Court of Appeal
Published February 6, 2008
Regina (Walker (David)) v Secretary of State for Justice Regina (James (Brett)) v Same
Before Lord Phillips of Worth Matravers, Lord Chief Justice, Lord Justice Dyson and Lord Justice Toulson
Judgment February 1, 2008

The Secretary of State for Justice acted unlawfully in failing to let prisoners serving indeterminate sentences for public protection show the Parole Board by the expiry of their minimum terms that it was no longer necessary to confine them.

The Court of Appeal so held when:

(i) dismissing the appeal of the Secretary of State for Justice against the decision of the Queen’s Bench Divisional Court (Lord Justice Laws and Mr Justice Mitting) (The Times October 11, 2007) to grant the claimant, David Walker, a declaration that the secretary of state had acted unlawfully by failing to provide for measures to allow and encourage prisoners serving indeterminate sentences for public protection to demonstrate to the board by the expiry of their minimum terms that it was no longer necessary for the protection of the public for them to be confined; and

(ii) allowing in part the secretary of state’s appeal against the decision of Mr Justice Collins in the Queen’s Bench Division on August 20, 2007 that the detention of the claimant, Brett James, was unlawful because of the failure to provide such measures and that he should be released immediately. The court overturned the order for release.

Mr Robert Jay, QC and Mr Steven Kovats for the secretary of state; Mr Tim Owen, QC and Mr Hugh Southey for Walker; Mr Pete Weatherby and Ms Mel Plimmer for James; Mr Rabinder Singh, QC and Mr Dan Squires for the Parole Board.

THE LORD CHIEF JUSTICE, giving the reserved judgment of the court, said that the primary object of the indeterminate sentence was to detain serious offenders who posed a significant risk to members of the public of causing serious harm by further serious offences until they no longer posed such a risk.

The secretary of state submitted that he was not under any relevant duty to provide any treatment or training in prison. It was for the board in the exercise of its independent judgment to decide whether to release such a prisoner and it was for the board to decide what evidence satisfied it that the prisoner should be released.

Those submissions lacked realism. Performance of the appropriate courses was likely to be a prerequisite to a prisoner satisfying the board that he had ceased to be dangerous. The reality was that the possibility for dangerous prisoners both to cease to be dangerous and to show that they had ceased to be dangerous lay largely in the hands of the secretary of state.

The secretary of state chose to bring the indeterminate sentence provisions into force in April 2005. Yet he had not provided the resources needed to give effect to the policy that would ordinarily have given prisoners a fair chance of demonstrating to the board, once the time for review arrived, that they were no longer dangerous.

That could not simply be regarded as a discretionary choice about resources which was pre-eminently a matter for government rather than the courts.

The secretary of state’s conduct was in breach of his public law duty because its direct and natural consequence was to make it likely that a proportion of such prisoners would, avoidably, be kept in prison for longer than necessary either for punishment or for protection of the public, contrary to the intention of Parliament.

Under the Criminal Justice Act 2003, before such a prisoner was released, the board had to be satisfied that it was no longer necessary for the protection of the public that he should be confined. It was not possible to describe a prisoner who remained detained in accordance with those provisions as unlawfully detained under common law. The common law must give way to the express requirements of the statute.

Walker’s application was heard before he had completed his tariff and, therefore, the question of whether there was an infringement of article 5.4 of the European Convention on Human Rights was not before the court. There was, however, when his case was heard, a likelihood that he would not be able to make a meaningful challenge to the lawfulness of his sentence within the requirements of article 5.4 once his tariff was completed.

That was not an acceptable situation and, if it continued, it was likely to result in a breach of article 5.4.

When James’s application was heard his hearing before the board was pending and it was then postponed pending the result of this appeal. His position was the same as that of Walker.

Detention of the claimants would cease to be justified under article 5.1(a) when the stage was reached that it was no longer necessary for the protection of the public that they should be confined or if so long elapsed without a meaningful review of that question that their detention became disproportionate or arbitrary. That stage had not yet been reached.

The appeal had demonstrated an unhappy state of affairs. There had been a systemic failure on the part of the secretary of state to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the relevant provisions of the 2003 Act to function as intended.

So far as the claimants were concerned the appropriate remedy was limited to declaratory relief.

However, the prevailing situation was likely to result in infringement of article 5.4 and might ultimately also result in infringement of article 5.1.

The Parole Board had submitted that the appropriate course in such a case would be to make a declaration of incompatibility.

Their Lordships were not persuaded that it might not be open to the court to grant more effective relief.

Solicitors: Treasury Solicitor; Irwin Mitchell, Sheffield; Switalskis, Bradford; Treasury Solicitor.

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