When indefinite becomes arbitrary: James, Wells and Lee v UK
24 September 2012
As Andrew Tickell noted in his post on Wednesday the European Court of Human Rights this week ruled that the UK violated the Article 5(1) ECHR rights of three prisoners sentenced to indeterminate prison sentences for public protection, where reasonable provision for their rehabilitation was not made.
In April 2005, the Government introduced indeterminate imprisonment for the public protection, or “IPP sentences”, whereby certain prisoners would not have a right to parole. Instead, under section 225 of the Criminal Justice Act 2003, they would remain in prison following expiry of their tariff periods until a Parole Board had decided they were no longer a risk to the public. Prior to an amendment in 2008, an IPP sentence was mandatory where there was a future risk of further offending, and there was an assumption of risk where there was a previous conviction for a violent or sexual offence unless the sentencing judge considered it unreasonable to make such an assumption.
James, Wells and Lee
Last week, three men who found themselves on the wrong end of IPP sentences under the 2005 scheme were successful in their applications before the European Court of Human Rights. The Court held unanimously that the failure to make appropriate provision for rehabilitation services resulted in breaches of Article 5(1) of the European Convention on Human Rights, which protects the individual from arbitrary detention.
Despite the introduction of the IPP scheme being premised upon rehabilitation services being made available to offenders, the Court observed that there had been considerable delays and that the applicants “had no realistic chance of making objective progress” towards parole. It considered that this had been the result of “lack of resources, planning and realistic consideration of the impact of the sentencing scheme introduced in 2005,” which has since been applied to more than 6,000 offenders.
The applicants were recommended to take part in various rehabilitative courses, which are administered in the main by certain lifer prisons around the country. Yet, by the expiry of their tariffs, and some two and a half years post-tariff, each remained in his local prison unable to begin processing through the prison system in order to eventually emerge – he would hope – from the other end. The Court noted that it took a further five months post-transfer for Mr Lee to begin work under a rehabilitative programme – a delay of 34 months in the context of a nine-month tariff.
This important judgment shows that the lawfulness of indeterminate sentences based on offenders’ risk to the public must depend upon the extent to which that risk is addressed in detention.
Strasbourg’s approach differed from that of the domestic courts when confronted by the applicants’ Catch 22 predicament: they complained that they could not show that they were rehabilitated and therefore suitable for release because of the failure to ensure that they had access to the courses that would progress their rehabilitation. The Court of Appeal (Secretary of State for Justice v Walker  EWCA Civ 30) and House of Lords (Secretary of State for Justice v James  UKHL 22) had been united in their criticism of the Secretary of State’s failure to provide adequate resources with which to meet his public law duty, yet each had fallen short of finding the detention to be unlawful in and of itself.
Despite noting the Secretary of State’s “deplorable” failure to meet his public law duty, the House of Lords had found no rupture in the causal connection between the ground of detention and the detention itself. In the Court of Appeal in James, Lord Phillips’ starting point had been that the primary object of the IPP sentence was to protect the public, not to rehabilitate. For his Lordship, concerns from an Article 5 perspective only arose when the stage was reached that detention was no longer necessary for protection of the public, or where so long had elapsed without a meaningful detention review that detention had to be considered arbitrary.
By contrast, the European Court essentially viewed protecting the public and rehabilitation as two sides of the same coin. A real opportunity for rehabilitation was “a necessary element of any part of the detention which is to be justified solely by reference to public protection.” Detention for public protection could not be allowed to “open the door to arbitrary detention.” Reasonable provision of rehabilitative services was all that was required. Yes, persons could be detained indefinitely on the grounds of public protection from the risk they posed, but the system had to provide for those risks to be reduced through rehabilitation. As the courts below recognised, this was the basis upon which the Secretary of State had laid the enabling statutory provision before Parliament. It was, for Laws LJ in the Divisional Court in Wells, “inherent” in the way the legislation was intended to work in practice. It appears that for the Strasbourg Court, however, it was also inherent to the question of lawfulness.
In the House of Lords, Lord Judge had insisted that an IPP sentence did not render prisoners “confined to penal oblivion. To the contrary, common humanity, if nothing else, must allow for the possibility of rehabilitation.” Yet, whatever the level of humanity involved, it is now clear that proper resourcing and planning was required in order to ensure that a prisoner progressed along the continuum between offending and release, within which rehabilitative courses are an accepted vital stage. Instead, short-tariff prisoners like the applicants might well find themselves in a position that feels very much like penal oblivion.
The Court’s judgment could have immediate, practical consequences. Whilst, unsurprisingly, the Ministry of Justice does not intend to release the 3,531 prisoners currently being held beyond their tariff dates on IPPs and intends to appeal the Court’s judgment. The Prison Reform Trust is calling upon the Justice Secretary to urgently review those cases.
There is perhaps an additional headache for the Justice Secretary as the judgment could pave the way for damages claims brought on behalf of those 3,531 people, as well as other IPP prisoners who have been released but were themselves arbitrarily deprived of their liberty as a result of the systemic failings noted by the Court. These could be grounded in the tort of false imprisonment and/or Section 8 of the Human Rights Act 1998. Whilst HRA claims would be limited to relatively low awards reflecting “just satisfaction” within the meaning of Article 41 ECHR (the applicants received only a few thousand Euros each), proceedings in tort could lead to much larger damages payments, especially for prisoners considered to have been held arbitrarily for periods of months or years.
This could lead to further drain on a public purse already lightened by the need to fund the detention of prisoners who might have been suitable for release long ago had prisons been provided with the promised resources.
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