Fletcher & Ors v Governor of HMP Whatton & Anor

The Secretary of State owes prisoners serving indeterminate sentences for public protection a public law duty to provide the systems and resources needed to demonstrate to the Parole Board that continued detention is no longer necessary, by expiry of the tariff period or reasonably soon afterwards. The court must respect the Secretary of State’s policy responsibility and should not micro-manage how the duty is discharged. However, a serious and continuing breach may justify mandatory relief where delay remains substantial and indefinite detention results. The court may instead reserve liberty to apply where there is a credible, near-term course of action, while ensuring that the claimant is not again neglected.

The claimants were prisoners serving indeterminate sentences for public protection. Each had completed the tariff part of the sentence and had been identified as requiring the Healthy Sex Programme course before the Parole Board could consider release.

Earlier hearings had established a breach of the public law duty and adjourned relief while the Secretary of State took steps to increase course provision. By the October 2015 hearing, the first and third claimants had completed the course, but the second claimant faced a possible delay of up to five years after expiry of his tariff. Further evidence indicated that a course would probably be offered in April–June 2016. The issue was whether further hearing or relief was required in respect of the continuing breach.

1. Relief. The court found that there had been, and remained, a serious and continuing breach of the public law duty. The intended delay of up to five years after expiry of the second claimant’s tariff demonstrated that the arrangements for prisoners serving IPP sentences had seriously failed.
2. Scope of the duty. It was for the Secretary of State to decide how to discharge the duty. The court would not manage the provision of courses, since that involved policy questions and matters of administrative expertise. The interests of other IPP prisoners waiting for courses also had to be taken into account.
3. Mandatory relief. The court recognised that the continuing detention of IPP prisoners after expiry of their tariffs, caused by executive breach of the duty, raised issues which the courts had to ensure were addressed. This reflected the principle that the courts should resist indefinite detention by executive action, as stated in R(Lumba) v Secretary of State for the Home Department [2012] 2 AC 245. The practical difficulties of resolving the backlog immediately were acknowledged, following R(Kaiyam) v Secretary of State for Justice [2014] UKSC 66.
4. Because the further evidence gave high confidence that the second claimant would be offered a course in April–June 2016, a mandatory order was no longer necessary. The second claimant was given permission to apply for further or other relief if he was not provided with access to a course commencing in that period.

The judgment records earlier relief hearings in the same proceedings. A declaration of breach was made on 3 November 2014 in [2014] EWHC 3586 (Admin). Relief was then adjourned. A further judgment dated 19 December 2014 recorded the steps being taken by the Secretary of State and again adjourned relief in [2014] EWHC 4338 (Admin). This judgment finally addressed the outstanding relief.