Robinson, R (on the application of) v HMP Whatton & Anor

The Secretary of State must make reasonable provision of systems and resources enabling prisoners serving sentences of imprisonment for public protection to demonstrate to the Parole Board, by tariff expiry or reasonably soon afterwards, that they are safe for release. The duty is not absolute, and compliance is for the court to assess on all the evidence.

Resource-allocation decisions are subject to ordinary irrationality review. It is lawful to prioritise determinate-sentence prisoners with imminent release dates and to give substantial weight to tariff expiry dates. A rehabilitative course’s importance does not, by itself, engage article 8. A lengthy interval between Parole Board reviews is lawful where the proposed work and timetable are realistic and properly justified.

Two prisoners serving sentences of imprisonment for public protection brought judicial review claims against the Secretary of State and, in Mr Robinson’s case, the Governor of HMP Whatton. Both tariffs had expired, and both alleged excessive delay in obtaining the Extended Sexual Offenders Treatment Programme, which was considered necessary before a realistic prospect of release.

The claims challenged the provision and allocation of rehabilitative resources, the lawfulness of continued post-tariff detention under article 5(1)(a) of the Convention, interference with article 8 rights, and, in Mr Massey’s case, the 21-month interval fixed before his next Parole Board review under article 5(4).

1. Public law duty. The duty recognised in R (James) v Secretary of State for Justice [2009] UKHL 22, [2010] 1 AC 553 required reasonable provision of systems and resources. It was neither an absolute duty nor satisfied merely by showing rationality. The court had to decide, on the evidence, whether reasonable provision had been made to give IPP prisoners a reasonable opportunity to demonstrate their safety for release by tariff expiry or reasonably soon afterwards.
2. The evidence showed a continuing systemic shortage of ESOTP places. The Secretary of State was therefore in continuing breach of that duty. The claimants had since obtained access to the course, however, so no declaration was made at their behest.
3. Allocation of resources. The challenge to prioritisation was an ordinary irrationality challenge. It was rational to include determinate-sentence prisoners with imminent release dates because the course reduced risks to the public and could not realistically be completed in open conditions or on licence. It was permissible, but not mandatory, to consider tariff length or waiting-list duration. Concentrating on tariff expiry dates and applying the NOMS criteria in the manner used was not irrational.
4. Article 5(1)(a). Applying the domestic approach in James, the delays did not break the causal connection between conviction and detention and were nowhere near the extreme breakdown capable of rendering detention arbitrary. Even on the approach in James & Others v United Kingdom (2013) 56 EHRR 12, the claimants had been substantially progressed through the prison system; the ESOTP delay alone did not make detention arbitrary.
5. Article 8. Delay in access to a rehabilitative course did not sufficiently engage private or family life. Release and transfer to open conditions involved separate decisions based on a wider risk assessment, of which course completion was only one consideration. Permission was granted to include the issue, but the substantive claim was rejected.
6. Article 5(4). The court adopted the principles summarised in R (Parratt) v Secretary of State for Justice [2013] EWHC 17 (Admin), [2013] ACD 59. The court itself had to decide whether the review period was appropriate, while giving due regard to the Secretary of State’s expertise. The 21-month period was lengthy but justified by a realistic timetable for ESOTP, post-programme assessment, further work and reporting.
7. Both claims were dismissed.