Secretary of State for Justice (Respondent) v James (FC) (Appellant) (formerly Walker and another) R (on the application of Lee) (FC) (Appellant) v Secretary of State for Justice (Respondent) and one other action

Under the statutory scheme for imprisonment for public protection, post-tariff detention remains lawful until the Parole Board is satisfied that confinement is no longer necessary for public protection. The Secretary of State has a public law duty to provide prisoners with a reasonable opportunity to demonstrate their safety for release. Breach of that duty may justify declaratory or mandatory public law relief, but does not itself require release or create a common-law right to damages.

Administrative delay or failure to provide rehabilitative courses does not ordinarily break the causal connection required by article 5(1)(a). Article 5(4) requires speedy access to a judicial review of detention and the basic material needed for that review. It does not require the state to equip the prisoner with all material or treatment that might improve the prospect of release.

The conjoined appeals concerned three prisoners serving indeterminate sentences for public protection under section 225 of the Criminal Justice Act 2003. Their short tariff periods expired before the prison system had provided timely assessments, sentence planning, transfers or relevant offending-behaviour courses. James was eventually released and sought compensation. Lee and Wells remained detained and sought release and compensation.

In James's litigation, the Divisional Court declared that the Secretary of State had breached his public law duty. Collins J subsequently ordered James's release, but the Court of Appeal in R (Walker) v Secretary of State for Justice [2008] EWCA Civ 30 set that order aside while affirming the declaration. Lee and Wells appealed from Lee and Wells v Secretary of State for Justice [2008] EWHC 2326 (Admin) under the leapfrog procedure.

The House considered whether the systemic failure made post-tariff detention unlawful at common law or under articles 5(1) or 5(4), and what relief was available.

1. Disposition. Lord Brown delivered the principal analysis. Lord Hope and Lord Judge gave concurring reasons. Lord Carswell and Lord Mance agreed with those speeches. The House unanimously dismissed all three appeals. Lee's and Wells's consequential claims for damages under article 5(4) were nevertheless remitted because the Secretary of State had conceded the former breach and had not appealed the finding of the latter.

2. Public law and statutory detention. Per Lord Brown, Lord Hope and Lord Judge, the statutory scheme and the Secretary of State's adopted policies imposed a public law duty to make reasonable provision enabling prisoners to demonstrate their safety for release. Its systemic breach was deplorable. It did not, however, amend or override section 225(4) of the Criminal Justice Act 2003 or section 28 of the Crime (Sentences) Act 1997. Release remained exclusively for the Parole Board to direct once satisfied that confinement was no longer necessary for public protection. The ordinary public law remedy was declaratory relief, with a mandatory order available where a sufficiently precise duty could be framed. Common-law damages and habeas corpus were unavailable.

3. Nature of an IPP. Per Lord Judge, with whom the other Law Lords agreed, the sentence contained punitive and protective elements. The tariff measured punishment. Post-tariff detention implemented the sentencing court's predictive judgment that the offender would remain dangerous when the punitive period expired. Rehabilitation was a premise of the regime and a requirement of humane administration, but it was not one of the statutory purposes of the pre-2008 IPP provisions.

4. Article 5(1). Per Lord Brown, Lord Hope and Lord Judge, failure to provide courses, assessments or other administrative support did not itself break the causal link between conviction and detention. The link remained while the Parole Board had not determined that continued confinement was unnecessary. A violation might arise after a complete systemic breakdown, or years without any effective review, so that detention became arbitrary. Nothing approaching that threshold had occurred.

5. Article 5(4). Per Lord Brown, Lord Hope and Lord Judge, the Parole Board was an independent judicial body capable of deciding lawfulness and directing release. Article 5(4) required a speedy review, procedural fairness and the basic rule 6 dossier needed for the Board to function. It did not require the Secretary of State to provide every course, assessment or item of evidence that might enable a prisoner to prove safety for release. The Board could lawfully conclude on the available material that it was not satisfied that release was safe.

6. Damages. Per Lord Brown, substantial compensation for the conceded or unappealed article 5(4) breaches would be difficult to justify unless Lee or Wells proved that a proper opportunity would have resulted in release, or at least a real chance of release. Assessment was remitted to the Administrative Court.

1. House of Lords: The House unanimously dismissed all three appeals in Secretary of State for Justice v James; R (Lee) v Secretary of State for Justice; and R (Wells) v Secretary of State for Justice [2009] UKHL 22. Lee's and Wells's damages claims were remitted.
2. Court of Appeal: In R (Walker) v Secretary of State for Justice [2008] EWCA Civ 30, the court affirmed the declaration that the Secretary of State had acted unlawfully, but held that the breach did not make post-tariff detention unlawful. It set aside Collins J's order releasing James.
3. Administrative Court: In Lee and Wells v Secretary of State for Justice [2008] EWHC 2326 (Admin), Moses LJ rejected the article 5(1) claims, recorded a conceded article 5(4) breach concerning Lee, and found a continuing article 5(4) breach concerning Wells. A leapfrog certificate was granted.
4. High Court: In James v Secretary of State for Justice [2007] EWHC 2027 (Admin), Collins J ordered James's immediate release, subject to a stay pending appeal.
5. Divisional Court: In R (Walker) v Secretary of State for Justice [2007] EWHC 1835 (Admin), the court declared that the Secretary of State had failed to provide measures enabling IPP prisoners to demonstrate their safety for release. It also held that detention without a current and effective risk assessment became unlawful, a conclusion later reversed.