The European Court of Human Rights (ECtHR) last month held unanimously that three prisoners who received IPPs in 2005 with tariffs of two years (Brett James), 12 months (Nicholas Wells) and nine months (Jeffrey Lee) had been arbitrarily detained – see HERE on the JusticeGap.

The failure to make appropriate provision for rehabilitation services resulted in breaches of Article 5(1) of the ECHR, which protects the individual from arbitrary detention. They also held by six to one that there had been no violation of Article 5(4) (the right to have the legality of detention decided quickly by the court). The court awarded the three IPP prisoners who took their cases to the court substantial compensation of between 15,000 and 20,000 euros (between £12,000 and £16,000).

The three maintained that once the punitive element of the IPP sentence had passed (the tariff expiry or minimum sentence) then, where the individual was detained solely on the basis of risk, such detention was capable of becoming arbitrary and unjustifiable under Article 5 (1) in the absence of any means to reduce or demonstrate reduction of risk, where the failure was for a considerable period of time lengthy time, and in light of the significance of the risk posed by the prisoner.

The government had contended that the purpose of the IPP related to public protection, and that the Parole Board should start from the position that detention should continue until satisfied that detention was no longer necessary for the protection of the public.

What the European Court said
In considering Article 5(1) the ECtHR stressed that compliance with national law alone did not mean detention was lawful: deprivation of liberty had to be in line with ensuring the individual was protected from arbitrariness, which would depend on the type of detention involved. Although not exhaustive, the following elements were capable of rendering detention as arbitrary.

• Where there was bad faith or deception on the part of the authorities in bringing someone into custody;
• The order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by Article 5;

• There must be a relationship between the grounds permitting the deprivation of someone’s liberty and the place and conditions of detention; and
• Finally there needed to be proportionality between the grounds and the detention in question – decided on a case by case basis.

In this case the ECtHR focused on the importance of access to rehabilitation if prisoners were going to be locked up in order to protect the public. The Court acknowledged that by virtue of s142 of the 2003 Act rehabilitation was not an express objective of the IPP sentence. However they also looked at the statements made by then Minister of State at the Home Office, Baroness Scotland, during the parliamentary debate concerning the original legislation regarding indeterminate sentences.

They noted that:

‘… a real opportunity for rehabilitation was a necessary element of any part of the detention which was to be justified solely by reference to public protection.’

Despite the introduction of the IPP scheme being premised upon rehabilitation services being made available, the court said that the huge delays in the provision of any courses to show they had, on the prison service and Parole Boards standard reduced their risk, meant the applicants ‘had no realistic chance of making objective progress’ towards parole, and that their had been a lack of resources, planning and realistic consideration of the impact of the sentencing scheme introduced in 2005,”

This important judgment shows that the lawfulness of indeterminate sentences based on a prisoners risk to the public must depend upon the extent to which that risk is addressed whilst in custody.

Why did the ECHR differ from the UK Courts?
Strasbourg’s approach differed from that of the domestic courts when confronted by the applicants’ Catch 22 predicament:

The Court of Appeal (Secretary of State for Justice v Walker [2008] EWCA Civ 30) and House of Lords (Secretary of State for Justice v James [2009] UKHL 22) had been united in their criticism of the Secretary of State’s failure to provide adequate resources with which to meet his public law duty, yet each had fallen short of finding the detention to be unlawful in and of itself. Despite noting the Secretary of State’s ‘deplorable’ failure to meet his public law duty, the House of Lords had found no rupture in the crucial causal connection in these types of cases between the ground of detention and the detention itself. In the Court of Appeal in James, Lord Phillips’ starting point had been that the primary object of the IPP sentence was to protect the public, not to rehabilitate. For him, concerns from an Article 5 perspective only arose when the stage was reached that detention was no longer necessary for protection of the public, or where so long had elapsed without a meaningful detention review that detention had to be considered arbitrary. By contrast, the ECtHR essentially viewed protecting the public and rehabilitation as two sides of the same coin.

A real opportunity for rehabilitation was ‘a necessary element of any part of the detention which is to be justified solely by reference to public protection’. Detention for public protection could not be allowed to ‘open the door to arbitrary detention’.

Reasonable provision of rehabilitative services was all that was required. Yes, persons could be detained indefinitely on the grounds of public protection from the risk they posed, but the system had to provide for those risks to be reduced through rehabilitation. As the courts below recognised, this was ‘inherent’ in the way the legislation was intended to work in practice. For Strasbourg however, it was also inherent to the question of lawfulness.

What now for IPPs?
The government says it intends to appeal, though given the clear reasoning and unanimous decision it is difficult to see the Grand Camber at the European Court giving much consideration to any appeal.

What the ECtHR has not ruled is that the whole concept of indefinite preventive detention after a prisoner has completed the punitive part of his sentence (tariff) is in breach of the human rights convention. IPP sentences are still being handed down even though parliament has passed a law (as part of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act given royal assent on 1 May 2012) that includes abolition of future IPP sentences, because that part of the Act comes into effect only on a date to be fixed by the Justice Secretary, and no such date has yet been fixed.

However this judgment does give some definition to arbitrary detention and may be useful in other contexts such as whole life sentences which are up for judgement in Strasbourg shortly. It will also hopefully put pressure on the government to bring into force the repeal of IPP sentences and to work out how to rapidly reduce the existing ones.

There are also likely to be immediate practical consequences in terms of potential damages claims brought on behalf of those 3,000-plus prisoners currently over tariff, as well as other IPP prisoners who have been released but were themselves arbitrarily deprived of their liberty as a result of the systemic failings noted by the Court.  These could be brought under Section 8 of the Human Rights Act 1998 though any HRA claims would be limited to relatively low awards reflecting ‘just satisfaction’ within the meaning of Article 41 ECHR (the applicants received only a few thousand Euros each).

An additional caveat is that only those who can show that their release has been significantly delayed by an absence of specific available courses, specifically prescribed as conditions for consideration for release, are likely to have a case for compensation. IPP prisoners who have yet to complete their tariffs are unlikely to qualify for compensation.