Strasbourg overrules House of Lords on IPPs

The European Court of Human Rights issued a judgment this morning likely to infuriate Conservative backbenchers when it ruled that indefinite sentences for public protection, introduced in 2005, breached human rights.

The House of Lords unanimously ruled in May 2009 that the sentences, for those convicted of up to 153 violent or sexual offences, did not breach the ECHR. Among the judges was the current Lord Chief Justice, Lord Judge.

However, Lord Brown said in his ruling that he wanted to register “real disquiet” about the way IPPs were introduced and warned: “The maxim ‘marry in haste, repent at leisure’ can equally well be applied to criminal justice legislation, the consequences of ill-considered action in this field being certainly no less disastrous.”

Delivering judgment today in James,Wells and Lee v UK (application nos 25119/09, 57715/09 and 57877/09), the ECtHR said all three applicants accepted that their detention until the expiry of their tariffs was lawful.

However, they argued that their detention afterwards was unlawful and arbitrary and a violation of the right to liberty under Article 5(1).

The House of Lords argued that under Section 28 of the Crime (Sentences) Act IPPs could only be brought to an end by a decision of the Parole Board that prisoners no longer presented a risk to the public.

The men argued that they could not get places on the courses they needed, such as anger management and substance abuse, to minimise their risk to the public.

The Strasbourg judges said the UK government’s responded by arguing that the fact that the secretary of state might not have provided appropriate courses and the applicants had limited opportunities to minimise their risk did not lead to a situation where the Parole Board was “simply unable to ascertain” whether the applicants were dangerous.

“Further, extensive steps had been taken to seek to remedy the problem, in particular by the introduction of new legislation.”

In the case of James, the government argued that evidence presented to the Parole Board was sufficient, even in the absence of accredited courses, for board members to reach conclusions about his risk.

In the case of Wells, although he was not provided with the appropriate accredited courses specified in his sentence plan, there was evidence before the Parole Board at each of the hearings held in his case to support the conclusion that he remained dangerous.

“Finally, in Mr Lee’s case, a series of hearings was held or adjourned by the Parole Board, which found that he continued to pose a risk, including a hearing in April 2010 prior to which Mr Lee had undertaken work to address his offending behaviour.”

However, the ECtHR said: “The court reiterates that the right to liberty is of fundamental importance. While its case law demonstrates that indeterminate detention for the public protection can be justified under Article 5(1)(a), it cannot be allowed to open the door to arbitrary detention.

“As the court has indicated above, in circumstances where a government seek to rely solely on the risk posed by offenders to the public in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders.

“In the applicants’ cases, this meant that they were required to be provided with reasonable opportunities to undertake courses aimed at helping them to address their offending behaviour and the risks they posed.”

The Strasbourg judges went on: “While Article 5(1) does not impose any absolute requirement for prisoners to have immediate access to all courses they may require, any restrictions or delays encountered as a result of resource considerations must be reasonable in all the circumstances of the case, bearing in mind that whether a particular course is made available to a particular prisoner depends entirely on the actions of the authorities.

“It is therefore significant that the failure of the secretary of state to anticipate the demands which would be placed on the prison system by the introduction of the IPP sentence was the subject of universal criticism in the domestic courts and resulted in a finding that he was in breach of his public law duty.”

The ECtHR concluded that the men’s detention was arbitrary and unlawful and awarded them 12,000 euros each in costs and expenses.