Walker and James (IPPs) Court of Appeal judgment

01/02/2008

Court of Appeal finds Secretary of State for Justice acting unlawfully in respect of IPPs, and that systemic failures are likely to lead to violation of Article 5.

Judgment was handed down today in; Secretary of State for Justice v David Walker and Brett James, the appeals having been heard on 20 and 21 November 2007.

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The Secretary of State’s appeal in Walker was dismissed, with the Court of Appeal (Lord Phillips LCJ, Dyson LJ, and Toulson LJ) upholding the declaration of the lower court that the Secretary of State had acted unlawfully by failing to provide measures to allow and encourage IPP prisoners to demonstrate to the Parole Board that they were no longer dangerous, by the time of minimum term expiry.

The Secretary of State’s appeal in James was allowed in part, with the CoA holding that detention post-tariff was not unlawful even where there was systematic failure to provide measures by which the prisoner could demonstrate that he was no longer dangerous. The order of the lower court for Mr James’ release was therefore set aside.

Significantly, in the case of James, the CoA did not find themselves bound by R v SSHD, ex parte Cawser [2003] EWCA 1522 on the issue of the applicability of Article 5(1) and (4). Because of the systemic failures, it is likely that Article 5(4) will be violated because prisoners will not be able to make a meaningful challenge to the lawfulness of their detention. Although a violation of Article 5(4) does not of itself result in a breach of Article 5(1) the systemic failures to provide adequate measures may also result in an infringement of Article 5(1) if that position subsists for a prolonged period.

The Secretary of State is seeking permission to appeal to the House of Lords on the first point, and Mr James will seek permission to appeal on the unlawful detention issue.

This decision is highly significant and puts substantial pressure on the Secretary of State to make radical changes to the IPP system to facilitate such prisoners being in a position to be considered for release at tariff expiry. Although there have been recent changes in policy there has as yet been no significant increase in resourcing. There are also statutory changes afoot, to remove the imposition of very short minimum term IPPs, but it remains to be seen whether these will go far enough to make a real difference in stemming the rapid increase in indeterminate sentence prisoners.

For individual IPP prisoners the most significant part of this judgment is likely to be the finding that failure to provide measures to allow a prisoner to demonstrate at minimum term expiry that he is no longer a significant risk, may result in a violation of Article 5(4).

Prisoners who are faced with PB reviews without proper assessment and without having had the opportunity to undertake offending behaviour coursework will be able to seek mandatory orders and possibly damages via judicial review.

Mr James was represented by Pete Weatherby of GCN, instructed by Erica Restall of Switalski's solicitors