Judges reject UK demand for new hearing on prisoners’ human rights case

Judges have turned down a United Kingdom request for a new Grand Chamber hearing on a case involving the human rights of prisoners.

On 12 February, the European Court of Human Rights announced it had rejected the UK authorities’ request for the case James, Wells and Lee v. the United Kingdom (nos. 25119/09, 57715/09 and 57877/09) to be referred to its Grand Chamber.

Last September, the court ruled that detaining prisoners indefinitely on grounds of risk without giving them access to rehabilitative courses was arbitrary. It held that the United Kingdom was to pay James 3,000 euros (EUR), Wells EUR 6,200 and Lee EUR 8,000 in respect of non-pecuniary damage. For costs and expenses, the applicants were awarded EUR 12,000, each.

Following the court’s decision, that judgement is now final.

The James, Wells and Lee v. the United Kingdom 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.

The applicants, Brett James, Nicholas Wells and Jeffrey Lee, are British nationals who were born in 1985, 1983 and 1965 respectively. James lives in Wakefield (England), Wells is currently in detention and 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 (James), 21 months (Wells) and 25 months (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.

In their 18 September judgement, judges 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 Wells’ and 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.

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