Case No: (1) CO/8292/2012
(2) CO/3484/2014
Neutral Citation Number: [2015] EWHC 136 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11 February 2015

Before :

MRS JUSTICE ELISABETH LAING DBE
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Between :

	(1) JAMES KNIGHTS	Claimants	
	(2) TERENCE PATRICK O’BRIEN
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	(1) Parole Board of England & Wales
(2) Secretary of State for Justice	Defendants	

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Mr Philip Rule (instructed by MWA Solicitors) for Claimant (1)
and (instructed by Chivers Solicitors LLP) for Claimant (2)
Mr Tim Buley (instructed by the Treasury Solicitor) for  Defendant (1)    
and
Mr Simon Murray (instructed by the Treasury Solicitor) for Defendant (2)
Hearing dates: 13 and 14 November 2013
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Judgment
The Honourable Mrs Justice Laing 

Introduction
1.		These claims are about the detention of prisoners who were subject to sentences of imprisonment for public protection (“IPP”) passed before 14 July 2008, when new statutory provisions governing indeterminate sentences came into force. The Claimants argue that their detention breaches article 5, in various different ways, as I shall explain. I will refer to the Claimant James Knights as JK and to the Claimant Terence O’Brien as TO. TO and JK were represented by Mr Rule. The first Defendant, the Parole Board (“the Board”), has been represented by Mr Buley, and the second Defendant, the Secretary of State for Justice (“the Secretary of State”), by Mr Murray.

2.		There are 5 main issues.
i.		What is the scope of grant of permission to apply for judicial review granted to JK by Vos LJ on renewal, and to TO by HHJ Walden Smith sitting as a Deputy Judge of the High Court?
ii.		Depending on the answer to that question, should I give permission for any other points to be argued? The main point is an argument that the Claimants’ detention between their actual release and the date when the Board ordered their release was unlawful (either at common law or because it was a breach of article 5).  Mr Rule accepts that the Secretary of State should be allowed 7 or perhaps 14 days to implement a direction by the board (skeleton argument, paragraph 53).
iii.		Was the detention of either Claimant at any stage, or did it become, arbitrary, and so in breach of the European Convention on Human Rights (“the ECHR”) because of a lack of proportionality between the minimum term in each case and the term actually served before release, or because of that coupled with a lack of access to courses which would have enabled the Claimants to show that they should have been released earlier?
iv.		Did the Board breach article 5(4) in TO’s case by adjourning a hearing in February 2014?
v.		Were the nature of the sentences and the length of time for which the Claimants were detained breaches of article 3?

JK: the facts
3.		JK was born on 20 August 1981. He committed the index offences between January 2006 and July 2007. On 30 May 2008 he pleaded guilty to those offences. A pre-sentence report (PSR”) was produced on 18 June 2008. On 26 June 2008 JK was sentenced on 3 counts of distributing indecent images of children, 14 counts of making indecent photographs of children and possession of indecent images of children. He was sentenced to IPP with a tariff/minimum term of 8 months. In his sentencing remarks the Judge specifically considered whether JK was ‘dangerous’ in the statutory sense, and concluded that he was. The tariff expired on 26 February 2009.

4.		On 30 July 2008 there was a sentence planning and review meeting. At this meeting a sentence objective was set. It was for JK to complete a core sex offenders treatment programme (“SOTP”), and after that, follow-up SOTPs in the community once he was released. In August /September 2008 initial paperwork was sent to the public protection casework section (“PPCS”), for which the Secretary of State is responsible.

5.		In September 2008 JK was told that he must have a longer period before his parole review than 9 months in order to enable him to be moved to a prison where an SOTP was available. JK said he was disappointed by the time it had taken for him to be told this. He asked for a deferral for 10 months in a letter dated 25 September 2008. This letter warned that legal advice would be sought if there were further delays.

6.		On 28 October 2008 the PPCS told JK and the prison that JK’s first review (that is, the first referral to the Board by the Secretary of State) would be when his tariff expired.  In October/November 2008 JK was moved from HMP Peterborough to HMP Littlehey. On 4 November 2008, JK asked for his review to be deferred to enable him to finish the SOTP. The PPCS agreed. The review was then scheduled to end by July 2009.

7.		On 30 January 2009 a skeleton dossier was issued by the PPCS to HMP Wayland. On 26 February 2009 JK’s tariff expired. In fact no hearing was arranged in July 2009. The necessary reports had not been provided.  He duly completed the core SOTP in July 2009.

8.		On 29 July 2009 the completed dossier was disclosed to all parties by HMP Wayland. The Board and the PPCS received it on 13 or 14 August 2009, late. The Secretary of State had not referred JK’s case to the Board beforehand (according to the Board in its reply to the letter before claim). A hearing scheduled for October 2009 was deferred to February 2010 because a report was missing.

9.		On 9 October 2009 JK’s case was put forward for intensive case management (“ICM”) consideration. A decision was issued on that date deferring the hearing for 4 months, until February 2010. On 10 and 11 October 2009 the Board did a paper review. The ICM member noted that neither the structured assessment of risk and need (“SARN”), nor the post-programme review report from the SOTP were available. On 16 October ICM directions dated 11 October 2009 were received by PPCS.

10.		The ICM directions made various provisions.  The section 1 direction was that the SARN from the core SOTP should be completed and submitted by 10 December 2009. The section 2 directions were that the addendum offender supervisor (“OS”) and offender manager (“OM”) reports and an Offender Assessment System (“OASys”) update (taking on board the SARN) must be available 4 weeks before the date of the hearing, and that witnesses must attend.  The OS and OM reports were (in due course) produced on time. The directions noted that the generic target date of July 2009 was not achievable because of the work which was still needed.

11.		On 10 December 2009 the SARN was completed. It noted that JK presented a “very high risk of sexual re-offending”.  It recommended among other things that JK complete an extended SOTP (“eSOTP”). The Secretary of State provides this course only in closed conditions. In its reply to the letter before claim the Board said that the 10 December 2009 deadline for receipt of the SARN by the Board had not been met. For some reason, although the SARN was completed on target, it did not reach the Board until March 2010 (according to the Board in its reply to the letter before claim).

12.		In December 2009 JK was transferred to HMP Bure; HMP Wayland had closed its sex offender wing and its associated programmes. But there was, as yet, no programmes department at HMP Bure. It was set up in March 2010 and not fully staffed until April. The Secretary of State contends, and I accept, that JK could have transferred to other prisons where there were programmes (see paragraph 16 of the witness statement of Lisa Burrell). On 23 December 2009 an OASys report was produced. On 4 January 2010 the SARN was received by PPCS from HMP Wayland (although a paginated version was not received until 26 February 2010).

13.		An oral hearing had been due in February 2010 after the further 4-month deferral. The SARN was not provided to the Board until 2 March 2010. At some point the Board then deferred the hearing and listed it for 12 July 2010. On 6 April 2010 OS and OM addendum reports were received from HMP Wayland. On 10 May 2010 the Board received a report from JK’s lawyers by Patrick Bodger, a chartered forensic psychologist.

14.		On 17 May 2010 the Board confirmed that the oral hearing would be on 12 July. On 21 May 2010 dossiers were circulated to the Board’s members.  On 21 May Mr Bodger’s report was received by PPCS.

15.		The July hearing was deferred. At the oral hearing on 12 July 2010 the Board noted that the prison psychologist’s analysis of JK and that of Mr Bodger were significantly different. So the Board wanted both to attend to give evidence, and the prison psychologist was not available.  The hearing was at that stage a further 5 months overdue.  On 9 August 2010 the Board’s decision to defer was confirmed by letter.  

16.		On 10 February 2011 the Board re-listed the hearing for 5 April 2011. On 25 February 2011 JK’s lawyers wrote to tell the Board that Mr Bodger could not attend the hearing on 5 April 2011. They asked the Board to consider whether his attendance was required and, if so, for a hearing within 4 weeks of the hearing on 5th April 2011, given the already significant delay, and pointed out that JK’s tariff had expired more than 2 years earlier.

17.		On 5 April 2011 the Board convened at HMP Bure. But the hearing was postponed because Mr Bodger was unable to attend, and the Board had been told that the OM was ill and could not attend either. The Board discussed this with JK and his lawyers. They agreed to a further deferral.

18.		 In May 2011 JK accepted a place on the eSOTP course which began in June 2011. At that stage no parole hearing date had been set. The Board had ordered that the case have priority for re-listing. On 10 May 2011 the case was reassessed by a Board psychologist ICM member who confirmed that both psychologists were required as witnesses; and that a psychologist was required on the panel that heard the case. The member also directed that the case be heard as soon as possible because of the delays.

19.		On 12 May 2011 an addendum OS report was received from HMP Bure. On 16 June 2011 the Board told the parties that the hearing was re-listed for 1 August 2011. On 16 June 2011 the hearing date was fixed for August. On 1 August 2011 there was an oral hearing, 30 months after JK’s tariff expired. It was the first review of his case.  The Board’s decision dated 11 August 2011 did not recommend either release or a move to open conditions, because JK still presented a risk of harm to the public: “a high risk of serious harm to children and a medium risk to a known adult”. He “continued to pose an unacceptably high risk of committing an offence which could cause serious harm and...the level of this risk is such that it could not be managed safely in the community.” 

20.		On 7 September 2011 the Secretary of State wrote to JK, having considered the decision of the Board, and setting the review period at 18 months. The next review was to conclude in April 2013 (with a possible oral hearing in February 2013). The reasons for this were to permit a four months’ continuation of the SOTP; a six-month post-programme SARN; and an eight-month post-programme assessment and intervention period. 

21.		In November 2011 JK completed the eSOTP.  On 28 May 2012 letters before claim were sent to the Secretary of State and to the Board. The Board replied on 12 June 2012, and the Secretary of State on 21 June. The application for judicial review was issued on 3 August 2012.

22.		On 22 August 2012 JK started a course called “Better Lives Booster”. He finished it on 2 November 2012. On 12 November 2012 the Board directed an oral hearing (the SARN had not yet been done). On 23 January 2013 the SARN noted that JK had shown high levels of motivation and a willingness to learn on courses. It supported his release. On 27 March 2013 Nicholas Padfield QC, sitting as Deputy Judge of the High Court refused JK permission to apply for judicial review on grounds of delay and refused to extend time. 

23.		On 25 April 2013 the Board directed release to approved premises (the decision letter was dated 2 May 2013). JK was released on licence on 1 July 2013 after a delay of 60 days. He was recalled to prison on 19 September for failing to disclose the true nature of further offending to his OM. On 26 July 2013 Moses LJ (on the papers) refused permission to appeal to the Court of Appeal against the decision of Nicholas Padfield QC. On 18 December 2013 Vos LJ granted limited permission to apply for judicial review. He remitted the case to the Administrative Court for a substantive hearing.

24.		On 28 January 2014 the Board held a further hearing to consider JK’s release. On 3 February 2014 the Board directed his release to approved premises. JK will be on licence with conditions restricting his liberty, and will be liable to recall to prison indefinitely. On 12 March 2014, JK was released to approved premises after a further delay of 37 days.

TO: the facts
25.		TO was born on 2 December 1953. He is now 61.  In August 2006 he committed an offence contrary to section 12 of the Sexual Offences Act 2003. He allowed a 13-year old girl to watch a pornographic DVD in his car. He pleaded guilty on 18 February 2008. A PSR was produced on 11 March 2008. The nature of his offence and what his antecedents showed were carefully considered in the decision of the Board in 2011 when it declined to direct his release. His history was said to indicate a “longstanding pattern of sexual and violent offending spanning some 40 years, albeit” he was “not heavily convicted”.

26.		On 10 April 2008 TO was sentenced at Preston Crown Court to an IPP with tariff/minimum term of 14 weeks (98 days). The Judge’s sentencing remarks apparently could not be found for this hearing.

27.		On 17 July 2008 that tariff expired. There is a dispute about when he had his tariff expiry review. I do not consider that it is necessary for me to resolve this dispute. According to a consolidated chronology attached to the witness statement of Kerry Adams, on 1 July 2008 TO had his tariff expiry parole review. Mr Rule says that there was no review until 9 July 2009. The decision, dated 17 July 2009, was that he was found not suitable for release. In February 2009 he arrived in HMP Whatton. In October 2009 he finished an enhanced thinking skills programme, and in January 2010, a core SOTP.

28.		On 4 March 2011 he had his second parole review, on the papers. The decision, dated 11 March 2011, was that TO at that stage posed too great a risk to release or to recommend transfer to open conditions in the light all that had been said about him, and his antecedent history. The Board identified various risk factors:
i.		a sexual preference for children; 
ii.		no intimate relationship; 
iii.		obsession with sex; and 
iv.		poor problem-solving skills.

29.		On 9 May 2011 the PPCS set the review period at 18 months. The target month was September 2012.  In August 2011 TO completed a cognitive skills booster programme. On 28 February 2012 the Board notified the parties of the post-tariff review with target month of September 2012. On 16 March 2012 TO told the Board that he did not intend to apply for an oral hearing. On 16 June 2012 the Board issued a decision letter after a paper review. The Board did not recommend release. On 14 July 2012 the Board issued a final review decision letter. It did not recommend open conditions, or direct release.

30.		On 16 July 2012 the Secretary of State decided to follow the recommendation and set the next review for 18 months (that is, by the middle of January 2014). On 6 July 2012 the PPCS issued a letter fixing the review period at 18 months. The review had a target month of December 2013 and was due to start in July 2013.

31.		TO had waited from January 2010 until late 2012 or early 2013 to do the next sexual offending rehabilitation programme he was set to complete. On 4 March 2013 he finished the eSOTP. But he had, in the meantime, completed a course in thinking skills, which had been one of the problematic areas noted by the Board in its decision of March 2011.

32.		On 24 May 2013 the Board notified the post-tariff review with target month of December 2013. In May 2013 the Secretary of State referred the case to the Board. The OM’s report dated 18 July 2013 supported release. On 30 July 2013 the dossier was disclosed to all parties. On 7 August 2013 TO’s solicitors asked the Board for an oral hearing.

33.		On 21 August 2013 the Board issued directions for a SARN by 1 October 2013, with other reports. These were required 4 weeks before hearing date. TO had finished the eSOTP already five months earlier. 

34.		On 1 September 2013 East Midlands Forensic Psychology Services emailed the offender management unit (“OMU”) to alert them to the possibility that it might not be feasible to finish the SARN by the deadline. The email was copied to PPCS. On 19 September 2013 Elizabeth Dunn, a psychologist, said that the SARN would be delayed. On 26 September 2013 the Board granted an extension to 30 October and directed that the addendum reports should be provided no later than 2 weeks before the hearing.

35.		On 7 November 2013 the SARN was received and added to the dossier. On 29 October 2013 the SARN was completed by the psychologist. The target month for the oral parole hearing was 1 December 2013. 

36.		On 14 December 2013 the Board notified the listing of the hearing for 7 February 2014. On 7 January 2014 the OMU emailed the Board to say the OS, Kate Scott, was unable to attend the hearing. It is not clear whether this was an unforeseen absence or not.

37.		10 January 2014 was the deadline for the dossier to be compiled. 0n 10 January 2014 TO’s solicitors chased by email for the additional reports directed by the ICM. On 13 January 2014 the Board told them that there was a risk of an adjournment on the day if the Board were to decide that evidence from the OS, who had said that she was unable to attend, was necessary.

38.		On 14 January 2014 the Board said that it was content for the hearing to go ahead in the absence of the OS “provided she can leave with a written report on the morning of the hearing that should include……” her email details. An OS addendum report was produced. It supported release.

39.		On 21 January 2014 the PPCS case manager, Harry Coombe, sent an email to the OM asking for the Addendum PAROM 1 report. She was based in Doncaster. On 23 January 2014 Harry Coombe telephoned the Doncaster Probation Office and was told that the OM had been on sick leave from 8 January 2014 and was due to return to work on 27 January 2014. 

40.		On 30 January 2014 Harry Coombe spoke to Liz Kemp from the Doncaster Probation Office and was told that the OM had not returned to work and that her manager was due to be out of the office until 3 February 2014. Liz Kemp offered to find out if the addendum PAROM 1 had been completed.

41.		On 31 January 2014 TO’s solicitors emailed the Board to ask for the hearing to be deferred because (a) the addendum PAROM 1 report had not been completed (its author had been ill and had not returned to the office) and (b) the OS would not be present.

42.		On 3 February 2014 the Board deferred the hearing due on 7 February 2014 because it had not received the OM’s addendum report. The Board did not have enough information or witnesses to make an informed decision about risk. The absence of the OS would not, of itself, have prevented the hearing from going ahead. The case was ready for listing at the earliest practicable opportunity.

43.		On 4 February 2014 the Board deferred the hearing and made further directions. On 15 February 2014 the Board wrote to TO to tell him that the target month for the hearing was June 2014, but that there might be delay, because of a recent decision of the Supreme Court which had significantly increased its workload.

44.		On 10 March 2014 an addendum report was provided by the OM. She still supported release. On 2 May the Board notified a hearing on 30 June 2014. The Board hearing was on 30 June 2013. On 02 July 2014 the Board directed release to approved premises. It seems from its terms that this was a finely balanced decision. TO was still making good progress, but it was not altogether clear that he was no longer a risk to the public.

45.		On 5 August 2014 the Board issued an amended decision. TO was released on 8 August 2014. That was 37 days after the direction. TO had been in custody for more than six years:  2311 days/ 330 weeks/ 76 months. This is more than twenty-three times the length of his tariff.

46.		On 30 September 2014 HHJ Walden-Smith sitting as a Deputy Judge of the High Court granted TO permission to apply for judicial review.

The scope of the grants of permission to apply for judicial review
47.		In JK’s case, the Deputy Judge decided that the whole claim was out of time and refused to extend time. On renewal in the Court of Appeal, Vos LJ decided to allow a claim based on an argument that JK’s detention was arbitrary and unlawful, based on articles 3, 5(1) and 14. Vos LJ referred to James v United Kingdom, paragraphs 189, 218, 221 and 224. Mr Rule tells me that “224” is a mistake, and that “224” should read “244”.

48.		The applicants in James had been sentenced to IPP. Paragraph 189 of James requires a causal connection between the conviction and any deprivation of liberty. Time weakens, and may wholly undermine, such a link. Paragraph 218 says that where the sole ground for detention is protection of the public, reasonable opportunities for rehabilitation and to address risk must be provided. In paragraph 221 the ECtHR found the applicants’ detention arbitrary until steps were taken to progress them through the prison system with a view to providing them with courses. In paragraph 224 the ECtHR noted the applicants’ complaints that provisions of primary legislation prevented their release. In paragraph 244 the ECtHR explained what damage flowed from its finding that article 5.1 had been breached by the State’s failure to provide access to appropriate courses.

49.		These passages in James do not refer to article 14, but it seems clear both from the Court of Appeal’s order and from the transcript of Vos LJ’s observations that he intended to grant permission for a ground based on article 14. I have not been able to find the original grounds of claim in JK’s bundle, so other than seeing that article 14 was referred to, do not know how the claim was pleaded. 

50.		Vos LJ did not permit a claim based on article 5(4), or any argument based on Scoppola v Italy (2010) 51 EHRR 12.  He said that the second argument was a challenge to the sentence itself.

51.		At that stage, JK had not challenged any delay between the Board’s direction for release and his eventual release, so he does not have permission to make such a challenge. He did so for the first time in his skeleton argument served shortly before the hearing. Any such challenge is out of time. I do not consider that the general grounds of challenge permitted by Vos LJ include such a ground. I refuse permission for such a claim to be made now. No good reason has been given for the delay, and the Secretary of State has been deprived of the opportunity to adduce evidence about it.

52.		In TO’s case, the Deputy Judge granted permission for claims of a breach of article 5(4) (no “prompt” hearing); of violation of articles 3, 5(1) and/or 14 because of disproportionate or arbitrary detention; and of breach of article 14 by arbitrary or unjustified differential treatment because of the sentencing changes in July 2008.

53.		At that stage, TO had not challenged any delay between the Board’s direction for release and his eventual release, so he does not have permission to make such a challenge. He did so for the first time in his skeleton argument served shortly before the hearing. Any such challenge is out of time. I do not consider that grounds of challenge permitted by the Deputy Judge include such a ground. I refuse permission for such a claim to be made now, for the same reasons as in JK’s case. Nor does TO have permission to argue a ground based on lack of access to courses.

The relevant legislation
Sentencing
54.		Section 225(1) of the Criminal Justice Act 2003 (“the CJA”) as in force when the Claimants were sentenced required a court to pass a sentence of life imprisonment when a person was convicted of a serious offence (as defined) and where it was of the opinion that there was significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, if the offence was punishable by imprisonment for life, and when the court considered that the offence or offences of which he had been convicted were serious enough to justify such a sentence.

55.		 If section 225(1) did not apply, the court was required to pass a sentence of IPP.  Section 229 required the court to assume that there was such a risk as was described in section 225 if a person had been convicted of a specified offence, and at the time when the offender was convicted he had been convicted of a relevant offence (as defined).  That assumption was only displaced if, on the information before the court, it considered that it was unreasonable to assume that there was such a risk. If the person had not been convicted of such an offence the Court could take into account any information before it in assessing whether there was such a risk.

56.		IPP, like a life sentence, consisted of a tariff, or minimum term, which the court had to specify when passing sentence. After that minimum term was served, and the Board had directed his release, pursuant to section 28(5) of the Crime (Sentences) Act 1997 (“the 1997 Act”), it was (and is) the duty of the Secretary of State to release a prisoner on licence. But the board could not give such a direction until it was satisfied that it was “no longer necessary for the protection of the public that the prisoner should be confined” (section 28(6)). A prisoner has a right to require the Secretary of State to refer his case to the Board as soon as he has served his tariff, and after any reference, at any time after the end of a period of two years beginning with the disposal of that reference (section 28(7)). Section 28 is applied to IPP by section 34 of the 1997 Act.

57.		On 14 July 2008, the relevant provisions of the Criminal Justice and Immigration Act 2008 came into force. These amended the provisions about IPP. There were three relevant changes.
i.		The duty to pass an IPP became a discretion.
ii.		One of two conditions had to be met before an IPP could be passed: 
(1)		the offender had to have committed an offence listed in Schedule 15A to the CJA, or
(2)		the notional minimum term had to be 4 years’ imprisonment or more.
iii.		There was no longer a presumption of dangerousness. 
The Claimants submit, rightly, that if they had been sentenced a short time after they were in fact sentenced, the notional minimum terms which the court would have imposed would have been much too short to enable the court to pass an IPP.

The Human Rights Act 1998 (“the HRA”)
58.		The effect of section 1 of the HRA is that “Convention Rights” are the rights set out in Schedule 1 to the HRA.  

59.		Article 3 is headed “Prohibition of torture”. It provides that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment. 

60.		Article 5 provides:  
	“Right to liberty and security.
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; ...  
2 Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3 Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” 
	
61.		Article 7 is headed “No punishment without law”. Article 7.1 provides that no-one is to be found guilty of a criminal offence on account of any act or omission which was not a criminal offence when he committed it, and that “a heavier penalty” shall not be imposed than the penalty which applied at the time the offence was committed. Article 7.2 provides that article 7 “shall not prejudice the...punishment of any person for any act...which, at the time when it was committed, was criminal...”

62.		Article 14 provides that the enjoyment of the rights and freedoms in the ECHR is to be secured without any discrimination on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status.

63.		Section 6(1) of the HRA is headed “Acts of public authorities”. It makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 3 requires a court, where it is possible to do so, to read and to give effect to legislation in a way which is compatible with Convention Rights. When a court is considering an issue which has arisen in connection with a Convention Right, it “must take into account”, among other things, a judgment of the European Court of Human Rights (“the ECtHR”) (section 2(1)). 

The Claimants’ case
64.		Mr Rule relies on four features of the detention of the Claimants to show that it was in breach of article 5(1). 
(1)		They were detained for too long.
(2)		The change in the legislation in July 2008 makes the detention arbitrary, as it is seen to depend on the happenstance of the date when the Claimants were sentenced.
(3)		They were denied proper opportunities for rehabilitation and proper reviews. Only JK has permission to argue this ground. 
(4)		They were not released within an appropriately short reasonable time of the Board’s eventual directions for release.
 
65.		He also argued that being a person who was sentenced to an IPP under the pre-July 2008 regime is a status for the purposes of article 14 (read with article 5 and or with article 7). That status had led to discrimination between the Claimants and prisoners sentenced after that date, and that difference in treatment could not be objectively justified.

66.		He also argued that the length of detention was a breach of article 3. Finally, he argued that what he called ‘the lex mitior’ principle meant that he was entitled to be treated as if the post July 2008 regime applied to him, relying on Scoppola v Italy.

The principles in outline
67.		I have been referred to many cases. Without any disrespect to the industry of counsel, it seems to me that 7 relevant principles can be gathered from the decisions of the ECtHR.
(1)		The purpose of article 5 is to protect people from arbitrary interferences with their liberty (Saadi v United Kingdom  (2008) 47 EHRR 427 at paragraph 63: Saadi was a decision of  the Grand Chamber).
(2)		Detention pursuant to a sentence after conviction will breach article 5(1)(a) if it is not lawful in domestic terms (ibid, paragraph 67). 
(3)		Detention pursuant to a sentence after conviction will breach article 5(1)(a) even if it is lawful in domestic terms, if the detention nonetheless is, or becomes, arbitrary (ibid, paragraph 67).
(4)		Detention under article 5(1)(a) will be arbitrary if there is deception or bad faith by the authorities; or if the order to detain and the detention itself do not conform with the purpose of the restrictions permitted by article 5(1)(a); or if there is no relationship between the ground of permitted detention relied on and the place and conditions of detention (ibid, paragraph 69).
(5)		Detention pursuant to a sentence after conviction will breach article 5(1)(a) even if it is lawful in domestic terms if there is no longer a causal connection between the sentence and the detention (ibid, paragraph 71; James v United Kingdom, paragraph 189).
(6)		There is no objection in principle to preventive detention, or to detention for public protection (M v Germany (2010) 51 EHRR 41).
(7)		Unless there is a breach of the principles set out in paragraphs 69 and 71 of Saadi, the decision to impose a sentence and the length of sentence are matters for the national court (Saadi, paragraph 71; James, paragraph 204). 

(1) Is the detention arbitrary and in breach of article 5 on the grounds that it was disproportionate?
68.		This complaint seems to me to assume that the length of the tariff measures the extent to which the sentencing court considered that the Claimants’ offences merited punishment, that punishment was the only purpose of the sentences, and so the only relevant yardstick of arbitrariness is the relationship between the length of the tariff and the time actually served. But this leaves out of account that the sentences passed in their cases had two purposes: punishment, and the protection of the public. As the Grand Chamber said in paragraph 111 of Vinter v United Kingdom Application Nos 6609/09,130/120 and 3869/10, 9 July 2013, “It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention.....these grounds will include punishment, deterrence, public protection and rehabilitation”. 

69.		So does the ECtHR regard the length of the sentence as a potential ground of complaint under article 5? Mr Rule sought to persuade me that it has done. The starting point is Saadi. This case was about immigration detention. I have set out the relevant principles above. It is clear in my judgment from principle (7) that in the circumstances of these cases, where no breach of the rules in paragraph 69 of Saadi is alleged, the Grand Chamber ruled out a challenge to sentence length under article 5(1)(a) as a matter of principle. Length of sentence is a matter for the national authorities, as I read Saadi. The ECtHR has adopted this approach in other cases: see for example, Benham v United Kingdom 22 EHRR 293 at paragraph 40, where a similar, though not identical, point is made.

70.		That that is the correct approach is supported (if only by inference) by the decision of the Grand Chamber in Vinter v United Kingdom, the challenge to whole-life terms. The challenge was not based on a breach of article 5, but solely on a breach of article 3. It is, to say the least, surprising, if a complaint about sentence length (whether viewed ex nunc or ex tunc) can be based on article 5,  that no such argument seems to have been relied on in Vintner, given the high threshold for establishing a breach under article 3.

71.		I accept Mr Buley’s submission that M v Germany, properly analysed, does not support Mr Rule’s argument. The application succeeded in that case not because of the nature or length of the sentence passed, but because, as a result of a change in the law after that sentence was passed, the applicant ended up serving a longer sentence than the sentencing court had contemplated. That meant that the causal connection between the original sentence and the applicant’s detention was broken, the detention was therefore arbitrary, and a breach of article 5(1).

72.		There is no breach of the rules in Saadi here. It is clear from the facts that in both cases the causal link between the sentence and the detention was not broken. Both Claimants were detained for public protection because they were held to meet the statutory test of dangerousness, and to pose a risk of harm to the public. I should perhaps make clear that, in the absence both of the Judge’s sentencing remarks in TO’s case, and of any suggestion that the sentence was appealed, I assume that TO was found to be dangerous. During their detention, the Claimants were assessed and went on courses in order to enable them to reduce the risk they posed. That risk was periodically re-assessed, and when the Board considered that it was low enough, their release was directed.

(2) What is the effect of lack of access to courses?
73.		Mr Rule relied initially on the decision of the ECtHR in James v United Kingdom (2013) 45 EHRR 12. The ECtHR held that one of the purposes of IPP was rehabilitation, and that “a real opportunity for rehabilitation is a necessary element of any part of detention which is to be justified solely by reference to public protection” (paragraph 209).  The applicants in those cases were sentenced to IPP in 2005 (with tariffs of 2 years’, 12 months’ and 9 months’), and no courses where available for them during their tariffs and, variously, for 5, 21, or 25 months after those tariffs expired.  The domestic courts held that the Secretary of State was in systemic breach of his public law duty to provide suitable courses. At paragraph 218 the ECtHR said that the applicants should have been given reasonable opportunities to take courses to reduce their risk. Any restrictions on, or delays in, the provision of courses must be reasonable in all the circumstances of the case. The applicants had spent substantial periods detained when they had not been able to make progress through the system. The ECtHR held (paragraph 221) that their detention was arbitrary and unlawful for the purposes of article 5(1) during the periods after the expiry of their tariffs when they were making no progress through the system with a view to going on courses, until they were able to make such progress.

74.		The decision of the ECtHR goes further than the decision of the House of Lords in R (James) v Secretary of State for Justice [2010] UKHL 22; [2010] 1 AC 553. The litigants were the same. It was accepted that the Secretary of State had breached his public law duty to provide courses. The House of Lords held that the necessary causal link between the sentence and length of detention was not broken by the failure of the Secretary of State to provide courses during the relevant periods. As a matter of statutory construction, rehabilitation was not a purpose of IPP (per Lord Brown, at paragraph 48). A failure lasting years, rather than months, would be required before the causal link would be broken. Article 5(1) would only be breached “.....after “a very lengthy period without an effective review of the case....the Parole Board would have had to have been unable to form any view of dangerousness for a period of years rather than months...” (per Lord Brown at paragraph 51). He referred to the statutory two-year intervals provided for references to the Board.

75.		I reserved judgment in this case. After the hearing, the Supreme Court handed down its decision in R (Haney) v Secretary of State for Justice [2014] UKSC 66.  The Supreme Court was faced with the conflict which I have just described between decisions of the House of Lords and of the ECtHR. It resolved that conflict by following the ECtHR to an extent, but not entirely. It agreed with the ECtHR that one of the purposes of IPP was rehabilitation. However, it recognised that the ECtHR’s approach meant that prisoners who were not provided with courses would have to be released, even if they were still dangerous. It refused to hold that detention during periods when courses were not provided was a breach of article 5(1). Rather, a failure to provide courses was a breach of duty not spelled out, but implicit, in article 5(4). The remedy for such a breach would be a modest payment of damages, not release (judgment, paragraphs 36-40). In the event, the Supreme Court awarded £500 and £600 for delays of about a year. The higher sum was awarded because all the delay in that case was post-tariff (judgment, paragraphs 50 and 69).

76.		The Supreme Court rejected an argument that article 5(4) would only be breached by systemic failures which were Wednesbury unreasonable. It held that the ancillary implied duty imposed by article 5 requires a court to examine the individual’s circumstances. They are not to be judged by “standards of perfection which would be unreasonable, bearing in mind the numbers of prisoners...and ...the limits on courses facilities and resources in the prison system”. The period as a whole should be considered, and allowances made for the fact that some periods of waiting and delay are inevitable in any system, especially for an intensive course like the eSOTP (decision, paragraph 42). 

77.		The question is whether a prisoner was offered a reasonable opportunity to reform himself and to show that he no longer presented an unacceptable risk to the public (judgment, paragraph 48).  That opportunity must be offered by tariff expiry, or within a reasonable time after that (paragraph 68). At paragraph 60, the Supreme Court added that article 5 does not create an obligation to maximise coursework or other provision, and does not enable the court to substitute, with hindsight, its view of the best way to manage a prisoner, or to conclude that detention was arbitrary just because it could have been better managed. In assessing the reasonableness of an opportunity for rehabilitation, the court must take into account all the circumstances; the prisoner’s history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use made of opportunities for rehabilitation.

78.		I would have held that I was bound by the decision of the House of Lords in James (see Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465).  I am bound by the approach of the Supreme Court in Haney. I asked the parties for written submissions in the light of the decision in Haney. 

79.		Mr Rule submits, in TO’s case, that he waited nearly 3 years, between January 2010 and late 2012/early 2013 for the eSOTP. He was eventually given the eSOTP “only after two meaningless parole reviews”. The Board noted that he needed to do further work in March 2011, and that had to be done in closed conditions. He was detained at the same prison throughout. The delay, on the balance of probabilities, delayed his release, and he is entitled to more than modest damages. However, as I noted above, TO does not have permission to argue this ground.

80.		Mr Rule submits that JK was initially detained in prisons with no access to SOTPs. The eSOTP was set as an objective for him in December 2009 and he was then moved to HMP Bure to receive it. But no such courses were provided there until June 2011. That was a breach of article 5.

81.		I accept that there were periods during the detention of both Claimants when they appear not to have been provided with courses. In TO’s case, during the period between August 2011 and late 2012/early 2013 he was provided with no courses, a gap which is not explained. The reason for this may well be that it was not understood by the Defendant that there was any challenge to this aspect of his detention.  JK completed the core SOTP in July 2009 and the eSOTP in November 2011. He appears to have completed no further courses between that date and his release.  But it appears from the Defendant’s evidence that he could have transferred to a different prison from HMP Bure during the period when the provision of courses was delayed at that prison.

82.		But unlike the Claimants in James v United Kingdom, planning for their sentences seems to have started early on, and both made progress during their sentences.  These are not cases where progress can only be measured in terms of the provision of SOTPs or eSOTPs, as those courses are only part of the picture (see paragraph 8 of the witness statement of Simon Boddis). My decision is that there was no breach of the article 5 ancillary duty, as explained by the Supreme Court in Haney in either case (although I only need to make a decision on this aspect in JK’s case). For completeness, I should say that I am not satisfied on the balance of probabilities that either Claimant would have been released if courses had been provided for him earlier than they were.

Article 5(4): breach of the right to a speedy decision on the lawfulness of detention: TO only
83.		In his grounds, TO complains that his review was delayed by at least 7 or 8 months from the November/December 2013 due date, that he would have been released sooner had the review been held sooner, and that, as a result, he suffered frustration and distress. My decision is that there was unacceptable delay in holding the review, and that that was a breach of article 5(4).  The various case management decisions of the Board, looked at individually, were, on the whole, reasonable. But those were decisions which the Board was forced to make by circumstances for which it was not responsible.  Those circumstances show a lack of planning and expedition, and at times, drift, by the actors involved which is not consistent with ‘speediness’ referred to in article 5(4). This is a breach for which the Secretary of State, and not the Board, is liable.

84.		Doing the best I can, I consider that there was an unlawful delay of 3 months during that period. I am not satisfied, on the balance of probabilities, that TO would have been released sooner had the hearing been held 3 months sooner than it was. The Board’s eventual decision, as I have already said, was finely balanced. I do consider, however, that that delay will have caused him frustration and distress, and that a declaration of breach would not be just satisfaction (see R (Faulkner) v Secretary of State for Justice [2013] UKSC 47; [2013] 2 AC 254). I consider that the appropriate award of damages is £300.

The amendment to the CJA 2003 in July 2008 made the Claimants’ continuing detention arbitrary or discriminatory in breach of article 5 read with article 14
85.		I do not consider that there is anything in the decisions of the ECtHR which suggests that detention can become arbitrary for the purposes of article 5(1) simply because the law about sentencing changes after a prisoner has been sentenced, with the perceived consequence that, if he had been sentenced later, he would have received a more lenient sentence than he in fact received. The approach of the ECtHR, it seems to me, is that the law about sentencing is a matter for the national authorities, not for it. 

86.		Nor, it seems to me, can this found a complaint that article 14 has been breached.  I am inclined to think that ‘being a person who was sentenced to an IPP before 14 July 2008’ is not an ‘other status’ for the purposes of article 14 (by analogy with R (Clift) v Secretary of State for the Home Department [2006] UKHL 484; [2006] 1 AC 484.  The Supreme Court in Haney (at paragraphs 52 and 53) acknowledges a conflict between that approach and that of the ECtHR in Clift v United Kingdom Application No 7205/07, does not resolve it. But whether or not being such a person is such a status, such a person is not in a materially analogous situation to that of a person who was sentenced to an IPP after that date. If, contrary to my view, he is, then any difference in treatment is justified, for the very good reason that the statute changing the law about IPP came into force on that date. 

87.		I say more about the timing of the commencement of the amendments in the next section of this judgment.

Article 7
88.		JK does not have permission to argue this ground, and I do not think that TO does, either. I have heard some argument about it, and it is convenient for me to deal with it shortly. JK served an undated reply and legal update, part of which is in the bundle. It refers to Scoppola and quotes passages from that decision. It is clear that the principle stated by the ECtHR is that article 7 requires that if, between the commission of a crime, and the trial and passing of sentence, the law changes so as to prescribe a more lenient penalty for the offence than the penalty which applied at the time of the offence, the sentencing court must apply the more lenient penalty which is in force at the time of sentence, rather than the harsher penalty which applied at the date when the offence was committed. 

89.		The principle does not apply here, but if it did, neither sentencing court breached it. Both judges passed sentence in accordance with the law in force at the time of sentence (which, as it happens, was the same as the law which was in force when the offences were committed).  When the ECtHR refers in Scoppola to laws being in force and being enacted, it must be referring to enactment as a matter of national law. Statutes do not necessarily come into force on Royal Assent. When they come into force depends on Parliament’s will, as expressed in the commencement provisions in each statute. The effect of those express provisions may be that some statutory provisions come into force on Royal Assent, and others, on dates to be appointed in commencement orders. Provided the Secretary of State with responsibility for making commencement orders does not breach the principles in R v Secretary of State for the Home Department ex p Fire Brigades Union [1995] 2 AC 513, precisely when such provisions come into force is a matter for the executive.

90.		The Claimants’ real complaint is that once the 2008 Act came into force, their sentences should no longer have stood. Since they were sentenced before the 2008 Act came into force, the sentencing courts had no option but to sentence them in accordance with the law which applied at the time of sentence. The change in the law did not retrospectively make their sentences unlawful. Our law makes no provision for sentences that have been passed to be revisited if the law about sentencing changes, and nothing in Scoppola requires such a practice to be adopted. Precisely when the changes came into force was a matter for Parliament and the executive. I can see no basis for an argument that in bringing the new measures into force either was obliged to make them retrospective, so as to unravel lawful sentences which had already been passed, in order to achieve parity between those sentenced to IPP after 14 July 2008 and those sentenced to IPP before that date.

Article 3
91.		I can deal with this shortly. It is clear from Vinter that the length of a sentence will only give rise to a breach of article 3 in very exceptional circumstances. In my judgment neither Claimant has established that the length of time he served, or his uncertainty about its length, crossed the article 3 threshold.

Conclusion
92.		TO’s claim succeeds to the extent that I award him £300 damages against the Secretary of State for the delays in holding his review by the Board, delays which were not, in my judgment, the fault of the Board. I dismiss the other claims by TO and by JK.

93.		Finally, Mr Buley invites me to say that the Board should not be joined in applications such as this unless there is a complaint of a breach of article 5(4) against the Board. I do so. TO’s successful claim is an example of a claim where the joinder of the Board was justified, even though, in the event, it is the Secretary of State, rather than the Board, who is liable for the breach of article 5(4).