ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the Criminal Justice Act 2003, indeterminate sentences for the public protection were introduced. Like sentences of life imprisonment, these required the direction of the Parole Board in order for a prisoner to be released. A minimum term which had to be served before a prisoner could be released, known as the ‘tariff’, was fixed by the sentencing judge. The three applicants, who had been sentenced pursuant to this Act, complained that while in detention they were not provided with the opportunity to complete the instructional courses that the Parole Board considered necessary for their rehabilitation. The applicants were detained in small local prisons, and due to resource constraints were unable to transfer to prisons where the relevant courses were available. This led the Parole Board to consider that they presented a continued risk to the public and were unsuitable for release after the completion of their tariff.
Article 5-1: In considering the legality of the post-tariff detention of the applicants the Court examined whether there was a causal link between the continuing detention and the original sentence; whether the detention complied with domestic law; and whether it was free from arbitrariness. On the point of causality it was clear that the indeterminate sentences were imposed on the applicants because they were considered, albeit by the operation of a statutory assumption, to pose a risk to the public. Therefore there was a sufficient causal link between the convictions and the deprivations of liberty at issue. Further, the Court was satisfied that the applicants’ post-tariff detention was based on their ‘conviction’ for the purposes of Article 5-1 (a) of the Convention and that there was compliance with domestic law.
In considering arbitrariness certain principles were relevant. First, that detention will be ‘arbitrary’ where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. Second, both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5-1. Third, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention; and fourth, this relationship must be proportionate.
The Court then considered the arbitrariness of the detention in the present case as a whole by reference to these considerations. It began by examining the lack of judicial discretion in sentencing. Under the scheme as it was first enacted and brought into force, the IPP sentence was mandatory where a future risk existed. The Court noted that restrictions on judicial discretion in sentencing do not per se render any ensuing detention arbitrary. However, they may be a relevant factor, and in such situations there is often an even greater need to ensure that there is a genuine correlation between the aim of the detention and the detention itself. Secondly, the Court had regard to the purpose of the detention. It was clear that a central purpose of the IPP sentences imposed was the protection of the public. However it could be seen from the debates on the drafting of the relevant legislation that an implied purpose of the detention was rehabilitation. This was further reflected in the Secretary of State’s published policy at the time, and was clear from certain rulings of the domestic courts in the area. Also, it is to be presumed that States intend to comply with their international obligations when introducing legislation. In the present case, the relevant obligations made it clear that an essential aim of imprisonment was social rehabilitation.
Lastly, the Court noted the deficiencies in the rehabilitative process in the present case. Due to the unavailability of rehabilitative courses, for a significant period the applicants did not have the opportunity to reduce the risk they posed to the public as assessed by the Parole Board, which was necessary in order to shorten the length of their post-tariff detention. In considering the detrimental impact that this had on the applicants, it was acknowledged that there was a substantial danger inherent in ordering the release of a prisoner while they still posed an appreciable risk to the public. However, such a danger did not seem to be present in the case of the applicants. The assessment of the danger they posed was largely a product of statutory assumption, and it was far from clear that the sentencing judges concerned would have imposed an IPP sentence had they enjoyed the judicial discretion available to them under new amended legislation.
In applying the above considerations, the Court held that while indeterminate detention for the public protection is permissible in certain circumstances, where a government seeks to rely solely on the risk posed to the public by offenders in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders. In the applicants’ cases, this meant that they were required to be provided with reasonable opportunities to undertake courses aimed at helping them to address their offending behaviour and the risks they posed. In such situations, any restrictions or delays encountered as a result of resource considerations must be reasonable in all the circumstances of the case, and a reasonable balance must be struck between the need to provide appropriate conditions of detention in a timely fashion and the efficient management of public funds. In striking this balance, particular weight must be given to the prisoner’s right to liberty, bearing in mind that a significant delay in access to treatment is likely to result in a prolongation of detention. Therefore, following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses, their detention was arbitrary and consequently unlawful within the meaning of Article 5-1.
Conclusion: violation (unanimously).
Article 5-4: The second and third applicants further alleged that even if they had succeeded in the challenge to their detention they were not been able to secure their release as a result of the provisions of primary legislation. Article 5-4 is lex specialis in this context. The Court noted that it was open to the applicants to commence judicial review proceedings in order to challenge the failure to provide the relevant courses. Both applicants did so and were transferred to a facility where they could participate in the courses necessary to secure their release.
Conclusion: no violation (six votes to one).
The Court also considered that the issues raised by the applicants under Article 5-4 relating to the lack of courses had already been examined in the context of Article 5-1, and that the complaint under this Article gave rise to no separate issue.
Article 41: In respect of non-pecuniary damage the Court awarded the first applicant EUR 3,000, the second applicant EUR 6,200 and the third applicant EUR 8,000.
(See also Saadi v. the United Kingdom [GC], no. 13229/03, 29 January 2008, Information Note no. 104; M. v. Germany, no. 19359/04, Information Note no. 125; Grosskopf v. Germany, no. 24478/03, 21 October 2010)
The court disagreed with the HL in saying that the purposes of the 2003 Act did not include rehabilitation: ‘The court is . . satisfied that in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation is a necessary element of any part of the detention which is to be justified solely by reference to public protection. In the case of the IPP sentence, it is in any event clear that the legislation was premised on the understanding that rehabilitative treatment would be made available to those prisoners on whom an IPP sentence was imposed, even if this was not an express objective of the legislation itself. Indeed, this premise formed the basis upon which a breach of the Secretary of State’s public law duty was found and confirmed . . The court accordingly agrees with the applicants that one of the purposes of their detention was their rehabilitation.’ and ‘ . . following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses . . their detention was arbitrary and therefore unlawful within the meaning of article 5(1)1 of the Convention.’
57877/09 – HEJUD,  ECHR 1706, 57877/09 – CLIN,  ECHR 2021, 25119/09, 57715/09, (2013) 56 EHRR 12
European Convention on Human Rights, Criminal Justice Act 2003 225
See Also – James, Wells And Lee v The United Kingdom ECHR 20-Dec-2010
At HL (wrongly decided) – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Cited – Martin Corey, Re for Judicial Review SC 4-Dec-2013
The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence . .
Cited – Robinson, Regina (on The Application of) v HMP Whatton and Another Admn 4-Dec-2013
Two prisoners serving sentences of imprisonment for public protection sought judicial review of arrangements meaning that they had not been given a timely opportunity to demonstrate to the Parole Board that they are safe to be released. Their . .
Cited – Kaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – Docherty, Regina v SC 14-Dec-2016
After conviction on his own admission for wounding with intent, and with a finding that he posed a threat to the public, the defendant was sentenced to imprisonment for public protection. Such sentences were abolished with effect from the day after . .
Cited – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
These lists may be incomplete.
Updated: 25 March 2021; Ref: scu.467002