Dilks, R (on the application of) v The Secretary of State for Justice & Anor

An indeterminate sentence prisoner must be given a reasonable opportunity to reform and demonstrate that he no longer presents an unacceptable risk to the public. The duty concerns reasonable systems and resources, not a guaranteed supply of any particular facility. Whether the ancillary obligation under article 5 of the ECHR has been breached is fact-sensitive and depends on the individual prisoner’s circumstances. A breach does not ordinarily render detention unlawful or require release. Damages may be available for proven prolongation of detention or sufficiently serious frustration and anxiety. Delay caused by an unusual release plan, risk assessment, victim concerns and the search for suitable accommodation does not establish unlawfulness where the system and its administration were reasonable. The claim was dismissed.

The claimant was serving a discretionary life sentence and had completed his tariff. The Parole Board recommended his transfer to open conditions in November 2011, and he was transferred in April 2012. He became eligible for resettlement overnight release in October 2012 but first obtained overnight release at approved premises in March 2014.

He alleged systemic failures by the Secretary of State in providing open prison places and approved-premises accommodation. He relied on the common-law public law duty identified in R (James, Lee and Wells) v Secretary of State for Justice [2009] UKHL 22, the ancillary article 5 obligation explained in R (Haney, Kaiyam and Massey) v Secretary of State for Justice [2014] UKSC 66, article 8, policy inconsistency and discrimination. The central questions were whether unlawful systemic failure caused unreasonable delay and whether the claimant suffered a legally compensable consequence.

1. Transfer to open conditions. The Secretary of State remained in breach of the James public law duty during the relevant period because the waiting-list arrangements did not by themselves cure the earlier failure to make reasonable provision for the foreseeable increase in indeterminate sentence prisoners. The causally potent reason for the delay was the waiting-list system.
2. That breach did not establish an article 5 violation on the facts. A reasonable transfer period was about two months. If transfer had occurred then, the claimant would probably have become eligible for overnight release later rather than sooner because of the applicable eligibility scheme. There was no evidence of frustration or anxiety reaching the necessary threshold, and the claimant had received the other facilities required for progress towards release.
3. Approved premises. The duty was to provide reasonable systems and resources enabling a reasonable opportunity to progress, not specifically to provide approved premises. The evidence showed substantial and reasonable work towards an unusual release plan involving a Buddhist monastery. The later delay resulted principally from the claimant’s proposed destination, risk level, victim-related geographical restrictions, probation-area issues and the unavailability or refusal of particular premises. Once suitable premises accepted him, release on temporary licence was arranged promptly.
4. The common-law irrationality argument added nothing to the public law duty. Article 8 was not engaged by the alleged delays. Even if it had been engaged, any interference would have been justified and proportionate in light of the claimant’s offence, risk and accommodation difficulties.
5. The policy challenge failed because the claimant was treated as high risk throughout the relevant period and there was no evidence that any policy concerning priority for approved premises caused him detriment. The Equality Act 2010 and article 14 claims also failed for lack of evidence of less favourable treatment or causal detriment. The court remained bound by R (Clift) v Secretary of State for the Home Department [2006] UKHL 54 on the meaning of “other status”.
6. Disposition. None of the grounds succeeded. The claim was dismissed.

First-instance judicial review claim. No prior appellate decision in this litigation is stated.