Lords judgment has dismissed IPP appeals  

Secretary of State for Justice (Respondent) v James (FC) (Appellant) (formerly Walker and another) AND R (on the application of Lee) (FC) (Appellant) v Secretary of State for Justice (Respondent) and one other action [2009] UKHL 22

> judgment

The HoL judgment in; Secretary of State for Justice v James, R (Lee and Wells) v Secretary of State [2009] UKHL 22, regarding IPP prisoners, has been much anticipated by the prison service, the Parole Board and prisoners, many of whose applications for judicial review have been stayed pending the outcome.

When the IPP sentence became available, from 4 April 2005, there were neither the systems nor resources available to make it function as Parliament must have intended. The problem was most acute for short tariff IPP prisoners such as Mr James who had a ‘minimum term’ of 1 year and 295 days. By the time his tariff expired he remained in a local prison, he had not been subject to any meaningful assessment, nor had he had access to any offending behaviour courses. The Parole Board failed to list the case for review until 6 weeks after tariff expiry, and then the hearing was adjourned because all parties (the PB, the Secretary of State and Mr James) agreed that there was insufficient evidence for the PB to determine whether or not he remained a risk to the public.

Meanwhile, judicial review proceedings had been commenced and Collins J (following Laws LJ and Mitting J in Walker) determined that Mr James had been unlawfully detained since tariff expiry and ordered his release. The release was stayed pending appeal by the Secretary of State.

The Court of Appeal upheld the lower courts’ findings that the Secretary of State had unlawfully failed in his public law duty to provide the proper systems by which the statutory scheme could work, but overturned the findings of unlawful detention. Furthermore, the Court of Appeal held that in some circumstances there might be breaches of Article 5(1) and (4) but that position had not been reached in the cases before them.

Mr James and two co-appellants appealed to the HoL, arguing that;
a) Where the Secretary of State had promoted legislation to provide for the indeterminate detention of dangerous offenders until they were no longer a risk to the public, and the legislation had provided a statutory mechanism for this to occur, but the SoS had himself rendered that scheme inoperative, detention would become unlawful once the ‘minimum term’ had expired and it could not be shown that the prisoner was dangerous.
b) That detention in such circumstances was in breach of Article 5(1) because it was arbitrary and no longer causally connected to the conviction. And;
c) That there was a breach of Article 5(4) where the ‘minimum term’ had expired and the PB were not in a position to undertake a meaningful review which could properly determine risk, because of the systemic failings of the SoS.

The HoL found against the Appellants on all the issues, going further even that the SoS had argued. The judgments upheld the finding of the CoA that detention was domestically lawful until the PB directed release because of the statutory scheme. The logic of this position is that indeterminate detention would remain lawful even if the SoS were to fail to refer the case to the PB or to provide it with no evidence at all.

In respect to Article 5(1) the HoL held that the detention was not arbitrary as the default position at minimum term expiry was that the prisoner remained a risk until the PB found otherwise. According to Lord Brown (at para 50), Laws LJ was correct in Walker (at para 47) to say that it was not to be presumed that the prisoner remained dangerous at tariff expiry, but concluded;
“Rather I am in full agreement with what Lord Judge says in paragraph 103 of his opinion: detention beyond the tariff period is justified because the sentencing court decided that the prisoner would continue to be dangerous at the expiry of the punitive element of the sentence; the necessary predictive judgment will have been made.”

This finding marks a departure from the previously accepted position that indeterminate sentences were justified because the sentencing judge was not in a position to determine future dangerousness, and the prisoner might remain dangerous at the expiry of the punitive term.

The judgments did leave the door open for very extreme cases, asserting that there might be a breach of Article 5(1) if the prisoner was held for a very long time without proper assessment.

With respect to Article 5(4) Lord Brown held that it required no more than a procedure whereby the lawfulness of detention could be reviewed. That is, a court-like body with jurisdiction to determine lawfulness and direct release, rather than any substantive right to a meaningful review.
“I have concluded that article 5(4) requires no more than that “a court” (the
Parole Board) shall speedily decide whether the prisoner continues to be lawfully detained, and this will indeed be the case unless and until the Board is satisfied of his safety for release (or so long has elapsed without any effective review of his dangerousness that the article 5(1) causal link must be presumed broken as discussed above). I accept that article 5(4) requires the basic rule 6 dossier to be made available: without this the Board simply cannot function. But I cannot accept that article 5(4) requires anything more in the way of enabling the Board to form its judgment.”

This suggests that an empty ‘procedural’ exercise devoid of any meaning is sufficient to ensure Article 5(4) compliance. This was not the position of the Secretary of State, but it was the submission of the Parole Board who intervened in the cases. There is a wealth of Convention jurisprudence which asserts that Convention rights are to be construed practically and in a meaningful way. Article 5 is the only Convention article to have its own sub-paragraph dealing with the protection of the right therein, rather than having to rely on the more general assertions in Articles 1 and 13. The finding that Article 5(4) is merely procedural and does not require a meaningful review is therefore surprising.

In the course of his leading judgment Lord Brown robustly criticized the failings of the past, asserting;
“I cannot, however, part from this case without registering a real disquiet about the way the IPP regime was introduced. It is a most regrettable thing that the Secretary of State has been found to be—has indeed now admitted being—in systemic breach of his public law duty with regard to the operation of the regime, at least for the first two or three years. It has been widely and strongly criticised, for example by the Select Committee on Justice. Many of the criticisms are to be found in the judgments below and I shall not repeat them. The maxim, marry in haste, repent at leisure, can be equally well applied to criminal justice legislation, the consequences of ill-considered action in this field being certainly no less disastrous. It is much to be hoped that lessons will have been learned.”

However, he also accepted that the systemic failures in the IPP system were a thing of the past and the system was now working, albeit imperfectly. As Mr James has been released the current workings of the system were not strictly relevant to his case, however the evidence to underpin Lord Brown’s conclusion is scant.

Current statistics show that there are between 80 and 90 new IPPs being passed per month (even since the amendments to the scheme brought in by the Criminal Justice and Immigration Act 2008, made them discretionary), and the rate of release from such sentences is about 3 per month. There have been a number of changes to categorization of IPP prisoners, thereby making existing courses more accessible to them, and which have made significant improvements, but little evidence of the injection of major new resources which will undoubtedly be needed if such prisoners are to be treated as the scheme seems to require.

Mr James will be pursuing an application to the Court of Human Rights in respect of violations of Article 5(1) and (4).

Mr James was represented by Pete Weatherby , instructed by Erica Restall of Switalskis Solicitors .

Quick links

> 6/5/09 - House of Lords hands down judgment in IPP case (Switalskis Solicitors)

> 8/5/09 - Public protection policy swamped prison system (Times Law Reports)