Knights v Secretary of State for Justice

An indeterminate sentence for public protection does not become contrary to Article 3 merely because continued detention exceeds the tariff or an equivalent determinate sentence. The relevant question is whether exceptional circumstances make detention grossly disproportionate, having regard to its preventive public-protection purpose and continuing risk. Under Article 5(1)(a), detention remains lawful where a sufficient causal connection with the conviction and sentence persists. Delays in rehabilitation courses are assessed over the period as a whole. The prisoner must have a reasonable opportunity to reduce risk and demonstrate suitability for release, allowing for inevitable waiting, resources, competing prisoners’ needs, history, prognosis and use of opportunities. A prospective change to sentencing law does not, without more, create unjustified Article 14 discrimination between prisoners sentenced before and after the change.

The appellant received an imprisonment for public protection sentence on 26 June 2008, shortly before amendments to the eligibility criteria came into force. His eight-month tariff expired before he had completed the necessary rehabilitation courses. He was later released twice and recalled after breaches of licence conditions.

He brought judicial review proceedings alleging breaches of Articles 3, 5(1) and 14 of the European Convention on Human Rights. Laing J dismissed the claims in [2015] EWHC 136 (Admin). The appeal concerned whether prolonged detention, delays in rehabilitation, and the prospective change in sentencing law made the continued detention unlawful or discriminatory.

Sir Brian Leveson P gave the judgment of the court. Thirlwall LJ and Gilbart J agreed. The appeal was dismissed.

1. Article 3. The appellant’s detention was not to be measured solely against the gravity of the original offences or the equivalent determinate sentence. The IPP was a lawful precautionary sentence directed to public protection. Following the approach in Vinter v United Kingdom, gross disproportionality would arise only in rare and exceptional circumstances. Continued detention remained justified by the risk created by breaches of licence conditions and recalls.
2. Article 5(1)(a). Detention remained sufficiently connected with the lawful sentence and conviction. The court adopted the principles summarised from Saadi v United Kingdom concerning arbitrariness and causal connection. The passage of time, the excess over a hypothetical determinate sentence, and delays in providing courses did not by themselves break that connection. The appellant had received courses, had twice been released, and had been recalled because of continuing public-protection concerns.
3. Rehabilitation. Applying R(Haney) v Secretary of State for Justice, the opportunity for rehabilitation had to be assessed over the period as a whole and in all the circumstances. The standard was a reasonable opportunity, not perfection. Relevant matters included the prisoner’s history and prognosis, risks, competing needs, available resources and use of opportunities. Earlier provision of courses would not necessarily have resulted in earlier release.
4. Article 14. The domestic approach in R (Clift) v Secretary of State for the Home Department remained binding unless reconsidered by the Supreme Court. Consistently with R v Docherty, the difference between offenders sentenced before and after a prospective statutory change was inherent in the change of law and justified. The abolition or amendment of IPP did not retrospectively alter sentences already imposed under the Criminal Justice Act 2003.

• Court of Appeal (Civil Division): Dismissed the appeal against the judgment below.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Laing J dismissed the judicial review claim on 11 February 2015 in [2015] EWHC 136 (Admin).