Knights & Anor v Parole Board of England & Wales & Anor

Detention under an imprisonment for public protection sentence remains compatible with Article 5(1)(a) if the domestic sentence remains lawful, its preventive purpose continues to provide a causal connection with detention, and the detention is not otherwise arbitrary. A later, more lenient sentencing regime does not retrospectively invalidate an earlier lawful sentence or require parity between prisoners sentenced under different statutory regimes.

The ancillary duty to provide reasonable opportunities for rehabilitation is assessed by reference to the prisoner’s circumstances as a whole. It does not require maximum provision or release while the prisoner remains dangerous. An unjustified delay in a parole review may breach Article 5(4) and justify damages even where earlier review would not probably have resulted in release.

Two judicial review claims concerned prisoners serving pre-14 July 2008 imprisonment for public protection sentences. James Knights challenged the alleged arbitrariness of his continuing detention, the availability of rehabilitation courses, the effect of later statutory amendments, and alleged breaches of Articles 3, 5 and 14. Terence O’Brien raised similar complaints and additionally challenged delay in arranging a parole review under Article 5(4).

Permission was limited in Knights’s case and granted on specified grounds in O’Brien’s case. Both claimants were eventually directed to be released by the Parole Board. The central issues were whether their detention had become arbitrary or discriminatory, whether rehabilitation opportunities had been reasonable, and whether O’Brien’s delayed review was sufficiently slow to breach Article 5(4).

1. Arbitrariness and sentence length. Detention under Article 5(1)(a) may be arbitrary despite domestic lawfulness where, among other matters, the causal connection between the sentence and detention is broken. Neither claimant established such a break. Their detention continued for public protection because they remained subject to the statutory dangerousness assessment and were considered to present a risk of harm. The court rejected a free-standing Article 5 proportionality challenge based only on the relationship between the tariff and the time actually served.
2. Rehabilitation opportunities. Applying R (Haney) v Secretary of State for Justice [2014] UKSC 66, the relevant question was whether each prisoner had been offered a reasonable opportunity to reform and demonstrate that he no longer presented an unacceptable risk. The assessment required consideration of the whole period, including the prisoner’s history and prognosis, the risks presented, competing prisoners’ needs, available resources, and the use made of rehabilitation opportunities. The duty did not require maximum coursework or the best possible management. Neither claimant established a breach.
3. Article 5(4). O’Brien’s parole review was delayed by approximately three months beyond the period reasonably required. Although individual case-management decisions were generally reasonable, the overall lack of planning, expedition and avoidance of drift was inconsistent with the requirement of speediness. The Secretary of State, rather than the Board, was liable. Earlier review was not shown probably to have resulted in earlier release, but the delay caused frustration and distress. A declaration was insufficient just satisfaction, and £300 damages were awarded.
4. Later sentencing provisions and Article 14. The 2008 amendments did not make the earlier sentences arbitrary or discriminatory. Persons sentenced before and after the commencement date were not in materially analogous situations. In any event, the difference in treatment was justified by the statutory change. The lex mitior principle in Scoppola v Italy (2010) 51 EHRR 12 did not require lawful sentences imposed before commencement to be revisited.
5. Article 3 and final orders. The length and uncertainty of the detention did not reach the very exceptional threshold required for Article 3. O’Brien’s claim succeeded only to the extent of the £300 damages award. All other claims by O’Brien and all claims by Knights were dismissed.

Not an appeal. The judgment describes earlier permission decisions, including limited permission granted by Vos LJ in Knights’s case and permission granted by HHJ Walden-Smith in O’Brien’s case.