Fletcher & Ors v Governor of HMP Whatton & Anor, Court of Appeal - Administrative Court, November 03, 2014, [2014] EWHC 3586 (Admin)

Resolution Date:November 03, 2014
Issuing Organization:Administrative Court
Actores:Fletcher & Ors v Governor of HMP Whatton & Anor

Neutral Citation Number: [2014] EWHC 3586 (Admin)

Case No: CO/11203/2013; 14504/2013 and14710/2013




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 03/11/2014

Before :


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Between :

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Philip Rule (instructed by Chivers Solicitors) for the First and Second Claimants

Alexander dos Santos (instructed by EBR Attridge LLP) for the Third Claimant

David Lowe (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 21 and 22 October 2014

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Mr Justice Dingemans :


  1. These cases raise an important issue about the extent to which the public law duty, confirmed by the House of Lords in R(James, Lee & Wells) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553, on the Secretary of State for Justice (``the Secretary of State'') can be modified or affected by the level of resources made available by the Secretary of State. The public law duty is a duty on the Secretary of State to provide systems and resources that prisoners serving indeterminate sentences for public protection (``IPP's'') need to demonstrate to the Parole Board, by the time of expiry of their tariff periods, or reasonably soon thereafter, that it is no longer necessary for the protection of the public that they remain in detention.

  2. Each of the Claimants has now served the original tariff that was imposed on him by the Courts under the IPP. Each of the Claimants has, to date, waited at least two years for the Healthy Sex Programme (``HSP'') course which he has been recommended to undertake and is on his critical path to a recommendation for release from the Parole Board. The earliest that any of the Claimants is predicted to access the HSP, if the matter is not remedied, is a further 6-18 months from the date of this judgment. The latest that any of the Claimants is predicted to access the HSP is a further 2 ½ - 3 ½ years from the date of this judgment, which would be between 5 ½ and 6 ½ years after the recommendation that that Claimant undertake the HSP.

  3. The Claimants complain that the Secretary of State is acting in breach of the public law confirmed duty. The Secretary of State accepts that there is a public law duty, but contended at the hearing that the duty has been discharged having regard to the available resources, and resisted the Claimants' claims.

  4. The First, Second and Third Claimants also claim an infringement of article 5(1) of the European Convention of Human Rights (``ECHR'') and just satisfaction, and the Third Claimant makes a claim for infringement of article 5(4) of the ECHR and just satisfaction. All the claims for infringement of article 5 of the ECHR are resisted.

    A brief history of IPP's

  5. IPP's were provided for by section 225 of the Criminal Justice Act 2003 (``the 2003 Act''). IPP's came into effect on 4 April 2005. Under an IPP the Court is required to specify a minimum period by way of tariff after the expiry of which the prisoner is eligible for review by the Parole Board who might direct his release on licence. The tariff represents the equivalent to the period of imprisonment which the prisoner would have served as punishment under a determinate sentence of imprisonment.

  6. The provisions of section 225 of the 2003 Act were described by Lord Carswell in R(James, Lee & Wells) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553 at paragraph 23 as ``draconian''. Lord Carswell noted that chaos was caused ``when for some unfathomable reason it was decided that the new scheme would be resource-neutral and so sufficient facilities necessary for IPP prisoners to demonstrate their fitness for release were not made available''. Lord Judge CJ recorded, at paragraph 121 of the same judgment, that ``the preparation for the inevitable consequences of the new sentencing provisions relating to IPP's was wholly inadequate. To put it bluntly, they were comprehensively unresourced''. Lord Hope, at paragraph 3, considered that the Secretary of State had ``failed deplorably'' in the duty to make adequate provision for those serving IPP's.

  7. The statutory provisions relating to IPP's were significantly amended with effect from 14 July 2008, when rebuttable presumptions to the effect that certain offenders who had committed offences specified in schedules to the 2003 Act were dangerous were abolished, and minimum tariff periods of 2 years were required to be imposed before an IPP could be imposed.

  8. In R(James, Lee and Wells), decided on 6 May 2009, the amendment of the statutory provisions was recorded, and it was noted that steps had been taken to address the future problem of access to courses. The Divisional Court had made a declaration, which had been affirmed by the Court of Appeal and which was not appealed by the Secretary of State, to the effect that ``the Secretary of State had acted unlawfully by failing to provide for measures to allow and encourage prisoners serving IPP's to demonstrate to the Parole Board by the expiry of their minimum terms that it was no longer necessary for the protection of the public to be confined'', see [2008] 1 WLR 1977 at 1980B. It appeared to be the common expectation of the parties at the hearing in the House of Lords that the problems of the lack of access to courses for those serving IPP's would be resolved.

  9. However there were other problems with IPP's. Decided cases since R(James, Lee and Wells) show that other prisoners subject to IPP's have brought a number of different challenges to the regime. There were delays in arranging hearings before the Parole Board, see R(Betteridge) v The Parole Board [2009] EWHC 1638 (Admin), a decision of the Administrative Court dated 23 June 2009, where, at paragraph 28 a breach of article 5(4) of the European Convention of Human Rights (``ECHR'') was recorded ``because of the lack of man power having regard to the pressures on the Board''. In R(Guittard) v Secretary of State for Justice [2009] EWHC 2951 (Admin), a decision of the Administrative Court dated 18 November 2009, other failings in ensuring that prisoners subject to IPP's could progress through the system were noted, see paragraphs 1, 8 and 24.

  10. Parliament again addressed the issue and IPP's were abolished by the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which was brought into force on 3 December 2012. However that left those in prison, including the Claimants, who had been sentenced to IPP's and who had not yet been released, still subject to the IPP regime.

  11. Recent cases have shown that, notwithstanding the optimism expressed in R(James, Lee and Wells), the Secretary of State has continued to act in breach of the public law duty. In R(Massey and Robinson) v HMP Whatton and Secretary of State for Justice [2013] EWHC 3777 (Admin), a decision of the Divisional Court dated 4 December 2013, at paragraph 62 it was recorded that ``the Secretary of State is in continuing breach of the James public law duty'', although a declaration was refused because the judgment was sufficient to recognise the breach and the Claimants had, by the time of the judgment, been provided access to the courses.

  12. In R(Kaiyam and Haney) v Secretary of State for Justice [2013] EWCA Civ 1587; [2014] 1 WLR 1208, a decision of the Court of Appeal dated 9 December 2013, it was common ground that the concession on behalf of the Secretary of State made at first instance in Haney to the effect that there had been a breach of the James public law duty was properly made. There had been no breach in the case of Kaiyam.

    Relevant policies

  13. Prison Service Order (``PSO'') 4700 provides at paragraph 4.1.1 that prisoners serving indeterminate sentences of imprisonment (``ISP's''), which includes prisoners serving IPP's, ``will be managed through their sentence plan with the primary aim being to meet their individual needs and help them to reduce the risk of serious harm they present to the public, in line with the principles of offender management and in the light of the principle that the ultimate responsibility for demonstrating a reduction in risk lies with the offender''. Plans aim to identify risks which must be reduced and offer timely delivery of properly identified interventions, having regard to available resources, so that Parole Board reviews could be meaningful.

  14. The HSP Guidance for staff carrying out assessment for suitability, dated April 2013, provides at page 21 for prioritising HSP treatment places. It is noted that once considered suitable and ready the prioritisation strategy was for: determinate prisoners in the last 12 months of sentence and indeterminate sentence offenders who are post tariff; determinate or indeterminate offenders in the last 2 years before tariff expiry or release; and determinate or indeterminate offenders of any risk level with longer than 2 years before tariff expiry/release. The Guidance continues ``When deciding on the allocation of limited treatment places, it is recommended that additional factors are taken into consideration''. The Guidance went on to list factors including dynamic and static risk, likelihood of positive impact, how long the individual had been waiting, timing of parole hearings and time remaining on sentences.

  15. The NOMS Commissioning Intentions from 2014 note that Indeterminate Sentence Prisoners ``need to receive sufficient case management to enable them to progress towards safe release by the Parole Board. Case management should be highest where an ISP is post-tariff and/or not progressing at Parole hearings''.

    Relevant sentences and dates for each Claimant

  16. I now turn to set out the relevant dates for each Claimant, which are now common ground between the parties.

    The First...

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