Weddle, R (on the application of) v The Secretary of State for Justice

For an indeterminate-sentence prisoner, the common-law rationality duty does not require the Secretary of State to provide an optimal rehabilitation programme or a guaranteed route to release. The question is whether the proposed arrangements afford a real opportunity to demonstrate reduced risk. A challenge succeeds only where the plan is obviously chimerical; shortcomings in detail, timing or prospects of success are insufficient. Article 5 of the European Convention of Human Rights imposes an ancillary and potentially broader duty to provide a reasonable opportunity to rehabilitate and demonstrate that the prisoner no longer presents an unacceptable danger. That duty requires individual assessment but no standard of perfection. The failure of a common-law claim does not automatically defeat an Article 5 claim. It does so where the same reasonable-opportunity inquiry has been applied and denial of such an opportunity has not been established.

The claimant, serving a life sentence for murder, challenged the Secretary of State’s alleged failure to provide sufficient offending-behaviour work and other means of demonstrating reduced risk. His claim was advanced solely at common law. Cranston J allowed the claim and made a declaration of irrationality: [2013] EWHC 2323 (Admin).

On appeal, the Secretary of State argued that the claimant had realistic routes through the Thinking Skills Programme, RESOLVE and possible one-to-one psychological intervention. Following the Supreme Court’s decision in Kaiyam, the claimant sought to advance a cross-appeal based on Article 5 and claimed damages. The central issues were whether the Secretary of State’s position was irrational and whether it breached the ancillary Article 5 duty.

The appeal was allowed and the cross-appeal was dismissed. Lord Justice Underhill gave the judgment, with Lady Justice Black and Lord Justice Vos agreeing.

1. Common-law framework. The common-law duties comprise a duty to provide systems and resources giving indeterminate-sentence prisoners a reasonable opportunity to demonstrate reduced danger, a rationality duty concerning provision and individual treatment, and a duty to comply with current policy. Breach does not make detention unlawful and does not ordinarily give rise to damages. The present claim was confined to rationality.
2. Applicable standard. The decision in R (Kaiyam) v Secretary of State for Justice [2013] EWCA Civ 1587 and R (Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522 did not support a peculiarly intense standard of review. The common-law test remained the high Wednesbury threshold, although intensity may vary with context. A prisoner must show that the arrangements give no real opportunity to demonstrate reduced risk. It is insufficient that the plan is sub-optimal, uncertain, lacking in detail or capable of earlier development. The plan must be obviously chimerical.
3. Application. The Court assessed the Secretary of State’s position at the date of the hearing, as the parties had agreed. Later material clarified that the claimant’s inability to recall the murder was not treated as an absolute bar. The June 2013 plan represented a genuine attempt to plot a route towards re-categorisation and release. There was no inherent reason why TSP, subsequent consideration of RESOLVE and possible one-to-one psychological work could not provide a real opportunity before tariff expiry. The evidence therefore did not establish irrational denial of the means to demonstrate reduced risk.
4. Article 5. Article 5 contains an ancillary duty to provide an individual prisoner with a reasonable opportunity to rehabilitate and demonstrate that he no longer presents an unacceptable danger by tariff expiry or within a reasonable time afterwards. The duty is potentially broader than common-law Wednesbury review, but it does not impose perfection or require maximum coursework. Here the judge had applied a substantially identical reasonable-opportunity inquiry. Since the evidence did not establish denial of such an opportunity, the Article 5 cross-appeal also failed.

• Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed and the claimant’s cross-appeal was dismissed.
• High Court, QBD, Administrative Court: Cranston J allowed the claim and declared that the Secretary of State had acted irrationally in providing courses or other means by which the claimant could demonstrate reduced risk: [2013] EWHC 2323 (Admin).