Practice and Procedure


PUBLISHED November 5, 2003

The Home Secretary was under a duty to provide sex offender treatment programmes for prisoners qualified by the extent of available resources and subject only to a public law duty to act rationally.Application for judicial review of failure of the defendant ('the Home Secretary') to place the applicant ('C') on an extended sex offender treatment programme ('ESOTP') in time to avoid the delay of his likely release date. C was serving a life sentence, after being found guilty of his second offence of rape. The tariff was set at two years and six months. Only very exceptionally would a life sentence prisoner convicted of sex offences be able to secure his release without having successfully attended a sex offender treatment programme. There were not enough of these courses available. C was approved as suitable for an ESOTP in November 2001 and had to wait 21 months until August 2003 when a place became available. The tariff part of C's sentence expired in August 2001 and the delay in attending a course set back his likely release date. C's essential submission was that the Home Secretary was under a duty, albeit one qualified by any lack of resources, to provide sufficient courses to enable life sentence prisoners who might benefit from them to undertake such a course with a view to a parole board review in the light of it or as soon as possible after their tariff expiry date. C submitted that, but for this duty, C's continued detention had to be regarded as disproportionate and arbitrary and thus contrary to Art.5(1)(a) of the European Convention on Human Rights.HELD: (1) The Home Secretary was, within the limits of available resources, providing a reasonable and increasing number of courses. C expressly accepted that any lack of resources qualified the Home Secretary's duty. It was not for the courts to determine what resources should be made available for the provision of treatment courses. The Home Secretary was subject to a public law duty to act rationally. Detention would not become unlawful under Art.5(1) even were no provision made for such courses. (2) The prisoner's duty to undertake courses only arose if the courses were offered. (3) The Home Secretary's approach to allocating places on courses to life sentence prisoners compared to determinate sentence prisoners was not open to criticism. (4) (per Arden LJ) In a very exceptional case the failure of the Home Secretary to provide a particular prisoner with an appropriate treatment course, which in practice was a condition of release, could, if sufficiently prolonged, break the causal link between the conviction and the period of the sentence and render the detention contrary to Art.5(1)(a) of the Convention. It was conceivable that a violation of Art.5(1)(a) could occur in a case where there was no breach by the Home Secretary of his duty under domestic law to act rationally.Application dismissed.

[2003] EWCA Civ 1522