This guest post is by Nicky Padfield. She teaches at the Faculty of Law, University of Cambridge, and is a Fellow of Fitzwilliam College, Cambridge. In her post, she considers today’s judgment by the European Court of Human Rights in James, Wells and Lee v UK.
“Imprisonment for public protection” – or “IPP” – was invented in the Criminal Justice Act 2003 as an indeterminate sentence for “dangerous” offenders. Even after they have served the “punishment” part of their sentence, they can’t be released until they are judged no longer to be dangerous. Most offenders can be seen as dangerous: I think students who ride their bikes after dark without lights are “dangerous”. But I don’t think they should have a life or indeterminate sentence!
If you do have a system which gives people a sentence made up of a “tariff” – a minimum term which is the “punishment” part of the sentence – and then say they won’t be released after that until the Parole Board thinks it is safe to do so, you have to give them very clear ways to show that their “dangerousness” has diminished. Or they risk staying in prison for ever! So the prison authorities have to be vigilant in helping them work their way through the “system” and someone (probation officers? They are also under huge pressure today) has to help them prepare a convincing release plan.
It is not very surprising that the Chamber of the European Court of Human Rights decided as it did today: Jack Straw had agreed when he was Minister for Justice that by failing to provide suitable courses in prison for IPP prisoners “he was in breach of his public law duty” (see Lord Brown, para.28 in Wells v Parole Board). As Lord Hope said in the same case:
“there is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection (“IPPs”) by section 225 of the Criminal Justice Act 2003 . He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention” (at para.3).
But in the Wells case, the House of Lords had held unanimously that even though the Minister was clearly in breach of his public law duty to provide adequate courses in prison (to enable IPP prisoners to demonstrate their safety for release), this breach of duty did not render their detention unlawful! Why was this? They did not agree with Laws L.J.’s finding in the Divisional Court that post tariff detention without any current and effective assessment of the danger that a prisoner may pose to the public renders that detention unlawful: a prisoner’s detention is lawful until the Parole Board gives a direction for his release. Lord Judge states that detention beyond the tariff is justified because the sentencing court, in imposing the indeterminate sentence, has decided that the prisoner will continue to be dangerous at the expiry of the punitive element of the sentence: the sentencing court has made this “necessary predictive judgment” (at para.101). For Lord Hope, “the default position is that until the direction [to release] is given protection of the public requires that the prisoner should be confined” (para.6). IPP puts you inside indefinitely, until or unless the Parole Board recommends release. So the prisoners lost in the House of Lords.
Why did the European Court of Human Rights reach a different decision today? The Court was concerned in particular with Article 5(1) of the European Convention on Human Rights. Article 5(1) says that we all have the right to liberty, and that that right can be limited only in certain circumstances – including “the lawful detention of a person after conviction by a competent court”.
The European Court found that indeterminate detention for public protection could be justified under Article 5(1), but that it could not be allowed to open the door to “arbitrary detention”. Where a prisoner was in detention solely on the grounds of the risk that he was perceived to pose, regard had to be had to the need to encourage his rehabilitation. In the applicants’ cases, this meant that they had to be given reasonable opportunities to undertake courses aimed at addressing their offending behaviour and the risks they posed. 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 due to resource considerations had to remain “reasonable”. Following the expiry of the applicants’ tariff periods and until steps had been taken to progress them through the prison system with a view to their access to appropriate rehabilitative courses, their detention had been arbitrary and therefore unlawful within the meaning of Article 5(1).
Doubtless the “Eurosceptics” will laugh at the fact that the judges were from Poland, Iceland, Cyprus, Bulgaria, Montenegro and Malta, as well as from the UK (Sir Nicolas Bratza). The new Justice Secretary, Chris Grayling, has already said he will appeal to the Grand Chamber of the European Court. But from where I sit, the ECtHR has it right: it is high time that we looked behind initial sentencing decisions and worried a lot more about the realities of the way sentences are implemented in this country. Many prisoners sit in prison wasting an awful lot of time, costing the tax payer a lot of money. I wrote an article earlier this year which is freely available here, which explored the recent enormous increase in the number of prisoners recalled each year to prison in England and Wales: prisoners who had previously been released, either automatically or on the direction of the Parole Board. There are many unfairnesses in the pre-release processes, in the process of recall and in the way prisoners have to negotiate the journey towards re-release. There I concluded that there should be consideration of whether “sentence review courts” would work better to encourage and help offenders to earn their way out of prison and off supervision. I have written elsewhere about the way sentences are kept under review in France by juges d’application des peines and the tribunal d’application des peines: is it time we had more judicial supervision of sentences?
As the story of these cases shows, our current system of “judicial review” is far too blunt an instrument to be very useful as a supervisory mechanism. Too many things in the world of “punishment” happen out of the public gaze: students might like to explore a report I co-authored for the Howard League for Penal Reform which was published yesterday: Deaths on Probation: an analysis of data regarding people dying under probation supervision. The full report is available here. Sentencing and the penal system are vital subjects for concerned citizens and students to worry about!
Image above reproduced under Creative Commons Licence.