The claimant was serving a prison sentence for serious sexual offences. He would not be released until he had completed a sex offenders programme, but one was not made available, delaying his release.
Held: ‘The Secretary of State is not under an absolute duty to devise and provide courses for all who want them and, moreover, to do so early enough in the prisoner’s sentence to maximise his hope of release on or very soon after his tariff expiry date.’ The Secretary approach to allocating places on courses is not open to criticism. However, there was an underlying premise of the legislation that it was intended to work in practice to the following effect: ‘Procedures would be put in place (so far as not already in place) to ensure that initiatives, in particular courses in the prison, would be available to maximise the opportunity for lifers to demonstrate they were no longer a danger to the public by the time that their tariff expired or as soon as possible thereafter, so as to allow the lifer’s release once that was shown.’ and ‘Reducing the risk posed by lifers must be inherent in the legislation’s purpose, since otherwise the statutes would be indifferent to the imperative that treats imprisonment strictly and always as a last resort.’ and
‘there must be material at hand to show whether the prisoner’s further detention is necessary or not. Without current and periodic means of assessing the prisoner’s risk the regime cannot work as Parliament intended, and the only possible justification for the prisoner’s further detention is altogether absent. In that case the detention is arbitrary and unreasonable on first principles, and therefore unlawful’ and ‘Whether or not the prisoner ceases to present a danger cannot be a neutral consideration, in statute or policy. If it were, we would forego any claim to a rational and humane (and efficient) prison regime. Thus the existence of measures to allow and encourage the IPP prisoner to progress is as inherent in the justification of his continued detention as are the Parole Board reviews themselves; and without them that detention falls to be condemned as unlawful as surely as if there were no such reviews’
Judges:
Lord Justice Laws Lord Justice Simon Brown Lady Justice Arden
Citations:
[2003] EWCA Civ 1522, Times 25-Nov-2003, Gazette 02-Jan-2004, [2004] UKHRR 101
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Regina (Noorkoiv) v Secretary of State for the Home Department and Another CA 30-May-2002
The claimant was a prisoner. He became entitled to be considered for release on parole, but was not released because the Parole Board had not made a decision.
Held: The system for consideration of the release of discretionary and life . .
Cited – Regina v Home Secretary ex parte Gunn CA 2000
A challenge under article 5 to decisions about a prisoner’s treatment were misconceived in the context of the Secretary of State’s refusal to transfer a prisoner to open conditions with a view to improving his prospects of release: ‘[Article 5(4)] . .
Cited – Regina (Burgess) v Home Secretary 2000
The applicant challenged the refusal to move him to open conditions within the prison system.
Held: ‘Article 5(4) does not . . preclude the Secretary of State from taking a different view than the Discretionary Life Panel of the Parole Board . .
Cited – Williams v The Secretary of State for the Home Office CA 17-Apr-2002
The applicant was a post-tariff discretionary life prisoner, applying for a change in his security classification. He sought disclosure of his security report which was denied by the respondent. He alleged a breach of his human rights.
Held: . .
Cited – Regina (Hirst) v Secretary of State for the Home Department CA 8-Mar-2001
The prisoner had been re-categorised and transferred to a higher category prison.
Held: A life sentence serving prisoner, who had served the tariff period, and was moving into the period of discretionary detention, was entitled to be informed . .
Cited – A v The Scottish Ministers PC 15-Oct-2001
(Scotland) The power to detain a person suffering from a mental illness, in order to ensure the safety of the public, and even though there was no real possibility of treatment of the mental condition in hospital, was not a disproportionate . .
Cited – Regina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
Cited – Spence, Regina (on the Application of) v Secretary of State for the Home Department CA 23-May-2003
The court rejected a challenge to the Home Secretary’s decision to substitute a period of 18 months for the 9 months recommended by the Parole Board to be passed in open conditions before the prisoner’s next review. ‘[The right not to be detained . .
Cited – Regina (Cavanagh) v Home Secretary Admn 2002
There is nothing irrational in denying enhanced status and privileges to prisoners who refuse to undertake treatment courses.
Held: ‘There is, to my mind, nothing unfair or inappropriate in requiring a sex offender, guilty of serious sexual . .
Cited – Giles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
Cited – Van Droogenbroeck v Belgium ECHR 24-Jun-1982
The applicant was sentenced to two years’ imprisonment for theft. He had a previous convictions and was thought to have a persistent tendency to crime, and was placed at the government’s disposal for 10 years on that ground. This was subject to . .
Cited by:
Cited – Secretary of State for Justice v Walker; Same v James CA 1-Feb-2008
The claimant had been sentenced to a short period of imprisonment but with an indeterminate term until he demonstrated that it was no longer necessary for the protection of the public. He complained that the term having expired, no opportunity had . .
Lists of cited by and citing cases may be incomplete.
Prisons
Updated: 05 November 2022; Ref: scu.187503