England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Laws LJ and Mitting J (C1/2007/1959)
Collins J (C1/2007/2091)

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/02/2008

Lord Phillips of Worth Matravers CJ

This is the judgment of the Court.

1. These appeals raise three important questions concerning the Parole Board. The first is whether the Secretary of State has acted unlawfully by failing to provide for measures to allow and encourage prisoners serving indeterminate sentences for public protection ('IPPs') to demonstrate to the Parole Board by the time of the expiry of their minimum terms (often referred to as 'tariff periods') that it is no longer necessary for the protection of the public that they continue to be detained. Mr Walker and Mr James are what are referred to as 'short tariff lifers'; ie they received IPPs with minimum terms of no more than 5 years' detention. The Divisional Court (Laws LJ and Mitting J) in the case of Mr Walker and Collins J in the case of Mr James held that the Secretary of State had acted unlawfully by failing to provide such measures. The second question is whether, if the Secretary of State has acted unlawfully in this way, it follows that the detention of an IPP prisoner after the expiry of the minimum term is unlawful. The Divisional Court stated that it does. This part of their judgment was strictly obiter, because Mr Walker had not yet served his minimum term. Mr James had, however, served his minimum term. Collins J (following the decision of the Divisional Court) held that his detention was unlawful, ordered his immediate release, but granted a stay of the order pending the outcome of this appeal. The third question is whether the conduct of the Secretary of State has, in the case of Mr James, infringed his rights under Article 5(1) and Article 5(4) of the European Convention on Human Rights ('ECHR') and is, in the case Mr Walker, capable of infringing his rights under these. Collins J did not determine the question as he did not consider it necessary to do so. Laws LJ held that the decision of this court in R v Secretary of State for the Home Department ex p Cawser [2003] EWCA Civ 1522 , to which he was party, precluded a finding that the Secretary of State's conduct was capable of infringing Article 5(1) or (4) of the ECHR.
2. The Secretary of State appeals against both decisions with the permission of the lower courts. The Parole Board, as interested party, has made no submissions in relation to the first question. In relation to the second question it has contended that the Divisional Court and Collins J were wrong to hold that the Secretary of State's conduct rendered unlawful the detention of IPP prisoners after the expiry of their minimum terms. In relation to the third question, it has contended that Laws LJ was correct to find that Cawser precluded any argument that Articles 5(1) and 5(4) were or might be infringed.

The relevant statutory material

3. Section 225 of the Criminal Justice Act 2003 ("the 2003 Act") provides:

"(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..."

4. The provisions referred to in section 225(4) introduce the minimum term into IPP sentences. Section 28(5) of the Crime (Sentences) Act 1997 ("the 1997 Act") provides:

"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."

5. "Life prisoner" includes a person serving an IPP: see section 34(1) and (2)(d) of the 1997 Act. Section 28(6) of the 1997 Act provides:

"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…"

6. The "relevant part" of the sentence is a reference to the "minimum term" (section 28(1A)). Section 28(8A) provides that a "minimum term order" means an order under section 82A(2) of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act"), which by sub-section (1) applies where a sentence of IPP is passed. Section 82A(2) of the 2000 Act provides:

"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… "

7. The 2003 Act contains provisions relating to the Parole Board. Section 239 provides:

(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."

8. Section 142(1) of the 2003 Act provides that:

"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.

9. Pursuant to section 32(5) of the Criminal Justice Act 1991 (now section 239(5) of the 2003 Act), the Secretary of State has made the Parole Board Rules. The rules apply to cases which come before the Board under section 28 of the 1997 Act ie those prisoners who are subject to sentences of imprisonment for life and IPP prisoners: see rule 2(1). Rule 6 and Schedule 1 require the Secretary of State to provide the Board with certain information and current reports relating to the prisoner, including (para 3 of Part B) "current reports on the prisoner's risk factors, reduction in risk and performance and behaviour in prison, including views on suitability for release on licence as well as compliance with any sentence plan".
10. Pursuant to section 32(6) of the 1991 Act (now section 239(6) of the 2003 Act), the Secretary of State has issued directions to the Board in relation to the release and recall of life sentence prisoners. Direction 6 provides:

"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)"

11. The 2003 Act was enacted on 20 November 2003, but all of the provisions which are material to these appeals came into force on 4 April 2005 pursuant to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 made by the Secretary of State in exercise of the powers conferred on him by the 2003 Act.

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

12. The Secretary of State has produced a detailed policy for the treatment and management of life sentence prisoners, which includes certain express provisions relating to short tariff lifers. The policy is primarily contained in the "Lifer Manual" PSO (Prison Service Order) 4700.
13. PSO 4700 contains these following passages.

"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).

14. The Prison Service offers a range of offending behaviour work to prisoners, which is designed to reduce the risk that they would otherwise present to the public. These include the Enhanced Thinking Skills course, the Core Sex Offenders Treatment Programme (SOTP) which has been supplemented by the Adapted SOTP (to meet the needs of offenders with learning and social difficulties), the Extended SOTP, the Healthy Sexual Functioning Programme, the CALM course (anger management), alcohol awareness courses and others.
15. The evidence is that prisoners serving life imprisonment and IPP have no realistic prospect of being released at the direction of the Parole Board unless they have attended relevant offending behaviour programmes that are run by the Prison Service. The effect of the denial to prisoners of the opportunity to undertake these courses is well documented. It is sufficient to refer to the report by the Chief Inspector of Prisons on HMP Doncaster dated November 2005. She said:

"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

16. Mr Robson is Deputy Head of the Public Protection Unit at the National Offender Management Service ("NOMS") in the Ministry of Justice. He says in his witness statement that, when the Bill which became the 2003 Act was drafted, assumptions were made to the effect that "the overall impact of the legislation would be resource neutral". However many more sentences of IPP have been passed than was anticipated, inevitably creating an increased call on resources. Mr Robson acknowledges (paragraph 4(b)):

"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."

17. The scale of the problem is expressed in more robust terms in the report by the Lockyer Review which was published on 17 August 2007. This Review was commissioned by the Secretary of State to assess the seriousness of the problems facing those serving IPP sentences and to make recommendations for improving the situation. At page 22, the report states: "The current reliance on the lifer management arrangements for dealing with all IPP prisoners has failed. IPPs are stacking in local prisons and are not moving to establishments where their needs can be assessed or better met." Under the heading "Issues", the report continues:

"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."

18. Statistics given by Mr Robson show that the number of prisoners serving indeterminate sentences was 5,475 on 30 November 2003, 5,807 on 31 March 2005 and 8,977 on 31 March 2007. On 20 April 2007 there were 2,547 prisoners serving IPP (the median tariff for IPP prisoners at April 2006 was 30 months). Yet the number of funded first stage and second stage prison places, within the meaning of PSO 4700, had not risen since April 2005 (although the number of core offending behaviour courses rose from 13,265 in 2004/2005 to 16,959 in 2006/2007). Mr Dickinson is Mr Walker's solicitor. He has extensive experience in advising prisoners. He says that he has spoken to a large number of prison staff of different grades and across most of the country, and "[a]ll emphasise that the primary cause of the increase in the prison population, and subsequent considerable delay in providing offender work has been the substantial influx of IPPs". According to the Lockyer report (page 6), in August 2007 the number of indeterminate sentence prisoners had reached 9000, whereas the system was designed when there were half that number: there were now 3000 IPP prisoners and their number was increasing at the rate of 150 per month.
19. As Mr Robson says (paragraph 23), there are few offending behaviour programmes. Mr Dickinson's evidence is to like effect. A number of things have been done to improve the ways in which IPP prisoners are dealt with by the Prison Service. These include: (i) a short-term initiative to move IPP prisoners out of local prisons into unfunded Category B prisons; (ii) guidance on prioritising short tariff IPP prisoners; and (iii) guidance in relation to the substitution of OASys assessments of risk for original life sentence plan assessments. Most important was the commissioning of the Lockyer Review to which we have already referred. The Lockyer Review has made a number of short, medium and longer term recommendations which, if implemented, should alleviate the problem over time. However Mr Robson estimates (paragraph 25) that it will be some six months after the Lockyer report before any practical measures can be implemented, and a further 18 months "before a system which manages IPP prisoners effectively can be fully operative".
20. As Laws LJ said:

"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 facts

David Walker

21. Mr Walker was convicted of two offences of indecent assault. On 6 April 2006, he was sentenced to IPP. His minimum term was set at 18 months. It expired on 5 October 2007. The expiry date lay in the future at the time of the Divisional Court judgments.
22. Mr Walker has been detained since he was sentenced at HMP Doncaster. It is not in dispute that Doncaster prison has very limited resources for offending behaviour work. The prison is a local prison and not a first or second stage prison. Mr Walker has, therefore, not progressed through the lifer process described in PSO 4700 (see further para 12 above).
23. The Progress Report Summary dated 1 June 2007 by Ms Lynn Petersen, his Indeterminate Sentences Manager, states:

"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."

24. Mr Walker has had no access to any meaningful programme, course or work of that kind, such as might enable him to demonstrate in due course to the Parole Board that the risk he poses to the public is sufficiently low that his release after the expiry of the minimum term is justified. It does not seem to be in issue that it will be necessary for him to undergo formal sentence planning to ascertain what offending behaviour he needs to address before he can be released. In particular, it is likely that he will be required to undertake the Enhanced Thinking Skills Course and courses designed to address the behaviour of sexual offenders. Ms Petersen, describes in her witness statement how she was unsuccessful in her attempts to have Mr Walker transferred to a first stage lifer centre prison.

Brett James

25. Mr James has also been detained in HMP Doncaster. He was convicted of an offence of wounding with intent contrary to section 18 of the Offences Against the Persons Act 1861 and sentenced to IPP. His tariff was set at 1 year and 295 days. It expired on 20 July 2007. Like Mr Walker, he has received no formal sentence planning to ascertain what offending behaviour he needs to address before he can be released. He has attended a 2 week alcohol-related course, "Think First" (a cognitive skills course) and courses on IT and first aid. Parole Board reports indicate that he should probably also undertake the Enhanced Thinking Skills course, the Controlling Anger and Learning to Manage IT course and the Addressing Substance Related Offending course. None of these courses has been available at HMP Doncaster.
26. On 31 May 2006, the chairman of the Independent Monitoring Board wrote to Mr James's solicitors saying that he had completed all the courses that were available to him at HMP Doncaster and that he was unable to move to a first stage lifer prison to complete the rest of the courses needed for release because all the places at the first stage lifer prisons were full. On 8 September 2006, the Lifer Governor at HMP Manchester wrote to Mr James's solicitors saying that he was 35^th on the first stage waiting list. She said:

"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."

27. On 12 January 2007, the Governor wrote saying that the number of lifer/IPPs had increased to 192:

"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."

28. The Progress Report Summary prepared for the Parole Board by Mr James's Life Manager at HMP Doncaster is dated 2 April 2007. It states:

"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

29. Laws LJ (with whom Mitting J agreed) said that it was an underlying premise of the legislation that, upon the coming into force of the new sentencing provisions in the 2003 Act, not least IPP, procedures would be in place to ensure that initiatives, in particular courses in the prison, would be available to

"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)."

30. He said (para 36) that the decision of this court in Cawser [2004] UKHRR 101, [2003] EWCA Civ 1522 closed off the possibility of argument that the continued detention of a lifer past his tariff expiry date, incurred by reason of a failure to provide offending behaviour courses, might be a breach of ECHR article 5(1). The live question was whether there had been unlawfulness at common law.
31. In the barest outline, Laws LJ reasoned as follows at paras 44-50. An indeterminate sentence comprises two elements: the tariff element for punishment and a post-tariff element for public protection. The post-tariff detention is not justified at the time of sentence, since at that time the extent to which and the time for which the prisoner will remain a danger is unknown. It can only be ascertained on a continuing basis by periodic assessment. Nothing else can justify this further detention. 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 in reason be justified. It is therefore unlawful. Without current and periodic means of assessing the prisoner's risk, the regime cannot work as Parliament intended and the detention is arbitrary and unreasonable on first principles. Such a conclusion informs the legislation's underlying premise.
32. Collins J applied the reasoning of the Divisional Court including the obiter dicta that detention after the expiry of the tariff period was unlawful. The judge said that the consequence followed as a matter of "inevitable logic" although it was "in one sense, disastrous" to order the release of Mr James whether or not he remained a risk to the public.

The questions.

33. We have set out the questions raised by this appeal at the outset of this judgment. They are interrelated. As Mr Rabinder Singh QC for the Parole Board pointed out, deprivation of liberty can only be justified pursuant to Article 5(1)(a) of the ECHR where the detention is lawful under the domestic law of the country concerned. If Laws LJ was correct to hold that the detention of IPP prisoners beyond their tariff terms was, under present conditions, unlawful it must follow that Article 5(1) had been infringed. Yet Laws LJ held that Cawser precluded a finding of such infringement. We turn to consider the individual questions.

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?

34. The first matter to consider in relation to this question is the object of the IPP.

What is the object of the IPP?

35. The primary object of the IPP is clear from the wording of sections 224 and 225 of the CJA 2003. It is to detain in prison serious offenders who pose a significant risk to members of the public of causing serious harm by further serious offences until they no longer pose such a risk. Laws LJ held, however, that there was an underlying premise of the legislation or an understanding of the way that it was intended to work in practice to the following effect:

"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).

36. For the Secretary of State Mr Jay QC challenged these assertions. He submitted that the Secretary of State was not under any relevant duty to provide any treatment or training in prison. While he provided a number of courses for and assessments of prisoners there was no basis for saying that it was an underlying premise of the Act that he would provide IPP prisoners with the maximum opportunity to demonstrate to the Parole Board that it was no longer necessary to confine them for the protection of the public.
37. In Cawser the Secretary of State conceded that it would be irrational to have a policy of making release dependent upon the prisoner undergoing a treatment course without making reasonable provision for such courses. Mr Jay told us that the Secretary of State did not resile from this concession. He submitted, however, that the concession did not avail the respondents for the following reasons. It was for the Parole Board in the exercise of its independent judgment to decide whether to release an IPP prisoner. It was not a decision for the Secretary of State. Further, it was for the Board to decide what evidence satisfied it that an IPP prisoner should be released. If it made release dependent upon prisoners undergoing treatment courses, which it did not, this would be unlawfully to fetter its discretion.
38. Mr Tim Owen QC for Mr Walker supported the reasoning of Laws LJ. He submitted that the evidence plainly showed a systemic failure to deliver the sentence planning and the courses that the Secretary of State's policy required and that this was a breach of the duty owed by the Secretary of State at public law. Mr Weatherby for Mr James adopted these submissions.
39. We found Mr Jay's submissions lacking in realism. Courses are provided because experience shows that these are usually necessary if dangerous offenders are to cease to be dangerous. It is for this reason that performance of the appropriate courses is likely to be a prerequisite to a prisoner satisfying the Parole Board that he has ceased to be dangerous. In our judgment in The Secretary of State for Justice v Michael Brooke and others [2008] EWCA Civ 29, which we heard at the same time as these appeals, we have drawn attention to the significance that in practice attaches to the dossier prepared for the Board by NOMS that is based largely on the offender's prison history. The reality is that the possibility for dangerous prisoners both to cease to be dangerous and to show that they have ceased to be dangerous lies largely in the hands of the Secretary of State. It has been his policy to provide the necessary courses and to do so within a time scale that gives lifers a chance to demonstrate that they are safe for release by the time that they complete their tariff periods, or reasonably soon thereafter.
40. Section 336(3) of the CJA 2003 provided that the provisions of the Act which related, inter alia, to IPP sentences, should come into force in accordance with provisions made by the Secretary of State. He chose to bring them into force on 4 April 2005 – see Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005. Yet he has not provided the resources needed to give effect to the policy that would ordinarily have given IPP prisoners a fair chance of demonstrating to the Parole Board, once the time for review arrived, that they were no longer dangerous. This cannot simply be regarded as a discretionary choice about resources, which is pre-eminently a matter for the government rather than the courts. We are satisfied that his conduct has been in breach of his public law duty because its direct and natural consequence is to make it likely that a proportion of IPP prisoners will, avoidably, be kept in prison for longer than necessary either for punishment or for protection of the public, contrary to the intention of Parliament (and the objective of Article 5 of which Parliament must have been mindful).
41. We also accept that those who promoted the 2003 Act and Parliament that enacted it must have anticipated that the lifer regime that was already in place in accordance with the Secretary of State's policy would be available to IPP prisoners so as to give them a fair chance of ceasing to be, and showing that they had ceased to be, dangerous. This was the context in which the legislation was enacted. To use Laws LJ's phrase, it was 'a premise of the legislation'. In these circumstances he could have founded his finding of breach of duty on the part of the Secretary of State on the principle in Padfield v Ministry of Agriculture [1968] AC 997.

Is the imprisonment of IPP prisoners who have served their tariff terms unlawful?

42. Laws LJ held that the consequence of the Secretary of State's failures was that the imprisonment of IPP prisoners who had served their tariff periods was unlawful. This was for two reasons. First it prevented an effective review by the Parole Board of whether the prisoners continued to pose a risk. Secondly, it prevented these dangerous prisoners from progressing to a state in which they were no longer dangerous.
43. As to the first point, he said:

"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)

44. As to the second point, we have already cited part of his reasoning from paragraph 49. This continued:

"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"

45. Mr Weatherby for Mr James sought to uphold this finding on the basis that the Secretary of State's failures had made it impossible for the Parole Board to evaluate whether Mr James posed a risk. In these circumstances, he argued, Mr James ought to be released. He was faced, however, not only with an attack on Laws LJ's conclusions by Mr Jay and by particularly cogent submissions advanced by Mr Singh on behalf of the Parole Board, but by a statement by Mr Owen that he did not seek to uphold Laws LJ's decision that the detention of IPP prisoners was unlawful.
46. Mr Singh's first point was that Laws LJ's finding that the continued detention of post-tariff IPP prisoners was automatically unlawful was inconsistent with two other elements of his reasoning. We have already referred to the first. It was that, following Causer, no infringement of Article 5(1) had occurred. If the detention was unlawful then it inevitably followed that Article 5(1) was infringed. The second point was that Laws LJ had correctly held that it was necessary to show a systemic failure on the part of the Secretary of State to establish a breach of his public law duty. Yet if continued detention of post-tariff IPP prisoners was unlawful unless the Parole Board was in a position to make an effective assessment of the prisoners' dangerousness, this would apply just as much in the case of an isolated failure to provide a necessary course as in the case of a systemic failure.
47. Mr Singh's most forceful point was a submission that he shared with Mr Jay. The 2003 Act makes express statutory provision for the circumstances in which IPP prisoners may be released. The Divisional Court's judgment would require them to be released in disregard of the express requirements of the Act. We can see no answer to this point. Section 225 of the 2003 Act makes the release of IPP prisoners subject to the provisions of the 1997 Act. The provisions of section 28 of the1997 Act that we have already set out provide for the circumstances in which an IPP prisoner must be released once he has served the tariff period. Central to this is the requirement that the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. It is not possible to describe a prisoner who remains detained in accordance with these provisions as 'unlawfully detained' under common law. The common law must give way to the express requirements of the statute.
48. For these reasons we have concluded that the finding of the Divisional Court that IPP prisoners who have completed their tariff terms are, under current circumstances, unlawfully detained to be erroneous. Collins J's decision, based on this finding, that Mr James be released cannot stand.

Article 5 of the ECHR

49. The conclusions that we have reached relate to the position under domestic law. Mr Owen made it clear that he did not suggest that Mr Walker's detention was, at this stage, in breach of his rights under Article 5(1) of the ECHR, although he submitted that a stage might be reached when it was. Nor did he argue that Mr Walker's rights under Article 5(4) had been infringed, although he reserved the right to do so in due course. Mr Weatherby submitted that both Mr James' rights under Article 5(1) and under Article 5(4) had been infringed and we now have to consider this submission. We propose first to consider the jurisprudence of the European Court of Human Rights ('ECtHR') in respect of the relationship between Article 5(1) and Article 5(4), then to look at two domestic cases where this question has been in play and finally to apply the law to the facts before us.

The Strasbourg jurisprudence

50. The list of cases in which a person can be deprived of liberty without infringement of Article 5 that is set out in paragraph 1 of that Article is exhaustive: Brand v the Netherlands (Application no. 49902/99). Paragraph 1(a) permits the lawful detention of a person after conviction by a competent court. This paragraph requires first that the person detained should have been lawfully convicted of a criminal offence and secondly that the court should have imposed a sentence of detention because of the conviction.

"…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.

51. The ECtHR has not sought to define the nature of the nexus that must exist between the conviction and the detention. The detention must be lawful under the domestic law of the member state, but individual states enjoy a discretion as to the sanctions that they impose consequent upon a conviction. A primary object of detention following a conviction is to punish. Another object is to deter the commission of offences. The ECtHR recognises that a 'penal' period of imprisonment for these purposes is legitimate. The ECtHR has further recognised that following a conviction a state can properly detain the offender for the sole purpose of protecting the public from the offender. Thus in Weeks the ECtHR implicitly approved a sentence of life imprisonment whose object was, in part, to subject 'a dangerous young man' to 'a continuing security measure in the interests of public safety'. 'Mental instability' leading to 'dangerousness' can justify such a sentence – Thynne, Wilson and Gunnell v United Kingdom (1991) 13 EHRR 666 at paragraph 76. 'Character and mental state' resulting in 'dangerousness to society' was the phrase used in Hussain v United Kingdom (1996) 22 EHRR 1 at paragraph 53. A passage at paragraph 81 of the judgment of the ECtHR in Stafford v United Kingdom (2002) 35 EHRR 1121 suggests that it might be legitimate to impose a sentence of indefinite detention 'to prevent future non-violent offending'.
52. Article 5(1) gives no free standing right to detain a person on the ground that his character or personality is such that he poses a danger to his fellow men. Conviction of an offence in respect of which such detention is imposed is a prior requirement if the detention is not to infringe Article 5. Furthermore, if Article 5(1)(a) is to be relied upon to justify detention pursuant to a sentence, it must be shown that the detention has been imposed in order to achieve the object of that sentence. The decision in Stafford v United Kingdom exemplifies this point. The applicant had received a mandatory life sentence for murder and had been released on licence, having completed the tariff period. He then committed an offence of fraud, for which he was convicted and sentenced to imprisonment. The Secretary of State revoked his licence. When he had completed that sentence the Secretary of State refused to accede to the Parole Board's recommendation that he should be released again on licence, relying on the risk that he would commit further non-violent offences. The ECtHR held that the object of the post tariff portion of the applicant's sentence had been to protect the public against the risk of violent offending. Detaining him because of the risk of non-violent offending could not be justified under Article 5(1)(a).
53. The sentencing court may itself decide the length of the sentence that is required to meet the objectives with which the sentence is imposed and impose a determinate sentence to that end. In such circumstances the sentence will be justified under article 5(1)(a).
54. Where the court imposes a sentence of indefinite duration, the object is that once the penal tariff has been served, the offender will remain in custody only so long as this is necessary for the protection of the public. In such circumstances the detention will only be justified under Article 5(1)(a) so long as it is necessary to achieve that object. In those circumstances there will be a requirement for periodic review by a court in order to comply with Article 5(4). The object of that review will be to determine whether or not the detention remains justified under Article 5(1)(a) – Weeks at paragraph 49; Thynne, Wilson and Gunnell at paragraph 76.
55. The Strasbourg court adopts a strict approach to the requirements of Article 5 but not to the extent of ignoring practical realities – see Brand at paragraph 64.
56. We turn now to two decisions of this court in which allegations were made of infringement of Article 5(1) and Article 5(4) in the context of the Parole Board's consideration for release of prisoners serving mandatory life sentences who had completed the tariff periods.
57. The issue in R (Noorkoiv) v Secretary of State [2002] EWCA Civ 770; [2002] 1 WLR 3284 was (1) whether a delay of 2 months between the date of completion of the claimant's tariff period and the consideration of his case by the Parole Board infringed his right to a speedy determination of the lawfulness of his detention and, if it did, (2) whether the claimant's detention after the tariff period infringed Article 5(1). The reason for the delay was that, in order to accommodate limited resources, the practice was to hold parole hearings at 3 monthly intervals.
58. This court held that the delay of 2 months before a parole hearing had infringed the claimant's Article 5(4) right. Limitations of resources were no answer; it was the obligation of the state to organise its legal system so as to comply with Convention obligations. Buxton LJ, contrary to his apparent inclination, felt constrained by the Strasbourg jurisprudence to hold that the fact that the clamant was not afforded the protection required by Article 5(4) did not have the result that the claimant's continued detention could not be justified under Article 5(1). In particular he observed that the clear rationale of both Weeks and Thynne was that

"…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).

59. Simon Brown LJ held :

"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 [2001] 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."

60. Lord Woolf added:

"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. "

61. We endorse these observations, subject to these additional comments. The legality of the post-tariff period of an indeterminate sentence imposed for the public protection is dependent upon the prisoner remaining a threat to the public. Article 5(4) requires this legality to be subject to periodic review by a body with the qualities of a court. If, in the period between two such reviews, a prisoner ceases to be dangerous, this will not mean that his detention in the remainder of that period infringes Article 5(1). That Article must be read in conjunction with Article 5(4) so as to produce a practical result. If, however, a review is unreasonably delayed and it is shown that, by reason of the delay, the prisoner has been detained after the time that he should have been released, that period of detention will constitute an infringement of Article 5(1). So long as the prisoner remains dangerous, his detention will be justified under Article 5(1)(a) whether or not it is subject to timely periodic review that satisfies the requirements of Article 5(4). If, however, a very lengthy period elapses without such a review a stage may be reached at which it is right to conclude that the detention has become arbitrary and no longer capable of justification under Article 5(1)(a).
62. In Cawser the appellant had been sentenced to an automatic life sentence, having, for the second time, been convicted of rape. He had served the tariff period of 2 ½ years and complained of delay in arranging for him to take part in a sex offender treatment programme which was, in practice, a pre-requisite to satisfying the Parole Board that he no longer posed a risk to the public. This had significantly delayed his release. He alleged that this delay had infringed his rights under Article 5(1) and Article 5(4). The latter argument received short shrift on the ground that the way in which a prisoner was treated while in prison had no bearing on his rights under Article 5(4). The major issue was whether the effect of the delay in arranging for the appellant's treatment had rendered his detention disproportionate and arbitrary, so that it could no longer be justified under Article 5(1)(a) as being consequent upon his original sentence.
63. This court rejected the appeal. Simon Brown LJ held that mere delay in provision of the treatment was not capable of breaking the 'chain of causation' between the sentence and the detention. Laws LJ agreed, treating the issue as being whether Article 5 imposed any duty on the Secretary of State in relation to the deployment of scarce resources and holding that it did not. Arden LJ concurred with the result, but expressed the view that in an extreme case where there was an inordinate delay in providing a place for treatment there might be a 'breach of article 5(1)(a)', by which we understand her to have meant a breach of Article 5(1) not justified under Article 5(1)(a).
64. We turn to apply the Strasbourg and domestic authorities to the position of IPP prisoners. Two questions arise in relation to Article 5:

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?

65. The test to be applied by the Parole Board in deciding whether an IPP prisoner is entitled to release is whether 'the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be so confined'. This reflects the primary objective of the IPP sentence which is that the prisoner shall not be released until he ceases to be a danger to the public. If the Parole Board is not placed in a position in which it can decide whether a prisoner is a danger to the public it will not be able to determine whether the detention of the prisoner is still necessary and thus whether the detention is still lawful under Article 5(1)(a). In such circumstances the prisoner will have been deprived of the opportunity of satisfying the statutory pre-condition of release and will have been prevented from making a meaningful challenge to the lawfulness of his detention as required by Article 5(4). Is that the position of IPP prisoners? Neither Noorkoiv nor Cawser affords any assistance in answering this question.
66. In considering the question it is necessary to distinguish between the role of treatment in changing the prisoner so that he ceases to be dangerous and the opportunity that treatment provides for assessing whether the prisoner is dangerous. Does failure to undergo treatment mean that the Parole Board is not in a position to reach a considered view as to whether a prisoner remains dangerous, or is the fact that a prisoner has not received treatment a relevant factor to which the Board will have regard when considering the risk posed by the prisoner but which does not prevent the Board from reaching a reasoned conclusion as to that risk? Without a sentence plan and monitoring of the prisoner's performance against that plan, realistically the outcome of any review by the Parole Board will be a foregone conclusion. The present difficulty is exemplified by two passages in the judgment of Laws LJ. In paragraph 29 he summarises the evidence as follows:

"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…"

67. So far as Mr Walker is concerned, because his application was heard before he had completed his tariff the question of whether there was an actual infringement of Article 5(4) is not before us. In his case we think that it was likely that the Parole Board would be in a position to make a positive assessment of the risk that he poses and that, having regard to his inability to undergo rehabilitative treatment in prison, that assessment was likely to be adverse. There was, however, at the time that his case was heard, a likelihood that he would not be able to make a meaningful challenge to the lawfulness of his sentence within the requirements of Article 5(4) once his tariff was completed. The fact that Mr Walker remains in the local prison to which he was first sent would not formally prevent a review by the Parole Board; but, as a matter of substance rather than form, it would at the present time be an empty exercise. That is not an acceptable situation and, if it continues, it is likely to result in a breach of Article 5(4).
68. We turn to the case of Mr James. When his application was heard by Collins J his hearing before the Parole Board was pending. It was then postponed pending the result of this appeal. In these circumstances no complaint has been made of delay. Collins J recorded the submission of Mr Weatherby to be that the approach of the Parole Board was likely to be that because Mr James had not done the necessary courses he was not in a position to show any reduction of risk. Our assessment of Mr James' position is the same as that of Mr Walker.

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?

69. The primary object of the IPP sentence is to protect the public, not to rehabilitate the offender. Detention of the respondents will cease to be justified under Article 5(1)(a) when the stage is reached that it is no longer necessary for the protection of the public that they should be confined or if so long elapses without a meaningful review of this question that their detention becomes disproportionate or arbitrary. That stage has not yet been reached. Failure to comply with the obligations of Article 5(4) will not, of itself, result in infringement of Article 5(1)(a). Nor will delay in the provision of rehabilitative treatment necessary to obviate the risk that they would pose to the public if released.

The result

70. So far as the appeal in the case of Mr Walker is concerned, the Secretary of State has not succeeded in overturning the declaration of the Divisional Court that the Secretary of State has acted unlawfully by failing to provide for measures to allow and encourage prisoners serving IPPs to demonstrate to the Parole Board by the time of the expiry of their tariff periods or reasonably soon thereafter that it is no longer necessary for the protection of the public that they continue to be detained. We have, however, held that the Divisional Court erred in holding that this breach of duty under public law had the result that the imprisonment of IPP prisoners became unlawful once they had served their tariff periods. Notwithstanding this significant success for the Secretary of State, the appropriate order is that his appeal is dismissed.
71. So far as the appeal in the case of Mr James is concerned, the appeal will be allowed to the extent stated in this judgment so that the order for Mr James' release will be set aside. We invite submissions as to whether it is appropriate to make a declaration that reflects the extent to which the respondent has succeeded in demonstrating that the Secretary of State has been in breach of duty under public law.
72. This appeal has demonstrated an unhappy state of affairs. There has been a systemic failure on the part of the Secretary of State to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the relevant provisions of the 2003 Act to function as intended. So far as the two respondents are concerned the appropriate remedy is limited to declaratory relief. For the reasons that we have given, however, the prevailing situation is likely to result in infringement of Article 5(4) and may ultimately also result in infringement of Article 5(1). Mr Singh submitted that the appropriate course in such a case would be to make a declaration of incompatibility. We are not persuaded that it might not be open to the court to grant more effective relief. There are circumstances in which the Secretary of State can release prisoners before they have served a minimum custodial term. For instance section 36 of the 1991 Act and section 30 of the 1997 Act gives him the power of early release on compassionate grounds and the prerogative of mercy has been held to justify special remission of a prisoner's sentence in recognition, for instance, of outstanding bravery or assistance to the authorities. It might be argued that one or other of these powers can and should properly be stretched so as to enable and require the Secretary of State to release a prisoner if his continued detention will infringe Article 5(1). That question is for another day.
73. We are aware that the Secretary of State has recently proposed a number of amendments to the statutory provisions relating to IPP prisons. This judgment deals with the position within the law as it currently stands.