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

A prisoner’s individual delay in accessing offending-behaviour work does not, without wider evidence, establish a systemic breach of any public law duty to provide reasonable resources for demonstrating suitability for release. Systemic failure must be assessed by reference to the prison estate generally and cannot be inferred simply by extrapolating from one prisoner’s experience. The duty recognised in R (Walker) v Secretary of State was confined to the additional resources required when imprisonment for public protection was introduced. A fact-sensitive claim based on maladministration affecting an individual prisoner is generally unsuitable for determination by judicial review.

The claimant was serving a life sentence with a minimum tariff expiring in February 2012. He sought permission for judicial review concerning delay in assessment for the Cognitive Self Change Programme and transfer to a prison providing it. He argued that the delay breached a public law duty to provide a reasonable opportunity to demonstrate that continued detention was justified after expiry of the tariff, and raised an alternative argument under Article 14 of the Convention. The central issue was whether his individual circumstances established an unlawful systemic failure or otherwise justified judicial review.

1. Permission refused. The claim as formulated was not reasonably arguable.
2. The principles derived from R (Walker) v Secretary of State, [2010] 1 AC 553, and the Court of Appeal decision reported at [2008] WLR 1977, were that a systemic failure to make reasonable provision enabling prisoners to demonstrate their safety for release could breach public law obligations. Detention during the tariff period remained compatible with Article 5(1), and detention after the tariff date became unlawful only if the failure persisted for an unreasonable period.
3. The Walker duty arose from the specific failure to provide the additional resources required when imprisonment for public protection was introduced by the Criminal Justice Act 2003. The Secretary of State’s position that that duty did not apply to this life-sentence prisoner did not deny the existence of any wider obligation owed to life prisoners.
4. Even assuming that a duty was owed to life prisoners to make reasonable provision for demonstrating that they were safe to release, the claimant’s waiting time did not establish a systemic breach. His position could have resulted from several factors. Evidence concerning the prison estate generally would be required, and it was illegitimate to extrapolate from the particular to the general.
5. The Article 14 argument could not succeed because Article 5 was not engaged while the claimant remained within his tariff period. The court accepted the principle stated in Clift v The United Kingdom (Application no. 7205/07).
6. A possible claim based on maladministration causing an extended period of detention would be fact-sensitive and require detailed investigation, including of the claimant’s prison history. It was unsuitable for determination by judicial review.