R (on the applications of Haney, Kaiyam, and Massey) (Appellants) v The Secretary of State for Justice (Respondent)
R (on the application of Robinson) (Appellant) v
The Governor of HMP Whatton and The Secretary of State for Justice (Respondents)
Lord Neuberger, President
JUDGMENT GIVEN ON
Heard on 19, 20 and 21 May 2014
Hugh Southey QC
(Instructed by Michael Purdon Solicitors)
James Eadie QC
(Instructed by Treasury Solicitors)
Pete Weatherby QC
(Instructed by Burton Copeland LLP)
James Eadie QC
(Instructed by Treasury Solicitors)
Hugh Southey QC
(Instructed by Swain & Co Solicitors LLP)
James Eadie QC
(Instructed by Treasury Solicitors)
Hugh Southey QC
(Instructed by EBR Attridge LLP Solicitors)
James Eadie QC
(Instructed by Treasury Solicitors)
LORD MANCE AND LORD HUGHES: (with whom Lord Neuberger, Lord Toulson and Lord Hodge agree)
Indeterminate prison sentences in English law: summary
(a) It is required by law for those convicted of murder (a "mandatory" life sentence).
(b) It is available as a discretionary penalty (a "discretionary" life sentence) for a restricted group of offenders convicted of a few of the most serious offences known to the law, for which the maximum sentence available is life imprisonment, where the gravity of the offence warrants a very long sentence and where the risk of grave future harm to the public from the offender cannot reliably be estimated at the time of sentencing (R v Hodgson (1967) 52 Cr App R 113 and R v Chapman  1 Cr App R 77).
(c) Unless its imposition would in the circumstances be unjust it is required in the case of those convicted for a second time of a defined group of very serious violent or sexual offences, where both offences called for determinate terms of ten years or more, or their equivalent: see section 122 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO").
(d) Between 1997 and April 2005 it was required, unless in the circumstances its imposition would be unjust because the offender did not pose a risk to the public of serious harm, in the case of a few offenders convicted for the second time of a restricted group of the most serious violent or sexual offences: section 109 Powers of Criminal Courts (Sentencing) Act 2000, repealed by section 303 of and Schedule 37 to the Criminal Justice Act 2003. This form of life sentence was generally known as an "automatic" life sentence.
The present claimants
(a) Mr Haney was on 13th November 2003 ordered to serve an automatic life sentence, with a minimum specified term expiring on 13th November 2012, the sentence being passed for robbery committed with others while armed with sawn-off shot guns.
(b) Mr Robinson was on 2nd October 2006 sentenced to IPP for sexual offences, with a seven-year minimum term (to which time on remand counted as usual) expiring on 10th December 2012.
(c) Mr Massey was on 15th May 2008 sentenced to IPP for sexual offences, with a minimum term of two years six months (again allowing for time on remand) expiring on 11th September 2010.
(d) Mr Kaiyam was on 20th July 2006 sentenced to IPP with a minimum term of two years and 257 days, expiring on 3rd April 2009.
Mr Haney's life sentence was passed under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The sentences on Mr Robinson, Mr Massey and Mr Kaiyam were passed under section 225 of the Criminal Justice Act 2003.
"ISP ["indeterminate sentence prisoner"] sentence plans will aim to identify the risks the prisoner must reduce and offer the effective and timely delivery of properly identified interventions, having regard to available resources, so that Parole Board reviews can be meaningful; the release of ISPs is facilitated where it is safe to do so; [and] any period of continued detention beyond tariff is necessary because the risk of harm remains too high for release to be appropriate".
The instruction also recognised (para 4.8.1) that
"In most mandatory lifer cases, a phased release from closed to open prison is necessary in order to test their readiness for release into the community on life licence".
In James v UK the ECtHR took a different view from the House of the purposes of IPP sentences in the context of the ECHR. It regarded "a real opportunity for rehabilitation [as] a necessary element of any part of the detention which is to be justified solely by reference to public protection" and on this basis held that "one of the purposes" of IPP sentences was the rehabilitation of those so sentenced (para 209).
(a) Mr Haney complains under article 5 that he was only transferred to open prison conditions on or around 16th July 2012, too close to the expiry date of his minimum term to allow release immediately upon such expiry. The Secretary of State conceded that a systemic failure (to provide adequately for the increase in numbers of prisoners serving indeterminate terms) had led to excessive delay in transferring him to open conditions, and Lang J proceeded on that basis. But both she and the Court of Appeal dismissed his claim under article 5 in the light of the House's decision in R (James).
(b) Mr Haney also complains under article 14 that he was discriminated against by a decision of the prison authorities, taken in October 2011 in the light of the shortage of available places in open prisons, to prioritise the movement to open conditions of those whose tariff period had already expired. Lang J and the Court of Appeal dismissed this complaint, as they were bound to, in the light of the House's decision in R (Clift) v Secretary of State for the Home Department  UKHL 54,  1 AC 484, notwithstanding the later judgment of the ECtHR in Clift v United Kingdom (Application No 7205/07) (13 July 2010), disagreeing with this decision of the House.
(c) Messrs Robinson and Massey complain that they were unable to commence an extended sexual offenders treatment programme ("ESOTP") until, in the case of Robinson, 1st July 2013, over five years after the course was first recommended for him and over nine months after his tariff period expired, and, in the case of Massey, until May 2013, nearly three years after it was first recommended and over three years since his tariff period expired. The Divisional Court (Richards LJ and Irwin J) on 4th December 2013 found that the number of IPP prisoners at the relevant times greatly exceeded the number of ESOTP places on courses, and held itself
"satisfied that there is a continuing failure on the part of the Secretary of State to make reasonable provision of systems and resources, specifically the reasonable provision of ESOTP courses, for the purpose of allowing IPP prisoners a reasonable opportunity to demonstrate to the Parole Board, by the time of the expiry of their tariff periods or reasonably soon thereafter, that they are safe to be released". (para 62)
Having dismissed the claims in the light of R (James) - but stating also that it did not consider that they would have succeeded under the principles indicated in James v UK - the Divisional Court certified the cases as suitable for leapfrog appeal to this Court.
(d) Mr Kaiyam's complaint under article 5 is not based on any allegation of systematic failure by the Secretary of State. It is a complaint about various decisions and delays which he says affected him individually and meant that he was not offered or put on various courses during the period 2010 to 2013, after his tariff period expired. Supperstone J and the Court of Appeal dismissed his claim in the light of R (James).
Analysis of the duty of the Secretary of State
"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;
(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
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 para 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 'lawfulness' required by the Convention presupposes not only conformity with domestic law but also … conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of article 5(1). Furthermore, the word 'after' in sub-paragraph (a) does not simply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue."
On that basis, the ECtHR in Weeks went on in relation to a discretionary life sentence imposed for the purpose of public protection (para 49):
"The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. 'In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5'."
In relation to article 5(4), the House in R (James) held that article 5(4) required a system providing for "assessment at reasonable intervals which meets the requirements of procedural fairness": per Lord Hope at para 21. As such a system existed on the facts, it held that there was no breach of article 5(4).
"following the expiry of the applicants' tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses, their detention was arbitrary and therefore unlawful within the meaning of article 5(1) of the Convention." (para 221)
It regarded the complaints under article 5(4) "regarding the failure to provide relevant courses" as raising "no separate issue" (para 226). The ECtHR later commented that it had
"found the applicants' post-tariff detention to have been arbitrary and therefore in breach of article 5(1) during the periods in which they were not progressed in their sentences and has no access to relevant courses to help them address the risk they posed to the public." (para 231)
"It … cannot be assumed that, if the violations … had not occurred, the applicants would not have been deprived of their liberty. It also logically follows that once the applicants were transferred to first stage prisons and had timeous access to relevant courses, their detention once again became lawful." (para 244)
"9…. Since there was a question whether their continued detention was consistent with the objectives of the sentencing court, it followed that they too were entitled under article 5(4) to have the question determined. The subsequent judgment in Stafford v United Kingdom (2002) 35 EHRR 32, confirmed that a mandatory life prisoner was also entitled to the protection of article 5(4), by means of regular reviews of the risk which he presented, once the punitive period of his sentence had expired.
10. The implications of these judgments were then reflected in domestic case law. In relation to 'automatic' life prisoners, in particular, it was held in R (Noorkoiv) v Secretary of State for the Home Department  1 WLR 3284 that article 5(4) requires a review by the Board of whether the prisoner should continue to be detained once the tariff period has expired, and therefore requires a hearing at such a time that, whenever possible, those no longer considered dangerous can be released on or very shortly after the expiry date. In practice, that meant that the Board should hold hearings prior to the expiry of the tariff period. Since Noorkoiv's case had not been heard until two months after the expiry of his tariff period, he was therefore the victim of a violation of article 5(4). That approach has been followed in the subsequent case law."
"The Court accepts that where an indeterminate sentence has been imposed on an individual who was considered by the sentencing court to pose a significant risk to the public at large, it would be regrettable if his release were ordered before that risk could be reduced to a safe level. However, this does not appear to be the case here."
It may not have been the case with Messrs James, Wells and Lee that their release was sought or ordered before their risk was reduced to a safe level. But the Supreme Court was informed that various life or IPP prisoners are now relying upon James v UK to challenge in the Administrative Court the legitimacy of their continued detention, before the Parole Board has expressed itself satisfied as to their safety for release.
"2. A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any -
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, …..
3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. …..
6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if -
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
"48. This Court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law (see eg R v Horncastle  2 AC 373). Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator  2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham City Council  AC 367, para 126, section 2 of the HRA requires our courts to 'take into account' European court decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line."
"In relation to authority consisting of one or more simple Chamber decisions, dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years. The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle  2 AC 373, to refuse to follow Strasbourg case law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg. But there are limits to this process, particularly where the matter has been already to a Grand Chamber once or, even more so, as in this case, twice. It would have then to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level."
"69. One general principle established in the case-law is that detention will be "arbitrary" where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities (see, for example, Bozano v France, 18 December 1986, Series A no 111, and Conka v Belgium, Application No 51564/99, ECHR 2002-I). The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of article 5(1) (see Winterwerp, cited above, 39; Bouamar v Belgium, 29 February 1988, 50, Series A no 129; and O'Hara v The United Kingdom, Application No 37555/97, 34, ECHR 2001-X).There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Bouamar, 50, cited above; Aerts v Belgium, 30 July 1998, 46, Reports 1998-V; and Enhorn v Sweden, Application No 56529/00, 42, ECHR 2005-I).
70. The notion of arbitrariness in the contexts of sub-paras (b), (d) and (e) also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained (see Witold Litwa, cited above, 78; Hilda Hafsteinsdóttir v Iceland, Application No 40905/98, 51, 8 June 2004; and Enhorn, cited above, 44). The principle of proportionality further dictates that where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty (see Vasileva v Denmark, Application No 52792/99, 37, 25 September 2003). The duration of the detention is a relevant factor in striking such a balance (ibid, and see also McVeigh and Others v The United Kingdom, Applications Nos 8022/77, 8025/77, 8027/77, Commission's report of 18 March 1981, Decisions and Reports 25, p 15 at pp 37-38 and 42).
71. The court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under article 5(1)(a), where, in the absence of bad faith or one of the other grounds set out in para 69 above, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the Court under article 5(1) (see T v The United Kingdom [GC], Application No 24724/94, 103, 16 December 1999, and also Stafford v The United Kingdom [GC], Application No 46295/99, 64, ECHR 2002-IV)."
(a) Detention following upon the unlawful kidnapping or luring within the domestic jurisdiction of a person wanted for trial can render a person's detention following his or her subsequent conviction unlawful: see the citation of Bozano v France (1986) 9 EHRR 297 and Conka v Belgium (2002) 34 EHRR 1298 in footnote 50 to para 69 of the Court's judgment in Saadi. Under English common law a similar result would follow: such conduct would call for a stay of the criminal proceedings and the release of the defendant on the grounds of abuse of process: R v Horseferry Road Magistrates Court, Ex p Bennett  1 AC 42.
(b) The deprivation of liberty must genuinely be for one of the purposes permitted by article 5(1) and must, in the case of a sentence, retain a sufficient causal connection with the original conviction: see eg van Droogenbroeck v Belgium (1982) 4 EHRR 443, paras 35 and 40 (referring to detention "based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives"), Weeks v The United Kingdom (1987) 10 EHRR 293, Kafkaris, para 118 and the House's reasoning in R (James), paras 15 and 49.
"'Quality of the law' in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur v France, 25 June 1996, 50, Reports 1996-III, (1996) 22 EHRR 533; Nasrulloyev v Russia, Application No 656/06, BAILII:  ECHR 805, 71, 11 October 2007; and Mooren v Germany [GC], Application No 11364/03, BAILII:  ECHR 1082, 76, 9 July 2009). The standard of "lawfulness" set by the Convention thus requires that all law be sufficiently precise to allow the person - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Steel and Others v The United Kingdom, 23 September 1998, 54, Reports 1998-VII, BAILII:  ECHR 95, and Baranowski v Poland, Application No 28358/95, 52, ECHR 2000-III, BAILII:  ECHR 120)."
"the notion of "lawfulness" in the context of article 5(1)(e) of the Convention might have a broader meaning than in national legislation. Lawfulness of detention necessarily presumes a 'fair and proper procedure', including the requirement 'that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary' (see Winterwerp, cited above, 45, Johnson v The United Kingdom, 24 October 1997, 60, Reports of Judgments and Decisions 1997-VII, and more recently Venios v Greece, Application No 33055/08, 48, 5 July 2011 with further references)."
Even in the context of article 5(1)(e), the dictum seems to have been unnecessary for the decision, since it is clear from para 61 of the First Section's judgment that the claimant's detention on the ground that she was of unsound mind, when she had neither been present in person nor represented at the hearing ordering such detention, was not "in accordance with a procedure prescribed by law" within the express language of article 5(1), even if attention was confined to domestic law. The extent to which the concept of "lawfulness" may require a domestic law authorising detention to meet some higher international standard of procedural fairness did not require attention at all.
The content of the duty
Haney - article 5
Haney – discrimination
"69. The defendant's [the Secretary of State's] response was that he considered the various options for clearing the backlog and made a rational decision to prioritise the post-tariff prisoners, because they were eligible for release and continued detention could only be justified if they represented a risk to the public. It was not feasible to transfer all the ISPs at one go, because of the need to ensure that sufficient resources were in place to manage and support ISPs at open prisons. The defendant denied that he was applying an inflexible policy; there was provision for exceptional cases. The defendant also denied that he was operating an unpublished policy which conflicted with published policy. The published policy related to categorisation and allocation, whereas these were merely arrangements for clearing the backlog of transfers.
Rationality, fairness and taking into account relevant considerations
70. In my judgment, the defendant's evidence was cogent and convincing. Mr Mercer said in his first witness statement:
2. A system of prioritisation was required to address the backlog, because it would not be possible or safe, to transfer all the ISPs awaiting transfer at the same time. Whilst NOMS aims to transfer prisoners who are identified as being part of the backlog into open conditions as soon as possible, it is extremely important, given the numbers involved, together with the complexity of individual cases and the risks and needs which offenders concerned present, that transfers are managed with care. Thus it is necessary to consider both the needs of the prisoners and the pace at which transfers are operationally manageable for individual establishments. For these reasons, the process of identifying and allocating suitable establishments and effecting transfers is being phased, with prisoners' cases being dealt with by PMS in tranches, initially of 50 at a time, since increased to 100, and potentially increasing still further.
3. For purposes of clearing the backlog, prisoners whose tariff has expired were considered to be a higher priority than pre-tariff prisoners because they have served the punitive part of their sentence and progression through their sentences is now entirely focused on reducing their risk to the point where the Parole Board determines that they may be safety released. The decision was taken to prioritise post tariff prisoners over pre tariff prisoners because the earliest pre tariff prisoners can be released is at tariff expiry. The view was taken that the further away from tariff expiry a prisoners is, the less likely it is that they would be prejudiced by a non-immediate transfer to open conditions after the Secretary of State's approval.
4. When considering how to prioritise pre-tariff prisoners, considerations included:
i. the need to ensure fair treatment between prisoners, including that prisoners who were often difficult to place (such as sex offenders) were not disadvantaged compared to those with less complex needs;
ii. to take account of the length of time for which prisoners had waited for transfer;
iii. to take account of the amount of time remaining prior to tariff expiry;
iv. to provide a transparent system so that prisoners could be given reasonable estimate as to when they were likely to move;
v. to set up a system that was straightforward and would avoid complex and resource intensive administration; and
vi. to permit exceptional circumstances to be considered on request in individual cases.
5. Among pre-tariff prisoners, it was decided, after considering various alternative means of prioritisation, that the fairest solution was to prioritise prisoners in orders of proximity to tariff expiry. This solution also had the benefit of being transparent, straightforward and practical. There were a number of prisoners approaching tariff expiry and we considered these prisoners to be of the highest priority and wanted to ensure that the criteria did not allow them to be leapfrogged by other prisoners. Prisoners who had a year or two to go until their tariff expiry would have plenty of time to utilise open conditions to demonstrate to the Parole Board a reduction in risk even if there was a delay in transferring them.
6. Consideration was given to other way of prioritising pre tariff prisoners, such as proximity to next parole review; individual circumstances; length of tariff; and date of Secretary of State approval; but these options would disadvantage many prisoners who were approaching their tariff expiry date, leading to anomalous and unfair treatment:
i. Proximity to parole review date: Once a pre-tariff prisoner is approved for open conditions by the Secretary of State their parole review will take place on tariff expiry. Therefore there is not much difference between prioritisation using next parole review or tariff expiry date. However, parole reviews can be subject to delay for a number of reasons including late submission of reports; awaiting completion of offending behaviour work; or availability of panel members or witnesses. Parole reviews may also be deferred whereas tariff expiry dates remain the same. In cases where there is a delay or a deferral, prisoners placement on the list would have to be revised to take account of the new timetable. As parole review dates vary from one prisoner to the next in this manner, a waiting list organised by reference to this would be extremely fluid and the result of this would be that prisoner's positions on the waiting list would be subject to continual change. Re-consideration and prioritisation of each case would have to be repeated on an unacceptably frequent basis as ISPs were added to, or removed from the list, or otherwise reprioritised following deferral or delay. It would, therefore, be impossible to give a meaningful estimate of the likely period a prisoner would have to wait for transfer. We therefore believe that this solution would be unfair, as well as lacking in transparency and being difficult to manage.
ii. Length of tariff was considered to be irrelevant to the prioritisation process as it has no bearing on the Secretary of State's approval for a transfer to open conditions, which is based on risk pertaining at the time rather than either of these factors. The Secretary of State's decision to allow an ISP to transfer to open conditions is the earliest point at which this progressive move can take place.
iii. Considering each case individually on its merits: Consideration was also given to prioritising each prisoner's position on a case by case basis rather than using specific criteria. It was decided that this would have been extremely time consuming and resource intensive, as well as making it hard to ensure fairness. It would have involved very difficult judgments about the relative merits of each case against all other case. In addition, fresh judgments would have been required about each case in the backlog every time a new case came through where a prisoner had been approved for transfer to open prison by the Secretary of State. Having said that, notwithstanding the prioritisation criterion outlined above, exceptional circumstances are considered upon request, and are reviewed on an individual basis.
iv. Date of Secretary of State approval: Prioritising pre tariff prisoners in this way would mean that prisoners who were approaching tariff expiry could be leapfrogged by other prisoners who were not approaching tariff expiry but who had been approved by the Secretary of State for transfer earlier. This was considered to be unfair to those prisoners approaching tariff expiry who could potentially be released on tariff. ISPs who had been approved for their transfers earlier but whose tariff expiry date was further away had not yet reached the point where they could be considered for release and would not be disadvantaged by waiting longer for a move.
7. Therefore, although NOMS accepts that the criterion of proximity to tariff expiry is not sensitive to some individual factors it was considered to be the fairest, most transparent and most practical means of establishing an order in which to transfer pre tariff ISPs to open conditions.
Implementation of the October 2011 policy
9. We reviewed the approach we were planning to take with pre-tariff prisoners early in 2012 in light of progress made with transferring post tariff prisoners and began the process of referring pre tariff prisoners to PMS for transfer on 3 July. Prioritisation of pre-tariff prisoners is determined by proximity to tariff expiry date; the closer to tariff expiry a prisoners is the higher will be the priority to transfer them. We have increased the amount of referrals made to PMS each month and will continue to monitor progress.
10. At the beginning of the new process, there were around 300 post-tariff ISPs located in closed conditions awaiting transfer to open. At the beginning of December 2011 this figure had risen to 405 however as at 30 June this figure had fallen to 243. The current list of post tariff prisoners contains those who have been approved by the Secretary of State for a move to open conditions from late May 2012 onwards. The average waiting time for post tariff prisoners was, prior to the implementation of the central process in October 2011, around eight to nine months; this has been reduced to around three to four months now. The original backlog of post tariff prisoners has been virtually cleared and the majority have either now transferred to open conditions or are unable to transfer due to medical reasons, imminent parole hearings, courses or re-categorisation to category C. The Secretary of State has approved 927 ISPs (both pre and post tariff) for open conditions between the months of October 2011 and June 2012. The number of ISPs being released continues to rise with 173 releases in the first quarter of 2012. This is in comparison with 543 releases during the whole of 2011, 258 in 2010 and 195 in 2009.
11. Turning to the rate at which ISPs are transferred under this exercise, at present the policy remains to refer a minimum of one tranche per month to PMS for action. The estimate of the rate at which the backlog will be reduced was based on the assumption that PMS would be able to organise a transfer for all prisoners in the tranche within a month of submission. We have been monitoring progress carefully and have reviewed this arrangement on a regular basis; if more that 50 prisoners could be safely transferred per month then more would be referred. That has now been reviewed and, beginning in March 2012, we increased the number of referrals to PMS each month to 100 prisoners; in May 2012, over 200 prisoners were transferred. As at 20 June, 914 post tariff prisoners had transferred under the central process. We will continue to monitor progress carefully and review this arrangement on a regular basis; if more than 100 prisoners can be safely transferred per month, as was the case in May 2012, then more be referred.'
71. Mr Read added, at paras 28 and 29 of his statement:
'28. In respect of individual prisoners, it is important to progress at the right pace. This means ensuring that any ISP sent to open conditions can be managed safely and given appropriate support to help make the progression from restrictive, closed conditions to relaxed, open conditions, often after a long time in custody. In respect of the overall prison population, our primary responsibility is to protect the public. Any measures which resulted in large waves of ISPs being moved into open conditions in an unmanaged way could result in an increase in prisoners absconding and seriously undermine what we are looking to achieve. In addition, NOMS must be mindful of the needs of determinate sentence prisoners, some of whom benefit from a period in an open prison before release, even though their release is not contingent on the direction of the Parole Board.
29. I believe that NOMS made a good response to the problems associated with the lack of movement for ISPs into the open estate. We have taken back central control of the management for ISPs so that they are moved in a transparent and fair way; we have increased the rate of transfers from approximately 50 per month to approximately 150 per month over the past 5 months and will continue at this rate for the immediate future; and we are increasing capacity significantly to allow more opportunity for ISPs to move.'
72. Mr Hay, Head of PMS, said in his second witness statement, at paras 3 and 4:
'3. It became clear to us in early 2012 that the initial rate of transfer was not having the desired effect as the rate of movement was not keeping pace with the number of new ISPs being approved for Category D conditions. From February 2012, PMS therefore increased the transfer rate to a target of 100 per month and this was maintained or surpassed through to the end of April 2012. With a view to clearing the backlog as rapidly as could safely be achieved, PMS decided to establish whether there was a tipping point beyond which open establishments found it difficult to manage. We moved a total of 211 prisoners during the course of May 2012. When we did so, however, we began to receive telephone calls from a number of open establishments raising concerns about the increased number of ISPs that they were being required to receive. In particular, concern was raised at the increase in initial Offender Management (OM) work on reception into open prisoners and whether these prisons were able to provide reassurance that all relevant OM work was being undertaken.
4. As a result, we decided to reduce the rate of moves to a target of 150 per month from June onwards. This decision was reached on the basis of the anecdotal evidence available to PMS which indicated that this was the maximum rate at which establishments could safely manage prisoners without putting the public at risk. This rate was maintained through November with the effect that the backlog was cleared by the end of August 2012.'
73. I am satisfied, on this evidence, that the Defendant carefully considered all available options, took into account all relevant considerations, and reached a rational conclusion. I consider it is important to bear in mind that this was a temporary arrangement, which lasted for only about 10 months. From the end of August 2012, when the backlog was cleared, the transfers of post-tariff and pre-tariff prisoners were being processed at the same rate. The strategy achieved the desired result within a reasonable timescale. Prioritisation of post-tariff prisoners was rational and fair because they were already eligible for release, and administrative delay might result in a prisoner being detained when he should be free, in breach of both article 5 and arguably his article 8 rights (considered in more detail below). As Buxton LJ said in Noorkoiv, at para 25, the post-tariff prisoners were at least presumptively detained unlawfully and the legality of their detention was subject to article 5(4) ECHR. In my view, there was a pressing need for the Defendant to address their position. The way in which the Defendant prioritised pre-tariff prisoners, according to their tariff expiry date, was also rational and fair, bearing in mind the significance of the tariff expiry for prisoners.
74. The only other alternative immediately available, namely, ceasing the transfer of determinate prisoners and thus increasing the number of ISPs transferred, would have resulted in unacceptable pressures on the management of the prisoners in open prisons, as described in the evidence.
75. It may well have been desirable for the Defendant to have changed the policy in relation to ROTL at an earlier date, so as to make ISPs eligible for ROTL from closed conditions, but I cannot find any basis upon which to hold that he acted unlawfully in not doing so sooner. The Defendant's decision, and the timescale within which the change of policy was implemented, was a lawful exercise of his discretion."
LORD HUGHES: (with whom Lord Neuberger, Lord Toulson and Lord Hodge agree)
"There are a number of risk assessments in the dossier. OGRS 3 assesses the risk of reconviction as 14% at 12 months and 25% at 24 months. OASys assesses the risk of general and violent offending as low with a very high risk of harm to children in the community. RM2000 assesses Mr Robinson as posing a very high risk of sexual reconviction and the SARN concluded that he has a high level of dynamic risk as a result of having strongly characteristic risk factors in the sexual interests, offence supportive attitudes and relationship domains. Specific risk factors include having offence related sexual interests, child abuse supportive beliefs, suspicious, angry and vengeful attitudes and not having an intimate relationship.
Mr Robinson's dossier states that he is a standard prisoner on the IEP, although for much of his sentence he has been enhanced. He has completed ETS and the core SOTP, although the latter was on the basis of admissions to previous convictions. Mr Robinson maintains his innocence of the index offences, stating that he was 'set up' by the Police. The post programme report from the SOTP indicates that some progress was made but the report writer notes that Mr Robinson could be manipulative in a group, still held child abuse supportive beliefs and that his suspicious thinking (against staff) had impacted upon his development. It was recommended that Mr Robinson complete the ESOTP in order to address his interest in pubescent girls and that a full psychopathy assessment be completed.
The panel noted that whilst he is willing to do further offending behaviour work, denial of the index offences may make it difficult to transfer Mr Robinson to an appropriate establishment to undertake ESOTP and that as a result completion of this sentence plan target remains extant."
"7. Recommendations for continued risk management
My recommendations are as follows:
To successfully complete the Extended SOTP in order to address outstanding treatment needs in offence supportive attitudes and suspicious thinking and provide further opportunities to develop his intimacy skills.
Upon completion of this, to re-assess the extent of Mr Robinson's suspicious thinking and the appropriateness of further treatment for his sexual interest in pubescent girls.
I recommend that Mr Robinson is moved to an establishment where he can access the Extended SOTP and continue working on his risk factors for future sexual offending."
The psychologist's combined recommendations that Robinson undertake a PCL-R followed by an ESOTP were both therefore unconditional.
"many sex offenders serving an IPP need to complete before they can have any realistic prospect of demonstrating to the Parole Board that they are safe for release". (para 59)
This is borne out by the Ministry of Justice's publication Suitability for Accredited Interventions (June 2010), which tabulates such a course as a requirement for all high or very high risk offenders, as well as for one category of medium risk offender with three or four domains of strong treatment need (p 42). It adds (p 43):
"Some offenders, particularly high-risk offenders, are likely to attend more than one SOTP so that their combination of dynamic risk factors can be fully addressed. (Eg a high risk offender with both offence supportive attitudes and grievance thinking would likely need to attend both Core and Extended SOTPs)."
"59. It is clear from the factual circumstances of the claimants' own cases, and from the general evidence we have summarised concerning systems and resources, that a serious problem still exists in relation to the provision of ESOTP courses which many sex offenders serving an IPP need to complete before they can have any realistic prospect of demonstrating to the Parole Board that they are safe for release. The delays experienced by these two claimants are troubling in themselves. Despite pressure over a lengthy period, neither claimant managed to get admitted to an ESOTP course until after the expiry of his tariff period (in Mr Massey's case, almost three years after its expiry); and since, after completion of the course, each of them has to wait for a substantial further period until their next Parole Board review, their first reasonable opportunity to demonstrate to the Parole Board that they are safe to be released will come long after the expiry of their tariffs.
60. It is clear that the claimants' experience is far from exceptional. The evidence summarised at paras 34ff. above shows that the number of IPP prisoners with a requirement for an ESOTP greatly exceeds the number of placements available on ESOTP courses and that many such prisoners are failing to get onto courses until after the expiry of their tariff periods. In some cases the delay can no doubt be explained by reasons specific to the individual prisoner, but the under-provision of courses appears to us to be the primary reason for delay and to be accurately described as a systemic problem. Nor is there any immediate prospect of improvement. On the contrary, we have noted at para 45 above that at HMP Whatton demand for places on ESOTP courses is set to rise as the provision of places has fallen.
61. We understand the tight financial situation across the entire prison estate and the difficulty of allocating limited resources between a range of competing demands. But the duty is to make reasonable provision, and that duty plainly requires sufficient resources to be made available for its fulfilment.
62. In conclusion, we are satisfied that there is a continuing failure on the part of the Secretary of State to make reasonable provision of systems and resources, specifically the reasonable provision of ESOTP courses, for the purpose of allowing IPP prisoners a reasonable opportunity to demonstrate to the Parole Board, by the time of the expiry of their tariff periods or reasonably soon thereafter, that they are safe to be released. In this respect the Secretary of State is in continuing breach of the R (James) public law duty."
"78. We have held in relation to issue (1) that the Secretary of State is in continuing breach of the R (James) public law duty. That breach, however, is less serious than the 'deplorable' default that was of such concern to the House of Lords in R (James). Yet even the factual circumstances under consideration in R (James) were regarded by the House of Lords as falling far short of a situation rendering continued detention arbitrary and unlawful under article 5(1). Thus, applying the approach laid down by the House of Lords, it is clear that the circumstances of the present case come nowhere near to rendering the claimants' continued detention arbitrary for the purposes of article 5(1).
79. Although the ECtHR in R (James) (Strasbourg) differed from the House of Lords in finding arbitrariness on the facts of that case, the default in the present case is again less serious. The ECtHR laid stress on the complete failure to progress the applicants through the prison system with a view to providing them with access to appropriate rehabilitative courses. In the case of each of the present claimants, by contrast, a great deal was done to progress them through the system and to provide them with access to appropriate rehabilitative courses. The one real failure was in providing them with timely access to the ESOTP. Whilst that was an important failure, given the practical importance of the ESOTP for their ability to satisfy the Parole Board of their safety for release, it was in our judgment insufficient to render their detention arbitrary even on the approach that the ECtHR took in applying the concept of arbitrariness in R (James) (Strasbourg)."
(a) "There is no legal obligation to provide an ESOTP course in the first place";
(b) "if [there] were, it would presumably follow that any other European country which imposes any form of indefinite sentence would be under a similar duty to provide either it or its equivalent";
(c) "to hold that a delay … in providing it constitutes a breach of article 5, via the ancillary duty recognised, would be likely to have the perverse effect of discouraging the prison service from providing it at all, and/or of discouraging recommendations for courses … and/or of discouraging the prison service from devising and suggesting new forms of programme, especially if they are extremely expensive".
(a) No-one suggests that there is an absolute obligation to provide an ESOTP course. But it may be identified as appropriate in a particular case by psychiatric or other professionals and then be required in conjunction with a system of indefinite detention which would otherwise mean that a particular prisoner would remain in gaol long past the expiry of his or her tariff date, without hope of release, perhaps for ever. I do not see how a contrary proposition is reconcilable with the ECtHR's approach in James v UK and much other Strasbourg authority, including Hall v UK.
Quite apart from this, since the prison service in fact operates a system which provides and holds out the prospect of undertaking ESOTP courses as part of a process of promoting progress towards release, it seems to me incumbent on the state to resource and operate it efficiently, in a way which enables all prisoners who prison service professionals conclude should have such a course to have a fair opportunity of undertaking one within a reasonable time frame.
(b) This proposition assumes information about other European countries, which we do not have. It is commonly believed that British sentencing is comparatively more rigorous that that in most other European countries, though that must for present purposes also be regarded as an anecdotal statement. For all that we know, indefinite detention may be a rarity - the English experience certainly suggests that other European countries might have been wise to avoid it. Those like Germany (and I believe Austria and Switzerland) which do have a form of indefinite detention (Sicherungsverwahrung) - which has at least in its original form, also occupied the time of the ECtHR - may well have equivalent courses to ESOTP. We cannot assume the contrary.
(c) This is another proposition which I regard as speculative. I question how many of the psychiatrists and other professionals and staff who work in our prison service think in this way. If they do, there may well also be incentives in the form of prisoners' ability to complain to the ECtHR if they are detained indefinitely without access to courses which would very likely be required if they are to progress through the system towards release.