Meaningful Review Necessary to Justify Continued Detention

Secretary of State for Justice v James [2009] UKHL 22 (6 May 2009) The House of Lords has confirmed that a breach of arts 5(1)(a) and 5(4) of the European Convention on Human Rights may occur in circumstances where a prisoner is detained for longer than is necessary for public protection or for a lengthy period without a meaningful review of the risk they pose to the public.

However, the House of Lords held that a violation is only likely to arise if:

• the review system breaks down entirely, such that meaningful review of a prisoner's case is rendered impossible; or
• a prisoner is detained for 'a period of years' without an effective review of their case.

Facts

In the United Kingdom, an indeterminate sentence for public protection ('IPP') can be imposed where:

• a person is convicted of specified offence; and
•  there is a significant risk of the person committing further such offences, thereby causing serious harm to members of the public.

Once an IPP prisoner has served the minimum term (or 'tariff period') of their sentence, they are to be released if the Parole Board is satisfied that their detention is no longer necessary for public protection.

The three appellants, Mr James, Mr Lee and Mr Wells, were all sentenced to IPPs with tariff periods shorter than five years.  However, they were unable to move from a local prison to a training prison, where treatment courses are offered, due to insufficient vacancies in the training prison.

Accordingly, the appellants were not able to attend courses which could assist in demonstrating to the Parole Board that their continued detention was no longer necessary for public protection.

The appellants argued that the conduct of the Secretary of State, in failing to provide for access to such programs, infringed their rights under arts 5(1)(a) and 5(4) of the European Convention.

Article 5(1) of the European Convention prohibits the deprivation of a person's liberty.  One exception to this prohibition is 'the lawful detention of a person after conviction by a competent court': art 5(1)(a).  Under article 5(4), anyone who is deprived of their liberty is entitled to challenge the lawfulness of their detention, and to be released if their detention is not lawful.

Decision

The House of Lords unanimously dismissed all three appeals.

Article 5(1)

The House of Lords held that the Secretary of State's failure to provide access to the treatment courses did not breach the appellants' rights under art 5(1), as the detention of an IPP prisoner beyond the tariff period will generally be 'lawful' under article 5(1)(a).  This is because the sentencing court, in passing the IPP, will have already decided that the prisoner would remain a danger at the time the tariff period expires.

However, their Lordships conceded that continued detention of an IPP prisoner could be 'unlawful' where:

• 'the system ... breaks down entirely, with the result that the Parole Board is unable to perform its function at all'; or
•  'a period of years' has passed without an effective review of the case.

Article 5(4)

The House of Lords held that the Secretary of State's failure did not breach the appellants' rights under art 5(4).  Their Lordships found that art 5(4) is concerned with procedure, not substance.  Where an IPP prisoner has the opportunity to challenge their continued detention before the Parole Board, their art 5(4) right will not be violated.  This will be the case even if their arguments are not persuasive due to, in this case, a failure by the Secretary of State.

Their Lordships suggested that an IPP prisoner's art 5(4) right will only be violated where:

• 'it has been impossible for the Parole Board to undertake any meaningful review of [the] risk' posed by the prisoner; or
• 'the system ... breaks down entirely because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary'.

Relevance to the Victorian Charter

This decision may have implications for the interpretation of ss 21(1) and 21(3) of the Victorian Charter, which are very similar to art 5(1) of the European Convention.  It may also be relevant to s 21(7) of the Charter, which is very similar to art 5(4) of the European Convention.

If followed in Victoria, there may be a breach of ss 21(1), 21(3) or 21(7) of the Charter where a prisoner is detained for longer than is necessary for public protection, or for a lengthy period without a meaningful review of the risk that they pose to the public.

The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/22.html.

Brinsley Saw, Human Rights Law Group, Mallesons Stephen Jaques