FOURTH SECTION

CASE OF GARETH TAYLOR v. THE UNITED KINGDOM

(Application no. 2963/12)

JUDGMENT

STRASBOURG

3 March 2015

This judgment is final but it may be subject to editorial revision.

In the case of Gareth Taylor v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Nona Tsotsoria, President,
	Paul Mahoney,
	Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 10 February 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 2963/12) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Gareth Taylor (“the applicant”), on 11 January 2012.
2.  The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell, of the Foreign and Commonwealth Office.
3.  Relying on Article 5 § 1, the applicant complained about the delay in the authorities allowing him access to a rehabilitative course.
4.  On 6 February 2014 the complaint under Article 5 § 1 was communicated to the Government and the remainder of the application was declared inadmissible.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1985 and is currently in detention at HMP Leyhill.
6.  He was convicted of offences of sexual activity with a child and breach of a Sexual Offences Prevention Order. In May 2007 he received an indeterminate sentence for public protection (“IPP sentence”). A minimum term (“tariff”) of eighteen months was fixed.
7.  He was initially detained at HMP Preston and was transferred to HMP Albany in October 2007. Between December 2007 and April 2008 he incurred seven adjudications for failure to obey or comply with orders and regulations and one adjudication for destroying property. He also underwent assessment of his suitability for a sex offender treatment programme.
8.  On 11 January 2008 the applicant was informed of his suitability for the adapted Sex Offender Treatment Programme (“adapted SOTP”). As this was not offered at HMP Albany it was recommended that he transfer to a suitable establishment.
9.  On 3 February 2008 the applicant wrote to the National Probation Service (“NPS”) seeking a transfer to another prison to undertake the adapted SOTP. By letter dated 8 February 2008 the NPS Service replied:
“I have today spoken to your offender supervisor... I have asked him to try and speed up a transfer for you so that you can at least undertake the adapted SOTP, which you should be suitable for. He says that the only CAT B prison that does this is HMP Hull, but he will try and get you transferred there to do it if possible.”
10.  The applicant subsequently complained to HMP Albany on various dates about the failure to transfer him. He was informed that a suitable establishment was being sought.
11.  On 5 June 2008 the applicant completed the Enhanced Thinking Skills (“ETS”) course.
12.  In around November 2008 the applicant’s tariff expired.
13.  In February 2009 a Parole Board Review took place. The Parole Board decided on the papers that the applicant should remain in detention. The Board noted that the applicant had completed the ETS course and would be assessed for, and if found suitable, complete a sex offenders treatment programme.
14.  Subsequent correspondence with the Ministry of Justice refers to long prison waiting lists for access to the adapted SOTP and delays in processing applications for prison transfer.
15.  By letter dated 3 September 2009 the Secretary of State informed the applicant that he agreed with the Parole Board February 2009 recommendation. He indicated that the applicant was to be assessed for and complete the adapted SOTP. A provisional hearing before the Parole Board was fixed for March 2011.
16.  Meanwhile, the applicant was again assessed for suitability for a sex offenders treatment programme. By letter dated 23 October 2009 he was informed that he would be most likely to benefit from the Becoming New Me course (“SOTP BNM”), the replacement for the adapted SOTP.
17.  On 24 November 2010 the applicant was transferred to HMP Bure.
18.  On 23 December 2010 a Parole Board review took place.
19.  On 4 January 2011 the Parole Board notified the applicant of its decision not to direct his release or to recommend his transfer to open conditions. It observed that since his last review the applicant had undertaken training courses in assertiveness skills, understanding the cause of conflict/domestic violence, understanding the boundaries of respectability in relation to children, alcohol awareness and unlocking financial capability. It noted the positive change in his attitude but considered that his risk remained high. It confirmed that he would be required to complete the adapted SOTP prior to release. It concluded:
“[We] shared your concern at the fact you have so far been unsuccessful in your attempts to secure a referral to the courses identified as targets on your sentence plan and that furthermore you have recently been moved to a prison that does not run these programmes. However, prisoner location is an operational matter which sits outside of the Parole Board’s remit and is for the prison service and your offender manager to resolve. What does this mean however, is that you remain an untreated sex offender who is unable to demonstrate that the risk you pose has reduced sufficiently to be manageable in the community.”
20.  By letter dated 28 March 2011, the Secretary of State agreed with the Parole Board’s recommendation. He referred to the need to complete the SOTP BNM. The applicant’s review period was set at eighteen months consisting of:
“ Three months transfer and settling in period in a new establishment
 Three months assessment for the Becoming New Me programme
 Six months to complete the Becoming New programme
 Six months to complete the post Becoming New Me programme report (SARN).”
21.  The next parole review was therefore scheduled to commence in January 2012 with the target date for the oral hearing being July 2012.
22.  On 8 July 2011 the applicant was transferred to HMP Wymott on his own request on compassionate grounds to be closer to his father, who was unwell. He subsequently asked to remain at HMP Wymott and to be given a place on the SOTP BNM course scheduled to commence in September 2011. As that course was already full, the applicant was informed that he could, if he wished, await the next course to be delivered at HMP Wymott in August/September 2012, for which he would be a priority.
23.  On 7 September 2011 the applicant’s representatives wrote to the Governor of HMP Bure and HMP Wymott notifying them that judicial review proceedings were being contemplated against them and the Secretary of State. They sought confirmation that the SOTP BNM course would be made available to the applicant.
24.  By letter dated 1 November 2011 HMP Wymott replied in the following terms:
“I acknowledge that your client’s initial transfer to HMP Wymott was on compassionate grounds ... The fact that Mr Taylor elected not to return to HMP Bure is a factor that must be considered when determining whether or not his progress through the prison service has been slow ... Although, I would argue that the prompt intervention of his newly appointed Offender Supervisor and the attempts he made to source a suitable course at HMP Wymott would indicate that HMP Wymott were not at fault for any delays to your client’s progress.
Your client is known to our Programmes team, is in the assessment process and his post tariff status will ensure that he is prioritised accordingly for the next BNM courses which should be delivered from approximately August/September 2012.”
25.   The prison offered to facilitate a transfer to another prison where the applicant might be able to access the SOTP BNM more speedily. He chose to remain at HMP Wymott to await a place on the SOTP BNM there.
26.  On 25 April 2012 a Parole Board review took place on the papers. The Board decided not to direct the applicant’s release or recommend his transfer to open conditions. It concluded:
“You committed serious index offending, which targeted a vulnerable victim ... The panel was also concerned that, at a young age, you already had a conviction record that included previous violent and sexual offending against vulnerable female victims. It is to your credit that you have some understanding of the risk you pose, and that you are motivated to undertake work to address your sexual offending behaviour. However, you have yet to undertake this work. The panel is also concerned that you have a history of breaching trust and reoffending despite measures being put in place to contain your risk ...”
27.  By letter dated 5 July 2012 the Secretary of State indicated that he agreed with the Parole Board recommendation. He confirmed the SOTP BNM as an appropriate course to reduce the applicant’s risk of reoffending. The next review was scheduled to commence in April 2013 and to be concluded by December 2013.
28.  The applicant commenced the SOTP BNM as planned on 23 August 2012 and completed it on 2 February 2013.
29.  A further Parole Board review took place on 26 February 2014. The Board decided not to direct the applicant’s release, but recommended his transfer to open conditions.

II.  RELEVANT DOMESTIC LAW AND PRACTICE
30.  The relevant domestic law and practice is set out in the Court’s judgment in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
31.  The applicant complained under Article 5 § 1 of the Convention about the delay in the authorities allowing him access to the SOTP BNM course. Article 5 § 1 reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court ...”
32.  The Government contested the argument that there had been a violation of Article 5 § 1 in the case.
A.  Admissibility
33.  The Government argued that the applicant had failed to exhaust domestic remedies since he had not commenced judicial review proceedings alleging a breach of Article 5 § 1 of the Convention. In the alternative, they invited the Court to declare the applicant’s complaint inadmissible as manifestly ill-founded. Citing Hall v. the United Kingdom (dec.), no. 24712/12, § 32, 12 November 2013, they argued that the applicant had been given access to numerous courses and assessments both pre- and post‑tariff and that his post-tariff detention could therefore not be considered “arbitrary”.
34.  The Court is satisfied that at the point at which the applicant lodged his application, the possibility of judicial review proceedings offered no prospect of success as regards systemic delay in access to rehabilitative courses (see Black v. the United Kingdom (dec.), no. 23543/11, § 52, 1 July 2014). The Government’s objection is accordingly dismissed.
35.  The Court further considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
36.  The applicant argued that while he had been offered a wide range of courses while in detention, none other than the SOTP BNM facilitated consideration of his release. He contended that the period of time that he had spent in detention bore no relation to the tariff imposed by the sentencing judge. He considered that there was no excuse for the delay in providing him with access to the SOTP BNM.
37.  The Government emphasised that the applicant had had access the ETS course prior to the expiry of his short tariff and had been assessed for SOTP courses on two separate occasions. He had undertaken a number of other courses and had elected to remain at HMP Wymott after a transfer which he had sought on compassionate grounds, knowing that he would have to wait for a year to access the SOTP BNM if he remained at that prison. In light of this, the Government argued that it could not be said that his detention at any period of time following the expiry of his tariff had been “arbitrary”.
38.  In James, Wells and Lee, cited above, § 209, the Court explained 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. This required reasonable opportunities to undertake courses aimed at helping prisoners to address their offending behaviour and the risks they posed. 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 encountered as a result of resource considerations had to be reasonable in all the circumstances of the case, bearing in mind that whether a particular course was made available to a particular prisoner depended entirely on the actions of the authorities (see § 218 of the judgment).
39.  In examining whether an applicant’s detention post-tariff has been unjustified for the purposes of Article 5 § 1 (a) of the Convention the Court “must have regard to the detention as a whole” (see James, Wells and Lee, cited above, § 201). Thus, where, as in the present case, the applicant claims that delay in his access to prison courses constituted a violation of Article 5 § 1 (a), the applicant’s general progression through the prison system must be assessed in light of the particular circumstances of the case (see, inter alia, Hall, cited above, § 32; and Black, cited above, § 54).
40.  It is clear from the papers before the Court that the applicant’s progress through the prison system began at an early stage. Prior to the expiry of his relatively short tariff in around November 2008, and despite a number of adjudications for poor conduct, the applicant had completed the ETS course and had been assessed for suitability to participate in a sex offenders treatment programme (see paragraphs 7-8 and 11-12 above).
41.  It appears that subsequent access to the SOTP course was to some extent delayed as a result of long waiting lists (see paragraph 14 above). However, following completion of the ETS course the applicant undertook a number of other courses which were relevant to his offence (see paragraph 19 above). It is of significance that in July 2011 the authorities acceded to a request made by the applicant for a transfer to HMP Wymott on compassionate grounds. Following his transfer, the applicant applied to remain at HMP Wymott and was clearly warned that this would delay his access to the SOTP BNM course until August 2012. An offer was made to facilitate his transfer to another prison where the course might be available earlier but the offer was declined by the applicant (see paragraphs 22-25 above). Notwithstanding his own responsibility for the delay following his transfer to HMP Wymott and decision to remain there, he lodged in January 2012 an application at this Court in which he complained about the delay. In August 2012, as previously informed, he duly commenced the SOTP BNM course (see paragraph 28 above).
42.  In the present case, it can be seen that unlike in the case of James, Wells and Lee, prompt steps were taken to begin the applicant’s progression through the prison system. The delay of around one year from July 2011 to August 2012 was in order to accommodate his wishes and occurred with his agreement. In these circumstances the Court is satisfied that a real opportunity for rehabilitation was provided to the applicant and that there was no unreasonable delay in providing him access to courses. There has accordingly been no violation of Article 5 § 1 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint concerning Article 5 § 1 admissible;

2.  Holds that there has been no violation of Article 5 § 1 of the Convention;
Done in English, and notified in writing on 3 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Nona Tsotsoria
	Deputy Registrar	President