England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/11/2014

Mr Justice Dingemans :

Introduction

1. These cases raise an important issue about the extent to which the public law duty, confirmed by the House of Lords in R(James, Lee & Wells) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553, on the Secretary of State for Justice ("the Secretary of State") can be modified or affected by the level of resources made available by the Secretary of State. The public law duty is a duty on the Secretary of State to provide systems and resources that prisoners serving indeterminate sentences for public protection ("IPP's") need to demonstrate to the Parole Board, by the time of expiry of their tariff periods, or reasonably soon thereafter, that it is no longer necessary for the protection of the public that they remain in detention.
2. Each of the Claimants has now served the original tariff that was imposed on him by the Courts under the IPP. Each of the Claimants has, to date, waited at least two years for the Healthy Sex Programme ("HSP") course which he has been recommended to undertake and is on his critical path to a recommendation for release from the Parole Board. The earliest that any of the Claimants is predicted to access the HSP, if the matter is not remedied, is a further 6-18 months from the date of this judgment. The latest that any of the Claimants is predicted to access the HSP is a further 2 ½ - 3 ½ years from the date of this judgment, which would be between 5 ½ and 6 ½ years after the recommendation that that Claimant undertake the HSP.
3. The Claimants complain that the Secretary of State is acting in breach of the public law confirmed duty. The Secretary of State accepts that there is a public law duty, but contended at the hearing that the duty has been discharged having regard to the available resources, and resisted the Claimants' claims.
4. The First, Second and Third Claimants also claim an infringement of article 5(1) of the European Convention of Human Rights ("ECHR") and just satisfaction, and the Third Claimant makes a claim for infringement of article 5(4) of the ECHR and just satisfaction. All the claims for infringement of article 5 of the ECHR are resisted.

A brief history of IPP's

5. IPP's were provided for by section 225 of the Criminal Justice Act 2003 ("the 2003 Act"). IPP's came into effect on 4 April 2005. Under an IPP the Court is required to specify a minimum period by way of tariff after the expiry of which the prisoner is eligible for review by the Parole Board who might direct his release on licence. The tariff represents the equivalent to the period of imprisonment which the prisoner would have served as punishment under a determinate sentence of imprisonment.
6. The provisions of section 225 of the 2003 Act were described by Lord Carswell in R(James, Lee & Wells) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553 at paragraph 23 as "draconian". Lord Carswell noted that chaos was caused "when for some unfathomable reason it was decided that the new scheme would be resource-neutral and so sufficient facilities necessary for IPP prisoners to demonstrate their fitness for release were not made available". Lord Judge CJ recorded, at paragraph 121 of the same judgment, that "the preparation for the inevitable consequences of the new sentencing provisions relating to IPP's was wholly inadequate. To put it bluntly, they were comprehensively unresourced". Lord Hope, at paragraph 3, considered that the Secretary of State had "failed deplorably" in the duty to make adequate provision for those serving IPP's.
7. The statutory provisions relating to IPP's were significantly amended with effect from 14 July 2008, when rebuttable presumptions to the effect that certain offenders who had committed offences specified in schedules to the 2003 Act were dangerous were abolished, and minimum tariff periods of 2 years were required to be imposed before an IPP could be imposed.
8. In R(James, Lee and Wells), decided on 6 May 2009, the amendment of the statutory provisions was recorded, and it was noted that steps had been taken to address the future problem of access to courses. The Divisional Court had made a declaration, which had been affirmed by the Court of Appeal and which was not appealed by the Secretary of State, to the effect that "the Secretary of State had acted unlawfully by failing to provide for measures to allow and encourage prisoners serving IPP's to demonstrate to the Parole Board by the expiry of their minimum terms that it was no longer necessary for the protection of the public to be confined", see [2008] 1 WLR 1977 at 1980B. It appeared to be the common expectation of the parties at the hearing in the House of Lords that the problems of the lack of access to courses for those serving IPP's would be resolved.
9. However there were other problems with IPP's. Decided cases since R(James, Lee and Wells) show that other prisoners subject to IPP's have brought a number of different challenges to the regime. There were delays in arranging hearings before the Parole Board, see R(Betteridge) v The Parole Board [2009] EWHC 1638 (Admin), a decision of the Administrative Court dated 23 June 2009, where, at paragraph 28 a breach of article 5(4) of the European Convention of Human Rights ("ECHR") was recorded "because of the lack of man power having regard to the pressures on the Board". In R(Guittard) v Secretary of State for Justice [2009] EWHC 2951 (Admin), a decision of the Administrative Court dated 18 November 2009, other failings in ensuring that prisoners subject to IPP's could progress through the system were noted, see paragraphs 1, 8 and 24.
10. Parliament again addressed the issue and IPP's were abolished by the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which was brought into force on 3 December 2012. However that left those in prison, including the Claimants, who had been sentenced to IPP's and who had not yet been released, still subject to the IPP regime.
11. Recent cases have shown that, notwithstanding the optimism expressed in R(James, Lee and Wells), the Secretary of State has continued to act in breach of the public law duty. In R(Massey and Robinson) v HMP Whatton and Secretary of State for Justice [2013] EWHC 3777 (Admin), a decision of the Divisional Court dated 4 December 2013, at paragraph 62 it was recorded that "the Secretary of State is in continuing breach of the James public law duty", although a declaration was refused because the judgment was sufficient to recognise the breach and the Claimants had, by the time of the judgment, been provided access to the courses.
12. In R(Kaiyam and Haney) v Secretary of State for Justice [2013] EWCA Civ 1587; [2014] 1 WLR 1208, a decision of the Court of Appeal dated 9 December 2013, it was common ground that the concession on behalf of the Secretary of State made at first instance in Haney to the effect that there had been a breach of the James public law duty was properly made. There had been no breach in the case of Kaiyam.

Relevant policies

13. Prison Service Order ("PSO") 4700 provides at paragraph 4.1.1 that prisoners serving indeterminate sentences of imprisonment ("ISP's"), which includes prisoners serving IPP's, "will be managed through their sentence plan with the primary aim being to meet their individual needs and help them to reduce the risk of serious harm they present to the public, in line with the principles of offender management and in the light of the principle that the ultimate responsibility for demonstrating a reduction in risk lies with the offender". Plans aim to identify risks which must be reduced and offer timely delivery of properly identified interventions, having regard to available resources, so that Parole Board reviews could be meaningful.
14. The HSP Guidance for staff carrying out assessment for suitability, dated April 2013, provides at page 21 for prioritising HSP treatment places. It is noted that once considered suitable and ready the prioritisation strategy was for: determinate prisoners in the last 12 months of sentence and indeterminate sentence offenders who are post tariff; determinate or indeterminate offenders in the last 2 years before tariff expiry or release; and determinate or indeterminate offenders of any risk level with longer than 2 years before tariff expiry/release. The Guidance continues "When deciding on the allocation of limited treatment places, it is recommended that additional factors are taken into consideration". The Guidance went on to list factors including dynamic and static risk, likelihood of positive impact, how long the individual had been waiting, timing of parole hearings and time remaining on sentences.
15. The NOMS Commissioning Intentions from 2014 note that Indeterminate Sentence Prisoners "need to receive sufficient case management to enable them to progress towards safe release by the Parole Board. Case management should be highest where an ISP is post-tariff and/or not progressing at Parole hearings".

Relevant sentences and dates for each Claimant

16. I now turn to set out the relevant dates for each Claimant, which are now common ground between the parties.

The First Claimant

17. In 2002 the First Claimant received a sentence of imprisonment of 8 years for importing drugs. On 8 March 2007 he carried out the Core Sexual Offender Treatment Programme ("Core SOTP") and was subject to a Structured Assessment of Risk and Need ("SARN"), following which he had 8 sessions with a trainee psychologist in August 2007. This was because he had disclosed sexual fantasies relating to young girls.
18. The First Claimant was released on licence, but he was recalled to prison because he was seen observing young girls on a carousel. In January 2008, when in prison, the First Claimant revealed to prison officers a plan to strangle a 10 year old girl for sexual purposes. On 8 October 2008 the First Claimant was convicted of threatening to kill a child, and sentenced to an IPP with a tariff of 20 months (less days already spent on remand).
19. On 7 May 2010 an Extended Sexual Offences Treatment Programme ("ESOTP") suitability report was completed. The Claimant's tariff expired on 10 December 2009. The First Claimant completed the ESOTP on 31 October 2011.
20. On 28 May 2012 a SARN report recommended that the First Claimant be referred to the Healthy Sexual Functioning Programme ("HSFP"). That was nearly 2 ½ years ago.
21. In June 2012 the Offender Supervisor addendum report supported the SARN recommendation. On 7 November 2012 the Parole Board remained very concerned by the First Claimant's sexual offences and considered that he required further treatment before the First Claimant was moved to open conditions. The Secretary of State recommended that the First Claimant undertake the HSFP to attempt to meet the Parole Board's concerns.
22. On 1 April 2013 the HSFP was revised, and its name was changed to the HSP. On 14 May 2013 the First Claimant complained because he had not yet been provided with the course.
23. The First Claimant is number 40 on the waiting list. The evidence shows that his estimated access to the course will be between April 2015 to April 2016. This will be between 3 and 4 years after he was assessed as suitable for the course, and some 6 months to 18 months after the date of this judgment.

Relevant sentence and courses for the Second Claimant

24. On 3 July 2009 the Second Claimant was sentenced to an IPP with a tariff of 3 years and 4 months (less days spent on remand) for an offence of assault by penetration and assault occasioning actual bodily harm.
25. The Second Claimant completed the Thinking Skills Programme in June 2010 and the Core SOTP in May 2011, at a time when he was detained in HMP Hull.
26. On 20 September 2011 a SARN report recommended his referral to the HSFP. That was over 3 years ago.
27. His tariff expired on 11 May 2012. The Second Claimant completed a Building Better Relationships programme in September 2012, but he is still waiting for what is now the HSP.
28. The Second Claimant had originally been told, in a recommendation to the HSP dated 2 July 2013, that he would be able to attend the course in the year between April 2014 and April 2015 "most likely towards the end of this period". However there was some confusion on the evidence, caused by the fact that the Second Claimant's sentence date had been incorrectly noted, and it has now been confirmed that the Second Claimant is 94^th on the waiting list for the HSP. This means that he is likely, on the current level of provision, to access the HSP between April 2017 and April 2018. This will be between 5 ½ and 6 ½ years after he was recommended for the course, and some 2 ½ to 3 ½ years after the date of this judgment.

Relevant sentence and courses for the Third Claimant

29. The Third Claimant, who is nearly 73 years old, was sentenced on 13 August 2007 to an IPP with a tariff of 2 years and 6 months (less days spent on remand) for two offences of trespass with intent to commit indecent assault and one count of common assault.
30. When serving a previous sentence for indecent assault and gross indecency against male children, and two counts of buggery, the Third Claimant underwent a Rolling Sex Offender Treatment Programme. He also completed the Sex Offender Group Programme and Better Lives Relapse Prevention Programme when on licence.
31. On 11 March 2009 the Third Claimant completed the Enhanced Thinking Skills Programme, and on 29 September 2009 he completed the Core SOTP. A SARN recommended further work in the areas of child abuse supportive beliefs and his pre-occupation with sex.
32. The Third Claimant's tariff expired on 6 November 2009.
33. In December 2010 the Third Claimant was assessed as suitable for the HSFP, but he withdrew himself from the waiting list on 1 April 2011 because he did not consider that he fit the criteria for the course, claiming that he was in a loving relationship with his partner.
34. On 21 April 2011 a Suitability Assessment Report was carried out, and on 18 August the Third Claimant was assessed as unsuitable for the ESOTP.
35. A parole board decision dated 20 December 2011, accepted by the Secretary of State on 7 February 2012, in relation to the Third Claimant showed HSFP and the Better Lives Booster programme ("BLB") as his next progression steps. On 8 February 2012 the Third Claimant requested reassessment for the HSFP, noting that he now appreciated how important reducing his risk levels was both for him and the Parole Board.
36. On 15 February 2012 it was confirmed that the Third Claimant was suitable for the HSFP, although it was noted that there were 23 prisoners with greater priority. However on 29 May 2012 there was some suggestion that the Third Claimant was not suitable for HSFP and that other prisoners were more of a priority. However the evidence establishes that the Third Claimant has still been assessed as suitable for HSP, and he needs to undertake the course to progress towards release.
37. On 15 February 2012 the Third Claimant was said to be 24^th on the list of persons from HMP Whatton to attend the HSP, and he was told that he would be able to undertake the course in early 2014.
38. On 8 March 2013 an updated sentence plan was prepared for the Third Claimant, and on 28 March 2013 the Third Claimant was informed that he was on the waiting list for HSFP, but was not likely to access the programme until 2016. In July 2013, the Parole Board noted that, in effect, the Third Claimant could not be released until he had undertaken the HSP. Notwithstanding detailed requests, and notwithstanding the fact that an explanation has been provided for the Second Claimant's movement up and down the lists, there has been no explanation provided for the Third Claimant's movement from a start date in early 2014, to a start date between April 2015 and April 2016.
39. A letter before action did not assist, and proceedings were issued in 2013. The Third Claimant is still waiting to access the HSP. He is currently 30^th on the waiting list. On the current level of provision he is likely to start the course in the year between April 2015 and April 2016. This will be between 3 and 4 years after the relevant recommendation in 2012 that he undertake the HSP, and some 6 to 18 months after this judgment.

The evidence about provision for the HSP

40. Simon Boddis ("Mr Boddis") is the Deputy Director and Head of the Commissioning Group of the National Offenders Management Service ("NOMS") provided evidence of the overall position relating to relevant courses (or programmes as they are referred to in NOMS). He stated that there had been an improvement in the provision of courses, but accepted that many prisoners subject to IPP's were now post tariff, and the evidence showed that they were waiting for courses.
41. In 2010 an Indeterminate Sentence Prisoners Coordination Group had been formed to monitor the performance of NOMS in relation to such prisoners, but the Group did not manage the individual prisoners. Mr Boddis said that the number of HSP course places had risen.
42. Lynn Saunders ("Ms Saunders") is the current Governor of HMP Whatton and gave evidence about courses provided to the Claimants and about the increase in number of places on the courses from the commissioning year beginning April 2013 to the commissioning year beginning April 2014. Commissioning years begin in April. However at HMP Whatton, which is a specialist sex offender prison, the number of places for the commissioning year beginning April 2013 and for the commissioning year beginning April 2014 had remained at 10 places, although a further 7 places have just been arranged by means of overtime provision, meaning that 17 places will be available to prisoners at HMP Whatton in the commissioning year beginning April 2014 which finishes at the end of March 2015.
43. Ms Saunders noted that since 1 April 2014 individual management of HSP provision by prisons has been replaced by a national HSP referral list. This was "in response to concerns from offenders and observations from NOMS that allocation needed to be equitably managed across the estate given the level of demand for HSP places available".
44. Jo Bailey ("Ms Bailey") works at the NOMS Headquarters. She gave evidence about the current ranking of the Claimants on the courses. In her second witness statement, handed in on the first day of the hearing, the rankings of the prisoners waiting for the HSP was revised to correct a mistake relating to the Second Claimant. He went down from number 34 to number 94 on the list.
45. In a letter dated 10 November 2012 the Parliamentary Under-Secretary of State for Justice wrote to the Chair of the Independent Monitoring Board who had raised concerns about the number of Offender Behaviour Programmes, courses, which were available to prisoners. The letter went on to note that "As the largest Agency within the Ministry of Justice though, NOMS remains committed to fully contributing to the target reductions in budgets set for the Ministry and the challenge of identifying efficiency savings across the spending review period … decisions on where to prioritise allocation of resources will continue to be made based on protecting front-line services over back-office functions wherever possible … I understand that the need for interventions outstrips availability and this area is being actively managed due to the current financial pressures". The letter went on to note the request for an increase in courses for sex offenders at Whatton, before noting that any commissioning would be evidence-based. In my judgment this letter showed that issues about resources were affecting the provision being made for the courses.
46. On 30 April 2013 the Second Claimant received a letter from the Ministry of Justice referring to the courses for which the Second Claimant had been identified as suitable and saying "… the Secretary of State cannot guarantee to place you on these specific interventions as there are limits on the availability of resources". This letter made it clear that limits on resources were affecting the Claimants' access to the courses.
47. In paragraph 29 of Ms Saunders' second witness statement, dated 1 August 2014, Ms Saunders noted that the Claimants were post tariff before continuing "however, there are a number of prisoners waiting for the HSP whose tariffs expired earlier than [the Third Claimant] who are rightly prioritised ahead of him to receive treatment sooner, given the reality that not everyone can be treated straightaway, as programmes have to be delivered to work within the limits of available resources" (emphasis added). This witness statement shows that limits of resources were limiting the Claimants' access to the courses.

My findings on the evidence

48. The evidence shows, and I find, the following matters. First all the Claimants are Category C prisoners. Secondly they are all required to undertake the HSP in order to stand any reasonable prospect of the Parole Board making a recommendation either that they be released (which is an unlikely recommendation) or that they be moved to open conditions on the path to release (which is a more likely recommendation). This means that progress towards release is effectively impossible without attending the HSP. Thirdly they are all currently motivated to attend the HSP.
49. Fourthly there are currently 162 Category C prisoners subject to an indeterminate sentence waiting for the HSP, of which 140 are tariff expired. Fifthly there were 23 courses provided to Category C prisoners in the commissioning year beginning April 2013, and this increased to 31 courses in the commissioning year beginning April 2014 which runs until the end of March 2015. This should increase to 38 courses, as this will reflect the 7 extra courses being provided at HMP Whatton through overtime provision. Sixthly the Claimants' position on the list is very likely to be affected by 3 matters: (a) prisoners being found to be unsuitable for the course when they get to the top of the list, meaning that the Claimants would move up; (b) prisoners, who have earlier tariff expiry dates, moving on to the list after they have been recommended for the HSP, meaning that the Claimants would move down the list; and (c) prisoners serving determinate sentences, coming up for release, being moved on to the list and because they are being given priority over IPP prisoners meaning that the Claimants would move down the list. In my judgment, and doing the best that I can with the information provided, that is likely to have some overall adverse effect on the Claimants' position on the list.
50. Seventhly the evidence demonstrates that the delays in accessing the courses appear to be reasonably static from 2012 to date, and that, even with the extra HSP provision being made for Category C prisoners in the next commissioning year, the delays are likely to continue at about the same level over the next 4 years, subject only to steps taken in response to rulings that the Court may make. Eighthly the evidence shows that, even with 38 places in the next commissioning year, persons whose tariffs have already expired (up to prisoner number 140 on the list of 162) will wait for 4 years before standing a chance of getting on a course.
51. I also record that it is apparent from the evidence, from the letter dated 10 November 2012, through the letter dated 30 April 2013, and into the witness statement of Ms Saunders, that the Secretary of State has been taking into account other competing claims for resources when deciding what allocation to make to provide the courses for these Claimants.
52. I should also record that, as appears from evidence relating to each Claimant, each Claimant has attended on some courses. However it is the provision to HSP which is now on the critical path to their recommendation for release from the Parole Board.
53. I will address other relevant findings of fact when dealing with specific submissions about whether the Secretary of State has acted in breach of relevant duties.

Relevant legal principles

54. It is common ground that the Claimants cannot bring any common law claim for false imprisonment. This is because the continued detention of the Claimants is authorised by statute, see R(James, Lee and Wells) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553 at paragraph 6, and R(Sturnham) v Parole Board [2013] UKSC 23 and 47; [2013] 2 AC 254.
55. The authorities establish that the Secretary of State owes three relevant public law duties. The first is the public law duty identified in R(James, Lee and Wells). I will return to this duty in the light of submissions about the duty made by Mr Lowe.
56. The second duty is to act rationally in allocating resources, see R(Kaiyam and Haney) at paragraph 29.
57. The third duty is, in the ordinary course of events, to act in accordance with his own policy, see R(Kaiyam and Haney) at paragraph 30.

The public law duty in R(James, Lee and Wells)

58. Mr Lowe submitted that the public law duty in R(James, Lee and Wells) was set out by Richards LJ in the Divisional Court in R(Massey and Robinson) at paragraph 55 where he said "the question is whether the Secretary of State has made reasonable provision of systems and resources for the relevant purpose. The duty is not an absolute one. Nor, however, is the test simply whether the Secretary of State has acted rationally. It is for the court to decide on all the evidence before it whether reasonable provision has been made, so as to amount to compliance with the duty".
59. Lord Dyson MR also set out the test in the Court of Appeal in R(Kaiyam and Haney). He referred to paragraph 3 of R(James, Lee and Wells) where Lord Hope had said the duty was "to provide the systems and resources that prisoners serving [indeterminate] 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", and then referred to the acceptance by counsel for the Secretary of State in R(James, Lee & Wells) that it was not rational for the Secretary of State to fail to make the provision, and made other references to relevant policies. Lord Dyson MR went on at paragraph 28 in R(Kaiyan and Haney) to state "I consider that the only public law duty that is to be derived from the [House of Lords] is the duty (implicit in the legislative scheme) to provide systems and resources necessary to afford prisoners a reasonable opportunity to demonstrate that they are no longer dangerous".
60. I do not consider that there are any material differences between the test as formulated by Richards LJ in R(Robinson & Massey) and the test as formulated by Lord Dyson MR in R(Kaiyam & Haney). It would be surprising if there were any such differences because both Courts had derived the test from R(James, Lee & Wells), but if it were necessary to choose between the two tests I would apply the test set out in R(Kaiyam & Haney). This is because that was a decision of the Court of Appeal as opposed to a decision of the Divisional Court.
61. Both tests in R(Robinson & Massey) and R(Kaiyam and Haney) made it clear that the duty was "(implicit in the legislative scheme) to provide systems and resources necessary to afford prisoners a reasonable opportunity to demonstrate that they are no longer dangerous". This means, as Lord Phillips CJ, at paragraph 40 of R(Walker) in the Court of Appeal made clear, the public law duty in R(James, Lee and Wells) "… cannot simply be regarded as a discretionary choice about resources, which is pre-eminently a matter for the Government rather than the Courts". It should be noted that the public law duty identified in R(James, Lee and Wells) is not formulated as a duty "to act reasonably in making available systems and resources". If that had been the duty it would have raised issues about discretionary decisions relating to the allocations of resources.
62. There was reference to R(Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522; [2004] UKHRR 101 in the submissions before me. The approach in R(Cawser) is now relevant only to the second public law duty identified in R(Kaiyam and Haney), namely the duty to provide systems and resources in a rational way, and it does not impact on the R(James, Lee and Wells) public law duty discussed in paragraph 23 above. This is because R(Cawser) dealt with the public law duty to act rationally and pre-dated the judgment of the Divisional Court in R(Walker) v Secretary of State for Home Department [2007] EWHC 1835 (Admin); [2008] 1 All ER 138, and the judgment of the Court of Appeal in the same case R(Walker) v Secretary of State for Justice (Parole Board intervening) [2008] EWCA Civ 30; [2008] 1 WLR 1977, which then formed part of the case considered by the House of Lords in R(James, Wells and Lee).
63. It is apparent that the duty to act rationally when providing relevant resources has created some confusion about the nature of the public law duty in R(James, Lee and Wells). It should not have done. As noted above in R(Walker) in the Court of Appeal, Lord Phillips CJ, having been referred to Cawser, made it clear that the public law duty in R(James, Lee and Wells) "cannot simply be regarded as a discretionary choice about resources, which is pre-eminently a matter for the Government rather than the Courts". Richards LJ, when giving judgment in R(Massey & Robinson), noted that "the duty is to make reasonable provision, and that duty plainly requires sufficient resources to be made available for its fulfilment". It might be noted that Richard LJ's judgment pre-dated the second witness statement made by Ms Saunders in which reference was made to delivering programmes to those waiting on the list within the limits of available resources.
64. It is apparent from the evidence, summarised above, that the Secretary of State, or those acting on his behalf, have sought in responses to inspectors and monitors of HM Prisons, in responses to the Claimants, and in the evidence before me, to justify a failure to provide sufficient resources to afford to prisoners a reasonable opportunity to demonstrate that they are no longer dangerous, by reference to the overall pressure on the resources available to the Secretary of State. It is therefore necessary to attempt to explain why the public law duty in R(James, Lee and Wells) is not a duty involving "a discretionary choice about resources" and why the "duty plainly requires sufficient resources to be made available for its fulfilment".
65. Parliament, as the Legislature, was entitled to provide for IPP's in section 225 of the 2003 Act. It was the duty of the sentencing Courts, as the Judiciary, to apply first the provisions of the 2003 Act, and then the provisions of the amended 2003 Act. It was also for the Courts to determine, when the issue was raised on the cases before it, that there was implicit in the statutory scheme for IPP's, the public law duty identified in R(James, Lee and Wells). Parliament was entitled to modify the statutory considerations relevant to their imposition in July 2008, and to abolish IPP's in December 2012.
66. However once Parliament had provided for sentences of IPP's, the Secretary of State, as the Executive, owed the public law duty implicit in the statutory scheme of sections 224 and 225 of the 2003 Act to provide "the system and resources that prisoners serving [IPP's] needed to demonstrate to the Parole Board by the time of the expiry of their tariffs, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention", see paragraph 3 of R(James, Lee and Wells). This was not a public law duty on the Executive which was a form of desirable, but optional, extra to be assessed along with important and competing demands for public monies. This was a public law obligation which needed to be discharged through the budget proposed by the Executive and then approved, after modification, by Parliament. The Secretary of State is not entitled to overlook the public law duty by pointing to inadequate resources, any more than a claim for breach of a commercial contract made against the Executive can be defended by pointing to other competing obligations for resources.
67. This means that although the allocation of resources is not a matter for the Court, the duty on the Secretary of State cannot be met by identifying a lack of resources. If Parliament retains sentences of IPP's for these Claimants, as it has done and is entitled so to do, the Secretary of State has a duty to provide resources to discharge the public law duty.

Article 5 of the ECHR and IPP's

68. Article 5 of the ECHR provides:

(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 curt and his release ordered if the detention is not lawful.

(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

69. In R(James, Lee and Wells) the House of Lords rejected the claims for infringement of articles 5(1) and 5(4) of the ECHR. In relation to article 5(1) it was held that there remained a causal connection between the original sentence and the continued imprisonment of the prisoners, and this was sufficient to defeat the article 5(1) claim. It was recognised that in certain very limited circumstances there might be a breach of article 5(1), for example "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", see paragraph 15, or where there was a "very lengthy period without an effective review of the case", see paragraph 51.
70. So far as article 5(4) was concerned it was noted that it required "a review hearing upon the procedural and substantive conditions which are essential for the lawfulness of their deprivation of liberty", see paragraph 17. That was intended to be met by the Parole Board. It was noted that "if the system which the statutes have laid down breaks down entirely because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary" there would be a violation.
71. In James, Lee and Wells v United Kingdom (2013) 56 EHRR 12, the European Court of Human Rights decided that there had been an infringement of the provisions of article 5(1) of the ECHR, and that the claim under article 5(4) gave rise to no separate issue. The European Court of Human Rights held that in circumstances where a Government seeks to rely solely on the risk posed by offenders to the public in order to justify continued detention, regard must be had to the need to encourage the rehabilitation of offenders. The Court had regard to the causal connection between the original sentence and the imprisonment, and held that had not been breached. However the Court considered that the detention had become arbitrary because there had been no delivery of the relevant courses which would enable the Claimants to obtain a release from imprisonment.
72. I remain bound by the decision of the House of Lords in R(James, Lee and Wells) for the reasons given in Kay v Lambeth Borough Council [2006] UKHL 10; [2006] 2 AC 465. Mr Rule and Mr dos Santos submitted that this was one of those rare cases where, notwithstanding the judgment in Kay, I could follow the judgment of the European Court of Human Rights. This was because the House of Lords had only confronted the issue of whether there was a causal connection between the sentence of the Court and the continuing imprisonment, and had not addressed the issue whether the detention had become arbitrary, and that there was a settled practice in the European Court of Human Rights to find that arbitrary detention breached article 5(1). Reference was made to the judgment in Duncan v Scottish Ministers [2014] CSOH 24 at paragraph 116 where Lord Glennie had taken such an approach.
73. I do not consider that I am entitled to take such an approach. This is because in R(Kaiyam and Haney) the Court of Appeal, when confronted with similar issues, dismissed the claims for infringement of article 5, but granted permission to appeal to the Supreme Court. Inquiries show that the hearing in the Supreme Court took place on 19 and 20 May 2014, and it was heard with an appeal from the Divisional Court in R(Massey & Robinson). At the current time, judgment in the Supreme Court is still awaited. Mr Rule noted that the decision in Duncan had not been considered, because it post-dated the judgment in the Court of Appeal. The decision in Duncan does not, in my judgment, entitle me to take an approach different to that taken by the Court of Appeal in R(Kaiyam and Haney), who were considering materially identical issues.

Breach of the public law duty

74. In my judgment the Secretary of State has not made a reasonable provision of systems and resources for the relevant purpose of providing the Claimants a reasonable opportunity to demonstrate that they are not dangerous. Delays of at least 2 years to date, with further delays of at least 18 months, extending up to 3 ½ years, show a clear, continuing and systemic breach of the duty to provide (adapting Lord Hope's words) the systems and resources that the Claimants, as prisoners serving IPP's, need to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that they should not remain in detention. This is because the Claimants have no realistic opportunity, without access to the HSP, to show that they should not remain in detention. They are just waiting there, after the expiry of their tariffs.
75. I reject Mr Lowe's submission that whether or not there was a historic breach of James duty, the improvements identified in the evidence of Mr Boddis, Ms Saunders and Ms Bailey demonstrate that the current level of resources being provided for HSP is reasonable. The proposed level of resources is inadequate because the Claimants will continue to wait for an excessive time, particularly in the light of the past delays, for access to the course.

Failure to act rationally within the budget

76. Mr Rule made a number of specific complaints about the way in which the resources which had been allocated to the courses had been directed. His most relevant complaints were that: it was not rational to prefer determinate sentenced prisoners over prisoners sentenced to IPP's; and it was wrong to fail to consider the shortness of some of the sentences imposed when working out positions on the list of 162 persons. The difficulties for all these submissions are that they were rejected by the Divisional Court in R(Robinson & Massey) at paragraphs 67 to 71. Mr Rule was unable to point to any good reason why I should not follow the approach in R(Robinson & Massey). I follow the approach set out in R(Robinson & Massey), and reject these separate grounds of claim.
77. In my judgment the problems all stem from the failure of the Secretary of State to discharge the public law duty in R(James, Lee and Wells). If the duty is discharged, decisions about relative ranking on the list will become less important.
78. I should also record that I accept Mr Lowe's submission that the evidence before me does not enable me to consider a rationality challenge on the basis that it is costing the Secretary of State more to delay the courses than it would to provide the courses. Such a challenge would have been made on the basis that the cost of providing the courses was likely to be small fraction of the cost of imprisoning the Claimants, year after year, and that even if not all of the Claimants progress to release, providing the courses would be likely to cost significantly less than continuing to imprison them. This is quite apart from the saving that would follow from the Secretary of State avoiding all these justified legal challenges. However the public law challenge was not formulated in these terms and there is no evidence showing the costs of imprisonment and the costs of course provision before me.

Failure to apply policies in the case of the Third Claimant

79. This leaves the general submission that the Secretary of State's written policies about placing indeterminate prisoners on the list were not followed. This submission was made on behalf of all the Claimants, but the Second and Third Claimants were able to make specific submissions by reference to the fact that they have moved up and down the lists.
80. In my judgment the evidence shows that, in general, the Secretary of State's written policies are being applied. The lists are first prepared by reference to tariff expiry date, but adjustments to reflect the other relevant factors identified in the policies are then made. It was suggested that, given the centralisation of the list, those adjustments are made when a person gets towards the stage of being called to a course. I therefore reject the general submission about a failure to follow policies. The evidence before me also explains the reason for the movement of the Second Claimant down the list, which was because there was an error in his sentencing date, and I therefore find no failure to apply the relevant policies in the case of the Second Claimant.
81. However there was no evidence before me to explain the Third Claimant's movement up and then down the list. As noted above the Third Claimant was shown as expected to access the course in early 2014, and it now appears that the earliest that he can expect to enter the course is in the year April 2015 to March 2016. A number of questions about why the Third Claimant's position changed have been asked in correspondence. None has been answered.
82. The factors identified, on page 21 of the HSP Guidance, relevant to be taken into account in relation to the list include dynamic and static risk, and likelihood of positive impact. The evidence relating to the Third Claimant shows that, after some time of denial in 2011, he might be beginning to gain insight into his position, especially as he gets older. The failure by the Secretary of State to provide any relevant information explaining the Third Claimant's movement on the list is surprising given the fact that late, relevant, evidence about the Second Claimant was adduced by the Defendant.
83. In these circumstances, and doing the best that I can with the limited evidence provided, I find that relevant factors, identified in the Secretary of State's own policies, have not been taken into account in relation to the Third Claimant, in breach of the written policy. This is because I infer that the movement on the list must have been for a good reason. The current list only takes account of tariff expiry date. I therefore infer that, when other relevant factors were taken into account, the Third Claimant's position on the list was higher on the list, and his movement down must have been as a result of the failure to take into account those relevant factors.
84. Mr Lowe is right that the remedy for this breach is to quash the Third Claimant's place on the list, and to direct the Secretary of State to take the decision again having regard to the relevant factors set out in his written policy. It may be that tariff expiry date will dictate his position remains the same, but the person making the decision may, in the light of the earlier decision, identify relevant factors set out in the HSP Guidance at page 21 which might cause the Third Claimant to be higher on the list. As noted in paragraph 77 above, if the Secretary of State complies with the R(James, Lee and Wells) public law duty, decisions about relative ranking on the list will become less important.

No infringement of articles 5(1) and 5(4)

85. In relation to the claims for infringement of article 5(1) of the ECHR it is said that, even applying the judgment of R(James Lee and Wells) in the House of Lords which I do for the reasons identified in paragraphs 72 and 73 above, I can find that there has been such a serious failure of provision that there has been an infringement of article 5(1). I do not accept this. There has been a failure to provide courses to date, but the failures to date are not of the magnitude which might, on the basis of the judgment in R(James, Lee and Wells) be considered sufficient to establish liability for infringement of article 5(1) or 5(4). If the future delays contemplated on the evidence occur, there might be a future infringement of article 5, but those delays have not yet occurred, and the relief that I will give, see below, is intended to ensure that they do not occur.
86. In these circumstances I will dismiss the claim for infringement of articles 5(1) and 5(4). However, as discussed at the hearing, I am presently minded to grant permission to appeal so that if the Supreme Court takes a different approach to article 5 in R(Kaiyam and Haney) and R(Massey and Robinson) from the one taken by the House of Lords in R(James, Lee and Wells) the Claimants will not be disadvantaged.

Relief for breach of the public law duty

87. This leaves the issue of what, if any, relief I should grant for the breach of the R(James, Lee and Wells) public law duty. There are now a number of cases in which declarations have been made identifying a breach by the Secretary of State of the public law duty. It is fair to note, as Mr Lowe has pointed out, there is to date no particular decision dealing with HSP's, and it is also right to record that in written submissions following the hearing, the Secretary of State has accepted a current breach of the public law duty, which suggests that something might be done in the future. However in my judgment the evidence shows that there has been, at least to date, a failure to appreciate that the provision of resources for IPP's is not a provision for resources to be ranked along with other claims for resources.
88. In these circumstances I have to consider whether a further order should be made against the Secretary of State to ensure compliance with the public law duty. There are very well known difficulties in the way of making a mandatory order, including the fact that it is for the Secretary of State to determine how to discharge the public law duty. It is also not appropriate for Courts to attempt to micro-manage provision of access to courses.
89. In these circumstances I will grant a declaration in terms similar to that made in R(Walker), and I will grant a further declaration to reflect Richards LJ's statement about resources made in R(Massey & Robinson). I will grant these declarations because the evidence shows that past statements in judgments about the public law duty have not caused the Secretary of State to discharge his public law duty. I will not make a mandatory order at this stage, but I will adjourn the issue of relief to another hearing date so that information can be provided to show that there is compliance with the public law duty. If compliance is shown it will then not be necessary to make a mandatory order. This seems to me to be the least intrusive way of dealing with the matter so far as the Secretary of State is concerned, consistent with attempting to secure effective relief to the Claimants.

Conclusion

90. For the detailed reasons given above I find that the Secretary of State is in breach of the public law duty identified in R(James, Lee and Wells) to provide resources to enable the Claimants to access the HSP to show that they are fit for release. I find that the Secretary of State is in breach of the public law duty to comply with his own policy in relation to the placement of the Third Claimant on the list of those waiting for HSP. I dismiss the claims for infringement of articles 5(1) and 5(4) of the ECHR.
91. In these circumstances I will grant a declaration in terms similar to that made in R(Walker), and I will grant a declaration to reflect Richards LJ's statement about resources made in R(Massey & Robinson). I will not make a mandatory order at this stage, and I will adjourn the issue of relief to a further hearing date so that information can be provided to show that there is compliance with the public law duty. I will also grant an order quashing the decision to place the Third Claimant on the list in his current position, and direct the Secretary of State to make a new decision about his position on the list, taking account of the relevant factors identified in his policies.
92. I am very grateful to Mr Rule, Mr dos Santos and Mr Lowe for their helpful written and oral submissions.