As is well known, sentences of Imprisonment for Public Protection, brought in by the CJA 2003 were an unmitigated disaster, leading to many thousands of offenders being given indeterminate sentences for relatively minor offences, without proper prospect of release after serving their punitive term. The domestic courts held that the Secretary of State had failed in his duty to properly resource the scheme, but failed to give any meaningful relief. In particular, the Court of Appeal and House of Lords held that there had been no breach of Art 5(1) , the protection against arbitrary detention, even though the State had failed to provide the means by which offenders could demonstrate that they were no longer a risk, or Art 5(4) the right to have the continuing detention properly reviewed in Mr Jamesâ case. The ECtHR decision held that lengthy periods of detention for purely preventative purposes, became arbitrary and thereby unlawful if the State authorities failed to provide meaningful courses by which risk could be reduced or at least properly assessed. Damages were awarded in each case.
The decision in James, Wells and Lee v UK ECHR is highly significant because it means that the State is now challengeable whenever it locks offenders up for preventative means but fails to provide meaningful courses and treatment by which they can progress, and assessment by which they can demonstrate progress. These cases were plainly instrumental in raising the profile of the deeply flawed IPP system, leading to the demise of the IPP sentence from 3 December 2012, with the repeal of the 2003 provisions.
Furthermore the Judgment now provides clear pathways for existing IPP prisoners, of whom there are about 6,000, and other lifers, to challenge their continuing detention in the courts by way of judicial review and damages claims.
The Judgment is also significant in that it emphatically shows that the domestic courts have interpreted Art 5 far too narrowly.
Hopefully, now the final chance of a review has been rejected, the MoJ will turn to considering how best to deal with the proper treatment of indeterminate sentence prisoners, and to ensure that preventative detention is only used in a small number of cases, as in other European countries, and only where it is subject to stringent periodic review.
14th February 2013 - Government's European Court Appeal on IPP sentences denied - Switalskis Solicitors
13th February 2013 - Judges reject UK demand for new hearing on prisoners' human rights case - Human Rights Europe website
18th September 2012 - ECHR Rules IPP Sentences Breach Human Rights Article 5(1) - The Justice Gap
October 2012 - A Kafkaesque nightmare by Sarah Daley of GCN and Tony Quinlan of Switalskis Solicitors - Inside Time