Kaiyam, R (On the Application Of) v The Secretary of State for Justice

Absent an exceptional basis for departing from domestic precedent, a lower court must apply binding House of Lords authority on Convention claims even where later Strasbourg decisions conflict with it. Section 2(1) of the Human Rights Act 1998 requires Strasbourg jurisprudence to be taken into account, not invariably followed.

For indeterminate-sentence prisoners, the implied public law duty is systemic. The Secretary of State must provide reasonable systems and resources giving prisoners a reasonable opportunity to demonstrate that continued detention is unnecessary. Individual delay does not itself establish systemic failure. A claimant must distinctly and properly plead any challenge to particular irrational decisions or to non-compliance with policy.

The conjoined appeals concerned prisoners detained after expiry of their minimum terms. Mr Haney alleged that delay in transfer to open conditions breached articles 5(1) and 14 of the European Convention on Human Rights. Mr Kaiyam alleged that delay in access to offending-behaviour courses breached article 5(1) and the Secretary of State’s common law public law duty.

Lang J and Supperstone J dismissed the Convention claims because they were bound by [2009] UKHL 22. Lang J also held that [2006] UKHL 54 required dismissal of the article 14 claim. Supperstone J dismissed Mr Kaiyam’s pleaded systemic-duty claim and refused late attempts to advance individual irrationality and breach-of-policy challenges.

The Court of Appeal considered whether permission should be granted to appeal to the Supreme Court and whether Mr Kaiyam’s common law claim had been correctly dismissed.

1. The appeals were dismissed. The court granted permission to appeal to the Supreme Court on the Convention issues. The conflict between domestic authority and the Strasbourg decisions made prompt Supreme Court consideration appropriate. The Court of Appeal declined to hear substantive Convention argument or express views on that conflict.

2. The court was bound to dismiss the Convention claims under R (James and others) v Secretary of State for Justice, [2009] UKHL 22, and, for the article 14 issue, R (Clift and others) v Secretary of State for the Home Department, [2006] UKHL 54. Under Kay, the judges below had correctly followed those authorities. Section 2(1) of the Human Rights Act 1998 required domestic courts only to take Strasbourg jurisprudence into account. Whether the Supreme Court should prefer Strasbourg in these circumstances involved policy questions for that court.

3. The public law duty identified in James was a single systemic duty implicit in the statutory release scheme. The Secretary of State must provide the systems and resources needed to give indeterminate-sentence prisoners a reasonable opportunity, by expiry of the minimum term or reasonably soon afterwards, to demonstrate to the Parole Board that they no longer present an unacceptable public risk. Breach does not make detention unlawful at common law, give an individual a right to damages, or permit release contrary to statute. Public law relief may include a declaration and, where appropriate, a mandatory order to secure proper operation of the system.

4. The Secretary of State also remains subject to the ordinary duties to act rationally and to follow his own policy. Those duties were distinct from the pleaded systemic claim. Mr Kaiyam had not pleaded an irrational individual decision or a free-standing breach of policy. The judge was entitled to refuse the late and insufficiently particularised amendments.

5. Regrettable delay in one prisoner’s access to courses did not, without evidence of deficient systems or resources for indeterminate prisoners as a class, establish breach of the systemic duty. A series of egregious individual delays might evidence a deficient system, but that was not Mr Kaiyam’s case. His claim relied on hindsight and was therefore correctly dismissed.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 1587, dismissed both appeals. Permission was granted to appeal to the Supreme Court on the Convention issues.

• Administrative Court (Lang J): Dismissed Mr Haney’s claims under articles 5(1) and 14, being bound by [2009] UKHL 22 and [2006] UKHL 54. No lower-court citation is stated in the judgment.

• Administrative Court (Supperstone J): Dismissed Mr Kaiyam’s Convention and pleaded common law claims, and refused late attempts to advance differently framed common law challenges. No lower-court citation is stated in the judgment.