COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Laws LJ and Mitting J (C1/2007/1959)
Collins J (C1/2007/2091)
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE DYSON
THE RIGHT HONOURABLE LORD JUSTICE TOULSON
| The Secretary of State for Justice
|- and -
| David Walker
The Secretary of State for Justice
Mr Rabinder Singh QC and Mr Dan Squires (instructed by Treasury Solicitors) for the Parole Board
Mr Tim Owen QC and Mr Hugh Southey (instructed by Messrs Irwin Mitchell) for the Respondent Walker
Mr Pete Weatherby and Ms Melanie Plimmer (instructed by Messrs Switalskis) for the Respondent James
Hearing dates: 20th and 21st November 2007
Crown Copyright ©
Lord Phillips of Worth Matravers CJ
This is the judgment of the Court.
The relevant statutory material
"(1) This section applies where –
(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this Act, and
(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.
["Serious offence" and "specified offence" are defined in section 224.]
(2) If –
(a) the offence is one for which the offender would apart from this section be liable to imprisonment for life, and
(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,
the court must impose a sentence of imprisonment for life.
(3) In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection.
(4) A sentence of imprisonment for public protection is a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences..."
"As soon as –
(a) a life prisoner to whom this section applies has served the relevant part of his sentence, and
(b) the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence."
"The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless –
(a) the Secretary of State has referred the prisoner's case to the Board:
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
Section 28(7) of the 1997 Act provides:
"A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time –
(a) after he has served the relevant part of his sentence…"
"The court shall… order that the provisions of s.28(5) to (8) of [the 1997 Act] … shall apply to the offender as soon as he has served the part of his sentence which is specified in the order."
Section 82A(3) of the 2000 Act provides:
"The part of his sentence shall be such as the court considers appropriate taking into account –
(a) the seriousness of the offence, or the combination of the offence and one or more offences associated with it… "
(3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider -
(a) any documents given to it by the Secretary of State, and
(b) any other oral or written information obtained by it...
(5) Without prejudice to subsections (3) and (4), the Secretary of may make rules with respect to the proceedings of the Board…
(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act; and in giving any such directions the Secretary of State must have regard to -
(a) the need to protect the public from serious harm from offenders, and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."
"Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing –
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public,
(e) the making of reparation by offenders to persons affected by their offences."
Section 142(2), however, provides that subsection (1) does not apply to an offence the sentence for which falls to be imposed under any of sections 225 to 228 of the 2003 Act.
"In assessing the level of risk to life and limb presented by a lifer, the Parole Board shall consider the following information, where relevant and where available, before directing the lifer's release, recognising that the weight and relevance attached to particular information may vary according to the circumstances of each case:
(d) whether the lifer has made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence;
(h) the lifer's awareness of the impact of the index offence, particularly in relation to the victim or victim's family, and the extent of any demonstrable insight into his /her attitudes and behavioural problems and whether he/she has taken steps to reduce risk through the achievement of life sentence plan targets..." (original emphasis)"
Article 5 of the ECHR
Article 5 provides so far as material:
"(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law –
(a) the lawful detention of a person after conviction by a competent court…
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful."
The Secretary of State's Policy
"4.1.1 A typical male lifer will generally go through the following stages of his life sentence in custody prior to release on licence:
Remand Centre/Local prison
First Stage – High Security/Category B
Second Stage – High Security/Category B/Category C
Third Stage – Category D/Open/Semi-open/Resettlement.
While no two life sentences will be identical, the majority of life sentences will conform to this general pattern. It will be necessary, however, to fast-track short-tariff lifers (see 4.13 below) if they are to have the opportunity to be released on tariff expiry if risk factors permit...
4.3.14 ... Wherever possible, lifers should be allocated to a cell on a landing [sc. in the local prison] where there are other long or medium-term prisoners. In most cases newly sentenced lifers will remain there to await a vacancy in a First Stage lifer prison. Local prisons are an integral part of the lifer system and it is at this stage that Life Sentence planning begins.
4.3.15 Life Sentence Planning
In local prisons the following sections of the Life Sentence Plan must be completed for every newly sentenced lifer:
LSP 1A Post-conviction immediate needs assessment
LSP 1B Recommended initial allocation to First Stage prison
LSP 1C Post-conviction induction interview
LSP 1D Local prison lifer profile
LSP 1E Multi-agency lifer risk assessment panel (MALRAP)
LSP 1F Post-sentence Probation report
LSP 1G Pre-First Stage report...
4.3.16 Governors of local prisons must also ensure that:
all lifers convicted of sex-related offences or who have previous convictions for sex-related offences, must be allocated to an appropriate establishment so that an assessment for the Sex Offender Treatment Programme (SOTP) can be undertaken.
4.3.17 Local prisons must ensure that a record of all significant events is kept in the lifer's LSP or F2050 as appropriate. This will assist the First Stage prison when the prisoner arrives there.
The intention is that lifers will move on from their local prison to a First Stage prison within approximately six months of the date of their sentence subject of the availability of places. Local prisons should provide lifers with information about the role and location of First Stage prisons.
4.4.2 The period spent at First Stage is generally from 18 months upwards, but this may be reduced for some prisoners especially those with short tariffs or those who are making exceptionally good progress.
4.13 Short Tariff Lifers
4.13.1 Short tariff lifers are normally regarded as those who have a tariff of five years or less. The majority of these will be prisoners who have received an automatic life sentence in accordance with Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 (previously Section 2 of the Crime (Sentences) Act 1997), but there can occasionally be mandatory or discretionary lifers who also receive a short tariff and automatics who will have received tariffs longer than 5 years.
4.13.2 Lifers with short tariffs are managed differently from lifers with longer tariffs because of the overall objective to release lifers on tariff expiry if risk factors permit. The statutory entitlement to a review by the Parole Board may for a short tariff lifer be triggered relatively shortly after conviction... The essential elements of the policy for short tariff lifers and arrangements for their management through their period in custody are as follows:
They must be prioritised for offending behaviour programmes according to the length of time left till tariff expires. The same principle must apply for all lifers, so that length of time to tariff expiry is taken into account when allocating offending behaviour programme resources. In other words, lifers must be given every opportunity to demonstrate their safety for release at tariff expiry)." (original emphasis).
"The Prison Service has withdrawn the enhanced thinking skills programme for reasons of economy. This meant that there were no programmes for prisoners who are likely to spend a significant part of their sentence at Doncaster. This was particularly important for those who had received the new Indeterminate Sentence for Public Protection (ISPP). For these prisoners, who often have short tariff dates, the absence of any opportunity to address offending behaviour inevitably meant that they risked a longer time in custody."
The implementation of the policy in practice
"that the need to ensure a proper allocation of resources across the prison estate has meant that a number of those serving IPP sentences have not had as full an opportunity to progress within the system as had been hoped."
"1. IPPs are dealt with through the lifer system: they spend time in local prisons until space is found at a first stage life centre; intensive assessment is conducted at the first stage lifer centre; IPPs are then transferred on within the training estate for further interventions.
2. The reliance on a small number of specialised lifer centres creates a bottleneck. This prevents timely access to interventions necessary to reduce risk in some cases. Over 2500 ISPs (of which 1500 are IPPs) are currently being held in local prisons since space in lifer centres is simply unavailable and turnover is slow."
"Until Lockyer changes things short tariff lifers and in particular those serving IPP sentences will remain as they are, with no or little hope of access to the means of reducing their risk factor until after, very often well after, their tariff expiry date. In consequence the prison population is swollen by persons whose incarceration retributive justice does not require and whose release executive management does not allow." (Para 31)
"The current state of the Life estate is such that transfer to a first stage establishment is nowhere in sight. Although Mr Walker's custodial behaviour may justify transfer to open conditions or release, the fact that he has not as yet had his sentence plan or undertaken any work around relapse prevention would to my mind stand in the way of this. Until the relevant assessments have been done and work undertaken, I cannot recommend him for release or for transfer to open conditions."
"the massive influx of IPPs along with other sentenced lifers from our courts has inflated our lifer/IPP numbers to 160 (and increasing) against a profiled maximum of 131. This increase above our profiles numbers, without any additional resources, has meant that we have not been able to accept anyone from our first stage waiting list for almost a year."
"The increase in Lifer/IPP numbers and the fact that most of these individuals have come to us with short tariffs means that we now seem to do mostly report writing and are largely unable to get on with our "real" job of risk assessment and sentence planning work."
"A full assessment will only be done at the Sentence Planning stage, at his First Stage Lifer Centre, and the suggestion is that he is likely to need to undertake CALM and PASRO courses prior to release in order to ensure that his risk is reduced to an acceptable level. He professes himself happy to do these….As Mr James has not as yet had his Sentence Plan or undertaken any work related to his offending, I cannot with any confidence recommend him for release or for transfer to open conditions."
The judgments below in outline
"maximise the opportunity for lifers to demonstrate that they were no longer a danger to the public by the time their tariff expired (or as soon as possible thereafter) so as to allow the lifer's release once that was shown" (para 26)."
Has the Secretary of State acted unlawfully by failing to provide for measures to allow and encourage prisoners serving IPPs to demonstrate that it is no longer necessary for the protection of the public that they continue to be detained?
What is the object of the IPP?
"Procedures would be put in place (so far as not already in place) to ensure that initiatives, in particular courses in the prison, would be available to maximise the opportunity for lifers to demonstrate they were no longer a danger to the public by the time that their tariff expired or as soon as possible thereafter, so as to allow the lifer's release once that was shown." (paragraph 26).
Later he added:
"Reducing the risk posed by lifers must be inherent in the legislation's purpose, since otherwise the statutes would be indifferent to the imperative that treats imprisonment strictly and always as a last resort." (paragraph 49).
Is the imprisonment of IPP prisoners who have served their tariff terms unlawful?
"when sentence is passed it is not to be presumed against the prisoner that he will still be dangerous after his tariff expires, let alone months or years later. He may or may not be. Whether he is or not, and therefore whether his continuing incarceration is justified or not, can only be determined by reference to up-to-date (at the very least reasonably up-to-date) information enabling the decision-maker, the Parole Board, to form a view on the question of risk in his case. To the extent that the prisoner remains incarcerated after the tariff expiry without any current and effective assessment of the danger he does or does not pose, his detention cannot be justified. It is therefore unlawful. (paragraph 47)
…there must be material at hand to show whether the prisoner's further detention is necessary or not. Without current and periodic means of assessing the prisoner's risk the regime cannot work as Parliament intended, and the only possible justification for the prisoner's further detention is altogether absent. In that case the detention is arbitrary and unreasonable on first principles, and therefore unlawful" (paragraph 48)
"Whether or not the prisoner ceases to present a danger cannot be a neutral consideration, in statute or policy. If it were, we would forego any claim to a rational and humane (and efficient) prison regime. Thus the existence of measures to allow and encourage the IPP prisoner to progress is as inherent in the justification of his continued detention as are the Parole Board reviews themselves; and without them that detention falls to be condemned as unlawful as surely as if there were no such reviews"
Article 5 of the ECHR
The Strasbourg jurisprudence
"…the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction" – Van Droogenbroek v Belgium (1982) 4 EHRR 443 at paragraph 35.
"…there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue" – Weeks v United Kingdom (1988) 10 EHRR 293 at paragraph 42.
"…the (discretionary) life sentence was imposed on grounds of dangerousness, and thus continued detention on that ground carried the authority of the original sentencing court" (paragraph 19).
"Discretionary life sentences are imposed for the very reason that the sentencing court cannot be satisfied that the prisoner will no longer be a danger when the tariff part of his sentence ends. (Post-R v Offen  1 WLR 253, that is substantially true too in the case of automatic life sentences). That being their rationale, it seems to me impossible to suggest that at the tariff expiry date there ceases to be 'a sufficient causal connection between the conviction and the deprivation of liberty': Weeks's case (1988) 10 EHRR 293, 308, para 42. There is no question of the 'decision not to release on that date' being 'inconsistent with the objectives of the sentencing court' so as to the transform the detention into 'a deprivation of liberty that was arbitrary': Weeks's case. At Para 49. True, para 49 contemplates that the required causal link might 'eventually' be broken. To my mind, however, that would be so only in very exceptional cases. Mere delay in article 5(4) proceedings, even after the tariff expiry date, would not in my judgment break the causal link."
"61. In so far as the European Convention for the Protection of Human Rights and Fundamental Freedoms has a role to play in this appeal, it is article 5(4) which is relevant and not article 5(1). Article 5(1) is not relevant because the justification for the detention of a prisoner sentenced to life imprisonment (whether discretionary or automatic or mandatory) is that sentence and not the fixing of the tariff period. "
i) Has the conduct of the Secretary of State prevented the review of the lawfulness of the respondents' detention required by Article 5(4) or is it liable so to do?
ii) Has the conduct of the Secretary of State had the result that the respondents are not being detained for the object for which the IPPs were imposed on them so that their detention cannot be justified under Article 5(1)(a) or is it liable so to do?
Has the conduct of the Secretary of State prevented the review of the lawfulness of the respondent's detention required by Article 5(4) or is it liable so to do?
"The stark consequence is that IPP prisoners, or at least a very high proportion of them, at present have no realistic chance of making objective progress, with the assistance of appropriate initiatives, within prison, towards a real reduction or even elimination of their risk factor by the time that the tariff expires."
At paragraph 47 he states:
"…when sentence is passed it is not to be presumed against the prisoner that he will still be dangerous after his tariff expires, let alone months or years later. He may or may not be. Whether he is or not, and therefore whether his continuing incarceration is justified or not, can only be determined by reference to up-to-date (at the very least reasonably up-to-date) information enabling the decision-maker, the Parole Board, to form a view of the question of risk in his case. To the extent that the prisoner remains incarcerated after tariff expiry without any current and effective assessment of the danger he does or does not pose, his detention cannot be justified…"
Has the conduct of the Secretary of State had the result that the respondents are not being detained for the object for which the IPPs were imposed on them so that their detention cannot be justified under Article 5(1)(a) or is it liable to have this result?