Chris Grayling, the Secretary for Justice, said he was ‘disappointed’ by the decision although at the same time he declared himself to be a major supporter of rehabilitation within the prison system. It is difficult to understand what aspect of the European Courts judgment disappoints him. In the Ministerial foreword of a Ministry of Justice Consultation Paper “Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders,” his predecessor said that “the fundamental failing of policy has been the lack of a firm focus on reform and rehabilitation”. What the European Court seems to have done is identified that lack of firm focus. What Mr Grayling failed to address, when sharing his disappointment with the Commons, was Kenneth Clarke’s stated intention to the Commons to scrap IPPs and replace them with long determinate sentences and in some cases discretionary life sentences.

Imprisonment for Public Protection (IPP)
The Criminal Justice Act 2003 introduced new sentences for offenders who commit certain specified offences and are deemed to be dangerous. An offender was dangerous under the provisions of the Act if the Court was of the opinion that there was a significant risk of the offender committing further specified offences (whether serious or not), and there was a significant risk of serious harm to members of the public being caused by such offences.

One of the most controversial provisions was the sentence of Imprisonment for Public Protection (IPP). This was an indeterminate sentence where a prisoner could in certain circumstances be imprisoned for the rest of his or her life. Prior to the amendment of the Act in 2008 the IPP was a mandatory sentence. If the statutory preconditions were met the judge had no discretion.

When imposing such a sentence the court had to set a minimum term, which the offender would serve in custody before the Parole Board could consider whether to release him or her. That minimum term was referred to as the ‘tariff period’ of his or her sentence. This was the punitive part of the sentence.

Once the offender had served the minimum term, he or she would not be released on licence unless the Parole Board was satisfied that it was no longer necessary for the protection of the public that he or she should be confined.

Up and down the country judges found themselves compelled to impose IPPs. The prison system simply could not cope. James, Wells and Lee are doubtless three of a very large number of IPP prisoners who were victims of that failure. They, like many others, reached their minimum term without any realistic prospect of persuading the Parole Board that they were no longer a significant risk to the public because there simply were not the resources within the prison system to afford them this opportunity.

For these prisoners the Court of Appeal could not provide a remedy unless the sentence, when imposed, was wrong in principle or manifestly excessive; thus the remedy for James, Wells and Lee was through the Administrative Court, challenging the lawfulness of their continued detention.

The Divisional Court found in their favour. They held that the Secretary of State was in breach of his general public law duty and also found a breach of Article 5(4) (directed at the delay in evaluating the lawfulness of any detention). The court further found that their further detention could not be justified and was therefore unlawful in terms of Article 5(1), (the right not to be unlawfully deprived of one’s liberty). This was appealed and in part that appeal was allowed in the Court of Appeal.

The Court of Appeal found that as long as the original sentence was lawfully imposed, the detention could not be said to be unlawful either at common law or in breach of Article 5(1) unless and until the detention was no longer necessary for the protection of the public, or the delay in any meaningful review was so long as to be disproportionate or arbitrary.

When the matter reached the House of Lords in 2009 it was found that the consequences of the failure by the Secretary of State in his public duty did not make their post-tariff detention unlawful, as the causal connection between his conviction and deprivation of liberty was not broken. The Law Lords said while it might be broken by a prolonged failure to enable the prisoner an effective review of his case (to demonstrate that he was safe for release), such failure would have to be for a period of years.

Meanwhile the Criminal Justice and Immigration Act 2008 addressed this disastrous state of affairs. IPPs became discretionary. Further, an IPP could not be imposed unless the minimum term would be at least 2 years. These two statutory amendments have had a resounding effect on the number of IPP sentences handed down.

The 2008 amendments does not mean that the case of James, Wells and Lee v The United Kingdom no longer has a relevance to the practitioner; all it means is in practical terms there will be fewer victims out there of a prison system that could not cope.

In addition to expressing his disappointment with the decision of the ECHR, the Justice Secretary, Chris Grayling, told MPs that he intended to appeal against it. He said: “It is not an area where I welcome the court seeking to make rulings.”

He ought to have welcomed what others have described as a triumph for commonsense and a vindication for those who had foreseen, long ago, the prospect, of such a ruling. He also should have paid more attention to what the judges in this country had already said about what had taken place.

As long ago as 31 July 2007, when handing down judgment in the Divisional Court granting judicial review to Mr Walker, Lord Justice Laws said:

“The point is one of principle... 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…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… 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.”

In the Court of Appeal Lord Phillips concluded that there had been a systemic failure on the part of the Secretary of State to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the provisions of the 2003 Act to function.

In the House of Lords, Lord Hope said there was no doubt that the Secretary of State had failed “deplorably” in the public law duty that he had to be taken to have accepted when he had persuaded Parliament to introduce IPP sentences; Lord Brown commented that it was most regrettable that the Secretary of State had been found to be, and admitted being, in systemic breach of his public law duty with regard to the operation of the regime for at least the first two or three years. Lord Judge referred to the “seriously defective structures” and added that the applicants were victims of the systemic failures arising from ill-considered assumptions that the consequences of the legislation would be resource-neutral.

European Court of Human Rights
The Applicants complained to the ECHR that their detention following the expiry of their tariff periods was not compatible with Article 5(1) of the Convention. The European Court accepted that there had been a violation of the Applicants Article 5 rights and ordered compensation in respect to all three.

The question for the Court was whether the Applicant’s post-tariff detention for the public protection was compatible with Article 5(1). This called for an examination of whether there was a causal link between the continuing detention and the original sentence; whether the detention complied with domestic law and whether it was free from arbitrariness. The court agreed with the House of Lords that there remained a causal connection between conviction and the continued detention and that domestic law had been complied with.

It further noted that the mandatory nature of the sentence when first introduced did not make the detention arbitrary per se but it was not irrelevant either. In addition the Court said where the finding of a future risk was as a result of statutory assumptions, the need to ensure that there was a genuine correlation between the aim of the detention and the detention itself was all the more compelling.

The Court said that in order to assess whether the Applicant’s detention was arbitrary it was necessary to identify the purpose of their detention under Article 5(1). Whilst it was accepted that the central purpose of IPP sentences was protection of the public, a further purpose was rehabilitation of the offender. This is where the House of Lords and the ECHR differed. The Court referred to the intent of the Ministers responsible for the implementation of the relevant legislation noting their expressed aims of encouraging rehabilitation in prisons.

The Court also noted that in introducing this new form of indeterminate sentence the “Respondent State must be presumed to have intended to comply with its International obligations in respect to prison regimes”. The Court referred in particular to Article 10 of the International Covenant on Civil and Political Rights 1966 which stipulates that the penitentiary system is to comprise treatment of prisoners, the essential aim of which is to be their reformation and social rehabilitation; and further referred to other European and UN instruments, all giving the very clearest priority to the rehabilitative purpose to sentences of imprisonment.

Here the Applicants having served the punitive element of their sentences were in detention solely because of the risk they posed to the public, and yet there were not in place any programmes aimed at reducing the danger they represent and thus limiting the duration of their detention to what was strictly necessary. The rehabilitative purpose behind the detention was not and could not be met: thus the Court found that their detention was arbitrary and therefore unlawful within the meaning of Article 5(1).

The House of Lords doubted if there could be a successful claim for compensation for breach of Article 5 since the public authority could not have acted in any other way because of the provisions of primary legislation. The EHRC was not so constrained and made awards in respect to non-pecuniary damage.

The Secretary of State for Justice has announced that he intends to appeal the decision to the Grand Chamber of the European Court.

David Hislop QC, Doughty Street Chambers