QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) JAMES KNIGHTS
|(2) TERENCE PATRICK O'BRIEN
- and -
|(1) Parole Board of England & Wales
(2) Secretary of State for Justice
and (instructed by Chivers Solicitors LLP) for Claimant (2)
Mr Tim Buley (instructed by the Treasury Solicitor) for Defendant (1)
Mr Simon Murray (instructed by the Treasury Solicitor) for Defendant (2)
Hearing dates: 13 and 14 November 2013
Crown Copyright ©
The Honourable Mrs Justice Laing
i. What is the scope of grant of permission to apply for judicial review granted to JK by Vos LJ on renewal, and to TO by HHJ Walden Smith sitting as a Deputy Judge of the High Court?
ii. Depending on the answer to that question, should I give permission for any other points to be argued? The main point is an argument that the Claimants' detention between their actual release and the date when the Board ordered their release was unlawful (either at common law or because it was a breach of article 5). Mr Rule accepts that the Secretary of State should be allowed 7 or perhaps 14 days to implement a direction by the board (skeleton argument, paragraph 53).
iii. Was the detention of either Claimant at any stage, or did it become, arbitrary, and so in breach of the European Convention on Human Rights ("the ECHR") because of a lack of proportionality between the minimum term in each case and the term actually served before release, or because of that coupled with a lack of access to courses which would have enabled the Claimants to show that they should have been released earlier?
iv. Did the Board breach article 5(4) in TO's case by adjourning a hearing in February 2014?
v. Were the nature of the sentences and the length of time for which the Claimants were detained breaches of article 3?
JK: the facts
TO: the facts
i. a sexual preference for children;
ii. no intimate relationship;
iii. obsession with sex; and
iv. poor problem-solving skills.
The scope of the grants of permission to apply for judicial review
The relevant legislation
i. The duty to pass an IPP became a discretion.
ii. One of two conditions had to be met before an IPP could be passed:
(1) the offender had to have committed an offence listed in Schedule 15A to the CJA, or
(2) the notional minimum term had to be 4 years' imprisonment or more.
iii. There was no longer a presumption of dangerousness.
The Claimants submit, rightly, that if they had been sentenced a short time after they were in fact sentenced, the notional minimum terms which the court would have imposed would have been much too short to enable the court to pass an IPP.
The Human Rights Act 1998 ("the HRA")
"Right to liberty and security.
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; ...
2 Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3 Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
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 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."
The Claimants' case
(1) They were detained for too long.
(2) The change in the legislation in July 2008 makes the detention arbitrary, as it is seen to depend on the happenstance of the date when the Claimants were sentenced.
(3) They were denied proper opportunities for rehabilitation and proper reviews. Only JK has permission to argue this ground.
(4) They were not released within an appropriately short reasonable time of the Board's eventual directions for release.
The principles in outline
(1) The purpose of article 5 is to protect people from arbitrary interferences with their liberty (Saadi v United Kingdom (2008) 47 EHRR 17 at paragraph 63: Saadi was a decision of the Grand Chamber).
(2) Detention pursuant to a sentence after conviction will breach article 5(1)(a) if it is not lawful in domestic terms (ibid, paragraph 67).
(3) Detention pursuant to a sentence after conviction will breach article 5(1)(a) even if it is lawful in domestic terms, if the detention nonetheless is, or becomes, arbitrary (ibid, paragraph 67).
(4) Detention under article 5(1)(a) will be arbitrary if there is deception or bad faith by the authorities; or if the order to detain and the detention itself do not conform with the purpose of the restrictions permitted by article 5(1)(a); or if there is no relationship between the ground of permitted detention relied on and the place and conditions of detention (ibid, paragraph 69).
(5) Detention pursuant to a sentence after conviction will breach article 5(1)(a) even if it is lawful in domestic terms if there is no longer a causal connection between the sentence and the detention (ibid, paragraph 71; James v United Kingdom, paragraph 189).
(6) There is no objection in principle to preventive detention, or to detention for public protection (M v Germany (2010) 51 EHRR 41).
(7) Unless there is a breach of the principles set out in paragraphs 69 and 71 of Saadi, the decision to impose a sentence and the length of sentence are matters for the national court (Saadi, paragraph 71; James, paragraph 204).
(1) Is the detention arbitrary and in breach of article 5 on the grounds that it was disproportionate?
(2) What is the effect of lack of access to courses?
Article 5(4): breach of the right to a speedy decision on the lawfulness of detention: TO only
The amendment to the CJA 2003 in July 2008 made the Claimants' continuing detention arbitrary or discriminatory in breach of article 5 read with article 14