Indefinite detention of dangerous prisoners is arbitrary and unlawful
James, Wells and Lee v United Kingdom [2012] ECHR 1706 (18 September 2012)
Summary
The European Court of Human Rights' decision in James, Wells and Lee v United Kingdom demonstrates the tension between indefinite detention in breach of article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and the lawful indeterminate detention of "dangerous prisoners" for public protection. Ultimately, the Court found that, in situations where prisoners serving indefinite sentences have no reasonable access to appropriate rehabilitative courses that would enable them to demonstrate they no longer constitute a danger to the public, their detention is arbitrary and therefore unlawful within the meaning of article 5(1) of the Convention.
Facts
This case concerned joint applications brought by Mr James, Mr Wells and Mr Lee against the United Kingdom. The applicants were each sentenced to prison terms under the Criminal Justice Act 2003 (UK) for a minimum term fixed by the sentencing judge and then indeterminately until the Parole Board ordered their release. The applicants alleged that their detention following the expiry of their minimum terms was unlawful under article 5(1) of the Convention.
Article 5(1) of the Convention provides:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court.
The provisions under which the applicants were sentenced required that mandatory indeterminate sentences be imposed for offenders convicted of "serious offences" (a definition covering 153 categories of violent or sexual offences punishable by life imprisonment or for upwards of ten years) where the court was of the opinion that there was a "significant risk" to the public of "serious harm" occasioned by the commission of further specified offences.
The Parole Board had the power to order the applicants' release following the expiry of their minimum term if satisfied that their detention was no longer necessary for public protection. In assessing the level of risk posed by the offender, the Board was specifically directed (by the Secretary of State) to consider the satisfactory completion of rehabilitative courses.
Completion of rehabilitative courses
The applicants had relatively short tariff mandatory sentences (two years for Mr James, 12 months for Mr Wells and nine months for Mr Lee). All were detained in prisons where the necessary rehabilitative courses were unavailable. Following significant delay (five months for Mr James, one year, nine months for Mr Wells and two years, six months for Mr Lee) the applicants were provided with access to rehabilitative courses.
This delay in accessing necessary rehabilitative courses was due to significant under-resourcing in the prison system. It was accepted that any review of the applicants' detention by the Parole Board was an empty exercise until the applicants had undertaken rehabilitative courses that would enable them to demonstrate that their detention was no longer necessary for public protection. Notably, the Secretary of State had been found to be, and had admitted to being in breach of his public law duty by failing to provide the necessary courses prior to, or within a reasonable time following, the expiry of the minimum sentence periods.
Decision
The issue for determination by the Court was whether the applicants' detention after the expiry of their minimum sentences was lawful within the meaning of article 5(1) of the Convention. The Court affirmed previous decisions that, for detention to be lawful under article 5(1)(a) of the Convention, the detention must not only follow the conviction in point of time, but must also "result from, follow and depend upon or occur by virtue of the conviction."
Further, any deprivation of liberty should not be arbitrary. Generally, the Court considered that detention would be arbitrary where:
- despite complying with the letter of national law, there was an element of bad faith or deception on the part of the authorities;
- the order to detain and/or execution of the detention did not genuinely conform with the purposes of the exceptions contained in article 5(1) (for example, where (objectively) there was insufficient evidence to convict);
- no relationship existed between the ground of permitted deprivation relied on and the place and conditions of detention; or
- there was no relationship of proportionality between the ground of detention and the detention in question.
In relation to point 3, the Court considered that:
a concern may arise in the case of persons who, having served the punishment element of their sentences, are in detention solely because of the risk they pose to the public if there are no special measures, instruments or institutions in place, other than those available to ordinary long-term prisoners, aimed at reducing the danger they present and at limiting the duration of their detention to what is strictly necessary in order to prevent them from committing further offences.
The Court found that the applicants' post-sentence detention was based on their conviction for the purposes of article 5(1) and accepted that a sufficient causal connection existed between their convictions and detention. The Court noted however, that "in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation is a necessary element" of the justification of the detention. This opportunity for rehabilitation was not provided to the applicants until significantly after the expiry of their sentences.
Accordingly, the Court found that, following the expiry of the applicants' minimum sentences up until they were provided with access to appropriate rehabilitative courses, their detention was arbitrary and therefore unlawful within the meaning of article 5(1) of the Convention.
Commentary
This decision sets out the principles against which arbitrariness (and therefore unlawfulness) could be assessed for the purposes of section 21 of the Victorian Charter of Human Rights (being largely equivalent to article 5 of the Convention). Specifically, the decision will be relevant if a declaration of inconsistent interpretation is sought under section 36 of the Victorian Charter in cases of alleged arbitrary and unlawful detention in respect of indefinite sentences imposed under Part 3 Subdivision 1A of the Sentencing Act 1991 (Vic). Following this decision, it is likely that, unless appropriate rehabilitative programs are provided to offenders sentenced indefinitely under the Sentencing Act such that they have an opportunity to demonstrate they are no longer a danger to the community, their detention following the expiry of the punishment element of their sentence will be arbitrary and unlawful, in violation of section 21 of the Victorian Charter.
Further, when considering prison resource allocations, the relevant public authorities will need to bear in mind the views expressed by the Court, namely that a real opportunity for rehabilitation is a necessary (and continuing) element of lawful indefinite sentences, that the rehabilitative opportunities provided to prisoners serving indefinite sentences should be over and above those provided to ordinary long-term prisoners, and the likelihood that a failure to properly resource the prison system, such that rehabilitative courses are not readily available, will render indefinite sentences arbitrary. The necessity of properly resourcing and planning for such rehabilitative measures should also be considered by the Victorian Government if it proposes to introduce any legislation authorising indefinite sentences (and in submitting the requisite statement of compatibility under section 28 of the Victorian Charter).
This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113127
Corin Morcom is a Law graduate at Allens.