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

The public law duty arising from the statutory scheme for imprisonment for public protection is a systemic or target duty. It requires reasonable systems and resources enabling prisoners to demonstrate their safety for release. It does not confer an individual right to receive a particular course, or make every delay in providing rehabilitative work a breach of public law. Individual decisions may instead be challenged on rationality grounds, properly pleaded and particularised. A systemic failure may arise where the relevant system is absent or has broken down, including through an unmanageable backlog. Continued detention does not breach Article 5(1) merely because rehabilitative opportunities were delayed, absent the exceptional circumstances identified in Secretary of State for Justice v James and subsequent authority.

The claimant was serving an imprisonment for public protection sentence imposed under sections 224 and 225 of the Criminal Justice Act 2003. His tariff expired in April 2009. He sought judicial review of an alleged continuing failure, principally between January 2010 and the end of 2012, to provide a reasonable opportunity to undertake rehabilitative work before parole review.

He relied on the public law duty recognised in Secretary of State for Justice v James, decisions concerning systemic prison failures, and Article 5(1) of the Convention. The central issues were whether the James duty was owed individually or concerned the prison system as a whole, whether an irrationality or policy challenge could be introduced at the hearing, and whether the claimant’s detention had become arbitrary.

1. Procedural challenge. The application to adjourn so as to introduce an irrationality challenge was refused. The claim did not identify the individual decisions said to be irrational, and the defendant would require an opportunity to address the detail, delay and evidential difficulties. The claim was therefore treated as a pure James challenge, not a rationality challenge or a challenge based on failure to follow a particular policy.
2. Nature of the public law duty. The statutory scheme, including sections 224 and 225 of the Criminal Justice Act 2003, required the Secretary of State to provide systems and resources enabling IPP prisoners to demonstrate to the Parole Board that continued detention was no longer necessary. That duty concerned the availability and adequacy of the system. It was a target duty and did not create an individual entitlement to particular treatment or a particular course.
3. Systemic failure. The cases relied on by the claimant concerned systemic failures, including a breakdown in the provision of reports, excessive backlogs, or the absence of an effective transfer system. They did not establish that delay affecting one prisoner, assessed with hindsight, constituted a breach of the James duty. The claimant’s complaints concerned decisions at HMP Long Lartin and did not establish systemic failure.
4. Article 5(1). The Article 5(1) claim was dismissed because the court was bound by James. Detention of an IPP prisoner is not arbitrary until the Parole Board has determined that detention is no longer necessary, subject to the exceptional possibility of a complete breakdown preventing the Board from performing its function. The circumstances here did not meet that threshold. The conclusion was reinforced by R (Faulkner) v Secretary of State for Justice and another.
5. Outcome. The claim failed. Permission to appeal was refused.

First-instance judicial review in the Administrative Court. No prior appellate decision in this litigation was stated.