Secretary of State for Justice v James

The House held that although the Secretary of State had been in systemic breach of his public law duty to provide the administrative resources and courses necessary to enable prisoners serving indeterminate sentences for public protection (IPPs) to demonstrate to the Parole Board that they were safe for release, that breach did not render post-tariff detention unlawful at common law. The court applied the statutory structure—in particular section 225 of the Criminal Justice Act 2003 and the release provisions in section 28 of the Crime (Sentences) Act 1997—and concluded that detention after tariff expiry remains lawful until the Parole Board, acting under section 28(6)(b), is satisfied that continued confinement is no longer necessary.

The House further held that there was no breach of article 5(1) of the European Convention on Human Rights: mere delay or lack of rehabilitative provision did not break the causal link between conviction and detention unless the review system broke down entirely over a prolonged period. On article 5(4) the court concluded that the Parole Board procedure satisfies the Convention's requirement for a court to decide lawfulness; article 5(4) does not require the Secretary of State to ensure that every evidential or treatment need is met to enable a prisoner to prove safety for release, although where it is impossible for the Board to carry out any meaningful review an article 5(4) breach will arise.

This appeal concerned three prisoners serving indeterminate sentences for public protection (IPPs) who complained about delay and lack of access to courses and assessments necessary to enable the Parole Board to decide whether they could safely be released after expiry of their tariff periods. The Secretary of State accepted a systemic public law failure to provide adequate resources and programmes for IPP prisoners. The issues were whether that failure made post-tariff detention unlawful at common law, whether it breached article 5(1) ECHR (lawful detention after conviction), whether it breached article 5(4) ECHR (entitlement to prompt judicial review of continuing lawfulness), and what remedies followed.

• Procedural and factual background: The Divisional Court (Laws LJ and Mitting J) had earlier granted a declaration of unlawful administration; Collins J ordered Mr James released (stay pending appeal); the Court of Appeal ([2008] EWCA Civ 30) upheld the declaration of administrative breach but held that detention was not unlawful at common law; Moses LJ in the Administrative Court found breaches of article 5(4) in relation to two appellants (conceded for one; unappealed for the other). The appeals reached the House of Lords.
• Legal issues framed: (i) Common law unlawfulness of post-tariff detention caused by administrative failure; (ii) breach of article 5(1) ECHR; (iii) breach of article 5(4) ECHR; (iv) appropriate remedies, including damages under the Human Rights Act 1998.
• Court’s reasoning: The House accepted that the Secretary of State had failed in his public law duty to provide systems and courses implicit in the IPP statutory scheme (notably under section 225 CJA 2003 and the Parole Board rules and policy). However, the statutory release scheme (section 28 of the Crime (Sentences) Act 1997 as applied by section 225(4) CJA 2003) means detention remains lawful until the Parole Board directs release; therefore common law unlawfulness did not follow. On article 5(1) the court held that the causal link between conviction and detention is not broken by resource failures unless the review system is rendered inoperative for a very prolonged period. On article 5(4) the House held that the Parole Board review procedure is the required judicial review of lawfulness; article 5(4) requires availability of a meaningful review but does not impose on the Secretary of State a general duty to provide every evidential/treatment measure to enable the prisoner to prove safety for release. Where the Parole Board cannot carry out any meaningful review because essential material has been withheld or unavailable for a prolonged period, article 5(4) will be breached. The Secretary of State conceded a breach of article 5(4) in one appellant's case and did not appeal the other, so remittance for assessment of damages was appropriate for those claims.

Appeal dismissed. The House held that (i) the Secretary of State had been in systemic breach of his public law duty to provide opportunities and resources for IPP prisoners to demonstrate safety for release, but that breach did not make post-tariff detention unlawful at common law; (ii) there was no violation of article 5(1) ECHR in the appellants' cases because the causal link between conviction and detention remains until the Parole Board decides otherwise (absent an extreme prolonged breakdown of the review system); and (iii) article 5(4) does not require the Secretary of State to ensure provision of every course or assessment for evidential purposes, although an article 5(4) breach will arise if the Parole Board is for a prolonged period unable to carry out any meaningful review. Consequential claims under article 5(4) conceded or found below were to be remitted for assessment of damages where appropriate.

Divisional Court (Laws LJ and Mitting J) declaration of unlawful administration: R (Walker) v Secretary of State for Justice [2007] EWHC 1835 (Admin); Collins J ordered release of James: James v Secretary of State for Justice [2007] EWHC 2027 (Admin) (stay pending appeal); Court of Appeal allowed declaratory relief but rejected finding that post-tariff detention was unlawful: R (Walker) v Secretary of State for Justice (Parole Board intervening) [2008] EWCA Civ 30; Moses LJ (Administrative Court) considered Lee and Wells: [2008] EWHC 2326 (Admin). The appeals came to the House of Lords by leave and were dismissed on 6 May 2009.