James, R (on the application of) v Secretary of State for Justice [2007] EWHC 2027 (Admin)

Case No CO/4143/2007

[2007] EWHC 2027 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday, 20th August 2007

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE COLLINS

Between

THE QUEEN ON THE APPLICATION OF BRETT JAMESClaimant

Between

SECRETARY OF STATE FOR JUSTICEDefendant

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Mr P Weatherby (instructed by Messrs Switalski's Solicitors) appeared for Claimant

Mr P Patel (instructed by the Treasury Solicitor) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE COLLINS: This claim for judicial review is before me as a rolled-up hearing, that is to say to decide whether permission be granted and, if permission is granted, to deal with the substantive claim immediately. I should say that I propose to grant permission. Indeed, it is plain, for reasons that will become apparent, that the claim is, as the law now stands, clearly arguable but the question is what I should then do. Mr Patel on behalf of the Secretary of State submits that the appropriate course would be to stay consideration of the substantive claim pending the decision of the Court of Appeal in a case called Walker v Secretary of State for Justice, which covers some but not all the same ground as is raised in this case. Mr Weatherby, on behalf of the claimant, submits that the appropriate course would be for me to grant relief in the form of a mandatory order that the claimant be released from detention but accepts that, pending the Court of Appeal decision in Walker, it would be right for me to stay that order and wait to see what the Court of Appeal decides.

[2]The circumstances are that the claimant is a prisoner who is subject to a sentence of Imprisonment for Public Protection (IPP). That was imposed for an offence of causing grievous bodily harm with intent. He has a poor record, including a number of offences of violence, and it appears that his problem is largely drink: he drinks too much and he then becomes violent, and that has led to a number of appearances before the court. In those circumstances, the judge before whom he appeared was persuaded that he should be sentenced to IPP because he was clearly dangerous, particularly when he drank. But it was a case in which the tariff imposed was a relatively short one; in fact it was a period of one year and 295 days. That tariff expired on 20th July of this year and the result is that he is now detained solely as a result of the IPP on the basis that he is dangerous. He has therefore the right to apply to the Parole Board for his release on the basis that he is no longer to be regarded as dangerous and that therefore the continued detention would not be justified.

[3]In order to make a meaningful submission to the Parole Board, it was necessary that he undertake courses to seek to deal with his problems, particularly those of drink and anger management. There are such courses which are made available by the prison service. Unfortunately, the resources have not been provided to enable such courses to be provided for such as the claimant, who has a short tariff period. Indeed, he has been incarcerated at Doncaster Prison, which is a local prison, and which does not have the facilities for the necessary courses. He has, as I understand it, undertaken a short course in relation to alcohol and an equally short one in relation to anger management but it is recognised that they would be likely to be insufficient to provide the necessary information to the Parole Board and the Parole Board would be likely to be in the same position as the Board was in the case of Wells (which was dealt with by the Divisional Court together with Walker). In that case, the Board, when Wells, who was a post-tariff prisoner, came before it, commented that he had not undertaken any offence focused work, which was not his fault because he wanted to do so, but it was not the remit of the Parole Board to make up the deficiencies of the prison service and, because he had not been able to do any of the appropriate courses, he was unable to demonstrate any reduction in risk from the time that he was sentenced. That, Mr Weatherby submits, is likely to be the approach of the Parole Board, before whom the claimant at the moment has a hearing fixed, as I understand it, for 14th September next.

[4]The point as to the lawfulness of the failure of the prison service to provide the necessary courses came before the Divisional Court last term and the court, consisting of Laws LJ and Mitting J, handed down its judgment on 31st July. It was bound by a decision of the Court of Appeal in R (Cawser) v Secretary of State for the Home Department [2004] UKHRR 101. That was a case in which the argument was that the failure to provide the necessary resources was a breach of

Article 5 of the European Convention on Human Rights

. The Court of Appeal by a majority, consisting of Simon Brown and Laws LLJ, decided that it was not. But in Cawser it was noted that counsel for the Secretary of State, Mr Rabinder Singh QC, had conceded or accepted that it would be irrational to have a policy of making release dependent upon the prisoner undergoing a treatment course without making reasonable provision for such a course, but that, it was argued, was solely a public law duty to act rationally to which the Secretary of State was subject and detention could not become unlawful under Article 5(1) even were there no provision made for such courses. That then was the issue in Cawser and that was the decision that was reached. Of course, Cawser predated the IPP sentence.

[5]The court, Laws LJ giving the only reasoned judgment, based the decision that the Secretary of State had acted unlawfully upon domestic law, not upon the Convention. Indeed, what effectively the court decided was that the failure to provide the necessary courses was to fail to follow what Parliament clearly intended in the legislation and that failure was a breach of the common law. What the court said in this context appears towards the end of the judgment, starting in paragraph 44. Laws LJ said this:

"The correct outcome of these proceedings does not in my judgment depend on an evaluation of the Secretary of State's actions in seeking to ameliorate the present position of short tariff lifers, nor in any appreciation of the cost of complying versus the cost of not complying with the PSO 4700 policy. It lies in deeper considerations. It requires, first, an understanding of the difference in nature between the two elements of an indeterminate sentence. This may be thought to be obvious enough; and superficially, it is. The tariff element fulfils the aims of punishment, which in this context are usually said to be retribution and deterrence. The post-tariff element fulfils the aim of public protection: protection from the danger which the criminal poses. This is said to be preventive rather than punitive. (Deterrence is also, of course, a preventive notion: and having nothing to do with distributive or proportionate justice, it makes an odd bedfellow for retribution. But that is thin ice where we do not have to step.) 45. However the bare distinction between punishment and protection does not reveal the reality of the difference between the two elements in the sentence which matters for present purposes. This reality lies in the way in which the prisoner's detention during the currency of each element is to be justified. I do not mean formally justified. Both elements – the whole sentence – are formally justified by the order of the sentencing court ... I mean substantially justified, or justified in reason, by reference to the aims or purposes served by each element, as I have described them."

He then went on to make the point that dangerousness had to be judged by the sentencing judge at the date that he imposed the sentence and that did not mean, and could not mean, that by the time he had served his tariff the prisoner was necessarily still to be regarded as dangerous. Indeed, the whole purpose of the legislation presupposed, as the court indicated, that there would be provided the necessary facilities in prison to enable an individual to undertake such courses as would have the effect of preventing him from continuing to be dangerous. The idea would be to eliminate, or at least to reduce to an acceptable level, the risk to the public resulting from that individual. To incarcerate him and to do nothing because the resources were not provided to enable him to take steps which could have the effect of preventing his dangerousness continuing was to frustrate the policy behind the legislation and was incidentally to have the effect of ensuring that the prisons were filled up by those who had not had the opportunity to deal with the problem of danger.

[6]The court in Walker was not concerned directly with the consequences of the unlawfulness that it found to exist in the failure to provide the necessary courses because Walker was pre-tariff. I was told that his tariff is due to expire in early October (I think in fact it expires on 9th November 2007) and so, assuming the matter is dealt with by the Court of Appeal expeditiously at the beginning of next term, it may or may not be the case that he has by then served his tariff. If the matter goes further, as it may well have to do, then his tariff will expire. That is material, or may be material, for reasons which I will indicate in a moment.

[7]Laws LJ went on to consider the consequences of the decision that the court was reaching on the unlawfulness of the failure to provide the necessary resources. Mr Patel has submitted that what the court went on to say was strictly obiter in the sense that it did not arise directly in the Walker case. That may or may not be a correct interpretation but there is obiter and obiter and these were observations based upon a careful consideration of the effect of the decision which the court felt bound to make and, indeed, as the court said, and I will come to the way it is put in a moment, if it was unlawful to fail to provide the necessary resources, unless there was some consequence which was a benefit to the prisoner as a result of that unlawfulness, it would, as it were, beat the air because the prisoners affected by it would not be able to achieve anything of any value as a result of it. So we see what he said in paragraph 48, which is, as I see it, the key paragraph in his judgment:

"The point is one of principle. It has nothing to do with the wisdom or practicality of this or that use of scarce resources. It has nothing to do with the Secretary of State's recent actions to ameliorate the position relating to IPP prisoners (unless those actions now provide current and effective assessments of danger, which they do not). It does not touch the court's proper reluctance to tread ground which is the constitutional territory of the executive. It is a straightforward point of law. The Crown has obtained from Parliament legislation to allow – rather, require: the court has no discretion – the indefinite detention of prisoners beyond the date when the imperatives of retributive punishment are satisfied. But this further detention is not arbitrary. It is imposed to protect the public. As soon as it is shown to be unnecessary for that purpose, the prisoner must be released (see ss.28(5)(b) and 28(6)(b) of the 1997 Act). Accordingly there must be material at hand to show whether the prisoner's further detention is necessary or not. Without current and periodic means of assessing the prisoner's risk the regime cannot work as Parliament intended, and the only possible justification for the prisoner's further detention is altogether absent. In that case the detention is arbitrary and unreasonable on first principles, and therefore unlawful."

[8]Mr Patel submits, as I say, that that is not binding, both because it is not part of the ratio of the case and because, when one looks at the relief granted by the court, one sees that it was limited to this:

"The applications are allowed to the extent that it is declared that the Secretary of State for Justice has acted unlawfully by failing to provide for measures to allow prisoners serving indeterminate sentences for public protection to demonstrate to the Parole Board by the time of the expiry of their minimum terms that it is no longer necessary for the protection of the public that they continue to be detained."

That declaration was in fact stayed pending a possible appeal to the Court of Appeal. The last day for lodging that appeal is, I am told, tomorrow and the appeal notice has been drafted and the appeal will be lodged. Accordingly, the declaration remains stayed until the Court of Appeal reaches its conclusion. Thus there is no binding judgment, as it were, giving effect to the reasoning of the court, to which I have referred.

[9]That being said, it seems to me that it is inevitable that in a case such as the one before me I should consider the consequences of what the court has by ratio decided to be unlawful, namely the failure to provide the necessary resources. I am, of course, not strictly bound by what that court decided and I could independently decide that their reasoning was not persuasive. However, it seems to me that there is considerable force in the suggestion that if the decision to fail to provide the courses was unlawful, and if that unlawfulness frustrates the purpose of Parliament and disables the prisoner from being able properly to show that he is no longer dangerous, then the subsequent detention is, as Laws LJ quite clearly stated, rendered unlawful. If unlawful, it must come to an end. The court cannot properly uphold detention which is unlawful.

[10]Mr Patel submits that that is an impossible position that Laws LJ has argued for since the legislation quite clearly provides that, so long as there is a risk to the public and the prisoner cannot show that he is not dangerous, or rather there is material that indicates that he is dangerous, and then it would be wrong and contrary to the legislation for there to be a release. One sees the force of that argument but, as I said earlier, the difficulty as I see it is that if the failures are, as the Divisional Court indicated, such as to be unlawful then it must be recognised that the consequences are truly, in one sense, disastrous, because I think it is inevitable logic following from what Laws LJ has indicated that a prisoner such as the claimant -- and one can possibly limit this to short tariff lifers in the hope that the longer tariff ones will have had the opportunity to engage in the necessary courses -- will have to be released whether or not he remains a risk to the public. That is, to say the least, an undesirable effect of the failure by the executive to provide the necessary resources to enable the purpose that lies behind the IPP properly to be fulfilled. But that that is the potentially disastrous effect I think is clear from the reasoning of the Divisional Court in Walker.

[11]It is apparent that the consequences will be something that is dealt with by the Court of Appeal. If it is raised before the Court of Appeal it is inevitable. However, there is a further point that Mr Weatherby will seek to take and that is that, since the claimant is post-tariff, there is in addition a breach of Article 5(4) in that the Parole Board, which is of course responsible for considering the lawfulness of the continued detention in accordance with Article 5(4), is deprived of a proper opportunity of meeting its obligations under Article 5(4). If the Secretary of State has acted in such as way as disables the prisoner from producing the necessary material and thus disables the Board from reaching a proper consideration, that, it is submitted, is a breach of Article 5(4). Without deciding that point, because it is not necessary for me to do so at this stage, I recognise the possible force of it and it seems to me that it is an issue which it is desirable for the Court of Appeal to consider. This case raises the consequences in stark terms of the decision of the Divisional Court in Walker and it seems to me in those circumstances that it would be desirable for the Court of Appeal to have before it such a case so that it can deal at the same time as it deals with Walker with the issue of the consequences of the unlawfulness found by the court in Walker in failing to provide the necessary resources. What I therefore propose to do is to allow the claim for judicial review, and to order that there be an immediate release of the claimant but to stay that order pending an appeal to the Court of Appeal, for which I give permission and consideration by the Court of Appeal of it. What I will also do -- I do not feel I can direct, because that is a matter for the Court of Appeal -- is to indicate that in my view it would be desirable that the Court of Appeal consider this case and Walker together.

[12]Mr Patel, so far as time to lodge a notice to appeal, do you have normally -- is it 21 days?

[13]MR PATEL: 21 days.

[14]MR JUSTICE COLLINS: Obviously it is desirable that it is done as soon as possible so that the Court of Appeal can make its necessary arrangements. But we have until the beginning of October so I do not think it is necessary for me to give any formal directions as to timing, is it?

[15]MR PATEL: My Lord, I would ask for the full time to be allowed just because, as you are well aware, people are away and, as the appellant said, it would prejudice any --

[16]MR JUSTICE COLLINS: I think you should notify the Court of Appeal immediately and indeed I will too. I will have a word, if necessary, because it has an ongoing effect, a potential effect, on this court because -- I think I will do what I can to ensure that the Court of Appeal appreciates that this has to be dealt with right at the beginning of next term and I am sure that would please those behind you. I do not guarantee that what I say will have any further effect but I will do what I can.

[17]MR PATEL: Well, certainly we will ask when we lodge our documents in Walker tomorrow for Walker to be heard very soon after the vacation.

[18]MR JUSTICE COLLINS: All I am suggesting is that you perhaps put a covering letter saying what has happened today and drawing attention to the fact that the appeal in this case is coming along at the same time.

[19]MR WEATHERBY: My Lord, I am publicly funded. Can I have detailed assessment?

MR JUSTICE COLLINS: Yes, certainly.

[21]MR WEATHERBY: And can I seek costs against the defendant in this case also?

[22]MR JUSTICE COLLINS: I think you probably ought to have your costs against the defendants but they will -- I think, again, it may be sensible for me to stay that order pending appeal.

[23]MR WEATHERBY: Yes, I respectfully agree.

MR JUSTICE COLLINS: Because it will all be part and parcel of the appeal.

[25]MR WEATHERBY: Yes, indeed.

[26]MR PATEL: Would it be helpful for us to draw up an order?

[27]MR JUSTICE COLLINS: Would you, yes. And you could liaise with Mr Weatherby, if necessary over the telephone or the fax machine or whatever.

[28]MR PATEL: I think email might be the easiest.

[29]MR JUSTICE COLLINS: Well, there are plenty of means. Mr Weatherby, where are you actually speaking from at the moment?

[30]MR WEATHERBY: In Manchester Crown Court.

MR JUSTICE COLLINS: Yes, the system then, for once, is working quite well.

[32]MR WEATHERBY: Yes. I think it is getting better in fact. There are less disasters on the video link.

[33]MR JUSTICE COLLINS: Well, this is a good example. We have had a perfectly sensible hearing without the need for you to spend a lot of money coming down to London and I think, perhaps you can pass the message on, that video link hearings may well provide, particularly in this court, where we do not hear evidence, the necessary local hearings from time to time.

[34]MR WEATHERBY: Yes. Well, that is certainly a matter that myself and other colleagues in Manchester are trying to make loud and clear. There is also the opening of the new civil court centre in Manchester, so there is the prospect of having live judicial reviews in Manchester itself.

[35]MR JUSTICE COLLINS: Well, that is, I know, what is in issue but all I am saying is that a judge sitting in court is not really any different from a judge on a video screen sitting in court and it could work perfectly well and it may be cheaper than having a judge come up. What it might also avoid is that in the provinces you get cases heard routinely by deputies because there is not a judge available. There are very able deputies, I do not doubt, but it is not quite the same, is it?

[36]MR WEATHERBY: No, I am thinking particularly in terms of permission hearings, that there are more often than not High Court judges sitting in Manchester or --

MR JUSTICE COLLINS: They have to be nominated judges is the problem.

[38]MR WEATHERBY: Yes, of course, they do.

MR JUSTICE COLLINS: Well, anyway, if you can bang the drum for videoing it, that would be helpful.

[40]MR PATEL: Sorry, I forgot. Could I ask for a transcript to be provided of your judgment, for expedition if possible?

MR JUSTICE COLLINS: It will be certainly available by the end of the week.

[42]MR PATEL: I am very grateful.