James, R (on the application of) v Secretary of State for Justice

Where an indeterminate sentence for public protection continues beyond the tariff period, detention must remain justified by the need to protect the public. The prison service must therefore provide reasonable opportunities for the prisoner to undertake relevant risk-reduction courses. If its failure to do so is unlawful and prevents a proper assessment of whether continued detention is necessary, the detention may itself become unlawful. The court recognised that this consequence could require release even where the prisoner might remain dangerous. A possible additional breach of Article 5(4) arises where the failure disables the Parole Board from properly reviewing the lawfulness of detention, but that issue was left for the Court of Appeal.

The claimant was detained under an imprisonment for public protection sentence. His tariff had expired, but he had been unable to undertake sufficient alcohol and anger-management courses because the necessary prison resources and facilities were unavailable. He sought judicial review and release from detention.

The claim was heard as a rolled-up hearing. The court considered the Divisional Court’s decision in Walker v Secretary of State for Justice, which had found the failure to provide necessary courses unlawful, and the related decision concerning Wells. The central questions were whether the claimant’s continued post-tariff detention was unlawful and whether the matter should await the Court of Appeal.

1. Permission and relief. Permission was granted. The judicial review claim was allowed and an order for the claimant’s immediate release was made, but the order was stayed pending an appeal to the Court of Appeal.
2. Unlawful failure to provide courses. The Divisional Court in Walker v Secretary of State for Justice had decided, on domestic-law grounds, that failure to provide measures enabling prisoners serving imprisonment for public protection sentences to demonstrate reduced dangerousness was unlawful. The decision reflected the statutory distinction between the punitive tariff and the protective post-tariff period.
3. Effect on detention. The claimant’s detention after expiry of the tariff was justified only by the need to protect the public. If the prison service’s unlawful failure to provide necessary courses frustrated the legislative purpose and prevented the claimant from properly demonstrating reduced risk, the continued detention could not properly be upheld. The court considered that the reasoning in Walker had considerable force, even though the consequences of the decision were not formally binding at this stage.
4. Article 5(4). The court recognised the possible force of the argument that the Secretary of State’s conduct deprived the Parole Board of a proper opportunity to review the lawfulness of continued detention under Article 5(4). It did not decide that issue, considering it desirable for the Court of Appeal to address it.
5. The costs order in favour of the claimant was also stayed pending appeal. The court indicated that the appeal should, if possible, be heard together with Walker.

This was a first-instance judicial review claim. Permission to appeal to the Court of Appeal was granted, and the release and costs orders were stayed pending that appeal.