Wells v The Parole Board & Anor

Indeterminate detention after expiry of the tariff period requires continuing justification by current and effective assessment of the prisoner’s risk to the public. Regular Parole Board reviews are insufficient if they are not informed by up-to-date information. The Secretary of State must also provide measures that enable and encourage the prisoner to reduce the risk and demonstrate suitability for release. Without those measures, the preventive part of an imprisonment for public protection sentence cannot operate as Parliament intended, and continued detention is unlawful. The conclusion rests on common-law principles and the statutory scheme, independently of the allocation of scarce resources or the European Convention argument rejected in Cawser.

The Divisional Court heard two conjoined judicial review applications concerning the management of short-tariff lifers, particularly prisoners serving imprisonment for public protection. The substantive argument focused on Mr Walker, whose 18-month tariff had not expired and who had received no meaningful offending-behaviour course because of limited prison resources. Mr Wells had already exceeded his tariff, but his Parole Board review had been substantially delayed; the Board had declared that it could not direct release because he had been unable to undertake appropriate courses.

The central issue was whether the Secretary of State’s systemic failure to provide timely opportunities for risk-reduction work, in accordance with the statutory scheme and PSO 4700, was irrational or otherwise unlawful.

1. Application granted in principle. The court held that the Secretary of State’s systemic failure to manage short-tariff lifers in accordance with the statutory scheme and relevant policy could be unlawful. The question was not whether the court should allocate prison resources or exercise executive management powers.
2. An indeterminate sentence has two materially different elements. The tariff period serves punishment, including retribution and deterrence. Detention after tariff expiry serves public protection and requires continuing justification by reference to the prisoner’s current risk.
3. The sentencing court’s assessment under section 225(1)(b) of the Criminal Justice Act 2003 is made at the time of sentence. It does not establish that the prisoner will remain dangerous after the tariff expires. Once the tariff justification is spent, continuing detention requires reasonably up-to-date information enabling the Parole Board to assess whether detention remains necessary.
4. Prompt and regular Parole Board reviews alone are insufficient. Reviews have value only if informed by current evidence of progress. The statutory scheme also requires measures that allow and encourage the prisoner to address offending behaviour and reduce risk. Without such measures, the review process becomes ineffective and continued detention lacks a lawful justification.
5. The court distinguished the European Convention argument from the common-law claim. The majority decision in Cawser prevented an argument that post-tariff detention automatically breached Article 5(1) merely because courses had not been provided. It did not prevent a common-law challenge based on irrationality or the fundamental requirement that preventive detention remain justified.
6. The conclusion did not depend on comparing the cost of complying with PSO 4700 against the cost of non-compliance, nor on assessing the Secretary of State’s recent remedial measures. Relief was to be addressed after hearing further submissions.

This was a first-instance judicial review hearing in the Divisional Court.

• Administrative Court: In Wells proceedings, Sullivan J declared on 19 April 2007 that the Parole Board had violated Article 5(4) by failing to provide a timely hearing, and ordered that the case be heard on 9 May 2007.
• Divisional Court: The present court granted the substantive judicial review application in principle in relation to the systemic management of short-tariff lifers and deferred argument on the appropriate relief.