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Judgments - Secretary of State for Justice (Respondent) v James (FC) (Appellant) (formerly Walker and another) R (on the application of Lee) (FC) (Appellant)

HOUSE OF LORDS

SESSION 2008-09

[2009] UKHL 22

on appeal from: [2008]EWCA Civ 30

[2008] EWHC 2326 (Admin)

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Secretary of State for Justice (Respondent) v James (FC) (Appellant) (formerly Walker and another)

R (on the application of Lee) (FC) (Appellant) v Secretary of State for Justice (Respondent) and one other action

Appellate Committee

Lord Hope of Craighead

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Mance

Lord Judge

Counsel

Appellant (James):

Pete Weatherby

Melanie Plimmer

(Instructed by Switalskis)

Appellant: (Lee):

Tim Owen QC

Nick Armstrong

(Instructed by Stephensons LLP)

Appellant (Wells):

Tim Owen QC

Nick Armstrong

(Instructed by Russell & Russell )

Respondent: :

Nathalie Lieven QC

Steven Kovats

(Instructed by Treasury Solicitors)

Interveners (Parole Board):

Pushpinder Saini QC

Dan Squires

(Instructed by Treasury Solicitors)

Hearing dates:

27, 28 and 29 JANUARY 2009

ON

WEDNESDAY 6 MAY 2009

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Secretary of State for Justice (Respondent) v James (FC) (Appellant) (formerly Walker and another)

R (on the application of Lee) (FC) (Appellant) v Secretary of State for Justice (Respondent) and one other action

[2009] UKHL 22

LORD HOPE OF CRAIGHEAD

My Lords,

1.  I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Brown of Eaton-under-Heywood and Lord Judge, the Lord Chief Justice. I gratefully adopt their admirable description of the legislative and factual background. For the reasons they give, with which I agree, I would dismiss all three appeals.

2.  It may helpful if, by way of an introduction to the issues that they examine in much greater detail, I were to provide a sketch of the landscape within which the arguments that are before the House must be considered and give some brief reasons of my own for the conclusions that I have reached. Submissions were made about the Secretary of State’s duties in public law and the appellants’ rights under articles 5(1) and 5(4) of the European Convention on Human Rights. The scope for argument differs under each of those heads, and so does the opportunity that each offers for an effective remedy.

The public law duty

3.  There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection (“IPPs”) by section 225 of the Criminal Justice Act 2003. He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention. The Divisional Court (Laws LJ and Mitting J) granted a declaration to that effect on 31 July 2007: R (Walker) v Secretary of State for Justice [2007] EWHC 1835 (Admin); [2008] 1 All ER 138. Its decision was affirmed on 1 February 2008 by the Court of Appeal (Lord Phillips of Worth Matravers CJ, Dyson and Toulson LJJ): R (Walker) v Secretary of State for Justice (Parole Board intervening) [2008] EWCA Civ 30; [2008] 1 WLR 1977. The Secretary of State has not appealed against that declaration. Very properly, he accepts that it was implicit in the statutory scheme of sections 224 and 225 of the Criminal Justice Act 2003 that he would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released. As Miss Lieven QC for the Secretary of State put it, the scheme was such that it was not rational for him to fail to do so.

4.   Steps have been taken to address the problem and the legislation has now been amended, as my noble and learned friends have explained. So the issue to which these appeals are directed is not performance of the public law duty but the consequences of the breach. What remedies, if any, are available? Mr James is no longer in custody, so the remedy which he seeks is compensation for delay in his being released. Mr Lee and Mr Wells, on the other hand, are still serving their sentences. The Parole Board is not yet satisfied in their cases that it is no longer necessary for the protection of the public that they should be confined: see section 28(6)(b) of the Crime (Sentences) Act 1997. They attribute this to the Secretary of State’s failure to make provision for them to be able to demonstrate to the Parole Board that this is no longer necessary. They seek a direction that they should be now released, and they also seek compensation for delay.

5.  It is plain that the remedies which the appellants seek are not available to them at common law. The Secretary of State’s breach of his public law duty to have a system in place which provided prisoners with a reasonable opportunity to demonstrate that they are no longer dangerous does not confer on individuals who are affected by this breach a right to damages. Mr Owen QC for Mr Lee and Mr Wells submitted that they were entitled to writs of habeas corpus. But he accepted that he was unable to challenge the legality of the warrant which authorised their continued detention. As Simon Brown LJ said in R v Oldham Justices, Ex p Cawley [1997] QB 1, 13, where there has been a criminal conviction the courts have firmly excluded collateral attack by habeas corpus, holding that the only proper remedy lies by way of appeal. Sentences of imprisonment for public protection are sentences for an indefinite period, subject to the provisions of Chapter II of Part II of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences: Criminal Justice Act 2003, section 225(4). There is no entitlement to release until release has been directed by the Parole Board, and a direction to that effect cannot be given until the Board is satisfied that detention is no longer necessary for the protection of the public. Mandatory orders may be obtained to ensure that the system works properly. But it is not open to the courts to set that system aside by directing release contrary to the provisions of the statute.

6.  For this reason I cannot agree with Laws LJ’s finding in the Divisional Court that, to the extent that the prisoner remains incarcerated after tariff expiry without any current and effective assessment of the danger that he does or does not pose to the public, detention is unlawful: [2008] 1 All ER 138, 154f-g. In terms of the statute, his detention is lawful until the Parole Board gives a direction for his release. The default position, as Mr Pushpinder Saini QC put it in his helpful intervention for the Parole Board, is that until the direction is given protection of the public requires that the prisoner should be confined.

Convention rights

7.  That being the position at common law, attention has been directed instead to the appellants’ Convention rights. Access to those rights is afforded in domestic law by the Human Rights Act 1998, so it is through the perspective of its provisions that this part of the argument must be addressed. Section 3(1) provides that, so far as it is possible to do so, the legislation must be read and given effect in a way which is compatible with the Convention rights, and section 4(2) provides that if the court is satisfied that a provision is incompatible with a Convention right it may make a declaration of that incompatibility. The appellants have not asked your Lordships to read or give effect to section 225(4) of the 2003 Act and section 28(6) of the 1997 Act in a way that differs from the ordinary meaning of those provisions. Nor in their written cases did they seek a declaration of incompatibility. In the course of his oral argument Mr Owen suggested that a declaration of incompatibility might be appropriate, but he accepted that the problem which had arisen in his clients’ cases was due to a failure of administration. He was unable to say that the incompatibility of which he complained was inherent in the legislation itself. That being so, I cannot see that there is any basis in this case for a declaration of incompatibility.

8.  The question then is whether the appellants are able to show that the Secretary of State has acted in a way which was incompatible with their Convention rights. If he has, his act is made unlawful by section 6(1) of the Human Rights Act 1998. This in turn opens up the possibility of obtaining a judicial remedy under section 8, which enables the court to award damages. But regard must also be had to section 6(2)(a) of the 1998 Act, which provides that section 6(1) does not apply to an act if, as a result of one or more provisions of primary legislation, the public authority could not have acted differently. The effect of that provision is to narrow the scope for argument as to the respects in which the Secretary of State’s conduct was unlawful within the meaning of section 6(1).

9.  Section 28(7) of the 1997 Act provides that a prisoner to whom that section applies may require the Secretary of State to refer his case to the Parole Board at any time after he has served the minimum term ordered by the sentencing judge. It has not been suggested by the appellants that the Secretary of State was in breach of that duty in their cases. The effect of section 28(5), which provides that it is the duty of the Secretary of State to release the prisoner on licence when directed to do so by the Parole Board, is that he has no power to release the prisoner until the Parole Board gives him that direction. Notwithstanding the criticisms that may be made of the Secretary of State’s failure to provide the means by which the appellants could demonstrate to the Parole Board that their continued detention was no longer necessary, the terms of the legislation are such that it cannot be said that he was acting unlawfully in not releasing them until directed to do so by the Parole Board. The court, for its part, would not be acting unlawfully if it too declined to order their release until the Parole Board was satisfied that it was no longer necessary for the protection of the public that they should be confined. Section 6(2)(a) of the 1998 Act leads inevitably to these conclusions.

10.  On the other hand the Secretary of State cannot claim the protection of the statutes for his failure to provide the administrative support that was needed for the system that the statutes laid down to operate as it should. It is to that area of his responsibilities and its effect on the performance of its function by the Parole Board that the argument that he acted in a way that was incompatible with the appellant’s Convention rights must be directed.

Article 5(1)(a)

11.  It is not, and cannot be, suggested that the appellants’ detention during the tariff period was incompatible with their right under article 5(1) of the Convention not to be deprived of their liberty. Their detention was in consequence of an order made lawfully after conviction by a competent court in accordance with a procedure prescribed by law: see article 5(1)(a). So the requirement of “lawfulness” in the sense of conformity with domestic law was fully satisfied. More generally, the Strasbourg court has said repeatedly that the purpose of article 5 is to protect the individual from arbitrariness: eg Ashingdane v United Kingdom (1985) 7 EHRR 528, para 44; Stafford v United Kingdom (2002) 35 EHHR 1121, para 63; A and others v United Kingdom, Application No 3455/05 (unreported), 19 February 2009, para 162. The court’s assessment of the minimum term that the prisoner must serve before he is considered for release provides that protection.

12.  The situation changes as soon as the prisoner has served the minimum term, which is the measure of his punishment. As the Strasbourg court pointed out in Weeks v United Kingdom (1987) 10 EHRR 293, para 49, the causal link required by article 5(1)(a) might eventually be broken if a position were to be 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. The objective that justifies continued detention at this stage is public protection. The sentencing judge makes no assessment of the extent to which, if at all, the prisoner will represent a danger to the public once he has served the minimum term. That matter is left entirely to the determination of the Parole Board. It is for the Board to assess whether the causal link with that objective that is required by article 5(1)(a) remains in place or has been broken because it is no longer necessary for the prisoner to be confined.

13.  In Stafford v United Kingdom (2002) 35 EHHR 1121, para 80 the Strasbourg court said that, once the punishment element of the sentence, as reflected in the tariff, has been satisfied, the grounds for the continued detention must be considerations of risk and dangerousness. Section 28(6)(b) of the 1997 Act meets this requirement. The way that it does so is to require the Parole Board to be satisfied that it is no longer necessary for the protection of the public for the prisoner to be confined before it can direct his release under section 28(5). In Van Droogenbroeck v Belgium (1982) 4 EHRR 443, para 40 the court said that a detention which was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and hence incompatible with article 5 if the position were reached in which decisions for the prisoner’s detention were based on grounds that had no connection with the objectives of the legislature. An example of such a situation is provided by Stafford v United Kingdom where a prisoner who had exhausted his punishment for murder and been released in licence was recalled because there was a risk that he might commit further non-violent offences. The court said in para 81 that it could find no sufficient causal connection between the possible commission of other non-violent offences and the original sentence for murder.

14.  It is hard to see, however, how there could ever be an absence of the causal connection that is required by “lawfulness” in terms of article 5(1)(a) in the case of a prisoner whose case has been referred to, and is still under consideration, by the Parole Board. The indeterminate sentence which he received was passed on the ground that there was a significant risk to members of the public of serious harm occasioned by the commission by him of further offences of the kind specified in Schedule 15 to the 2003 Act. The essence of it was the need for the public to be protected against that risk. His continued detention cannot be said to be arbitrary, or in any other sense unlawful, until the Parole Board has determined that detention is no longer necessary. As soon as it makes that assessment the causal connection is, of course, broken. A direction must then be given in terms of the statute that he be released on licence. But continued detention that results from any decisions that the Parole Board may issue before that stage is reached must be attributable to the original ground for it. The causal connection will not be broken until the Parole Board, on whom the responsibility rests under the statute, has determined otherwise.

15.  It is just possible to conceive of circumstances where the system which the statutes have laid down breaks down entirely, with the result that the Parole Board is unable to perform its function at all. In that situation continued detention could be said to be arbitrary because there was no way in which it could be brought to an end in the manner that the original sentence contemplated. But the failures for which the Secretary of State accepts responsibility, while highly regrettable, cannot be said to have created a breakdown of that extreme kind. The appellants’ cases were referred by him to the Parole Board as the statute required. A favourable consideration of them may have been delayed, but performance of its task of monitoring their continued detention was not rendered impossible. Mr Lee and Mr Wells remain in custody because the Board was not yet satisfied that they are no longer a risk to the public. The causal link with the objectives of the sentencing court has not been broken. I would hold that the Secretary of State’s failure in his duties of administration did not violate the appellants’ rights under article 5(1(a).

Article 5(4)

16.  The essence of the argument that article 5(4) was breached in these cases is that it was not possible for the Parole Board to conduct an effective review without the coursework which the prisoners needed to demonstrate they were no longer a risk to the public. In Mr Lee’s case the Secretary of State has already conceded that there had been a breach of his rights under article 5(4), and he does not challenge the decision by Moses LJ that there was a continuing breach of it in Mr Wells’ case also: [2008] EWHC (Admin) 2326. In the case of Mr James however this remains a live issue. The Court of Appeal’s assessment of the position was that article 5(4) would be breached if his hearing before the Parole Board, which was pending, proved to be an empty exercise. Mr Weatherby on his behalf submitted that the Board was not able to discharge its statutory duty under section 28 of the 1997 Act because of the Secretary of State’s failure to provide it with the means of doing so. For the reasons I have just mentioned, I think that this is an overstatement. The performance of its functions by the Board may have been delayed, but it was not rendered impossible. The question remains however whether, in the events that happened, his rights under article 5(4) were violated. This in turn directs attention to the reach of that article, as it has been interpreted in Strasbourg.

17.  Article 5(4) provides:

“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.”

This paragraph does not guarantee a right to judicial control of the legality of all aspects or details of the detention: Ashingdane v United Kingdom (1985) 7 EHRR 528, para 52. But detainees are entitled to a review hearing upon the procedural and substantive conditions which are essential for the lawfulness of their deprivation of liberty: Brogan v United Kingdom (1988) 11 EHRR 117, para 65; A and others v United Kingdom, Application No 3455/05 (unreported), 19 February 2009, para 202. The Strasbourg court has held, in the case of vagrants and persons of unsound mind whose lawful detention is permitted by article 5(1)(e), that the very nature of the deprivation requires a review of lawfulness to be available once a certain period has elapsed since the detention began and thereafter at reasonable intervals: Winterwerp v The Netherlands (1979) 2 EHRR 387, para 50; X v United Kingdom (1981) 4 EHRR 188, para 52. It has applied this principle to recidivists and habitual offenders detained at the government’s disposal to protect society and provide the executive with an opportunity of endeavouring to reform them: Van Droogenbroeck v Belgium (1982) 4 EHRR 443, paras 45 and 48.

18.  In A and others v United Kingdom, Application No 3455/05 (unreported), 19 February 2009, paras 202-203, the Grand Chamber set out the principles arising from its case law. It described article 5(4) as a lex specialis in relation to the more general requirements of article 13 as to an effective remedy. The notion of “lawfulness” has the same meaning as in article 5(1). The review which article 5(4) guarantees should be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to article 5(1). The reviewing “court” must not have merely advisory functions but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful. The requirement of procedural fairness under article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. But it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question.

19.  I do not detect any departure from these principles in the procedure that the statutes lay down or the role that is performed by the Parole Board. An issue as to the lawfulness of the continued detention of an IPP prisoner is raised as soon as his tariff period has expired. At that point and at reasonable intervals thereafter he becomes entitled to a review by a judicial body of its lawfulness. Lawfulness depends on there being a causal link between the objectives of the sentencing court and the prisoner’s remaining in custody. Section 28(7) of the 1997 Act, as applied to a person serving an IPP by section 34(2)(d) of that Act as amended, meets that requirement. The function of the Parole Board is to determine whether it is no longer necessary for the protection of the public that the prisoner should be confined and, if it is of that opinion, to direct his release. The Parole Board has all the powers that it needs to carry out that assessment on the expiry of the tariff period and thereafter at reasonable intervals. The question is what more is demanded of this system if the guarantee of an effective remedy in a case where continued detention has become unlawful that article 5(4) provides is to be satisfied.

20.  The way the Parole Board conducts itself must meet the requirement of procedural fairness. But, as the Grand Chamber said in A and others v United Kingdom, para 203, this requirement does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. This suggests that it is a matter for the judgment of the Parole Board to decide what information it needs to make its assessment and on the timetable it should adopt for conducting its review. It will be difficult for a prisoner to establish that he does not pose a risk to the public if he is not provided with the courses or assessments that are normally needed to persuade the Board that his detention is no longer necessary. But this does not mean that he is denied access to the Board when his case has been referred to it. It is open to him to argue his case for release, and to have his position noted, although the contents of his dossier for the time being fall short of what is desirable. Furthermore, determination of the question when it is safe for an IPP prisoner to be released is likely, in many cases, to be a gradual process as the issue is so obviously fact sensitive. Delays are apt to occur for all sorts of reasons even in the best resourced system. Continued detention will only become unlawful when the Board decides that it is no longer necessary for the protection of the public that the prisoner should be confined. Until that stage is reached each step that the Board takes in the review process confirms the lawfulness of the detention.

21.  In R (Walker) v Secretary of State for Justice (Parole Board intervening) [2008] 1 WLR 1977, para 67 the Court of Appeal said that, if Mr Walker were to be unable to make a meaningful challenge to the lawfulness of his sentence at the time his case was heard by the Parole Board, a review of his case would be an empty exercise that would be likely to result in a breach of article 5(4). In para 68 it made the same assessment of the position in the case of Mr James. I cannot find anything in the jurisprudence of the Strasbourg court that goes that far. Article 5(4) requires that a system must be in place for making that assessment at reasonable intervals which meets the requirement of procedural fairness. How that system works in practice in any given case is a matter for the Parole Board itself to determine. It is open to it to decide how much information it needs, to conclude that for whatever reason the information that is available for the time being is inadequate and to set its own timetable for the information that it needs to be made available. It is entitled to expect co-operation from those who are responsible for the management of the sentence in meeting its requirements. But a failure to meet them does not of itself mean that there will be a breach of article 5(4). As in the case of article 5(1)(a), it will only be if the system which the statutes have laid down breaks down entirely because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary that the guarantee that article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages.

LORD CARSWELL

My Lords,

 
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