ECtHR rules IPP sentences breach human rights Art 5(1)

18 September 2012

The ECtHR gave judgment today in James, Wells and Lee v UK ECHR 340 (2012). It held unanimously, that there had been a violation of Article 5(1) (right to liberty and security) of the European Convention on Human Rights (ECHR) concerning the Applicants’ detention following the expiry of the minimum terms in their indeterminate sentences for the public protection (IPPs).

Garden Court North Chambers’ Pete Weatherby QC acted for the lead case of Brett James, instructed by Erica Restall of Switalskis Solicitors, Bradford.

The Court held that the failure to provide sufficient rehabilitative courses led to arbitrary detention after the punishment phase of the sentence had been served.

The Court found that such imprisonment was premised on the understanding that prisoners would be able to rehabilitate, and the suggestion of the domestic courts that this was an aspiration rather than a requirement was incorrect. The Court held that no realistic consideration had been given to the impact of the sentences of IPP when they were introduced in 2005, and this had led to the problems.

The domestic Courts held that the Secretary of State had breached his public law duty to provide courses, but this did not mean that the detention had become unlawful under English and Welsh law, or under the Convention. The ECtHR disagreed.

Mr James was awarded 3,000 euros in respect of non-pecuniary damage for 5 months arbitrary detention.

It is of note that the UK has nearly 14,000 indeterminate sentence prisoners, more than the combined total of all the other 46 countries of the Council of Europe. One in five sentenced prisoners in the UK is serving an indeterminate sentence. The last publicly available figures show that one in three IPP prisoners have not completed a single rehabilitative course. There are currently more than 6,000 serving IPP prisoners a 58% of them have served beyond their tariff dates.

Although the cases decided today relate to the position several years ago, the position remains difficult. A 2012 MoJ report indicates that Parole Board members (who decide whether or not to release IPP prisoners) feel access to courses and resources generally continue to be a barrier to the release of IPP prisoners.

Pete was interviewed for the BBC Radio 4 Today programme and BBC Radio 5 live to explain the significance of today’s European Court ruling. On the Today programme, he commented:

“Although various measures have been brought in in the 7 years since [IPP sentences were introduced in 2005, there are certainly still extremely serious problems and actually a very small percentage of IPP prisoners have been released at all and so the absolute number of IPP prisoners in the system is still going up.”

On the Radio 5 live programme Pete added:

“…it will no longer be open to the government to argue that rehabilitation of these prisoners was an aspiration rather than a requirement of these sentences.”

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