GJD v Governor of HMP Wakefield Secretary of State for Justice

A detention ordered by a court is not generally arbitrary for the purposes of Article 5 merely because the sentencing judge made an error about the existence of a particular power. The relevant question is whether the judicial decision was arbitrary, assessed by the high threshold of a gross and obvious irregularity. A good-faith, reasoned decision following a genuine attempt to apply the law will normally satisfy that standard. An IPP prisoner is also entitled to a reasonable opportunity to rehabilitate himself and demonstrate that continued detention is unnecessary. That duty is assessed on the evidence in the individual case; systemic defects do not automatically establish a breach.

The claimant had been sentenced in 2006 to imprisonment for public protection for an offence committed before that sentencing regime applied. The Divisional Court held that the sentence remained valid until set aside, and the Court of Appeal Criminal Division later quashed it and substituted a determinate sentence, under which the claimant should have been released in November 2013.

The claimant sought damages under the Human Rights Act 1998 for detention between November 2013 and his release in February 2015, alleging direct and ancillary breaches of Article 5. He also alleged failures in sentence planning and rehabilitation opportunities. The issues were whether the detention was arbitrary or otherwise unlawful, and whether the Secretary of State had breached the ancillary duty recognised in Kaiyam.

1. The claim failed. The claimant’s detention under the IPP order was lawful in domestic law until the sentence was quashed by the Court of Appeal Criminal Division. The sentencing judge had jurisdiction over the offence and had power to impose an indeterminate or extended sentence which would probably have resulted in detention during the period claimed.
2. For Article 5 purposes, an error as to the existence of a sentencing power will not generally make detention arbitrary where the judge acted in good faith, followed a fair procedure, gave reasons and genuinely attempted to apply the law. The applicable safeguard is the high threshold of a gross and obvious irregularity, understood in the context of arbitrariness under Article 5. A want of the particular power exercised is not, without more, a lack of jurisdiction or arbitrariness.
3. The claimant could not establish a broken causal link between the offence, the risk presented and his continued detention. The Parole Board system had not collapsed in his case, relevant risk material existed, and the claimant remained a significant risk of serious harm.
4. The Secretary of State owed an ancillary duty to provide a prisoner serving an IPP sentence with a reasonable opportunity to rehabilitate himself and demonstrate that continued confinement was unnecessary. That duty was not breached on the facts. The claimant had access to the principal programme suited to his risk category, further work was recommended, and subsequent delays resulted from the withdrawal of an ineffective programme, the claimant’s placement preferences and his unsuitability for particular therapeutic communities.
5. No award of damages was justified. The claim was dismissed on its merits, without reliance on limitation.

• Divisional Court: In the habeas corpus proceedings, the court held that the sentence, although beyond the sentencing judge’s powers, remained a valid order until set aside by the Court of Appeal Criminal Division: [2015] EWHC 3501 (Admin).
• Court of Appeal Criminal Division: The IPP sentence was quashed and replaced with a determinate sentence of 12 years, an extended licence period under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, and a Sexual Offences Prevention Order: [2015] EWCA Crim 599.