Supreme Court holds that indeterminate prisoners have a right to reform themselves and demonstrate their safety for release

10 December 2014

The Supreme Court has today handed down judgment in the latest Indeterminate Sentence Prisoners (ISPs) Article 5 challenge: R (Haney, Kaiyam, Massey and Robinson) v Secretary of State for Justice  [2014] UKSC 66 (10 December 2014).

One of the Appellants, Faisal Kaiyam, was represented by Pete Weatherby QC and Vijay Jagadesham of Garden Court North Chambers, instructed by Carl Miles of Burton Copeland LLP. Pete represented the prisoner, James, in the previous litigation that culminated in the European Court of Human Right’s decision in James, Lee and Wells v United Kingdom (2013) 56 EHRR 12.

The following is an extract from an article prepared by Vijay and Pete analysing the judgment.

Summary

The Supreme Court has today held that all indeterminate sentence prisoners (ISPs) must be given a reasonable opportunity to reform themselves and demonstrate their safety for release, under Article 5 of the ECHR. Individual prisoners will now have the right to apply to the Courts for mandatory orders and damages awards will also be available.

In so holding the Supreme Court has departed from the decision of the House of Lords in R (James, Lee and Wells) v Secretary of State for Justice [2010] 1 AC 553 and instead accepted the conclusion of the European Court of Human Rights in James, Lee and Wells v United Kingdom (2013) 56 EHRR 12 that rehabilitation forms part of an ISPs’ sentence.

Significantly, the Supreme Court was clear that the State’s obligation to provide a reasonable opportunity for rehabilitation exists throughout the prisoner’s detention and arises pre-tariff (ie, prior to the prisoner’s earliest release date)

Comment

The judgment is a landmark one for prisoners and comes at a time when the UK continues to havemore ISPs than the rest of the Council of Europe States put together. The Secretary of State has repeatedly been held to be in breach of his duty to make reasonable provision for a prisoner’s rehabilitation, despite the warnings of the House of Lords in R (James) in 2009. The judgment of the Supreme Court sends a strong message to the Secretary of State that the Courts will not tolerate motivated prisoners being left to languish in prison, and that failures to meet his international obligations in providing a prisoner with the opportunity to reform himself will lead to the Court ’s intervention.

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