R (on the application of Haney) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Hodge,Lord Hughes,Lord Mance,Lord Neuberger,Lord Toulson |
| Judgment Date | 10 December 2014 |
| Neutral Citation | [2014] UKSC 66 |
| Date | 10 December 2014 |
| Court | Supreme Court |
[2014] UKSC 66
Lord Neuberger, President
Lord Mance
Lord Hughes
Lord Toulson
Lord Hodge
Appellant (Haney)
Hugh Southey QC Jude Bunting
(Instructed by Michael Purdon Solicitors)
Respondent
James Eadie QC Hanif Mussa David Lowe
(Instructed by Treasury Solicitors)
Appellant (Kaiyam)
Pete Weatherby QC Vijay Jagadesham
(Instructed by Burton Copeland LLP)
Respondent
James Eadie QC Hanif Mussa David Lowe
(Instructed by Treasury Solicitors)
Appellant (Massey)
Hugh Southey QC Philip Rule
(Instructed by Swain & Co Solicitors LLP)
Respondent
James Eadie QC Hanif Mussa David Lowe
(Instructed by Treasury Solicitors)
Appellant (Robinson)
Hugh Southey QC Philip Rule
(Instructed by EBR Attridge LLP Solicitors)
Respondent
James Eadie QC Hanif Mussa David Lowe
(Instructed by Treasury Solicitors)
Heard on 19, 20 and 21 May 2014
Lord Mance AND (with whom Lord Neuberger, Lord Toulson and Lord Hodge agree)
The present appeals involve claims by prisoners sentenced to indeterminate prison sentences (life or IPP) that they were not sufficiently progressed during their sentences towards release on or after the expiry of their tariff periods. The principal issue is what the Supreme Court should now hold the law of the United Kingdom to be, taking account of the judgment of the European Court of Human Rights ("ECtHR") in James, Lee and Wells v United Kingdom (2012) 56 EHRR 399 (" James v UK") disagreeing with the decision of the House of Lords in R (James, Lee and Wells) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553 (" R (James)"). The House of Lords in R (James) held that no breach of article 5(1) of the European Convention on Human Rights ("ECHR") was involved in a failure properly to progress prisoners towards post-tariff release. The ECtHR in James v UK took a different view. Correctly, the courts below, from which the present appeals lie, held themselves bound by the House of Lords' reasoning and decision. The Supreme Court must now consider whether and how far to modify its jurisprudence.
Since the abolition of capital punishment in 1965, the most severe form of sentence imposed under English law has been a sentence of life imprisonment. A life sentence does not mean imprisonment for the rest of the defendant's natural life; it means a sentence composed of two parts. The first part is a minimum term, fixed by the court according to the gravity of the offence and the circumstances of the offender. The second is an indefinite term beyond that minimum, in which period the prisoner may be released, not unconditionally but on licence, if he is judged no longer to present an unacceptable risk to the public. In modern times the decision on release is committed to the Parole Board, an independent body correctly treated as a court by the ECtHR. Release on licence is required by statute when the Parole Board has directed it, but it may so direct only when satisfied that it is no longer necessary for the protection of the public that the prisoner be confined: sections 28(5) and (6) of the Crime (Sentences) Act 1997.
Such a life sentence may be passed in defined circumstances only:
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(a) It is required by law for those convicted of murder (a "mandatory" life sentence).
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(b) It is available as a discretionary penalty (a "discretionary" life sentence) for a restricted group of offenders convicted of a few of the most serious offences known to the law, for which the maximum sentence available is life imprisonment, where the gravity of the offence warrants a very long sentence and where the risk of grave future harm to the public from the offender cannot reliably be estimated at the time of sentencing ( R v Hodgson (1967) 52 Cr App R 113 and R v Chapman [2000] 1 Cr App R 77).
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(c) Unless its imposition would in the circumstances be unjust it is required in the case of those convicted for a second time of a defined group of very serious violent or sexual offences, where both offences called for determinate terms of ten years or more, or their equivalent: see section 122 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (" LASPO").
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(d) Between 1997 and April 2005 it was required, unless in the circumstances its imposition would be unjust because the offender did not pose a risk to the public of serious harm, in the case of a few offenders convicted for the second time of a restricted group of the most serious violent or sexual offences: section 109 Powers of Criminal Courts (Sentencing) Act 2000, repealed by section 303 of and Schedule 37 to the Criminal Justice Act 2003. This form of life sentence was generally known as an "automatic" life sentence.
In addition to these forms of life sentence, the Criminal Justice Act 2003 created from April 2005, until it was abolished by LASPO, the different form of indeterminate sentence called Imprisonment for Public Protection ("IPP"). As is well known, IPP was available (and for the first three years was in some circumstances mandatory) for a much wider class of offences than was a life sentence. It was, however, structured in a similar manner to a life sentence, formed of a minimum term fixed by the court in accordance with the gravity of the offence and the circumstances of the offender, to be followed by an indefinite period with release on licence only when the prisoner was judged by the Parole Board no longer to present an unacceptable risk to the public of serious harm. The terms of section 28(5) and (6) of the Crime (Sentences) Act 1997, governing release, apply to IPP prisoners as they do to life sentence prisoners.
As is also well known, and chronicled in both R (James) and to a lesser extent in James v UK, the advent of IPP in April 2005 put the prison administration in England and Wales under an entirely new strain. Previously there had been fairly steady numbers of prisoners serving indeterminate periods, namely those serving one or other of the forms of life sentence set out at (a), (b) and (d) above. IPP prisoners were also indeterminate prisoners but their numbers greatly increased the total, which by 2008 was effectively doubled.
The four appellants were convicted of various offences and were sentenced as follows:
Mr Haney's life sentence was passed under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The sentences on Mr Robinson, Mr Massey and Mr Kaiyam were passed under section 225 of the Criminal Justice Act 2003.
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(a) Mr Haney was on 13 th November 2003 ordered to serve an automatic life sentence, with a minimum specified term expiring on 13 th November 2012, the sentence being passed for robbery committed with others while armed with sawn-off shot guns.
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(b) Mr Robinson was on 2 nd October 2006 sentenced to IPP for sexual offences, with a seven-year minimum term (to which time on remand counted as usual) expiring on 10 th December 2012.
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(c) Mr Massey was on 15 th May 2008 sentenced to IPP for sexual offences, with a minimum term of two years six months (again allowing for time on remand) expiring on 11 th September 2010.
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(d) Mr Kaiyam was on 20 th July 2006 sentenced to IPP with a minimum term of two years and 257 days, expiring on 3 rd April 2009.
All these sentences were, when passed, outside the scope of the provisions of section 142(1) of the Criminal Justice Act 2003 requiring a sentencing court to have regard to reform and rehabilitation as an express purpose of sentencing. As from 14 th July 2008, section 142 was amended to require regard to be had to reform and rehabilitation as an express purpose of any life or IPP sentence passed under section 225. In R (James) the House on 6 May 2009 held that, prior to this amendment, the only purposes of section 225 were commensurate punishment and public protection. It accepted however that the premise of section 225 and the context in which it was enacted were that prisoners would be given a fair chance of rehabilitating themselves; and, consistently with this, the Ministry of Justice's National Offender Management Service instruction issued in July 2010 indicated (para 4.1.1) that
"ISP ["indeterminate sentence prisoner"] sentence plans will aim to identify the risks the prisoner must reduce and offer the effective and timely delivery of properly identified interventions, having regard to available resources, so that Parole Board reviews can be meaningful; the release of ISPs is facilitated where it is safe to do so; [and] any period of continued detention beyond tariff is necessary because the risk of harm remains too high for release to be appropriate".
The instruction also recognised (para 4.8.1) that
"In most mandatory lifer cases, a phased release from closed to open prison is necessary in order to test their readiness for release into the community on life licence".
In James v UK the ECtHR took a different view from the House of the purposes of IPP sentences in the context of the ECHR. It regarded "a real opportunity for rehabilitation [as] a necessary element of any part of the detention which is to be justified solely by reference to public protection" and on this basis held that "one of the purposes" of IPP sentences was the rehabilitation of those so sentenced (para 209).
Each of the appellants now complains that his progress towards post-tariff release was hampered by failures relating to his rehabilitation for which the respondent Secretary of State was responsible. In...
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