England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2007

Lord Justice Laws :

INTRODUCTORY

1. In this case we are required to decide whether the Secretary of State's management and treatment of a particular class of prisoner within his charge – "short tariff lifers" – is contrary to law.
2. Two conjoined applications for judicial review were listed before us on 22 June 2007. For reasons I shall explain we only heard substantive argument in one, the case of Walker. Mr Walker was sentenced under the provisions of s.225 of the Criminal Justice Act 2003 ("the 2003 Act") to what is called imprisonment for public protection ("IPP"). I shall describe the facts more fully, but may indicate now the nature of his case in briefest outline. He says that he has not been afforded proper opportunity to undertake offending behaviour work or courses in the prison, and for that reason his ability to demonstrate to the Parole Board that he is safe to be released on licence into the community at the expiry of what is called the tariff element of his sentence has been reduced or eliminated. In these circumstances it is said that he has been treated unreasonably or irrationally at the hands of the Secretary of State for Justice who has of course succeeded to the responsibilities of the Home Secretary for the management of prisons and prisoners.
3. We are required to consider the material provisions of the 2003 Act, the policy of the Secretary of State in relation to criminals who are subject to indeterminate prison sentences ("lifers") and in particular IPP, and the execution, or failure of execution, of that policy in practice. I should say at once that the case travels a good deal further than the facts of Walker. There are much broader questions as to the legality of the Secretary of State's management of such prisoners. Ultimately the issue we have to decide is whether the Secretary of State's actions in dealing with short tariff lifers, and in particular those serving IPP, fall to be condemned as irrational or otherwise violate established principles of public law. I will set out the material statutory provisions directly.
4. In Walker permission was granted by Collins J on 9 May 2007, when he also directed that the case be heard along with the other case listed before us, Wells. In fact the original complaints in Wells were quite different from those advanced in Walker, as I shall shortly explain. I turn first to the statutes.

THE STATUTORY PROVISIONS

5. S.225 is contained in Part 12 of the 2003 Act which is concerned with sentencing and makes provision for mandatory and discretionary life sentences. Part 12 opens with s.142. S.142(1) (I think for the first time in a statute) articulates the purposes of sentencing:

"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."

S.225 provides in part:

"(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 s.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..."

6. The provisions referred to in s.225(4) introduce the notion of a tariff or minimum term into IPP sentences. Tracking them down involves something of a paper chase through the Crime (Sentences) Act 1997 ("the 1997 Act") and also the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act"). S.28(5) of 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."

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

"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 long necessary for the protection of the public that the prisoner should be confined."

Section 28(7):

"A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time –

(a) after he has served the relevant part of his sentence…"

The "relevant part" of the sentence is a reference to the "minimum term" (s.28(1A)). A "minimum term order" means (so far as material) an order under S.82A(2) of the 2000 Act, which by ss.1 applies where a sentence of IPP is passed. S.82A(2) 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."

S.82A(3):

"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 itself contains provisions relating to the Parole Board. S.239(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..."

S.239(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."

I shall refer later to a direction given by the Secretary of State under s.239(6).

8. I should also cite ECHR Article 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…

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.

...

(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."

WALKER: OUTLINE FACTS

9. Mr Walker was convicted of two offences of indecent assault. On 6 April 2006 he was sentenced to IPP. His tariff was set at 18 months and so will expire in October 2007. Mr Owen QC on his behalf gave a November 2007 date; I am not sure why that was so, but nothing turns on it. The tariff expiry date in any event obviously lies in the future.
10. Mr Walker has been detained since he was sentenced at HMP Doncaster. Mr Owen submits – in part by reference to a report from the Chief Inspector of Prisons, but in truth it is common ground – that Doncaster jail is known to have very limited resources for offending behaviour work. Mr Walker's case is that he has had no access to any meaningful programme, course, or work of that kind, such as might enable him or least assist him in due course to demonstrate to the Parole Board that the risk he poses to the public has been extinguished or sufficiently diminished so as to justify his release after expiry of his tariff.
11. Mr Owen would submit that the failure to enable his client to undertake meaningful offending behaviour work or other preparation for an application to the Parole Board is a violation of ECHR Article 5(1)(a), because it affects his prospects of release in due course. That submission, however, as I shall show, is effectively barred to him by the decision of the Court of Appeal in Cawser [2004] UKHRR 101, [2003] EWCA Civ 1522. Mr Owen's alternative case is that the prison service failures in relation to his client disclose an irrational, and therefore unlawful course of conduct or omission on the part of the Secretary of State, not least given the terms of his own policy relating to the management of life prisoners.
12. As the argument unfolded it became clear that Mr Owen's case thus formulated was no more (nor less) than an instance of a much broader complaint: a complaint of a general or systemic failure to manage short tariff lifers as both statute and policy envisaged they should be managed. As I have already stated the ultimate question for the court is whether the Secretary of State's actions in dealing with short tariff lifers, and in particular those serving IPP, fall to be condemned as irrational or otherwise violate established principles of public law. And I should make it clear now that in my view there is here only a good case for judicial review if there is a general case. Though obviously no two cases are identical, Walker cannot sensibly be distinguished from the general run of IPP prisoners who, as I shall show, are effectively barred from access to courses and other initiatives within the prison that might enable them (at least materially increase their chances) to demonstrate to the Parole Board that they are safe to release by their tariff expiry date or shortly afterwards.
13. Accordingly the terms of the policy and what the Secretary of State has generally done and failed to do in light of it occupy centre stage and I will come to those directly. It will also be convenient to return to the facts of Walker, to see how his treatment fits with the overall picture. But first I will outline what has happened in Wells; for that too engages with the events in Walker as part of the whole picture which we must consider.

WELLS

14. On 14 November 2005 Mr Wells was sentenced to IPP for an offence of attempted robbery of a taxi-driver. His tariff was fixed at 12 months less 58 days. It thus expired on 17 September 2006. He required the Secretary of State to refer his case to the Parole Board pursuant to s.28(7) of the 1997 Act. His first Parole Board review was fixed for 25 October 2006 – after his tariff had expired. But the dossier in his case was not available from the prison where he was detained. It was only received by his solicitor and the Home Office on 9 November 2006. Parole Board hearings were thereafter arranged for 18 January 2007 and 29 March 2007. But both had to be deferred, in each case about a week before the hearing, because insufficient Parole Board members were available to sit at the prison on either of those dates. A hearing was fixed for 9 May 2007. Before that, however, Mr Wells, who had by now been in prison for 6 months or more past the expiry of his tariff, lodged judicial review papers seeking a mandatory order that his case should be heard by the Parole Board forthwith. He relied on ECHR Article 5(4).
15. Mr Wells asserted that once his tariff had expired, his continuing incarceration fell to be classed as preventive detention as regards which the court at Strasbourg has held that there must be regular reviews of the detention's legality: Winterwerp v Netherlands (1979) 2 EHRR 387. His counsel submitted (skeleton argument 16 April 2007) that her client was entitled in fulfilment of his Article 5(4) right to a review of the legality of the preventive element of his detention before, upon, or at least shortly after the expiry of his tariff on 17 September 2006. Stanley Burnton J gave judicial review permission on 4 April 2007.
16. On 19 April 2007 the case came before Sullivan J in the Administrative Court. The Parole Board conceded that Article 5(4) required a hearing before them either before or very shortly after the expiry of the tariff; and that requirement had not been met, as it plainly had not, in Mr Wells' case. Accordingly on 19 April 2007 Sullivan J made a declaration that the defendant Parole Board had violated Mr Wells' right under Article 5(4).
17. But that was not the end of the matter. Sullivan J declined to order that the Parole Board review the case before 9 May 2007 (which, as I have said, was the next date fixed) but he issued a mandatory order that the case should indeed be heard on that date. He also adjourned the judicial review for evidence to be served and consideration to be given to the question whether it might be appropriate to grant any further declaratory relief. We are told he made this – for him rather Delphic (but nonetheless prescient) – observation: "I do so because on the face of it this case may be illustrative of a wider problem and I am anxious that this case should not go away, but be grappled with".
18. Given the extent to which the case of Wells remained live following Sullivan J's directions, on 5 June 2007 a witness statement was signed by Mr Terry McCarthy, who is Head of Casework responsible for overseeing the conduct of litigation brought against the Parole Board. In a very detailed account he has explained the particular difficulties which the Parole Board faces in fixing hearing dates near the expiry of the tariff period in IPP cases. These difficulties are, I am sure, entirely real; though it is accepted on all hands that they do not excuse the delay in Mr Wells' case. That case was finally reviewed on 9 May 2007 (as directed by Sullivan J), all but eight months after expiry of the tariff period. The Parole Board decided not to direct Wells' release. Their reasons, however, provide a convenient point of connection with the substantive issues in Walker. The Parole Board said this:

"You have not undertaken any offence-focussed work. It is fair to say that that is not your fault. There are no appropriate offending behaviour courses at your current prison. The Panel accept your evidence that you would like to undertake such courses. However, this will require your move to another prison, which the prison authorities have failed to arrange…

Unfortunately it is not the remit of the Parole Board to make up for the deficiencies of the prison service. We are charged with a duty not to release life prisoners while their risk of further serious offending remains high. Because you have not been able to do any of the appropriate courses you are unable to demonstrate any reduction in risk from the time you are sentenced. Because your risk remains high, the Panel cannot direct your release as requested."

19. Before us on 22 June 2007 Miss Burke for Mr Wells accepted that, issues that distinctly engaged ECHR Article 5(1) form the whole substance of Mr Walker's case; and in the circumstances she was content to await the delivery of judgment in Walker and then put in amended judicial review grounds or seek a fresh judicial review permission if either such course seemed appropriate.

THE SECRETARY OF STATE'S POLICY

20. The Secretary of State has elaborated detailed policy for the treatment and management of lifers, and the policy includes certain express provisions relating to short tariff lifers. Short tariff lifers will typically (but not necessarily) be persons sentenced to IPP, not least since the court must have held in all such cases that they did not merit a life sentence properly so called (s.225(3) of the 2003 Act). The policy is primarily contained in the "Lifer Manual" PSO (Prison Service Order) 4700, as variously amended since its original issue. It is exhibited to the witness statement of Mr Robson on behalf of the Secretary of State, which, as all parties have been at pains to acknowledge, contains a frank account of the difficulties and indeed failures in the actual management of short tariff lifers, as against the aims and aspirations of the policy. I shall have to return to Mr Robson's evidence, but will first introduce the policy.
21. 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)

22. We have details of some of the offending behaviour initiatives which are provided generally for prisoners. Mr Dickinson, who is Mr Walker's solicitor in these proceedings and has very extensive experience of advising prisoners upon all aspects of their sentence and detention, gives a summary in his statement of 19 March 2007. The Sexual Offences Treatment Programme ("SOTP") is perhaps the best known. It has been supplemented by the Adapted SOTP (to meet the needs of offenders with learning and social difficulties), the Extended SOTP and the Healthy Sexual Functioning Programme. Other courses include the Enhanced Thinking Skills course but this was apparently withdrawn for reasons of economy in or before November 2005, the CALM course (anger management), alcohol awareness courses and others.
23. While dealing with the Secretary of State's policy I should also cite a Direction given by the Secretary of State to the Parole Board pursuant to s.239 of the 2003 Act (or more strictly its predecessor, s.32 of the Criminal Justice Act 1991). Direction 6 given in 2004 provides in part:

"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)

AN UNDERLYING PREMISE

24. The crucible of the legal case in these proceedings is the relationship between statute (the Acts of 1997, 2000 and 2003), policy (in particular PSO 4700) and what the Secretary of State has done and not done in the light of statute and policy. It had long been understood that government would provide offending behaviour courses and the like so as to enable lifers to be released at or as soon as possible after tariff expiry where the risk they posed at that stage could be shown to be low enough for that to be justified. During the passage of the 2003 Act Baroness Scotland, then Minister of State at the Home Office, said this in the House of Lords on 14 October 2003:

"The new sentence [sc. IPP] will ensure that such offenders cannot be released until their risk is considered manageable in the community. It therefore provides for indeterminate custody for that small group of offenders for whom a determinate sentence would not provide a sufficient guarantee of public safety. However, that must be seen in the context of everything that we are trying to achieve in prisons; that is, first, to address the nature of the underlying offending behaviour and, secondly, to try and rehabilitate, if rehabilitation is possible, some of the more serious offenders through training, education and opportunities. I have mentioned that once an offender is in prison, there will be an assessment of the nature of his difficulties and the risks that he poses so that, while he is in prison, we can seek to address those problems... I reassure the noble Lord that we intend to make sure that all prisoners benefit from the risk assessment procedure."

This material is, I think, properly receivable as casting some light on the context of the relevant provisions of the 2003 Act, and the mischief they sought to avoid. It marches with some of the express measures in the legislation, not least those contained in s.28 of the 1997 Act, dealing with early release and the role of the Parole Board, coupled with s.239(6) of the 2003 Act and Direction 6 given by the Secretary of State to the Parole Board, and also s.142(1)(c) of the 2003 Act (a purpose of sentencing is "the reform and rehabilitation of offenders").

25. More remote perhaps, but plainly worth the court's attention, are certain passages from the United Nations Report on Life Imprisonment published in 1994. I will just set out these three:

"Specific treatment programmes thus serve a dual function: they offer the prisoner an opportunity for self-examination, whereby he or she can confront previous or present problems and they provide the prison staff with a better opportunity to understand particular behavioural patterns." (paragraph 38)

"In the absence of structured treatment programmes, long term prisoners are left on their own to find the means with which to cope with their sentences. This has detrimental effects, not only for the prisoner but also for the prison authorities in that a situation of 'them' and 'us' often develops…" (paragraph 40)

"International instruments on imprisonment and human rights suggest that the deprivation of liberty may only be justified if accompanied by review and assessment procedures that operate within commonly accepted judicial standards. Indeterminate life sentencing cannot be allowed to open the door for arbitrary detention. Fair, unprejudiced assessment programmes offer possible checks against this." (paragraph 69)

26. This was, surely, received wisdom by 2003. In my judgment it is clear that at the time the 2003 Act was passed there was a settled understanding shared by government together with relevant agencies and professionals that upon the coming into force of the new sentencing provisions in the 2003 Act, not least IPP, procedures would be put in place (so far as not already in place) to ensure that initiatives, in particular courses in the prison, would be available to maximise the opportunity for lifers to demonstrate they were no longer a danger to the public by the time their tariff expired or as soon as possible thereafter, so as to allow the lifer's release once that was shown. Such an understanding was, I think, a premise of the legislation: it was certainly inherent in the way the legislation was intended to work in practice, and was intended to be given effect by the Secretary of State's policy set out in PSO 4700.

THE NEW REGIME IN PRACTICE

27. What has happened since the sentencing measures of the 2003 Act came into force? What follows is largely taken from Mr Robson's statement, supplemented from other sources in the material before us. Mr Robson is Deputy Head of the Public Protection Unit at the National Offender Management Service ("NOMS") in the Ministry of Justice. He is the "policyholder" in relation to the management of prisoners sentenced to IPP. NOMS is an agency, or perhaps better a system, within the Department dedicated to the protection of the public and the reduction of re-offending. It commissions services, creates partnerships between agencies, and publishes information (its population bulletin of 2 March 2007 gave the figure for the then prison population: 79,703).
28. Mr Robson says (paragraph 4(a)) 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 (and there is other evidence to like effect) many more sentences of IPP have been passed than was anticipated, creating, inevitably, 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."

That was, if I may say so, putting it mildly. Statistics helpfully given by Mr Robson himself (paragraph 16) show that the number of serving lifers was 5,475 on 30 November 2003 (the 2003 Act was passed on 18 December 2003), 5,807 on 31 March 2005 (s.225 came into force on 4 April 2005) and 8,977 on 31 March 2007. Mr Robson accepts there was an increase in the lifer population of 31% in 2006. 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, has not risen since April 2005 (though the number of core offending behaviour courses has risen from 13,265 in 2004/2005 to 16,959 in 2006/2007). Mr Dickinson (statement paragraph 11) 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".

29. Mr Robson believes (paragraph 22) that in present circumstances the Prison Service can deal "satisfactorily" with about 6,500 lifers. IPP prisoners with a tariff of less than five years are languishing in local prisons where, as Mr Robson acknowledges (paragraph 23), there are few offending behaviour programmes. Mr Dickinson's evidence is to like effect. 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 the prison, towards a real reduction or even elimination of their risk factor by the time their tariff expires.
30. Some measures are in hand to ameliorate this lamentable state of affairs. There is a short-term initiative to move IPP prisoners out of local prisons into unfunded Category B prisons. A Review Board has been established ("the Lockyer Review") whose task is in particular to consider how IPP prisoners should best be managed in the future, and to advise on the allocation of a sum of £3,000,000 which as I understand it has been set aside for use in connection with IPP prisoners. The Lockyer Review is due to report in August 2007. However Mr Robson estimates (paragraph 25) that it will be some six months after that before any practical measures can be implemented, and a further 18 months "before a system which manages IPP prisoners effectively can be fully operative".
31. 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.

THE EFFECT IN WALKER'S CASE

32. One can see this state of affairs at work in Mr Walker's case, although as I have said his tariff has not yet expired. Ms Petersen is the Indeterminate Sentences Manager at HMP & YOI Doncaster. In her statement of 19 June 2007 she explains some of the constraints that tell against Mr Walker's being moved forward through the process envisaged in PSO 4700. For reasons she gives (paragraph 5) HMP Manchester was the only first stage lifer centre prison to which Mr Walker could be transferred. When Ms Petersen rang Manchester on 7 April 2006 and made a request that Mr Walker be put on the waiting list for their vulnerable prisoner first stage lifer wing, she was told he would be thirtieth on the list. So he remains at Doncaster. It is worth setting out paragraph 11 of Ms Petersen's statement:

"On 19 April 2007... I rang PMS [sc. the Population Management Section within the Prison Service] to see whether it could help to move Mr Walker on to a first stage prison. At that stage there was nobody immediately available to help. I therefore contacted several prisons myself, including HMP Manchester, HMP Wakefield and HMP Frankland, to see whether they would accept Mr Walker. Unfortunately, they were all full. I eventually spoke to Mick Dutton [of PMS] on 23 April 2007 to ask if he could help me to move Mr Walker to a first stage lifer prison. I was told that he could not because there were no spaces available in the first stage lifer estate."

CAWSER [2004] UKHRR 101, [2003] EWCA Civ 1522

33. It is necessary to consider this authority because its consequence is that the outcome of these proceedings depends on the application of common law principles rather than the Convention rights guaranteed by the ECHR. Cawser was serving a life sentence for sex offences. He had to wait 21 months, until August 2003, before a place became available for him on the SOTP or the Extended SOTP. That was two years after his tariff expiry date. His likely release date was inevitably delayed.
34. The Court of Appeal held by a majority (Simon Brown LJ as he then was and myself) that the appellant's detention was not unlawful by force of ECHR Article 5(1). Simon Brown LJ referred to Noorkoiv [2002] 1 WLR 3284 in which Lord Woolf CJ had stated at paragraph 6:

"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."

However Simon Brown LJ noted, as I understand with approval, that Mr Rabinder Singh QC for the Secretary of State "readily accept[ed] 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..." (paragraph 30). Simon Brown LJ considered, however, that such an issue seemed academic, because (paragraph 31) "[t]he Secretary of State is, within the limits of available resources, providing a reasonable, and indeed increasing, number of courses...". Mr Owen would have us contrast that position, which obtained before the coming into force of the 2003 Act, with the situation today at least as it affects short tariff lifers.

35. In my judgment in Cawser I referred to

"the residual possibility that the Secretary of State might impose a condition on the release of a post-tariff prisoner so hard of fulfilment that his continued detention, for failure to meet the condition, ought no longer to be regarded as justified by the original sentence of the criminal court. Such a residual possibility cannot in my judgment arise by reference to any judicial perception that scarce resources in the hands of the administration might have been better deployed by the Secretary of State; far less by any such perception that greater ought to have been made available. Such approaches confine the functions of the democratic arms of government without that being justified (as sometimes it is indeed justified) either by the principles of the common law or our duty to safeguard the European Convention rights." (paragraph 44)

36. Arden LJ, in the minority, considered (paragraph 45, compare paragraph 49) that there might exceptionally be a case in which failure to provide a course for a prisoner whose release depended on his taking the course might constitute a violation of Article 5(1) without any breach by the Secretary of State of the domestic duty to act rationally. However, in my respectful view the majority decision in Cawser closes off the possibility of argument in this court 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 held to breach ECHR Article 5(1). But the case was a trailer for another argument, that such a state of affairs might in some circumstances amount to a violation of the rule of reason, the requirement of rationality in public decisions which the common law imposes.

APPLICATION OF THE COMMON LAW

(1) Arguments Pro and Con

37. There was no question of such an argument being run in Cawser itself. As I have shown Simon Brown LJ considered that the Secretary of State was then providing a reasonable, indeed increasing, number of courses. I referred to the "residual possibility" of an argument based on a failure to make provision. We have to decide whether what in Cawser was merely a trailer is now the main feature. The factual position differs radically between then and now. Now, as I have said, those serving IPP sentences (not on the statute book at the time of Cawser) will for the time being remain in local prisons with no or little hope of access to the means of reducing their risk factor until after, very often long after, their tariff expiry date. The merits of this application turn on this overarching fact. As I said earlier, there is here only a good case for judicial review if there is a general case – not a case dependent only on a specific instance: the facts of Cawser might have been good enough for that.
38. Mr Owen has not framed his case on the basis of any legitimate expectation, arising from the terms of the policy, enforceable by the public law court. Given the qualifications and reservations in the language of PSO 4700 to which Mr Jay QC for the Secretary of State has drawn attention, he was I think right not to do so. As I have indicated the case is put on irrationality grounds. Nowadays irrationality – "Wednesbury unreasonableness" ([1948] 1 KB 223) – seems a somewhat old-fashioned legal construct; it was roundly criticised by Lord Cooke of Thorndon in Daly [2001] 2 AC 532; and we are increasingly accustomed to the framing of substantive challenges to public decisions in terms of proportionality, and not only in European and human rights contexts. But in this case Mr Owen invites us to conclude that the Secretary of State's systemic failure to apply PSO 4700 to short tariff lifers constitutes a course of action or inaction so unreasonable that the court should condemn it as unlawful.
39. At once there are at least two apparent difficulties. First, it is well settled that the courts are generally in no position to make judgments upon competing claims for the allocation of scarce public resources, and will decline to do so: see for example R v Cambridge Health Authority ex p. B [1995] 1 WLR 898, per Sir Thomas Bingham MR at 906. The point is referred to in my judgment in Cawser at paragraph 44, which I have set out. Secondly, having regard to the measures now being taken by the Secretary of State (not least the establishment of the Lockyer Review) Mr Jay submits that looked at in the round the Secretary of State's position cannot be characterised as irrational in the public law or Wednesbury sense given the scale of unreason which the test imports.
40. Mr Jay has a third point, namely that the challenge invites the court effectively to exercise for itself the Secretary of State's management powers in respect of the prison service, and that would be to usurp the Secretary of State's role as Parliament's delegate: see for example Paulo [2001] Imm AR 645 and Mersin [2000] INLR 511, whose reasoning with respect I will not set out. So far as this is a free-standing argument, rather than an aspect of the first point relating to resources, I think its force largely depends on the form or forms of relief being sought. So far as Mr Owen persists in the applications for specific mandatory orders relating to his client as they are pleaded in the claim form, Mr Jay may retort that he is asking the court to take executive action in respect of a particular prisoner, and this is the kind of action which Scott Baker J as he then was in Paulo and Elias J in Mersin declined to take. However, we have not yet heard argument as to remedy, and in any event the aptness or otherwise of this or that form of remedy cannot drive the question whether the Secretary of State has in principle taken an unlawful course in relation to his responsibilities to and for short tariff lifers.

(2) Policing the Use of Resources

41. It is I think notable that arguments as to scarce public resources did not deter the Court of Appeal in Noorkoiv (to which, as I have shown, reference was made in Cawser) from holding that the timing of Parole Board hearings disclosed on the facts before the court a violation of ECHR Article 5(4). The case concerned detention of a prisoner after expiry of his tariff, so has a direct affinity with Wells. At paragraph 30 Buxton LJ said this:

"Mr Noorkoiv was detained by the Secretary of State, who was implementing arrangements made by the State, including the slowness of consideration by the Parole Board forced on it by the limited resources made available to it by the State. The Secretary of State cannot therefore excuse any failing under article 5(4) by pointing to policies adopted by other departments; nor, I am constrained to say, should he seek to do so."

And at paragraph 31:

"... I see no answer to the argument that the Parole Board and the Secretary of State cannot excuse delays that would otherwise be in breach of article 5(4) simply by pointing to a lack of resources that are provided by other arms of government."

42. However this reasoning cannot in my judgment serve on its own to neutralise the effect of authority such as Ex parte B in the context of the present case. Noorkoiv concerned what the court saw as a plain breach of ECHR Article 5(4), which was simply untouched by any appeal to the want of resources. It is by no means so evident that a common law rationality challenge is likewise untouched. What is and is not reasonable in the eye of public law principle is not hard-edged; it may depend on a variety of shifting considerations; and in the ordinary way those are likely to include the practical constraints of available resources.
43. It may well be (as my Lord Mitting J suggested in the course of argument) that the cost of failing to implement paragraph 4.13.2 of PSO 4700 will be, or is, greater than the cost of fulfilling it, since the failure consigns more prisoners to longer periods of incarceration and that carries an inevitable cost. In that case it could hardly be said that want of resources is at the root of the problem. On that basis Mr Owen would have us grant a judicial review on the ground that the Secretary of State must have acted irrationally if it has cost him more to breach his own policy than it would have done to carry it out. If the matter were so clear cut, with no implications as to the timing of expenditure and therefore the use of resources elsewhere, that might indeed be the right course to take. But I do not think we can be confident that that is so.

(3) The Approach in Principle

44. However, in my view that is by no means the end of the case. The correct outcome of these proceedings does not in my judgment depend on an evaluation of the Secretary of State's actions in seeking to ameliorate the present position of short tariff lifers, nor in any appreciation of the cost of complying versus the cost of not complying with the PSO 4700 policy. It lies in deeper considerations. It requires, first, an understanding of the difference in nature between the two elements of an indeterminate sentence. This may be thought to be obvious enough; and superficially, it is. The tariff element fulfils the aims of punishment, which in this context are usually said to be retribution and deterrence. The post-tariff element fulfils the aim of public protection: protection from the danger which the criminal poses. This is said to be preventive rather than punitive. (Deterrence is also, of course, a preventive notion: and having nothing to do with distributive or proportionate justice, it makes an odd bedfellow for retribution. But that is thin ice where we do not have to step.)
45. However the bare distinction between punishment and protection does not reveal the reality of the difference between the two elements in the sentence which matters for present purposes. This reality lies in the way in which the prisoner's detention during the currency of each element is to be justified. I do not mean formally justified. Both elements – the whole sentence – are formally justified by the order of the sentencing court; that was the point made by Lord Woolf in Noorkoiv, in the passage quoted by Simon Brown LJ in Cawser which I have cited. I mean substantially justified, or justified in reason, by reference to the aims or purposes served by each element, as I have described them.
46. The prisoner's detention for the tariff period is justified in this sense at the outset. The tariff is a matter of proportionate justice, fixed at the time of sentence. It represents the trial judge's considered decision as to the time the prisoner must serve to satisfy the imperatives of punishment. No further justification is needed. By contrast the justification that is required for his detention after the tariff's expiry, as the preventive element begins and continues, is of an altogether different character. This further detention is not at all justified by or at the time of sentence, for the very reason that the extent to which, or the time for which, the prisoner will remain a danger is unknown at the time of sentence. It can only be ascertained on a continuing basis, by periodic assessment. Nothing else can justify this further detention. The justification for detention during the tariff period is of course spent; it is spent the moment the tariff expires.
47. His being a danger to the public is of course a statutory condition of the prisoner's being liable to IPP. It is important to have in mind that s.225(1)(b) of the 2003 Act requires the sentencing court to assess the presence or absence of danger, and its extent, at the time of sentence; not at any other time. Accordingly, 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 in reason be justified. It is therefore unlawful.

CONCLUSION

48. The point is one of principle. It has nothing to do with the wisdom or practicality of this or that use of scarce resources. It has nothing to do with the Secretary of State's recent actions to ameliorate the position relating to IPP prisoners (unless those actions now provide current and effective assessments of danger, which they do not). It does not touch the court's proper reluctance to tread ground which is the constitutional territory of the executive. It is a straightforward point of law. The Crown has obtained from Parliament legislation to allow – rather, require: the court has no discretion – the indefinite detention of prisoners beyond the date when the imperatives of retributive punishment are satisfied. But this further detention is not arbitrary. It is imposed to protect the public. As soon as it is shown to be unnecessary for that purpose, the prisoner must be released (see ss.28(5)(b) and 28(6)(b) of the 1997 Act). Accordingly 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.
49. Such a consequence would not be averted merely by prompt and regular sittings of the Parole Board. The law has already insisted on those: Noorkoiv (and compare the Parole Board's concession in Wells). Periodic reviews by the Parole Board (or any person or institution) only have value to the extent that they are informed by up-to-date information as to the prisoner's progress. So much is at least required. But so also are measures to allow and encourage the prisoner to progress, for without them the process of review is a meaningless one. It is like asking how many miles an army has marched through the night when there are no orders for it to march at all. 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. 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 for 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.
50. All this, I conceive, marches with the terms of the legislation. It informs the legislation's underlying premise as I have described it – that procedures would be put in place to ensure that initiatives would be available to maximise the opportunity for lifers to demonstrate they were no longer a danger to the public by the time their tariff expired or as soon as possible thereafter. It marches also with what was said in Parliament on 14 October 2003, with the United Nations Report on Life Imprisonment of 1994, with the Secretary of State's policy enunciated in PSO 4700 and his directions given under s.239 of the 2003 Act, and with the reasoning in such cases as Noorkoiv in this jurisdiction and Winterwerp in Strasbourg. It requires only that the Secretary of State follow the necessary logic of the 2003 Act and associated statutes. That is not a florid, but a minimum, requirement of the law.
51. If my Lord agrees, this application for judicial review must be granted. I apprehend we must hear counsel upon the question what relief is appropriate.

Mr Justice Mitting:

52. I agree, for the reasons given by Lord Justice Laws.