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Mixed success for prisoners claiming non-rehabilitation damages
A failure properly to progress indeterminate-term prisoners towards release once they have served the tariff part of their sentences is not a breach of their rights under article 5 of the European Convention on Human Rights, the UK Supreme Court ruled today.
However, the overall scheme of article 5 does impose an implied ancillary duty on the Secretary of State to facilitate prisoners’ rehabilitation and release. Breach of that duty would not affect the lawfulness of the detention, but would entitle prisoners to damages.
The court, which expressly declined to follow the approach of the European Court of Human Rights in an earlier decision, was giving judgment in an English case concerning four prisoners who claimed that their “post-tariff” detention was unlawful because the Secretary of State had failed to provide them with a reasonable opportunity to progress their rehabilitation and release.
The appellants relied on the decision of the Human Rights Court in James v United Kingdom (2012), where the court found that a failure properly to progress prisoners towards “post-tariff” release breached their article 5(1) rights to liberty and made their continued detention unlawful. One, Haney, claimed that he had been transferred to open prison conditions too close to the expiry of his “tariff” period to enable his immediate release. The other three, Kaiyam, Massey and Robinson, claimed that they had not been able to commence particular rehabilitative treatment programmes within a reasonable time of their “tariff” period expiring.
The court unanimously allowed Haney and Massey’s article 5 appeal, awarding Haney damages of £500 and Massey £600; unanimously dismissed Haney’s article 14 appeal and Kaiyam’s article 5 appeal; and dismissed the article 5 appeal in the case of Robinson by a majority, Lord Mance dissenting.
Giving the principal judgment, Lord Mance and Lord Hughes (with whom Lord Neuberger, Lord Toulson and Lord Hodge agreed) said that the court was not bound to follow the Human Rights Court's reasoning in James, that a failure properly to progress prisoners towards “post-tariff” release amounted to a breach of their article 5(1) right to liberty, and the express wording of article 5(1) or 5(4) did not create any relevant duty to provide prisoners with a reasonable opportunity to progress their rehabilitation and release. However, they accepted that the Secretary of State had a duty under article 5 to facilitate prisoners’ rehabilitation and release, breach of which duty would entitle prisoners to damages.
In the present appeals, Haney’s delay in being transferred to open prison conditions had deprived him, contrary to article 5, of a reasonable opportunity to demonstrate that he was no longer a danger to the public, an opportunity which the Secretary of State himself had said that he should have. However, there had been no breach of article 14 in discriminating between pre- and post-tariff prisoners.
Kaiyam’s delay in being able to commence various rehabilitative treatment programmes did not breach his article 5 rights. He had been provided with a reasonable opportunity to demonstrate that he was no longer a risk to the public through courses on enhanced thinking, drug awareness and victim awareness but his responses to those programmes had been poor.
Massey’s delay in being able to commence an extended sexual offender’s treatment programme until nearly three years after the expiry of his tariff period (and after the Secretary of State had provided for a timetable which was not fulfilled) had deprived him of the reasonable opportunity to demonstrate that he was no longer a danger, in breach of article 5.
In relation to Robinson, the majority held that delay in being able to commence an extended sexual offender’s treatment programme until nearly nine months after the expiry of his tariff period did not breach his article 5 rights. The question was not whether the appellant had been deprived of access to a particular course, but whether he had been given a reasonable opportunity to demonstrate that he was no longer a danger to the public. Lord Mance however considered that article 5 required that Robinson be given a reasonable degree of access to the extended sexual offender’s treatment programme, which he had not been given in the circumstances of the present case.
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