in R (James and others) v Secretary of State for Justice [2009] UKHL 22, [2010] 1 AC 553 obliged them to dismiss the claims for breach of article 5 of the Convention, notwithstanding that the ECtHR subsequently held in its decision reported at (2013) 56 EHRR 12 that the House of Lords decision was wrong. Lang J also held that the decision of the House of Lords in R (Clift and others) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484 obliged her to dismiss the claim for breach of article 14 (taken with article 5), notwithstanding that the ECtHR subsequently held in its decision in Application No 7205/07 (unreported, 13 July 2010) that this House of Lords decision was wrong too.

5

It is common ground that, in the light of Kay and others v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465 paras 40 to 45, both judges were right to regard themselves as bound to follow the House of Lords decisions: It is not argued that this is an exceptional case which would justify departing from the general domestic rules of precedent. It is also clear that, although we are obliged to follow the House of Lords decisions, we can (but are not obliged to) review the Convention arguments and express our views on them.

The issues

6

Since it is accepted that we have no choice but to dismiss the Convention claims in both appeals, the issues before this court in relation to the Convention issues are narrow. They are (i) whether we should grant permission to appeal to the Supreme Court; and (ii) whether we should review the arguments and express our views about them. The additional issue arising in the case of Kaiyam is whether Supperstone J was right to dismiss his common law claim.

The Convention claims

Permission to appeal

7

The appellants say that we should grant permission to appeal. The respondent says that we should not do so.

8

In relation to the article 5(1) issue, Mr Weisselberg submits that (i) James is distinguishable from the case of Mr Haney (in particular because Mr Haney's case does not concern a failure to provide a prisoner with a course); and (ii) the ECtHR decision in James should not be followed inter alia because (a) the House of Lords reached the unanimous, emphatic and unqualified conclusion that the applicants' rights under article 5(1)(a) had not been violated; (b) the ECtHR decision was based on a misunderstanding of domestic law; and (c) the decision was otherwise "unclear and unsound": see Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 per Lord Bingham at para 18.

9

As regards article 14, the case advanced on behalf of Mr Haney is that, as a pre-tariff prisoner, he received different treatment from that accorded to post-tariff prisoners and this difference was on the grounds of "other status" within the meaning of article 14. In Clift, the House of Lords held that the classification of a prisoner as serving "a determinate sentence of 15 years or more (but less than life) was not a form of status protected by article 14 because article 14 was only intended to protect personal characteristics". The ECtHR disagreed. It is submitted on behalf of the respondent that permission to appeal should not be granted in relation to the article 14 issue since Mr Haney's claim should be dismissed in any event because (i) as regards the possibility of transfer to open conditions in order to assist in demonstrating safety for release, pre-tariff prisoners were not in a truly analogous situation to post-tariff prisoners; and (ii) any difference in treatment as between pre-tariff prisoners and post-tariff prisoners was objectively justified.

10

In relation to article 5(1), I accept that it is arguable that there are material factual differences between the case of Mr Haney and the James cases. But I am not persuaded that this means that the cases of Mr Haney (and certainly that of Mr Kaiyam) are unsuitable vehicles for the Supreme Court to resolve the conflict between our domestic jurisprudence and that of the ECtHR. I accept that a better case might turn up at some time in the future. But enquiries have been made and these have not indicated that any other case (let alone a better one) is in the pipeline. This important area of the law is currently in an unsatisfactory state. The problem can only be resolved by the Supreme Court. In my view, the sooner this is done the better. I see no point in putting the parties to the additional expense and delay that would be entailed in their having to seek permission to appeal from the Supreme Court itself.

11

It would make little sense to refuse permission to appeal in relation to the article 14 point, but grant it in relation to the article 5 point. In any event, in my view the Supreme Court should resolve the conflict between the domestic jurisprudence and that of the ECtHR here too. The facts of Mr Haney's case may not be ideal for this purpose, but I believe that they are good enough.

Should we review the arguments and express our views?

12

I recognise that there are some cases where it may be desirable for the Court of Appeal to consider the issues in detail, even where (i) binding authority requires it to decide the appeal in a certain way and (ii) it gives permission to appeal to the Supreme Court. A detailed analysis of the arguments may be of assistance to the Supreme Court, although the Court of Appeal is no better placed than the Supreme Court to address the issues. But I see little purpose in doing so in the particular circumstances of these appeals. The issue of whether the Supreme Court should follow either or both of the Strasbourg decisions in preference to its own (relatively recent) decisions is one pre-eminently for it to determine. Our courts are required by section 2(1) of the Human Rights Act 1998 to do no more than "take into account" the relevant Strasbourg jurisprudence. In these circumstances, whether the Supreme Court decides to follow Strasbourg raises policy...

To continue reading

Request your trial
17 cases
  • Philip Fletcher and Others v Governor of HMP Whatton and Another
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 3 November 2014
    ...recognise the breach and the Claimants had, by the time of the judgment, been provided access to the courses. 12 In R (Kaiyam and Haney) v Secretary of State for Justice [2013] EWCA Civ 1587; [2014] 1 WLR 1208, a decision of the Court of Appeal dated 9 December 2013, it was common ground t......
  • Morgan v Secretary of State for Justice
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 26 January 2016
    ...prisoner with a reasonable opportunity to enable him to make progress. This duty recently was emphasised and defined in R (Kaiyam) v Secretary of State for Justice [2015] AC 1344: see paragraphs 36, 41 and 42 of the judgment of Lord Mance and Lord Hughes. It is argued further that Strasbour......
  • R Brian Dilks v The Secretary of State for Justice The National Probation Service (Interested Party)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 15 January 2015
    ...that they should remain in detention". 11 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"); altho......
  • R Anwar Hussain v The Parole Board of England and Wales
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 24 February 2016
    ...prompt Board hearings at or post-tariff. The jurisprudence was comprehensively considered by the Court of Appeal in R (Kaiyam and Haney) v Secretary of State for Justice [2013] EWCA Civ 1587 (in which the common law duties were considered by Lord Dyson MR, giving the only substantive judgme......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT