European Court of Human Rights rules that detaining IPP prisoners post tariff without access to appropriate offending behaviour courses is arbitrary and breaches human rights. What is the impact of this ruling?

 Nightmare

By Sarah Daley and Tony Quinlan, from insidetime issue October 2012

The widespread and enduring problems for prisoners serving indeterminate sentences are well known. Ever since the introduction of the IPP sentence there have been delays in Parole Board hearings and a failure to provide coursework required to provide evidence to those
hearings. Despite constant legal challenges and assurances that improvements were being made this may have seemed to all involved a
never-ending problem without a solution.

Following the recent decision of the European Court in James, Wells and Lee v. The United Kingdom (18 September 2012) there may be
some light at the end of this tunnel.

Three years after the negative decision of the House of Lords (R (James) (Lee) (Wells) [2009] 2 WLR 1149), the European Court have found that the detention of the three applicants (all mandatory IPP prisoners) post tariff without access to appropriate offending behaviour
courses was arbitrary and a breach therefore of Article 5 § 1 of the European Convention on Human Rights, the right not to be detained
without proper justification.
The reasoning of the court is refreshing in its logic and builds to its conclusion by careful reference to the domestic decisions from the
High Court through to the House of Lords. Our domestic courts had been critical in the extreme of the situation referring to the ‘comprehensively unresourced’ new sentence of the IPP, the ‘seriously defective structures’ in place and the ‘deplorable’ failure of the SSJ to
fulfil his duty to put the resources in place to make rehabilitation and the possibility of proving rehabilitation possible. However, despite such harsh criticism, the House of Lords did not reach the same conclusion as the European Court on the issue of whether this made post tariff detention arbitrary.

The crucial difference was that the European Court agreed with the applicants that part of the purpose of an IPP sentence was rehabilitation. They found that if detention was not related to the purpose of the sentence then that detention became arbitrary. If the tariff has expired, and there is insufficient provision of courses, the prisoner cannot show that he/ she no longer poses a risk, and has no opportunity to rehabilitate. In those circumstances detention is no longer for punishment, and serves no public protection or rehabilitative
purpose and is thereby arbitrary.

The problem addressed by this decision is sadly not a historic one despite constant assurances from the SSJ to the courts that considerable improvements had occurred. Over 6,000 IPP prisoners remain in the prison system and will undoubtedly want to know how this
decision may impact on them. 58% of serving IPP prisoners have served their tariffs, and a third of all IPPers have not completed a single
course. Just one in thirteen of all prisoners sentenced to IPP since 2005 have been released to date. The Parole Board still has a large backlog of indeterminate sentence prisoners awaiting overdue reviews; about 1,500 in February this year, more than half of whom were IPPers. A 2012 Ministry of Justice report shows that Parole Board members feel that
lack of access to courses, and under-resourcing generally, continue to be barriers to release for IPP prisoners.

But the legal position has now changed. Following the decision of the House of Lords the potential for successful judicial review of the failure to provide coursework became virtually impossible. However, now such
claims may be possible provided that the individual facts present a strong case. Many prisoners will have retrospective claims for damages if they can show that they have been detained post tariff without access to coursework which has caused them to be unable to prove to the Parole Board that they are no longer dangerous.

It is more difficult to say how this may affect indeterminate prisoners who have been waiting inordinately long for an effective hearing before the Parole Board and who may therefore have Article 5§ 4 claims. The European Court did not consider whether there was a breach of Article 5§ 4 because it decided the main Article 5§ 1 issue in the applicants’ favour. But in some cases such prisoners will have claims for breach of Article 5(1).

It is still open to the SSJ to appeal this decision and early press reports suggested that that was the Government’s intention. It is possible
therefore that there may be a further hearing before the Grand Chamber. But with the prospective repeal of IPP sentences by the LASPO Act 2012, and the fact that the European Court decided the case against the Government unanimously, basing much of its reasoning on the severe criticisms of the system by domestic judges, it may be that wiser counsel will prevail.

In any event such a challenge appears at present to be premised on political opposition to the supervisory function of the European Court rather than a coherent disagreement with the legal reasoning of the Court. Strasbourg has said with authority and clarity what has long been evident to all involved; that this is and has been a Kafkaesque nightmare of which we finally hope to see the end.

The ECtHR gave judgment on 18th September 2012 in James, Wells and Lee v UK ECHR 340 (2012). Counsel for Brett James was Pete
Weatherby QC of Garden Court North Chambers instructed by Erica Restall of Switalskis Solicitors. Tim Owen QC and Nick Armstrong of
Matrix Chambers acted for Wells and Lee, instructed by Mike Pemberton of Stephensons and Rachael Walsh of Russell & Russell. *

Kafkaesque: characteristic or reminiscent of the oppressive or nightmarish qualities of Franz Kafka’s fictional world.
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Comments about this article

2/10/2012 Eldad
A disappointingly imprecise article, as it doesn't give any idea how things are likely to actually pan out for IPP victims in the short term. Could you try again, making clear whether such people need to be chasing their solicitor, and what sort of time scales are likely to apply.

3/10/2012 CHARLES HANSON
The Court found that indeterminate detention for the public protection could be justified under Article 5 § 1, but that it could not be allowed to open the door to arbitrary detention. Where a prisoner was in detention solely on the grounds of the risk that he was perceived to pose, regard had to be had to the need to encourage his rehabilitation.
In the European Court of Human Rights judgement in the case of James, Wells and Lee v. the United Kingdom (application nos. 25119/09, 57715/09 and 57877/09) which is not final, the Court held unanimously, that there had been a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights concerning the applicants’ detention following the expiry of their tariff periods and until steps had been taken to progress them through the prison system with a view to their access to appropriate rehabilitative courses; and, by six votes to one, that there had been no violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) concerning Mr Wells’ and Mr Lee’s complaint about the possibility of their release.
The Court found that no separate issue arose under Article 5 § 4 regarding the applicants’ complaint about lack of access to courses as it had already been examined in the context of their complaint under Article 5 § 1. Furthermore, there had been no violation of Article 5 § 4 as concerned Mr Wells’ and Mr Lee’s complaint about the possibility of their release, as the Court found that they had failed to establish that the combination of the Parole Board and judicial review proceedings could not have resulted in an order for their release.
Under Articles 43 and 44 of the Convention, this Chamber judgement is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgement. If the referral request is refused, the Chamber judgement will become final on that day.
Once a judgement becomes final, it is transmitted to the Committee of Ministers of the Council of supervision of its execution.
The way I read it that is that the Court did not find IPP sentences to be unlawful. Moreover, they did not find extended detention of IPP prisoners to be unlawful where programmes had been completed but the prisoner was still judged to be a risk to the public. Neither did they find that being detained because of being a risk to the public as being unlawful.
What they did find to be unlawful was the continued detention of IPP prisoners who through no fault of their own were being detained because they had not satisfied the Parole Board or UK Courts of a lowered risk through offending behaviour programmes which were either not available to them or because of the delays in enrolling IPP prisoners onto them.

4/10/2012 Sarah Daley and Tony Quinlan (article authors)
We cannot provide legal advice to individuals in this article. It is intended to set out generally speaking the kinds of claims that may be able to proceed following this judgement. Whether or not a claim can now proceed will depend on the detailed facts of your situation. You should contact a specialist advisor or solicitor for detailed legal advice about your particular situation.

As mentioned in the article the claims that can potentially now proceed are claims where it can be shown that a Claimant has been prevented from completing Offending Behaviour Programmes due to lack of availability and that this has caused them to be unable to prove to the Parole Board that they are no longer dangerous.

4/10/2012 Allyce Swift - thejusticegap.com/2012/06/the-nightmare-known-as-ipp/
A welcoming step forward in my opinion. With this going through (obviously pending the result of any appeal made by Mr. Grayling) and hopefully the implementation of the abolishment of future IPP sentences once that part of LASPO is enacted, progress can be seen. I for one would like to say a huge thank you to Sarah Daley and Tony Quinlan for their hard work in relation to this matter. Progress is already apparent in the amount of IPPs being released in comparison to the past - and with the government replacing programmes and rolling out more it is all a step in the right direction - all be it a slow one.http://www.insidetime.org/articleview.asp?a=1311&c=a_kafkaesque_nightmare&cat=Law