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In Brown v Parole Board for Scotland & Ors [2017] UKSC 69 the Supreme Court has hutcheon_d-copy_bw_indmemonce again considered claims by IPP prisoners alleging violation of ECHR, art 5 owing to a lack of opportunity to demonstrate sufficient progress to justify their release. Perhaps surprisingly, the Court unequivocally departs from its decision in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 (decided less than three years earlier) to endorse the narrower understanding of the obligation set down by the ECtHR in James v UK (App no. 25119/09).

Background

Art 5 provides various rights with the basic purpose of preventing arbitrary and/or unnecessary detention of individuals by the state. Art 5(1) provides that to be permissible deprivation of liberty must (among other things) be justified on one of the grounds identified in arts 5(1)(a)-(f). The ECtHR has repeatedly affirmed that there must be a relationship between the ground of detention relied on and the place and conditions of detention (see e.g. Saadi v UK (App no. 13229/03). If there is none detention becomes arbitrary and violates art 5.

In James v UK, the ECtHR decided that rehabilitation was one of the purposes of detaining IPP prisoners [209] and therefore, in light of the above principles, art 5(1)(a) required that post-tariff IPP prisoners were given a “real opportunity for rehabilitation” in detention [209]. This mean they had to be provided with “reasonable opportunities to undertake courses aimed at helping them to address their offending behaviour and the risks they posed” [218]. On the facts of the immediate cases the length of delays before the applicants were able to access offending behaviour programmes was so great that detention had become arbitrary and as such unlawful under art 5(1).  

However, in Kaiyam, the Supreme Court took a different approach. While accepting (in light of James) that art 5 imposed an obligation to provide a real opportunity for rehabilitation, it declined to adopt the ECtHR’s analysis that the obligation came within art 5(1) and found instead that it was an ancillary duty implicit in the overall scheme of art 5 [38]. The Court’s principal basis for this conclusion was its concern that if the obligation did derive from art 5(1), a prisoner who established a violation of that obligation would in principle be entitled to immediate release [34]-[35] (even if the Crime (Sentences) Act 1997 prevented this and as such only a declaration of incompatibility could be obtained). Under its analysis an established violation would instead sound in damages [39].

Kaiyam then went to the ECtHR. The ECtHR re-affirmed the approach it took in James and indicated that violations of the obligation established in James “will be rare” [70].

The decision in Brown

The specific issue for determination in Brown was whether the art 5 duty to offer prisoners a reasonable opportunity to rehabilitate themselves applied to extended sentence prisoners. However, in his judgment (with which all other Judges agreed) Lord Reed took the opportunity to engage head-on with the continuing conflict between the Court’s decision in Kaiyam and the ECtHR’s decision in James. His conclusion was to break with Kaiyam in favour of aligning with the ECtHR authorities.

Having reviewed the relevant authorities Lord Reed noted that, in light of several ECtHR decisions including the Grand Chamber’s decision in Murray v The Netherlands (2016) 64 EHRR 3, there was now a “clear and constant line of decisions” from Strasbourg [38].

He then turned to justify the Court’s departure from Kaiyam on the basis that the Court had wrongly proceeded on the basis that a finding of violation of art 5(1) would mean that a prisoner was entitled to release. In fact James did not support that proposition: the ECtHR had in fact held that UK law offered sufficient remedies in the form of (1) the availability of judicial review to challenge the failure and (2) the ability of the Parole Board to order release once satisfied the individual was no longer dangerous [25]. On that basis, it was time to depart from Kaiyam and to adopt the ECtHR’s approach as set out in James, treating art 5(1) as the source of the “opportunity for rehabilitation” obligation.

The Court recognised that the duty as interpreted in Kaiyam was “significantly different from, and more demanding than” the duty as defined in James, which only arises post-tariff; imposes a standard of arbitrariness rather than reasonableness; and can be satisfied even where there was a failure to offer the opportunities suggested by the Secretary of State as appropriate interventions prior to the next parole review [39]-[41]. The Court reiterated that it expected findings of violations to be “rare”.

The situation of extended sentence prisoners

Turning to the specific issue raised on the appeal, the Court noted that until now the James art 5 obligation had only been applied by ECtHR and the UKSC in cases involving life or IPP (i.e. indeterminate) sentences, whereas extended sentences are determinate in nature. (Extended sentences mean that a convicted person receives not only a standard custodial sentence but is also made subject to a further licence period, during which they are liable to recall to prison, which continues beyond the expiry of the term of the custodial sentence).

The Court concluded that the art 5 obligation did apply to extended sentence prisoners but only insofar as prisoners were detained during the “extension period” (i.e. having been recalled). The reasoning in James was equally applicable to prisoners in this situation since (1) their detention during the extension period was not effected by order of a court; (2) that in turn meant that that detention had to be supervised by a judicial body under art 5(4); and (3) the purpose of that detention was solely to protect the public [59]-[61]. On the facts, the Court had little doubt that the appellant had enjoyed a real opportunity for rehabilitation: [81-85].

Analysis

For advocates of prisoners’ rights the decision in Brown is undoubtedly a setback. Establishing prison delays/failures serious enough to violate the high threshold set in Brown will be very difficult, with significant allowances made for lack of prison resources and the general inertia which those involved in representing prisoners have come to expect. An interesting question going forward will be the interaction between art 5 and art 14, for example in cases where prisoners with disabilities feel that they are struggling to make progress owing to a failure to accommodate their specific needs.

The case is also relatively unusual in that the Court effectively decides that it was wrong in a very recent case, because it misread a key authority. In fairness to the Court responsibility lies at least in part with the ECtHR for the ambiguous terms of its decision in James. As the Court itself acknowledges in Brown, it is only by “implication” that the Court in James can be read as finding that violation “does not entitle the prisoner to release” [16].

Finally, though the Court in Brown did not need to analyse compensation, its wholesale endorsement of the decision in James suggests that the amounts awarded by the ECtHR in that case (at [244]) should be a good guide to how English courts should assess compensation in the future. This again represents a break from Kaiyam, where the Court found that that part of the decision in James did not “offer appropriate general guidance” [39].