QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE IRWIN
| The Queen (on the application of Andrew Robinson)
|- and -
|(1) Governor of HMP Whatton
(2) Secretary of State for Justice
And between :
The Queen (on the application of Geoffrey Massey)
- and -
Secretary of State for Justice
Tom Weisselberg (instructed by The Treasury Solicitor) for the Defendants
Hearing dates: 16-17 October 2013
Crown Copyright ©
Lord Justice Richards:
(1) whether the Secretary of State was in breach of the public law duty vouchsafed in R (James) v Secretary of State for Justice  UKHL 22,  1 AC 553 ("James"), which relates essentially to the making of reasonable provision of systems and resources to allow IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they are safe to be released;
(2) whether the Secretary of State was in breach of a public law duty and/or acted irrationally in the allocation of available resources in relation to IPP prisoners, in particular in determining priorities for access to a course known as the Extended Sexual Offenders Treatment Programme ("ESOTP");
(3) whether the Secretary of State's failures, and in particular the delay in enabling each of the claimants to participate in the required ESOTP, rendered their post-tariff detention arbitrary and in breach of article 5(1)(a) of the European Convention on Human Rights;
(4) whether the Secretary of State's failures, and in particular the delay in enabling each of the claimants to participate in the required ESOTP, amounted to a breach of their rights under article 8 of the Convention; and
(5) whether, in the case of Mr Massey, the setting of a 21 month period between his Parole Board review in March 2012 and his next review amounted to a breach of his right under article 5(4) of the Convention to a speedy review of the lawfulness of his detention.
The facts: Mr Robinson
"The post-programme report from the SOTP indicates that some progress was made but the report writer notes that Mr Robinson could be manipulative in group, still held child abuse supportive beliefs, and that his suspicious thinking (against staff) had impacted upon his development. It was recommended that … Robinson complete the ESOTP in order to address his interest in pubescent girls and that a full psychopathy assessment be completed."
The Parole Board also considered that he was not yet suitable for a move to open conditions.
"for details of the remainder of the requirements that are outstanding on our client's sentence plan given the fact that he is five years into an indeterminate sentence and his tariff expires in 2012."
"currently approximately 50 IPP/life sentenced prisoners and a number of determinate sentenced prisoners above him on the waiting list. As such, he is unlikely to be placed on ESOTP until 2012 at the earliest. Indeed, it is difficult to predict this with any great certainty, due to fluctuations in the prisoner population, and future demand for places on ESOTP at HMP Whatton."
"At the time the prison did not keep a record of the number of prisoners waiting for a PCL-R, or an ESOTP (or indeed any other form of) suitability assessment. Further to a complaint regarding the delay in his being assessed for the ESOTP, the Claimant was advised on 26 October 2011 that the establishment had long waiting lists for both ESOTP assessments and programmes and that prisoners were being prioritised for both according to tariff expiry and release dates …. As at that date, the Claimant's tariff expiry date was still over a year away. He was advised that if he was found suitable he would be offered a place on the ESOTP in 2013 at the earliest. He was further advised that it was open to him to explore the possibility of accessing the ESOTP sooner at another prison by discussing it with his Offender Supervisor."
"owing to a combination of limited resources and a high proportion of IPP and life sentence prisoners who were over tariff …. Given that the Claimant's tariff expiry date was one year at that point, prisoners with earlier tariff/release dates were naturally being prioritised for the ESOTP over him in accordance with the prioritisation protocol."
Governor Saunders refused the final appeal to her.
"would be prioritised for assessment and a place on the ESOTP based on risk, need and his tariff expiry date. It was also explained that the current waiting list was 'dynamic and subject to change' and there were a number of prisoners who had tariff or release dates before the Claimant who would, accordingly, be prioritised before him."
Mr Robinson was at the same time informed that he would not be able to access ESOTP in 2012 and, even if assessed as suitable, would be unlikely to be offered a place on the ESOTP before late 2013 or 2014.
The facts: Mr Massey
"Mr Massey is a high risk offender with a medium dynamic risk level. While progress has been made on the Core SOTP it is unclear how genuine this shift in his attitudes and behaviour is, as it appears to have happened instantly. There are outstanding risk factors relating to sexual interests and grievance thinking, and Mr Massey does not appear to have insight into these. He will need further treatment in order to address these.
Mr Massey is due to have a parole hearing imminently. Based on the outstanding risk factors and events paralleling his offence behaviours in prison, managing Mr Massey in the community could pose an unacceptable risk. I recommend that Mr Massey remains in closed conditions and is assessed for the Extended Programmes. There will also need to be a sustained period of time where Mr Massey can demonstrate his change in attitude towards his offence, before he is recommended for release."
"The Panel took into account the serious nature of the index offences and Mr Massey's offending record which indicates a sexual interest in young men and boys, girls (sic) over a considerable period. No report writer supports a progressive move and whilst Mr Massey is to be commended for the progress he has made in addressing his offending behaviour and improving his skills and most recently his behaviour, it is clear that further interventions in closed conditions are necessary before risk will be reduced substantially. The Panel therefore concludes that risk remains too high to support either a move to open conditions or release."
That report appears to be undated but was clearly shortly before the expiry of his tariff on 11 September 2010.
"made up of the following (if appropriate):-
- 2 months to complete a PCL-r assessment
- 10 months to complete the E-SOTP, including assessment and waiting list
- 6 months to complete the BLB including assessment and waiting list
- 6 months post programme testing period and completion of reports.
Your next parole review process will be undertaken in accordance with the Generic Parole Process …. Your parole review will commence in December 2011, and the month for your oral hearing by the Parole Board is June 2012."
"he has been pro-active and has written to other prisons to see whether he can be placed on their waiting lists. To my knowledge at the time of writing, he will remain at HMP Whatton to complete the programme and then after this, will be assessed for the BLB programme."
"The responsibility for addressing your risk reduction rests with you. However the Secretary of State has identified from the information contained within your dossier the following further interventions in closed conditions to help you address these factors. Please note that the Secretary of State cannot guarantee to place you on these specific interventions as there are limits on the availability of resources. In addition, some interventions have entry requirements and may not be appropriate for you following these assessments. In these circumstances other offending behaviour courses/interventions may be considered ….
The provision and allocation of prisoners to interventions rests with HMPS
Your review period is therefore set at 21 months and is made up of the following:-
5 months – Extended SOTP
6 months – Post programme objectives / SARN assessment
3 months – BLB Programme
7 months – To complete areas of work identified. Consolidation and implementing learning i.e. relapse prevention strategies (Sexual interest and attitudes)
You are currently on the waiting list for E-SOTP."
The facts: systems and resources
"temporary reduction of nine places in the provision of the ESOTP at these three prisons. This is because HMP Whatton has been commissioned for 2013/14 to deliver more Better Lives Booster programmes in order to reduce its waiting lists for this programme …."
"NOMS operates a commissioning business model which results in new service level agreements and revised contract schedules with existing service providers being agreed year on year. It is the commissioning cycle which determines the mix and type of services that are delivered on a financial year basis."
"we can only negotiate according to the resource we have and there is no access to more money to fund additional courses over and above previous delivery levels. Increases in one programme type or prison can be funded only by decreasing delivery elsewhere and, thereby, putting another group of prisoners at a disadvantage. So, in order to deliver more accredited programmes in, say, HMP Whatton, we would have to decommission something in another prison."
"There is also pressure for places from determinate sentence prisoners, some of whom are also very high risk, and where the public may be placed at more risk if they are released without any treatment. As determinate sentence prisoners, they have an automatic conditional release date, regardless of whether they present an undiminished risk of serious harm to the public. Hence prioritisation and selection decisions for particular courses must take a range of factors into account and can sometimes involve very difficult choices."
- "Risk of harm: higher risk of harm cases take priority over lower risk of harm cases
- Likelihood of re-offending: higher risk cases take priority over lower risk cases
- Timing of hearings: in custody, those who have imminent parole/oral hearings are prioritised over those who do not as are those likely to be subject to release under Home Detention Curfew arrangements
- Likelihood of positive impact: who is the most suitable, the most motivated, and the most ready to engage?
- Group composition: what is the balance of needs and different characteristics within a group and how will this affect group dynamics?
- Other opportunities for treatment: those who have no other opportunities to attend similar treatment, for instance later on in their sentence or after release, are prioritised over those who will have other opportunities.
- Proximity to release/expiry of order: those who are closer to release or who are reaching the end of a community order or licence requirement should take priority."
"The reality is that the governing criteria (sic) in allocating places is the proximity of release/expiry of order date in relation to a particular prisoner on the waiting list against others on the same waiting list. This means that those serving determinate sentences which are due to expire in the next six months, and those prisoners who are longest past tariff, will be prioritised over those prisoners whose tariff has yet to expire or who are at the start of a long determinate sentence. SOTPs are structured interventions which are best completed in closed conditions, in order to address risk before release and therefore it is vital that prisoners with imminent release dates are prioritised over, say, those whose tariffs are just expired."
Issue (1): The public law duty in James to make reasonable provision
"There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection ('IPPs') by section 225 of the Criminal Justice Act 2003. He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention. The Divisional Court … granted a declaration to that effect …. Its decision was affirmed … by the Court of Appeal …. The Secretary of State has not appealed against that declaration. Very properly, he accepts that it was implicit in the statutory scheme of sections 224 and 225 of the 2003 Act that he would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released. As Miss Lieven QC for the Secretary of State put it, the scheme was such that it was not rational for him to fail to do so."
Lord Hope's reference at para 5 to breach of "the public law duty to have a system in place which provided prisoners with a reasonable opportunity to demonstrate that they are no longer dangerous" is simply a summary formulation of the same point.
"the Secretary of State's acknowledgment that it was implicit in the statutory scheme that he would make reasonable provision to enable IPP prisoners to demonstrate to the Parole Board (if necessary by completing treatment courses) their safety for release, and his concession that during the period of systemic failure to make such provision he was accordingly in breach of his public law duty."
"(1) The Secretary of State is under a public law duty to provide indeterminate sentence prisoners with the means by which they can demonstrate, at or around the expiry of their sentences, that their risk has reduced sufficiently to enable their release. That duty is not confined to those serving IPP but includes life sentence prisoners.
(2) A breach of the duty occurs when there is a failure to provide the appropriate systems and resources covering matters such as reports and rehabilitative courses. This failure may be described as systemic although proof of a systemic breach (whatever that means) is not an additional requirement to establish a breach of that duty.
(3) Breach of this duty does not confer on a particular prisoner a right to a remedy in his particular case although the upshot of a prisoner demonstrating a breach may be a ready improvement in how he is treated within the prison system, e.g. if there is a system or resource problem in his particular prison which improves as a result.
(4) There is a separate and well accepted public law duty on the Secretary of State to act rationally and to take into account relevant factors, while disregarding irrelevant matters. This duty applies to making choices in relation to the allocation of resources for rehabilitative programmes. For example, subject to resources it would be irrational to have a policy of making release dependent upon a prisoner undergoing a rehabilitative course without making reasonable provision for such courses.
(5) This separate and well accepted public law duty also applies to the treatment of a particular prisoner …."
Issue (2): Allocation of available resources
(1) First, he complains about the giving of priority to prisoners serving determinate sentences over those serving IPPs. He submits that the James duty does not apply to determinate sentence prisoners, since their release does not depend on the completion of courses for the purpose of demonstrating that they are safe to be released; and if choices have to be made within limited resources, priority should be given to indeterminate sentence prisoners whose release does depend on the completion of such courses.
(2) His second complaint concerns the failure to have regard to the length of a prisoner's tariff. He submits that short-tariff prisoners such as Mr Massey ought to have priority over those with a longer tariff, as a consideration distinct from the date of tariff expiry.
(3) Thirdly, he submits that the proper application of relevant factors to Mr Robinson (in particular, the grant of priority by reference to higher risk of harm, higher risk of re-offending, imminence of parole hearing, likelihood of positive impact, and lack of other opportunities for treatment) ought to have favoured Mr Robinson for priority and that he was adversely affected by the erroneous concentration on tariff/sentence expiry date.
(4) The fourth complaint is that no consideration is given to how long a prisoner has been on the waiting list for a particular course. This factor is not included in the NOMS list of criteria, but the list is not exhaustive and the factor should have been taken into account in individual decision-making.
Issue (3): Article 5(1)(a) ECHR
"5(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 …."
"It is just possible to conceive of circumstances where the system which the statutes have laid down breaks down entirely, with the result that the Parole Board is unable to perform its function at all. In that situation continued detention could be said to be arbitrary because there was no way in which it could be brought to an end in the manner that the original sentence contemplated. But the failures for which the Secretary of State accepts responsibility, while highly regrettable, cannot be said to have created a breakdown of that extreme kind. The claimants' cases were referred by him to the Parole Board as the statute required. A favourable consideration of them may have been delayed, but performance of its task of monitoring their continued detention was not rendered impossible …."
"218. The Court reiterates that the right to liberty is of fundamental importance. While its case law demonstrates that indeterminate detention for the public protection can be justified under art 5(1)(a), it cannot be allowed to open the door to arbitrary detention ….
219. Mr James' tariff expired almost one year and 295 days after he was sentenced. He was not progressed through the prison system during that period and recommended courses were unavailable to him …. Mr Wells' tariff expired 307 days after he was sentenced. He was also not progressed through the prison system during the period and recommended courses remained unavailable to him …. Mr Lee's tariff expired 163 days after he was sentenced. Like Mr James and Mr Wells, he was not progressed through the prison system during that period and recommended courses remained unavailable to him ….
220. The Court considers it significant that substantial periods of time passed in respect of each of the applicants before they even began to make any progress in their sentences, and this despite the clear guidance in PSO 4700. It is clear that the delays were the result of a lack of resources and while, as noted above, resource implications are relevant, it is nonetheless significant that the inadequate resources at issue in the present case appeared to be the consequence of the introduction of draconian measures for indeterminate sentences without the necessary planning and without realistic consideration of the impact of the measures. Further, the length of the delays in the applicants' cases was considerable: for around two-and-a-half years, they were simply left in local prisons where there were few, if any, offending behaviour programmes ….
221. In these circumstances, the Court considers that following the expiry of the applicants' tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses, their detention was arbitrary and therefore unlawful within the meaning of art 5(1) of the Convention …."
(1) First, he submits that the facts of this case are sufficiently extreme to justify a finding of arbitrariness on the basis left open by the House of Lords in James.
(2) Alternatively, he submits that the facts justify a finding of arbitrariness and breach of article 5(1)(a) on the basis of the reasoning of the ECtHR in James (Strasbourg). If we are precluded by the decision of the House of Lords in James from applying the approach in James (Strasbourg), he submits that we should dismiss the claim but grant permission to appeal in the same way as was done in Haney & Jarvis.
Issue (4): Article 8 ECHR
Issue (5): Article 5(4) ECHR
"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 the detention is not lawful."
"(a) Article 5(4) of the ECHR creates a right to a speedy review of the lawfulness of a prisoner's detention at or about the expiry of the tariff period, so that a prisoner who no longer constitutes a danger to the public can be released.
(b) Thereafter, if release is not ordered, the prisoner is entitled to periodic reviews at reasonable intervals by the Parole Board to assess his continuing dangerousness or lack thereof.
(c) It is for the Secretary of State to fix the period before the next review, but his decision can be challenged by way of judicial review. In the event of such a challenge, it is for the court to reach its own decision as to the appropriate review period and not merely to determine whether the decision of the Secretary of State was reasonable. However, in arriving at its own decision, the court will have due regard to the view of the Secretary of State and, where applicable, the Parole Board, bearing in mind that the Secretary of State has particular expertise in these matters and is in a good position to assess all the relevant circumstances.
(d) What review period is appropriate in order to comply with Article 5(4) depends on all the circumstances of the individual case, with no maximum review period prescribed by the European Court of Human Rights.
(e) There is no formal legal presumption that a Parole Board review must be heard within 12 months of the last review and this cannot be regarded as a 'default setting' or 'benchmark'. In practice, however, at least in circumstances in which the prisoner is making progress, 12 months will often represent a convenient starting point. Thus a review period of 12 months or less will generally be regarded as compliant with Article 5(4) unless there is some particular reason to the contrary, while the Secretary of State will generally have the burden of justifying by reference to the particular facts of the case a review period of more than 12 months. How heavy a burden that will be will depend on the facts of the case. The greater the period between reviews beyond 12 months, the more cogent the Secretary of State's justification for the review period will need to be Nevertheless there are cases where review periods substantially in excess of 12 months have been held to be justified.
(f) In order to justify a review period, the Secretary of State must normally identify the progress which the prisoner needs to make before the next review and the time within which it can reasonably be expected that such progress can be properly monitored and reported on so that the Parole Board can sensibly be expected to order (or recommend, as the case may be) a change in the prisoner's status. It must be borne in mind here that in order for the Parole Board to make such an order or recommendation it will need to be satisfied that doing so will not involve unacceptable risk to the public.
(g) Failure to conduct a review in accordance with these principles does not of itself make further detention unlawful, but it does constitute a breach of a prisoner's Article 5(4) rights and this will entitle the prisoner to an appropriate remedy."