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

The claimant, a post-tariff life prisoner, challenged delays in being transferred to open conditions and in obtaining approved-premises overnight release (ROTL/ROR). The claim was framed under the common law duty identified in R (James, Lee and Wells) v Secretary of State for Justice (the "James public law duty"), Wednesbury irrationality, and under Articles 5 and 8 of the European Convention on Human Rights and the Equality Act 2010.

The court held that the Secretary of State had already identified and implemented lawful measures to address the systemic pressures caused by the growth of indeterminate-sentence prisoners, and that the applicant's shorter delay to transfer to open conditions fell within those broader difficulties and did not on the facts establish actionable Article 5 or Article 8 breaches or unlawful irrationality. As to delay in providing approved-premises for overnight ROTL, the court found the delays were explained by the individual and practical difficulties of the claimant’s atypical release plan (preference for residence in a Buddhist monastery), victim-location constraints, risk assessments and local MAPPA decisions, not by a systemic failure in provision of AP places. Discrimination complaints failed for lack of evidential support. The claim was dismissed.

Background and relief sought

The claimant is a life prisoner who completed his tariff in 2010 but remained detained. He sought relief contending that the Secretary of State had failed to make reasonable provision of systems and resources to enable indeterminate-sentence prisoners to progress towards release, resulting in unlawful delay in (i) transfer from closed to open conditions and (ii) provision of approved-premises (APs) for overnight ROTL. He relied on the James public law duty, Wednesbury irrationality, Article 5 (ancillary duty as described in the Supreme Court in Haney SC) and Article 8 ECHR, and discrimination under the Equality Act 2010 and Article 14.

Key issues

• Whether the Secretary of State was in breach of the James public law duty in respect of the delays complained of.
• Whether any breach of that duty or of Articles 5 or 8 caused a material delay to the claimant’s ultimate release or entitled him to damages for frustration/anxiety.
• Whether policies relating to allocation of APs were irrational or discriminatory (sex or between indeterminate and determinate prisoners).

Court’s reasoning and outcome

The court reviewed the domestic and Strasbourg authorities, including James HL, James ECtHR, Haney SC and Faulkner & Sturnham SC, and the statutory and policy framework (Prison Act 1952; Prison Rules 1999; PSOs/PSIs; Offender Management Act 2007 s.13). The judge accepted that systemic pressures existed and that, at the relevant period, a reasonable remedial scheme had been implemented by NOMS to clear backlogs. He concluded that:

• The short delay (about 4½ months) in transfer to open conditions was explicable by the prioritisation/listing system and local assessment practices and did not, on the facts, cause any delay to eventual release nor reach the threshold for damages for Article 5 frustration/anxiety.
• The longer delay (approximately 18 months) before suitable APs were provided for overnight ROTL was due to case-specific factors: the claimant’s insistence on resettlement in a monastery, the monastery’s refusal, victim-location constraints, local MAPPA and AP decisions, and some practical staffing/transfer interruptions. There was insufficient evidence that the delay resulted from a systemic failure in provision of AP places or resources by the Secretary of State.
• Article 8 was either not engaged or, if engaged, any interference was justified and proportionate. Equality and Article 14 complaints were not supported by evidence and also failed on justification and margin of appreciation grounds.

The judge therefore dismissed the claim, concluding that no mandatory relief, significant declaration or damages were appropriate.

The claim is dismissed. The court found that, although systemic pressures on courses and open places existed and had been the subject of lawful remedial arrangements, the delays relied on by the claimant either did not amount to a breach of the Article 5 ancillary duty causing delayed release or were explained by individual circumstances (release plan, victim-location and MAPPA decisions) rather than by an unlawful systemic failure. Article 8, irrationality and discrimination grounds likewise failed on the evidence.