Cawser, R (on the application of) v Secretary of State for the Home Department

Article 5(1)(a) of the Convention does not ordinarily require the Secretary of State to provide offending-behaviour treatment to life prisoners. Their detention remains justified by the sentence imposed after conviction. Delay or failure in providing a course does not itself break that causal connection.

Domestic public law nevertheless requires a rational policy. Where release is in practice dependent on completing treatment, reasonable provision must be made, subject to available resources. Rational allocation may balance risk, tariff expiry, sentence length, motivation and the position of determinate prisoners. Post-tariff life prisoners need not invariably receive priority.

The appellant was serving an automatic life sentence for rape. His tariff expired in August 2001, but the Parole Board remained concerned about his risk and identified further work on sexual offending. Although approved for the Extended Sex Offender Treatment Programme in November 2001, he did not obtain a place until August 2003.

Mackay J refused permission to apply for judicial review. Buxton LJ subsequently permitted an appeal and directed the Court of Appeal to hear the substantive challenge. By then the appellant had begun the course, making his personal claim academic, but the issues remained important to other prisoners.

The central questions were whether article 5(1)(a) or article 5(4) required the Secretary of State to provide timely treatment courses, and whether it was irrational not to give life prisoners priority over determinate prisoners.

1. The application was dismissed unanimously. Simon Brown LJ delivered the leading judgment. Laws LJ agreed with his reasons, including his rejection of an article 5(1)(a) duty. Arden LJ agreed in the result but differed on the possible application of article 5(1)(a) in exceptional cases.

2. Article 5(4) concerns a prisoner's right to a speedy judicial determination of the lawfulness of detention. It does not regulate treatment, prison conditions, security categorisation or placement within the prison system. The appellant therefore could not found a claim to treatment upon that provision.

3. Per Simon Brown and Laws LJJ, article 5(1)(a) imposed no duty as such to provide offending-behaviour courses. A life prisoner's detention is justified by the sentence imposed after conviction, rather than by the tariff alone. Mere delay or failure in providing treatment which might later assist the prisoner to demonstrate reduced risk does not break the causal connection between conviction and detention.

4. The Secretary of State was nevertheless subject to domestic public-law rationality. A policy making release dependent in practice upon treatment would be irrational unless reasonable provision were made for suitable courses. That obligation was qualified by available resources and allowed difficult choices about course design, prisoner suitability and timing. It was not an absolute duty to provide every willing prisoner with a course early enough to maximise the prospect of release at tariff expiry.

5. The allocation policy was rational. A post-tariff life prisoner's exposure to potentially prolonged detention was a relevant consideration, but article 5(4) did not require automatic priority over determinate prisoners approaching release. The policy properly considered risk, sentence length, tariff or parole eligibility dates, motivation and the need for a suitable mixture of prisoners.

6. Arden LJ considered, contrary to the majority on this point, that exceptionally prolonged failure to provide treatment which was in practice a condition of release might break the causal link and violate article 5(1)(a). She suggested that irreversible dementia or extraordinary delay might produce that result. Those extreme circumstances did not arise in this case.

1. Court of Appeal (Civil Division): The substantive application was heard with the appeal and dismissed unanimously: [2003] EWCA Civ 1522.
2. Court of Appeal (permission stage): Buxton LJ granted permission to appeal and directed that the substantive challenge be heard by the full court.
3. High Court, Queen’s Bench Division: Mackay J refused permission to apply for judicial review on 10 February 2003.