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This post was originally posted on the UKHR blog and is reposted here with permission and thanks.

R (Haney & Ors) v Secretary of State for Justice (10 December 2014)

Indeterminate sentences and the inadequate funding of rehabilitation during them has posed problems since Imprisonment for Public Protection (IPP) sentences hamstrung the system. The courts here and in Strasbourg have been in two minds what to do about cases where prisoners have not received the assistance they ought to have received – and hence are not, by domestic standards, ready for release.

Two solutions have been proposed to date. The House of Lords in R (James) [2009] UKHL 22 decided that this did not amount to a breach of article 5 of the Convention. When James got to Strasbourg, the ECtHR ((2013) 56 EHRR 12) disagreed; continued detention was unlawful.

The Supreme Court found a third way, as we shall see. Another example of our courts’ increasing confidence when confronted with a Strasbourg decision they think to be wrong.

4 prisoners were involved in this case, 3 (Robinson, Massey and Kaiyam receiving IPP terms), and one (Haney) receiving an automatic life sentence but whose assessment got caught up in the IPP rehabilitation fiasco.

In James the prisoners received mandatory IPP sentences with set tariffs, at the end of which they remained without access to recommended rehabilitation. The Divisional Court and Court of Appeal held the Secretary of State to have been in systemic breach of his public law duty, and granted a declaration to that effect. There was no appeal against that declaration, but despite this, the House of Lords dismissed the claims for breach of art 5(1) and (4). It held that continued detention remained lawful until the Parole Board was satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined – because that is what domestic law provided. The only possible exception was where the system of review had completely broken down or ceased to be effective.

The ECtHR disagreed.  Post-tariff, and until rehabilitative steps were taken, their detention was “arbitrary” and therefore unlawful within the meaning of art 5(1).

In the present case, the Secretary of State sought to persuade the Supreme Court to wind back to the House of Lords decision on what art 5(1) entailed.

The SC reminded itself of its duty. Domestic courts

“are not bound by the jurisprudence of the ECtHR, but are bound to take it into account.”

Later cases such as Pinnock [2010] UKSC 45 and Chester [2013] UKSC 63 suggested that the SC should follow Strasbourg where there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental aspect of domestic law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle; this was particularly the case when the decision was of the Grand Chamber rather than an individual Section of the Strasbourg Court.

The Supreme Court went back to basics, namely the language of article 5.  On the face of it, the express wording of art 5(1) and of the last ten words of art 5(4) contemplate that any detention not authorised by article 5(1) should lead to release.

The ECtHR in James concluded that failure after the tariff period properly to progress a life or IPP prisoner towards release made detention “arbitrary” and therefore unlawful. The prisoner should  be entitled to an immediate order for speedy release under article 5(4).

But under domestic law, release would however be impossible, since primary legislation requires such a prisoner to remain in detention unless and until the Parole Board is satisfied that this is no longer necessary for the protection of the public. All a prisoner could do was seek a declaration of incompatibility.

The Supreme Court then said its piece on James v UK. In short

“we do not think that it is possible to follow the reasoning of the Fourth Section of the ECtHR in James v UK. It appears to us to be based on an over-expanded and inappropriate reading of the word “unlawful” in article 5(1)(a), which would not give rise to a sensible scheme.”

But that does not however mean that the Supreme Court should revert to the House of Lords in R (James). Strasbourg had also concluded that there should be an individual remedy in damages under the ECHR for failure to provide prisoners serving indeterminate sentences with proper means of progression towards release.

Now to the third way, a fresh interpretation of art 5 and the remedies conferred by it. The Supreme Court accepted James v UK‘s conclusion, that the purpose of the sentence includes rehabilitation, in relation to prisoners subject to life and IPP sentences in respect of whom shorter tariff periods have been set – and rejected the House of Lords’ contrary conclusion.

“We also consider that the Supreme Court can and should accept as implicit in the scheme of article 5 that the state is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. But we do not consider that this duty can be found in the express language of article 5(1). Treating it as an aspect of the duty to avoid “arbitrariness” under article 5(1)(a) has unacceptable and implausible consequences which we have already identified.”

Arbitrariness has a confined meaning, when used as a test of lawfulness in the context of article 5(1)(a).

So it derived an ancillary duty from art 5(4) being a more satisfactory home for such a duty even thought the express words of art 5(4) did not apply.

“We consider that a duty to facilitate release can and should therefore be implied as an ancillary duty – a duty not affecting the lawfulness of the detention, but sounding in damages if breached. Such a duty can readily be implied as part of the overall scheme of article 5 . . . “

The remedy was not release of the prisoner, but damages for legitimate frustration and anxiety, where such can properly be inferred to have been occasioned.

The Supreme Court then looked at the 4 cases. But for the failures in Haney, he would have been transferred to open conditions a year earlier than he was; he received £500. Similar findings were made in Massey; he received £600. No breaches were found in Kaiyam and Robinson (Lord Mance dissenting on Robinson).

Conclusion

The IPP saga is an object lesson in how not to go about reforming criminal sentencing. But that is not the lesson of this decision. The Supreme Court has looked critically at two important and recent previous decisions, gone back to the beginning, and learnt something from each in coming up with its middle way.

The message is obvious. Our judges can learn something from “foreign” judges, just as they can decide to reject their decisions if they feel they are not sufficiently reasoned or do not make enough sense of the statutory scheme when read as a whole.

Properly read, it shows how the respective courts can rub along fine, despite their disagreements.