Secretary of State for Justice v Walker

The Secretary of State was under a public-law duty to provide sufficient sentence planning, assessment and rehabilitative opportunities to give prisoners serving imprisonment for public protection a fair chance to demonstrate, by tariff expiry or reasonably soon afterwards, that they no longer posed a danger to the public.

A systemic failure to provide those measures breached that duty. It did not, however, make post-tariff detention unlawful at common law. Under the statutory scheme, release depends upon the Parole Board being satisfied that continued confinement is no longer necessary for public protection. A failure that leaves a review substantively empty may breach Article 5(4) of the ECHR. Delay or failure in rehabilitation does not alone breach Article 5(1), unless detention becomes arbitrary or disproportionate.

Two prisoners serving short-tariff sentences of imprisonment for public protection challenged the failure to provide sentence planning and offending-behaviour work. Neither had received the assessments and courses likely to be needed to demonstrate reduced risk to the Parole Board. One prisoner's tariff had expired; the other's was due to expire shortly.

The Divisional Court, in Walker's case, declared that the Secretary of State had acted unlawfully and stated, obiter, that detention after tariff expiry was unlawful. Collins J applied that reasoning in James's case and ordered his release, subject to a stay. The Secretary of State appealed. The central issues were the public-law duty, the lawfulness of post-tariff detention, and the effect of Article 5(1) and Article 5(4) of the ECHR.

1. Disposition. The appeal concerning Walker was dismissed, because the declaration of public-law breach stood. The appeal concerning James was allowed to the extent that the order for his release was set aside. The respondents' remedy was limited to declaratory relief.
2. Public-law duty. The primary purpose of an IPP sentence under the Criminal Justice Act 2003 is public protection. In practice, the Secretary of State controlled the principal means by which dangerous prisoners could both reduce risk and demonstrate that reduction. The existing policy promised short-tariff lifers priority for the necessary assessment and courses. Having brought the IPP provisions into force, the Secretary of State breached his public-law duty by failing systemically to provide resources that gave prisoners a fair chance to show, by tariff expiry or reasonably soon afterwards, that detention was no longer necessary.
3. Continued detention. That breach did not make detention after tariff expiry unlawful at common law. The express release scheme in the Crime (Sentences) Act 1997 required the Parole Board to be satisfied that continued confinement was no longer necessary for public protection. A prisoner detained consistently with that statutory condition could not be described as unlawfully detained merely because the Secretary of State had breached his public-law duty.
4. Convention rights. An indeterminate sentence remains justified under Article 5(1)(a) while detention is necessary to protect the public. A failure to provide treatment, or a breach of Article 5(4), does not of itself sever the causal link between conviction and detention. But a review is not meaningful where the absence of sentence planning and monitoring makes its adverse outcome effectively predetermined. If that situation continued, it was likely to breach Article 5(4). An unreasonably delayed review could also breach Article 5(1) if it caused detention beyond the proper release date, or if delay became so prolonged that detention was arbitrary. Neither threshold had yet been reached in these cases.

• Court of Appeal (Civil Division). In [2008] EWCA Civ 30, upheld the declaration that the Secretary of State had breached a public-law duty, but rejected the conclusion that post-tariff detention was thereby unlawful. It set aside the release order made for James.
• Divisional Court. Laws LJ and Mitting J held that the Secretary of State had acted unlawfully by failing to provide necessary measures for IPP prisoners. They stated, obiter, that post-tariff detention was unlawful.
• High Court. Collins J applied the Divisional Court's reasoning in James's case, held his detention unlawful and ordered his immediate release, subject to a stay pending appeal.