R (on the application of Haney & Ors) v The Secretary of State for Justice [2014] UKSC 66

Four indeterminate-sentence prisoners claimed their post-tariff detention breached article 5 ECHR due to inadequate rehabilitative provision. The Supreme Court recognised an implied ancillary duty under article 5 to provide reasonable rehabilitation opportunities, awarding damages to Haney and Massey but dismissing Kaiyam's and Robinson's appeals.

Facts

The four appellants were all serving indeterminate sentences (either life or Imprisonment for Public Protection (IPP)) and complained that failures by the Secretary of State to provide appropriate rehabilitative courses and opportunities hampered their progression towards post-tariff release. Mr Haney, serving an automatic life sentence with a nine-year tariff expiring November 2012, was approved for transfer to open conditions in June 2011 but not actually transferred until July 2012, due to systemic backlog following the introduction of IPP sentences. Mr Kaiyam, an IPP prisoner with a tariff expiring April 2009, complained about individual delays and mismanagement of his courses. Mr Massey, an IPP prisoner sentenced for sexual offences with tariff expiring September 2010, faced significant delay in accessing the Extended Sex Offender Treatment Programme (ESOTP), not commencing it until May 2013. Mr Robinson, an IPP prisoner with a seven-year tariff expiring December 2012, waited approximately five years from initial recommendation before commencing the ESOTP in July 2013.

Issues

The principal issue was whether the Supreme Court should modify its earlier jurisprudence in R (James, Lee and Wells) v Secretary of State for Justice [2009] UKHL 22 in light of the European Court of Human Rights’ contrary decision in James v UK (2013) 56 EHRR 12, which held that failure properly to progress prisoners towards post-tariff release rendered their detention ‘arbitrary’ and therefore unlawful under article 5(1) ECHR. Subsidiary issues included whether Mr Haney had been unlawfully discriminated against contrary to article 14 by the October 2011 policy prioritising post-tariff prisoners for transfer to open conditions, and whether each appellant’s individual circumstances disclosed a breach of any duty under article 5.

Arguments

The Secretary of State, through Mr James Eadie QC, invited the Court to adhere to the reasoning in R (James) and declare continuing detention lawful unless and until the Parole Board determined it unnecessary, arguing that the ECtHR’s reasoning produced unacceptable consequences including potential release of dangerous prisoners. The appellants argued for adoption of the ECtHR’s approach in James v UK, contending that failure to provide adequate rehabilitative opportunities rendered detention arbitrary and unlawful. Mr Southey QC suggested the logical difficulty (that unlawfulness would require release) could be avoided because court orders would redress the situation before release became necessary.

Judgment

The Court held that it could not follow the ECtHR’s reasoning in James v UK insofar as it treated failures in rehabilitation provision as rendering detention ‘arbitrary’ and unlawful under article 5(1)(a). Such an approach would produce unacceptable and implausible consequences, including requiring release of prisoners whose safety had not been established, conflicting with primary legislation (section 28(6)(b) of the Crime (Sentences) Act 1997), and creating fluctuating lawfulness of detention.

However, the Court did not simply revert to R (James). It accepted the Fourth Section’s conclusion that rehabilitation forms one purpose of life and IPP sentences and that there should be an individual remedy. The Court held that an ancillary duty can and should be implied within the overall scheme of article 5 as a whole, requiring the State to provide prisoners serving indeterminate sentences with a reasonable opportunity to rehabilitate themselves and demonstrate they no longer present an unacceptable danger to the public. Breach of this ancillary duty does not affect the lawfulness of detention but sounds in damages.

The appropriate remedy for breach is not release, but damages for legitimate frustration and anxiety, drawing on the framework established in R (Faulkner) and R (Sturnham) [2013] UKSC 23.

Application to individual cases

Haney: The Secretary of State’s own June 2011 letter defined what was reasonable, yet transfer was delayed approximately a year. Breach established; £500 awarded. His article 14 discrimination claim regarding the October 2011 policy was rejected as the differential treatment was clearly justified and proportionate.

Kaiyam: Despite some misjudgements in course selection, Kaiyam had been afforded reasonable opportunity to rehabilitate himself through multiple courses and sustained one-to-one work. No breach.

Massey: The Secretary of State’s October 2010 letter set a 24-month timetable which was not honoured; an unacceptable delay of about a year occurred post-tariff. Breach established; £600 awarded.

Robinson: The majority (Lord Hughes, with Lord Neuberger, Lord Toulson and Lord Hodge) held Robinson had been afforded reasonable opportunity through ETS, CSOTP and the PCL-R assessment; the ESOTP was not the acid test and there was no legal obligation to provide it. Lord Mance dissented, holding that the delay in ESOTP provision breached the ancillary duty given that all parties accepted ESOTP was necessary and total delay pushed potential release approximately two and a half years beyond tariff expiry.

Implications

The decision establishes a new implied ancillary duty under article 5 ECHR in domestic law for prisoners serving indeterminate sentences. The duty requires the State to provide a reasonable opportunity for rehabilitation and to demonstrate reduced risk, but is not a duty to maximise coursework or provide any specific programme. Breach gives rise to damages, not release. This approach reconciles Convention rights with the statutory scheme requiring Parole Board authorisation for release under section 28(6)(b) of the Crime (Sentences) Act 1997, avoiding the logical difficulties in the ECtHR’s arbitrariness analysis.

The judgment is significant as an example of constructive dialogue with Strasbourg, declining to follow the Fourth Section’s reasoning while accepting the underlying principle that rehabilitation is a purpose of indeterminate sentences. Damages awards will be modest and follow the framework in R (Faulkner) and R (Sturnham). Prisoners must establish individual breach on the facts; systemic failure alone is insufficient without individual impact. The decision matters to indeterminate sentence prisoners, the Parole Board, prison administrators, and legal practitioners advising in this area, and reflects the wider difficulties created by the IPP regime (since abolished by LASPO 2012) which the Court described as a ‘seriously flawed system’ introduced without sufficient funding.

Verdict: The appeals of Haney and Massey were allowed with awards of £500 and £600 respectively for breach of the ancillary duty under article 5 ECHR. The appeals of Kaiyam and Robinson were dismissed. Haney’s article 14 discrimination claim was rejected. Lord Mance dissented on the disposition of Robinson’s appeal.

Source: R (on the application of Haney & Ors) v The Secretary of State for Justice [2014] UKSC 66