Kaiyam, R (on the application of) v Secretary of State for Justice [2013] EWHC 1340 (Admin)

Case No CO/10470/2012

[2013] EWHC 1340 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT at LEEDS

Venue Sitting at Manchester Civil Justice Centre, Bridge Street, Manchester M60 9DJ

Date 21 May 2013

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE

Between

THE QUEENClaimant

on the application of FAISAL KAIYAMClaimant

SECRETARY OF STATE FOR JUSTICEDefendant

Vijay Jagadesham (instructed by Burton Copeland LLP) for Claimant

Tom Weisselberg (instructed by Treasury Solicitor) for Defendant

Hearing Hearing dates: 24 April 2013

Judgment

Mr Justice Supperstone :

[1]Introduction

[2]The Claimant is serving a sentence of imprisonment for public protection (“IPP”) that was imposed on 20 July 2006 for offences of robbery, possession of a prohibited weapon and ammunition, aggravated vehicle taking, attempting to pervert the course of justice and dangerous and reckless driving. His minimum term of three years expired on 3 April 2009. He seeks judicial review of what he contends is a continuing failure by the Defendant to provide him with a reasonable opportunity to reduce his risk through the provision of relevant rehabilitative work. The claim is primarily concerned with the period between his arrival at HMP Long Lartin on 27 January 2010 until the end of 2012. The Defendant did not oppose the grant of permission.

[3]Mr Vijay Jagadesham, for the Claimant, submits that the Defendant is in breach of the public law duty that he is taken to have assumed by reason of the introduction of indeterminate sentences for IPP by section 225 of the Criminal Justice Act 2003 (“the 2003 Act”), namely to make provision which allows IPP prisoners to demonstrate to the Parole Board that they should be released. There is, he submits, a duty owed to each and every indeterminate sentence prisoner that they be given reasonable opportunity to demonstrate their safety for release at tariff expiry and at further parole reviews. Mr Jagadesham submits that the position of the Defendant to the contrary belies what was said by the House of Lords in Secretary of State for Justice v James

[2010] AC 553

and in the recent decision of Haney and another v Secretary of State for Justice

[2013] EWHC 803 (Admin)

, and in the earlier case of Mehmet v Secretary of State for Justice

[2009] EWHC 1202 (Admin)

[4]Further, Mr Jagadesham submits, relying on the decision of the Fourth Section of the European Court of Human Rights in James, Wells and Lee v UK

[2013] 56 EHRR 12

, that a breach of

Article 5(1) of the European Convention on Human Rights

has occurred. He contends by reference to

Article 5(1) of the Convention

that the question here is whether the Claimant has been given reasonable opportunity to address his offending behaviour and the risks he poses; otherwise his detention became arbitrary and he should be awarded damages.

[5]However Mr Jagadesham accepts that this court is bound to dismiss the Article 5(1) claim given that it is bound by the decision of the House of Lords in James. Nevertheless Mr Jagadesham invites me, having regard to Kay and others v Lambeth LBC

[2006] 2 AC 465

, to express my views on the Article 5 issue and if appropriate then to grant permission to appeal.

Factual background

[6]The background facts on which the Claimant relies are set out at paragraphs 3-9 of the detailed statement of grounds of claim.

[7]Mr Jagadesham contends that the Claimant’s poor custodial behaviour prior to his transfer to HMP Long Lartin on 27 January 2010 is irrelevant. As summarised at paragraphs 4 and 5 of his skeleton argument the material facts, he submits, are that around half way through the relevant period (that is between 27 January 2010 and the end of 2012) the Parole Board commented on 14 November 2010 that the Claimant was “… well motivated to undertake offence-focussed work. However you have had very little opportunity to do so…”. Thereafter the Defendant set the Claimant’s next parole review for two years later, in order that the Claimant could “participate in offending behaviour work at HMP Long Lartin”.

[8]In fact the Claimant was not provided with such work until he started the Self Change Programme (“SCP”) on 7 January 2013, after this claim for judicial review was issued. SCP had been available at HMP Long Lartin since at least 29 September 2011. Furthermore CSCP, the course from which SCP was derived, had been available since 2009/2010. No explanation, it is said, has been provided as to why the Claimant could not have been assessed for or commenced either course earlier. That unjustified failure in itself, Mr Jagadesham submits, reveals the failing or break down of the system.

[9]Mr Jagadesham divides the period of delay from 27 January 2010 until November 2012 into four periods. The first period is from 27 January 2010 until 3 May 2011, that is from the Claimant’s arrival at HMP Long Lartin until the date when he first became subject to an adjudication. Mr Jagadesham submits that during that period there was breach of the Defendant’s policy (see para 30 below) and the Defendant acted irrationally. There was a failure to consider the Claimant for the CSCP programme without explanation. Time was wasted with unnecessary assessments for programmes, such as the “Controlling Anger and Learning to Manage It” (“CALM”) programme and “FOCUS”, a high-intensity drug programme, for which the Claimant was plainly not suited.

[10]The second period was from 3 May 2011 to 2 August 2011 whilst the Claimant was subject to an adjudication. The adjudication charge was laid on 3 May 2011. There is however no explanation for the delay between January and May 2011 before the charge was laid, or after August 2011 when the adjudication was dismissed.

[11]The third period was from 3 August 2011 to 2 February 2012 (the six-month period after the adjudication was dismissed until the parole window commenced). The SCP became available at Long Lartin on 29 September 2011; however SCP was only considered for the Claimant on 17 October 2012.

[12]The fourth period was from 3 February to November 2012 (a nine-month period including the parole window). Mr Jagadesham contends that attempts to transfer the Claimant to HMP Garth were wholly inappropriate, given that it did not run either of the courses on the Claimant’s sentence plan. Further he observes it is notable too that HMP Garth did not run the SCP which is the course which the Claimant is currently undertaking. On 6 November 2012 Ms Nicola Gash of HMPS sent an e-mail to various prisons in which she said:

“I am led to believe that you do either the PASRO [Prison Addressing Substance Related Offending] or Anger management course, I have a prisoner that needs both of these courses. I have asked Durham if they will take him as they do both courses. I am still waiting to hear from them, could you please see if you could take Mr Kaiyam for transfer for him to do these courses…”

Mr Jagadesham asks why this e-mail was not sent before these judicial review proceedings were commenced? He submits there was no prioritisation in breach of the Defendant’s policy; and no proper reason has been given for the delay. Mr Paul Dennehy, Head of Offender Management who works at HMP Long Lartin, in his witness statement (at para 17) accepts that by January 2011 the Claimant’s sentence plan objectives were to carry out the anger management and PASRO courses. Because HMP Long Lartin did not provide either of these courses, the Claimant’s Offender Supervisor recognised that the Claimant would need to transfer to another prison in order to complete them. Mr Dennehy describes at paragraphs 18-35 of his witness statement the efforts that were made to transfer the Claimant to another prison. However Mr Jagadesham relies on the admission by Mr Dennehy that there were “regrettable delays” (para 38). The parties’ submissions and discussion Issue 1: the JamesChallenge

The parties’ submissions and discussion

[13]Mr Jagadesham submits that if an individual, prisoner such as the Claimant, is not provided with an appropriate course, then there is a breach by the Defendant of his public law duty. There is no necessity for the Claimant to establish a systematic failure; a failure in the system suffices.

[14]During the course of the hearing Mr Jagadesham contended that a James challenge embraces a rationality challenge. Mr Tom Weisselberg, for the Defendant, did not accept this was so. Mr Weisselberg submits that there is no irrationality challenge presently before the court. In response Mr Jagadesham applied for an adjournment to amend the Claim Form to make clear he was making an irrationality challenge. Mr Weisselberg opposed the application. Mr Jagadesham stated he would be relying on the same evidence that was presently before the court. In summary he submits the Defendant does not act rationally in relation to a particular prisoner if he takes 35 months to put a prisoner on a course that was available 35 months ago and the reason for that was because the Defendant never considered the prisoner for it. I refused the application for an adjournment for the Claimant to introduce a rationality challenge, and I now give my reasons for that decision.

[15]I accept Mr Weisselberg’s submission that the grounds for judicial review do not seek to particularise which decisions of the Defendant are said to be irrational. It would not in my view be sufficient for the Claimant to do, as Mr Jagadesham proposes, namely to add words to the Claim Form stating there is a rationality challenge. The Defendant would need to know which individual decisions taken on behalf of the Defendant were irrational. The rationality challenge would need to be set out in some detail and the Defendant would have to have an opportunity to respond. Individual decisions were taken some time ago; the Defendant may wish to raise the issue of delay in relation to particular decisions; prison officers may have moved on which may lead to difficulty in responding to individual complaints. There is also the issue of cost to be considered. The Claimant is now on a course that he accepts is appropriate which will lead to his case being considered by the Parole Board, at most nine months later than it should have been considered. It would not, in my view, be proportionate in terms of costs to allow a new claim to be added at this stage in the proceedings.

[16]Mr Weisselberg submits that the James public law duty relates to systemic breaches. The Defendant denies that this duty was or is owed to individual prisoners. As a matter of domestic law, in circumstances when no systemic breach of the public law duty can be proved, Mr Weisselberg contends the question for the court is whether the Secretary of State has acted rationally within the limits of the available resources (see R on the application of Cawser v Secretary of State for the Home Department

[2003] EWCA Civ 1522

). Mr Weisselberg submits that the Defendant has acted rationally in making the choices in relation to the allocation of resources for programmes across the prison estate and, indeed, the Claimant does not contend the contrary.

[17]In James the House of Lords held that it was implicit in the statutory scheme of sections 224 and 225 of the 2003 Act that the Defendant would make reasonable provisions to enable IPP prisoners to demonstrate to the Parole Board, if necessary by completing treatment courses, their safety for release. There was a systematic failure to make such provision in that case and the Defendant conceded that he had thereby been in breach of his public law duty to do so.

[18]By the time the case came before the House of Lords steps had been taken to address the problem and the legislation had been amended by section 13 of the Criminal Justice and Immigration Act 2008 to enable the Ministry of Justice’s National Offender Management Service (“NOMS”) to give effect to the Defendant’s published policy in Prison Service Order 4700, paragraph 4.13.2: to give all life sentence prisoners “every opportunity to demonstrate their safety for release at tariff expiry”. The period of systematic failure had ended by the time of the hearing of James in the House of Lords in the first part of 2009 (see Lord Brown at paragraph 37).

[19]In James Lord Hope stated (at para 3):

“[The Secretary of State] 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.”

The Divisional Court granted a declaration to that effect. Its decision was affirmed by the Court of Appeal (R (Walker) v Secretary of State for Justice (Parole Board intervening); R (James) v Secretary of State for Justice (Parole Board intervening)

[2008] 1 WLR 1977

. The Defendant did not appeal against that declaration. So the issue before the House of Lords was not performance of the public law duty but the consequences of breach of the duty (Lord Hope at para 4). In the Court of Appeal Lord Phillips CJ made clear that Parliament required the Defendant to have systems and resources in place:

“40. Section 336(3) of the 2003 Act provided that the provisions of the Act which related, inter alia, to IPP sentences, should come into force in accordance with provisions made by the Secretary of State. He chose to bring them into force on 4 April 2005: see the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (SI2005/950). Yet he has not provided the resources needed to give effect to the policy that would ordinarily have given IPP prisoners a fair chance of demonstrating to the Parole Board once the time for review arrived, that they were no longer dangerous. This cannot simply be regarded as a discretionary choice about resources, which is pre-eminently a matter for the Government rather than the courts. We are satisfied that his conduct has been in breach of his public law duty because its direct and natural consequence is to make it likely that a proportion of IPP prisoners will, avoidably, be kept in prison for longer than necessary either for punishment or for protection of the public, contrary to the intention of Parliament (and the objective of article 5 of which Parliament must have been mindful). 41. We also accept that those who promoted the 2003 Act and Parliament that enacted it must have anticipated that the lifer regime that was already in place in accordance with the Secretary of State’s policy would be available to IPP prisoners so as to give them a fair chance of ceasing to be, and showing that they had ceased to be, dangerous. This was the context in which the legislation was enacted. To use Laws LJ’s phrase [2008] 1 All ER 138, para 26, it was ‘a premise of the legislation’. …”

[20]In the House of Lords in James Lord Brown stated at paragraph 26:

“Put shortly, there were neither the systems nor resources available, particularly with regard to short tariff IPP prisoners, to undertake the required assessments and prepare sentence plans so as to identify the relevant risk factors and how to address them, to provide the necessary courses, to move prisoners from local prisons to training prisons where appropriate courses could be undertaken, and generally to enable prisoners to demonstrate their safety for release, let alone treat and correct their offending behaviour. The undoubted consequence was that a number of short tariff IPP prisoners, once their tariff dates expired, even assuming they were then safe to release, would have been unable to demonstrate this to the Board (which sometimes is only possible through their undertaking coursework), and that a further number remained unsafe to release because they had not had the opportunity to undergo courses designed to eliminate or at least reduce the risk they posed.”

[21]In my view it is clear that the James public law duty is concerned with the availability of systems and resources; it is not about how systems and resources impact on individual prisoners. Parliament requires the Defendant to have a system in place. I agree with Mr Weisselberg that the James public law duty is a form of “target” duty, one of the central features of such duties being that they are “… concerned with general principles and …not designed to confer absolute rights on individuals (R (G) v Barnet London Borough Council

[2004] 2 AC 208

, per Lord Hope at para 80). The approach adopted by the Court of Appeal and the House of Lords does not, in my view, support the submission made on behalf of the Claimant that there is a public law duty owed to individual prisoners in respect of the treatment that they are entitled to receive in their individual circumstances.

[22]Mr Jagadesham refers to the decisions in Mehmet and Haney in support of his submission as to the nature of the Defendant’s public law duty.

[23]In Mehmet Mr Jagadesham relies on paragraph 31, where Bean J stated:

“I derive from James the following propositions relevant to the present case; (a) failure by the Secretary of State in providing the opportunity for a prisoner serving an indeterminate sentence to demonstrate to the Board at the first or subsequent review that it is no longer necessary for the protection of the public that he be detained does not render the prisoner’s continued detention unlawful under ECHR Article 5(4); (b) such a failure can, however, constitute a breach of the Secretary of State’s public law obligations susceptible to judicial review; (c) an example of such a failure constituting a breach of the Secretary of State’s public law obligations is where it results in the Board being deprived for a long period of the reports which constitute the prisoner’s rule 6 dossier, such as a current report on risk.”

However Mr Weisselberg observes that sub-paragraph (a) is concerned with Article 5(4); the judge is not saying in sub-paragraph (b) that any failure to provide a prisoner with a particular type of course will inevitably lead to a common law breach, but that it “can”, that is, “may”, do so; and as for sub-paragraph (c), on the facts of the case this is dealing with the systematic breach which the judge identified at paragraphs 14 and 15 of his judgment.

[24]Mehmet is concerned with a backlog for the completion of Structured Assessment of Risk and Need (“SARN”) reports, in particular at HMP Whatton which had two-thirds of the entire national backlog of SARNs in January 2008. At paragraph 16 the judge referred to the distinction drawn by Lord Bingham in Dyer v Watson

[2004] 1 AC 379

between general faults or under-funding of the system and “the practical realities of litigious life even in a reasonably well organised legal system”. The present case, the judge observed, is plainly in the first category rather than the second. In my view Mehmet is a case about systemic failure in relation to a particular part of the prison system, not about individual prisoners. At paragraph 17 Bean J finds that the Secretary of State has not acted rationally, and at paragraphs 23-31 he considers the effect of the House of Lords’ decision in James which was decided after he heard oral argument in this case. Mr Weisselberg submits, and I agree, it is not surprising that on the facts of Mehmet he found that there had been a breach of the public law duty as explained in James: the system had broken down.

[25]The claimants in Haney were two indeterminate sentence prisoners (“ISPs”) seeking judicial review of the Defendant’s policy and decisions, implemented by NOMS, concerning their transfer from Category C “closed” conditions to Category D “open” prison conditions (para 1). During late 2010 and early 2011, Mr Read, Head of the Operational Services and Interventions Group in NOMS, became aware that there remained difficulties in effecting moves for ISPs into open conditions. He identified a number of reasons for this (see para 6). As a result of ongoing concerns raised by prisons, as well as judicial review challenges by prisoners, a position paper on ISP movement was prepared for a meeting in February 2011 which highlighted concerns that prisons were not complying with PSI36/2010. Lang J noted (at paras 54 and 55) that the Defendant made two concessions: first, that a prompt transfer of an ISP to open conditions, following approval, fell within the scope of his “public law duty to provide the systems and resources that prisoners serving indeterminate sentences need to demonstrate to the Parole Board that it is no longer necessary for the protection of the public that they should remain in detention”; and second, that there had been excessive delay in transferring these Claimants to open conditions because of a systemic failure in the arrangements for transfer of ISP prisoners.

[26]It is against this background that the observations made by Lang J, on which Mr Jagadesham relies, need to be considered.

The judge stated:

“60. … the Defendant went on to submit that the only issue for the court was whether the Defendant had acted rationally within the limits of the available resources (R (Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522, [2004] UKHRR 101). The Defendant did not owe a legal duty to any individual prisoner to transfer him to open conditions, and no such duty was established in Wells and Ors. 61. In my judgment, the Defendant’s submission confused several different issues. In Cawser, where the issue was delay in providing a Sex Offender Treatment Programme for the Claimant, the Court of Appeal did not find any breach of public law duty by the Defendant. In contrast in these cases, the Defendant has conceded that there has been a breach of his public law duty. Where there has been a breach of a public law duty, a person who is adversely affected is entitled to seek a remedy from the court. He does not need to establish a separate legal duty owed to him personally, like a statutory tort. This is confirmed by the decision of Bean J in R (Mehmet) v Secretary of State for Justice [2009] EWHC 1202 (Admin), who applying Wells, held that the failure to provide a report on the Claimant to the Parole Board was a breach of the Secretary of State’s public law obligations and accordingly unlawful. Bean J held the Claimant was entitled to a declaration to that effect.”

[27]I accept Mr Weisselberg’s submission that the decision in Haney does not support the existence of a wider duty in the absence of systemic breach. This was a case where a systemic breach had been conceded. Mr Weisselberg does not dissent from the proposition of the judge that where there has been a breach of a public law duty a person who is adversely affected is entitled to seek a remedy from the court, without establishing a separate legal duty owed to him personally. However in the present case, unlike in James and Haney, the stage of a person who is adversely affected being entitled to seek a remedy has not arisen. Lang J’s reference to Mehmet is to another example of a case where there has been a finding of systemic breach, also of irrationality, and in such circumstances there was a finding of breach of the Secretary of State’s public law obligations.

[28]In my judgment the decisions in Mehmet and Haney do not assist the Claimant.

[29]Mr Weisselberg referred to the decisions at first instance and in the Court of Appeal in Sobers v Secretary of State for Justice

[2011] EWHC 817 (Admin)

[2011] EWCA Civ 1363

, which, whilst only concerned with a permission application, nevertheless support the Defendant’s submission as to the nature of the James public law duty. The Claimant, who was serving a life sentence for murder with a minimum tariff of twelve years that was due to expire in February 2012, sought permission to apply for judicial review for a mandatory order requiring the completion of a Cognitive Self Change Programme (“CSCP”) assessment within 56 days, and a declaration that the failure to assess him for the CSCP and/or to transfer him to a Category C prison was unlawful. The single judge refused permission on the ground that the court was being invited, in effect, to manage resources and the allocation of prisoners in respect of those resources. Edwards-Stuart J stated (at para 27):

“It is of course perfectly true that the applicant has waited for some time, at least since the beginning of 2009 if not earlier, and is still on a waiting list today. But many factors are involved and whether or not the applicant’s position results from a systemic lack of resources is far from clear on the material before the court. In the absence of any admission that there was a breach of such duty, I consider that to establish the breach of duty contended for would require an investigation of the position throughout the prison estate generally. There is no such evidence in this case. To extrapolate from the particular to the general would not be a legitimate exercise in this case.”

[30]In the Court of Appeal Davis LJ said as follows:

“5. …before the judge it seems plain… that what was being in effect argued for was the existence of a duty applicable to all prisoners in the category of life prisoners with a tariff term set; and an allegation is made that there has been a systemic breach of duty such as to make the Secretary of State’s conduct unlawful. 6. In my view, to the extent that the case is put like that I think the judge has dealt with it entirely correctly in paragraph 27 of his judgment. Quite simply there was simply not the material before him to indicate that there was a systemic lack of resources being applied which were needed in order to make the alleged duty effective. It seems to me in fact that the indications are to the contrary, and certainly so if one has regard to what is said in Walker (albeit I appreciate that Walker was a case involving imprisonment for public protection, not life prisoners).”

[31]During the course of his oral submissions Mr Jagadesham contended that the Defendant is in breach of the amended Chapter 4 of PSO4700 which became effective on 12 July 2010. The Defendant’s public law duty, he submits, encapsulates the Defendant’s policy (PSO4700, amended Chapter 4). Mr Jagadesham relies on the following passages in Chapter 4 in relation to the provision of course work to ISPs:(i) “ISPs with short (3 years or less) tariffs and those with three years or less to their tariff expiry date or next Parole Board review should be prioritised (over those serving longer tariffs) for interventions.” (Para 4.1.2) The Claimant is both a short tariff prisoner and a prisoner who at the material time had less than three years to his next Parole Board Review.

(ii) “Following the initial risk assessment (4.3.3) and, if required, further risk assessment (4.3.4), the ISP’s risk factors will have been identified. The ISP should be offered, as far as possible, reasonable opportunity to address these risk factors in time for their Parole Board review, although, in the case of very short tariffs, it must be accepted that it may be difficult for an ISP to address all his/her risk factors in time for the review.” (Para 4.3.5)

(iii) The following is added in relation to “short tariff” prisoners such as the Claimant: “… All ISPs should be prioritised for interventions and offending behaviour programmes according to the risk of harm they pose and length of time left till tariff expiry. In other words, and taking into account the ISPs own responsibility to address the risk of harm they present to the public and known victims, the ISP must be offered reasonable opportunity, as far as possible given the available resources, to address their risk factors in time for their Parole Board review.” (Para 4.10.2)

[32]Mr Weisselberg responds that breach of this policy is not alleged in the Claim Form or indeed in Mr Jagadesham’s skeleton argument. If there had been a breach of policy complaint in the grounds of claim, as for example in R (on the application of Dennis Gill) v Secretary of State for Justice

[2010] EWHC 364 (Admin)

at paras 77-79, then the Defendant would have sought to identify when and in what respects it was said the Defendant had acted in breach of his policies and would have responded to any such complaint. There is nothing in the grounds of claim to indicate what policy had been breached. It is not inevitable, Mr Weisselberg submits, that by alleging breach of the James duty a claimant is alleging breach of an individual PSO. The present case, I agree, is a pure James challenge.

[33]I accept Mr Weisselberg’s submission that the claim as formulated is a James challenge; it is not a rationality challenge; nor is it a challenge based on a failure by the Defendant to follow or apply a particular policy.

[34]It is not contended by the Claimant that the Defendant has in some way or another systematically failed the Claimant and other prisoners; rather, the Claimant’s complaints are detailed complaints about the manner in which various decisions have been taken within HMP Long Lartin in relation to his time in prison. In my view this challenge based on James is misconceived.

[35]If there were no courses at all for IPP prisoners or no sex offender courses in a prison that houses only sex offenders, that would be a systemic breach. Similarly the existence of a backlog that was not cleared because of a lack of resources may on the facts of a particular case amount to a systemic breach. That is what Mehmet was about. Similarly a failure to have in place a system that allows for IPP prisoners to transfer to open prisons could amount to a systemic failure, as the Defendant conceded in Haney. These are very different cases to the case put forward in the present claim in which the nature of the duty contended for by the Claimant is a duty owed individually to each and every prisoner where the mere fact of delay will be the basis for contending that a breach of public law duty had occurred.

[36]Further the Claimant’s case is based on the benefit of hindsight. It is that the Claimant was not put on the right course when he started at Long Lartin and therefore there was an ongoing breach of the Defendant’s public law duty in his case. The Claimant could have brought an irrationality challenge as envisaged in Cawser, but he has not done so. The reason why the Claimant’s complaint is made with the benefit of hindsight is because in 2009-2010 the Parole Board did not suggest that the SCP was suitable and necessary for him. It was not until the Claimant had a new offender supervisor, Mr Clive Petgrave, in August 2012 that it was suggested he should go on a SCP course, and on 17 October 2012 assessment for the SCP was added to the Claimant’s sentence plan.

Issue 2: the Article 5(1)challenge

[37]Finally I turn briefly to consider the Article 5(1) claim. Following the decision of James in the House of Lords, this claim must be dismissed.

[38]Lord Hope stated (at para 14) that the detention of an IPP prisoner cannot be said to be arbitrary, or in any other sense unlawful, for the purposes of Article 5(1) until the Parole Board has determined that detention is no longer necessary. Lord Hope continued (at para 15):

“It is just possible to conceive of circumstances where the system which the statutes have laid down breaks down entirely, with the result that the Parole Board is unable to perform its function at all. In that situation continued detention could be said to be arbitrary because there was no way in which it could be brought to an end in the manner that the original sentence contemplated.”

Lord Brown (at para 51) stated that in his opinion “… the only possible basis upon which Article 5(1) could ever be breached in these cases is that contemplated by the Court of Appeal

[2008] 1 WLR 1977

, paras 61, 69 of their judgment… namely after ‘a very lengthy period’ without any effective review of the case. …To my mind, however, … the Parole Board would have to have been unable to form any view of dangerousness for a period of years rather than months.” None of these requirements are satisfied in the present case.

[39]Mr Jagadesham accepts that the claim fails in domestic law but seeks permission to appeal so that the Supreme Court can reconsider the issue in the light of the decision of the European Court of Human Rights in James, Wells and Lee. I do not consider that it is appropriate having regard to the particular facts of this case to grant permission to appeal. The conclusion I have reached is reinforced by the recent judgment in R (Faulkner) v Secretary of State for Justice and another

[2013] UKSC 23

which was handed down on 1 May 2013 after the oral hearing before this court. The Supreme Court held that violation of Article 5(1) would require “exceptional circumstances” warranting the conclusion that the prisoner’s continued detention had been arbitrary (per Lord Reed at para 13(2), and see para 86). There are, in my view, no such exceptional circumstances in the present case.

Conclusion

[40]For the reasons I have given, this claim fails.