Lee & Anor, R (on the application of) v Secretary of State for Justice

Continued detention under an indeterminate sentence for public protection remains lawful where the Parole Board can reasonably determine that the prisoner continues to present a danger, even if the Secretary of State has failed to provide rehabilitative courses. The failure to provide courses becomes legally significant where it prevents any reliable assessment of whether the prisoner remains dangerous. In that event, the original justification for detention may cease to exist and the causal link between the sentence and continued detention may be broken for the purposes of article 5(1) of the Convention. The court must determine the lawfulness of detention independently of the Parole Board’s statutory release function. A continuing failure to provide courses after an acknowledged breach of article 5(4) may itself constitute a further breach.

Two serving prisoners, Lee and Wells, challenged their continued detention under pre-amendment indeterminate sentences for public protection. Both had received minimum terms of less than two years and could not have received such sentences under the amended statutory scheme.

Both relied on failures to provide accredited courses and assessment opportunities. Lee’s article 5(4) breach was conceded. Wells had previously obtained a declaration from Sullivan J that article 5(4) had been violated. The central issue was whether those failures had broken the causal link between the original sentences and continued detention under article 5(1). A further issue in Wells’s case was whether the continuing failure to provide courses constituted a breach of article 5(4).

1. Article 5(1). The purpose of an IPP sentence was principally to protect the public from a prisoner considered dangerous at sentence, but also to provide a fair opportunity to cease to be dangerous and demonstrate that fact. The original sentence did not justify detention indefinitely without up-to-date assessment.
2. The mere failure to provide courses did not, by itself, breach article 5(1). If the Parole Board could still conclude on the available evidence that the prisoner remained dangerous, the primary justification for detention continued, even where the absence of courses was not the prisoner’s fault.
3. The position differed where the absence of courses and current assessment meant that it could no longer be ascertained whether the prisoner was dangerous. In that situation the prisoner was not to be assumed to remain dangerous, and the original justification for detention ceased. The causal link with the original sentence was then broken.
4. The court had to decide the lawfulness of detention itself. It could not defer that question to the Parole Board, although the evidence before both bodies might overlap. In Lee’s case, the evidence did not establish that his dangerousness could not be ascertained. In Wells’s case, his history, prison behaviour and risk assessment permitted a conclusion that he remained at risk. Both article 5(1) claims therefore failed.
5. Article 5(4). In Wells’s case, the continuing failure to provide the courses identified as necessary, following the earlier declaration of breach, constituted a further breach of article 5(4). The Secretary of State’s argument that Wells’s behaviour had prevented transfer did not overcome the evidence that his behaviour was at least partly attributable to the earlier failure to provide the courses.
6. The court declined to determine the appropriate remedy had article 5(1) been breached. It made no order as to costs and permitted appeals in both cases.

This was a first-instance judicial review. The judgment referred to an earlier declaration by Sullivan J that Wells’s rights under article 5(4) had been violated, and to the Court of Appeal’s decision in Secretary of State for Justice v Walker [2008] EWCA Civ 30.