Liberty - Detention - Sentence of imprisonment for public protection

James and others v United Kingdom (app nos 25119/09, 57715/09 and 57877/09): European Court of Human Rights (Judges Lech Garlicki (president), David Thór Björgvinsson, Nicolas Bratza, George Nicolaou, Zdravka Kalaydjieva, Nebojša Vucinic, Vincent De Gaetano): 18 September 2012

Following the dismissal of their appeals before the House of Lords (see[2009] 4 All ER 255), three linked cases, in which the offenders had been sentenced to indeterminate sentences of imprisonment for public protection (IPP) under section 225 of the Criminal Justice Act 2003 with minimum terms or tariff periods of less than five years, were heard together before the European Court of Human Rights because they raised a similar issue of whether the applicants' detention following the expiry of their tariff periods had breached their right to liberty as guaranteed under article 5(1) of the European Convention on Human Rights. As well as contending that article 5(1) had been breached, the applicants also sought just satisfaction for non-pecuniary loss under article 41 of the convention.

The issue for determination was whether there had been a violation of article 5(1) of the convention in respect of the applicants' detention following the expiry of their tariff periods. An issue arose as to whether one of the purposes of the applicants' detention was their rehabilitation, particularly in the light of the fact that, by virtue of section 142 of the 2003 act, the sentencing objectives were disapplied in the case of sentences for IPP. Consideration was given to the delay in determining whether it had been safe to release the applicants and to reports on the impact on the applicants of the unavailability of treatment courses due to their detention at local prisons following the expiration of their tariff.

The court ruled: (1) The object and purpose of article 5(1) was to ensure that no one was dispossessed of his liberty in an arbitrary fashion. The right of liberty was of fundamental importance. In order to assess whether an applicant's detention post-tariff was arbitrary, the court had to have regard to the detention as a whole. While case law demonstrated that indeterminate detention for the public protection could be justified under article 5(1), it could not be allowed to open the door to arbitrary detention.

For a deprivation of liberty not to be arbitrary there had to be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. The requirement that detention not be arbitrary implied the need for a relationship of proportionality between the ground of detention relied upon and the detention in question.

Where a government sought to rely solely on the risk posed by offenders to the public in order to justify their continued detention, regard had to be had to the need to encourage the rehabilitation of those offenders. In cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation was a necessary element of any part of the detention which was to be justified solely by reference to public protection. Accordingly, one of the purposes of the applicants' detention had been their rehabilitation.

While article 5(1) did not impose any absolute requirement for prisoners to have immediate access to all courses they might require, any restrictions or delays encountered as a result of resource considerations had to be reasonable in all the circumstances of the case, bearing in mind that whether a particular course was made available to a particular prisoner depended entirely on the actions of the authorities (see [187], [194], [195], [201], [209], [218] of the judgment).

In the instant case, where the government had sought to rely solely on the risk posed by offenders to the public in order to justify their continued detention, it had been required to provide the applicants with reasonable opportunities to undertake courses aimed at helping them to address their offending behaviour and the risks they posed. It was significant that substantial periods of time had passed in respect of each of the applicants before they had even begun to make any progress in their sentences.

It was clear that the delays were the result of a lack of resources, and it was significant that the inadequate resources at issue in the instant case appeared to be the consequence of the introduction of draconian measures for indeterminate detention without the necessary planning and without realistic consideration of the impact of the measures. Further, the length of the delays in the applicants' cases had been considerable. It followed, in those circumstances, that there had been a violation of article 5(1) of the convention in respect of the applicants' detention following the expiry of their tariff periods, and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses (see [218], [220]-[222] of the judgment).

A declaration would be made that there had been a violation of article 5(1) of the convention in respect of the applicants' detention following the expiry of their tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses (see [250] of the judgment). Lawless v Ireland (No 3) (application 332/57) 1 EHRR 15 considered; Winterwerp v Netherlands (application 6301/73) 2 EHRR 387 considered; Guzzardi v Italy (application 7367/76) 3 EHRR 333 considered; Bouamar v Belgium (application 9106/80) [1988] ECHR 9106/80 considered; Saadi v United Kingdom (Application No 13229/03) [2008] ECHR 13229/03 considered.

(2) Making an assessment on an equitable basis, the applicants would be awarded €3,000 (in the case of J); €6,200 (in the case of W); and €8,000 (in the case of L) in respect of non-pecuniary damage (see [250] of the judgment).

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