issued by the Registrar of the Court

ECHR 340 (2012)

18.09.2012

Detaining prisoners indefinitely on grounds of risk without

giving them access to rehabilitative courses was arbitrary

In today’s Chamber judgment in the case of James, Wells and Lee v. the United

Kingdom (application nos. 25119/09, 57715/09 and 57877/09), which is not final¹, the

European Court of Human Rights 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 in particular that the considerable delays in the applicants making any

progress in their sentences had been the result of lack of resources, planning and

realistic consideration of the impact of the sentencing scheme introduced in 2005,

despite the fact that it had been premised on the understanding that rehabilitative

treatment would be made available to those prisoners concerned. Indeed, these

deficiencies had been the subject of universal criticism in the domestic courts and had

resulted in a finding that the Secretary of State had breached his public law duty.

Principal facts

The case concerned prisoners who were subject to indeterminate sentences of

imprisonment for the public protection (“IPP sentences”) in the United Kingdom. IPP

sentencing was introduced in April 2005 by virtue of section 225 of the Criminal Justice

Act 2003 (the “2003 Act”). It was initially mandatory where a future risk existed of

further offending. Risk was assumed where there was a previous conviction for violent or

sexual offences, unless the sentencing judge considered it unreasonable to make such

an assumption. A minimum term, known as the “tariff”, was fixed by the sentencing

judge. After the expiry of the tariff, IPP sentences required the Parole Board’s decision

that the prisoner was no longer dangerous before he could be released. Following the

entry into force of this new legislation, large numbers of IPP prisoners swamped the

system. The IPP scheme was amended in 2008 and, no longer mandatory, only applies

in cases where – if imposed – the tariff would be fixed at more than two years, subject

to certain limited exceptions. Further, risk is no longer assumed, even where a

defendant has relevant previous convictions.

1 Under Articles 43 and 44 of the Convention, this Chamber judgment 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 judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

The applicants, Brett James, Nicholas Wells and Jeffrey Lee, are British nationals who

were born in 1985, 1983 and 1965 respectively. Mr James lives in Wakefield (England),

Mr Wells is currently in detention and Mr Lee lives in Fleetwood (England). Following

their convictions for violent offences and in the light of their offending histories, all three

men were given automatic IPP sentences in 2005 with tariffs of, respectively, two years,

12 months and nine months.

They were recommended to take part in a number of rehabilitative courses, such as ETS

(Enhanced Thinking Skills), ASRO (Addressing Substance Related Offending), CALM

(Controlling Anger and Learning to Manage it), Victim Awareness and Healthy

Relationships Programme. However, by the time their respective tariffs expired, all three

applicants remained in their local prisons, without access to the relevant courses,

awaiting transfer to first stage lifer prisons to begin progressing through the prison

system. They were only transferred five months (Mr James), 21 months (Mr Wells) and

25 months (Mr Lee) after the expiry of their tariffs.

Meanwhile, all three men brought judicial review proceedings before the national courts,

which were eventually joined on appeal before the House of Lords. They complained in

particular that their post-tariff detention and lack of access to courses was unlawful and

in breach of Article 5 §§ 1 and 4 of the European Convention.

Throughout the domestic proceedings the Secretary of State was criticised for the

systemic failure to put in place the resources necessary to enable the provisions of the

2003 Act to function as intended and he was found to have breached his public law duty.

In particular, before the House of Lords, Lord Judge referred to “seriously defective

structures” and the fact that the new sentencing provisions were “comprehensively

unresourced” with the result that numerous prisoners continued to be detained after the

expiry of the punitive element of their sentences “without the question either of their

rehabilitation or the availability of up to date, detailed information about their progress”.

He indicated that as tariff periods expired, nothing had been done to enable an informed

assessment by the Parole Board of the question whether the protection of the public

required the prisoner’s continued detention.

Nonetheless, on 6 May 2009 the House of Lords unanimously dismissed the applicants’

appeals, finding no breach of either Article 5 § 1 or 4 of the Convention. It held that,

despite the above concerns, the applicants’ detention could not be said to be arbitrary or

unlawful as notwithstanding the failure to provide access to courses the causal

connection between the ground for the detention and the detention itself had not been

broken. It also found that the procedure before the Parole Board satisfied the

requirement for a speedy review of the legality of their detention.

Complaints, procedure and composition of the Court

Relying on Article 5 §§ 1 and 4 (right to liberty and security), the three applicants

complained about the failure to ensure their access to courses to address their offending

behaviour while in prison and the impact of this failure on their ability to show that they

were rehabilitated and able safely to be released. Mr Wells and Mr Lee further argued

under Article 5 § 4 that neither the Parole Board nor the domestic courts had been able

to order their release due to the provisions of the primary legislation and the absence of

any such power in the 2003 Act.

The applications were lodged with the European Court of Human Rights on 7 May 2009,

27 October 2009 and 27 October 2009, respectively.

Judgment was given by a Chamber of seven judges, composed as follows:

Lech Garlicki (Poland), President,

David Thór Björgvinsson (Iceland),

Nicolas Bratza (the United Kingdom),

George Nicolaou (Cyprus),

Zdravka Kalaydjieva (Bulgaria),

Nebojša Vučinić (Montenegro),

Vincent A. de Gaetano (Malta),

and also Fatoş Aracı, Deputy Section Registrar.

Decision of the Court

Article 5 § 1 (whether detention was lawful)

The Court noted that in these cases, once risk of re-offending had been established by

way of the statutory presumption, the sentencing judge had no power to impose any

sentence but an indeterminate sentence of imprisonment. It was therefore important to

ensure a genuine correlation between the aim of the detention and the detention itself.

The Court reviewed statements made by Baroness Scotland of Asthal, then Minister of

State at the Home Office, during the Parliamentary debate on the draft legislation, and

the Government’s policy as regards the management and treatment of prisoners serving

indeterminate sentences. It also considered the findings of the judges in the domestic

proceedings in the High Court, the Court of Appeal and the House of Lords. It concluded

that in cases concerning indeterminate sentences of imprisonment for the protection of

the public, a real opportunity for rehabilitation was a necessary element of any part of

the detention which was to be justified solely by reference to public protection.

Turning to assess the operation of the IPP scheme in practice, the Court referred to the

harsh criticism in the domestic courts. In the Court of Appeal it was found that there had

been a systemic failure on the part of the Secretary of State to put in place the

resources necessary to implement the scheme of rehabilitation necessary to enable the

provisions of the 2003 Act to function as intended. In the House of Lords the Secretary

of State was found to have failed “deplorably” in the public law duty that he had to be

taken to have accepted when he had persuaded Parliament to introduce IPP sentences.

References were also made to the “seriously defective structures” and to the

“comprehensively unresourced” sentencing provisions. The Court noted that the specific

impact of these general deficiencies on the progress of the applicants through the prison

system in the present cases could be clearly seen.

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 applicants’ cases, this meant that they had to be given reasonable opportunities

to undertake courses aimed at addressing their offending behaviour and the risks they

posed. Experience had shown that courses were necessary for dangerous prisoners to

cease to be dangerous. While Article 5 § 1 did not impose any absolute requirement for

prisoners to have immediate access to all courses they might require, any restrictions or

delays due to resource considerations had to remain reasonable.

It was therefore significant that the Secretary of State had failed to anticipate the

demands which would be placed on the prison system by the introduction of IPP

sentencing, despite the relevant legislation having been premised on the understanding

that rehabilitative treatment would be made available to IPP prisoners. Indeed, this

failure had been the subject of universal criticism in the domestic courts and resulted in

a finding that the Secretary of State had breached his public law duty.

Substantial periods of time had passed as concerned each of the applicants before they

had even begun to make any progress in their sentences, and this despite the clear

guidance in relevant policy documents. It was clear that the delays had been the result

of a lack of resources. The inadequate resources had apparently been the consequence

of the introduction of the measures for indeterminate detention without the necessary

planning and without realistic consideration of their impact. Further, the length of the

delays in the applicants’ cases had been considerable: for around two and a half years,

they had simply been left in local prisons where there had been few, if any, offending

behaviour programmes. The stark consequence of the failure to make available the

necessary resources was that the applicants had no realistic chance of making objective

progress towards a real reduction or elimination of the risk they posed by the time their

tariff periods expired. Moreover, once the applicants’ tariffs had expired, their detention

had been justified solely on the grounds of the risk they had posed to the public and the

need for access to rehabilitative treatment at that stage became all the more pressing.

In those circumstances, the Court considered that following the expiry of the applicants’

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, their detention had been

arbitrary and therefore unlawful within the meaning of Article 5 § 1. Although in the

cases of Mr James and Mr Wells the Court was satisfied that following their transfer there

was no evidence of any unreasonable delay in providing them with access to courses, it

noted that Mr Lee had experienced

a further five-month delay following the

recommendation for prior motivational work. By the time the recommendation was

made, Mr Lee was already two years and ten months post-tariff, in the context of a nine-

month tariff. It had accordingly been imperative that his treatment be progressed as a

matter of urgency and, in the absence of any explanation from the Government for the

delay, the Court concluded that that period of detention had also been arbitrary and

therefore unlawful within the meaning of Article 5 § 1. There had therefore been a

violation of Article 5 § 1 of the Convention as concerned all three applicants.

Article 5 § 4 (whether lawfulness of detention was decided speedily by a court)

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.

Just satisfaction (Article 41)

The court held that the United Kingdom was to pay Mr James 3,000 euros (EUR), Mr

Wells EUR 6,200 and Mr Lee EUR 8,000 in respect of non-pecuniary damage. For costs

and expenses, the applicants were awarded EUR 12,000, each.

Separate opinion

Judge Kalaydjieva expressed a dissenting opinion regarding Article 5 § 4 which is

annexed to the judgment.

The judgment is available only in English.