15 APR 2015
Knights v Parole Board of England and Wales  EWHC 136 (Admin); (2015) PLLR 020
Prisons – Criminal justice – Imprisonment for Public Protection
The claimants sought judicial review of the Parole Board and the Secretary of State for Justice’s decision to demand their detention beyond their minimum terms. Though the claim was largely dismissed, it was held that there had been a breach of Article 5(4) on the basis of the three month delay in holding O’s review. The delay led to the award of £300 in damages.
11 February 2015
Mrs Justice Lang
1.The first claimant (K) was imprisoned for public protection (IPP) in June 20008, with a minimum term of eight months. K completed a sexual offender treatment programme in 2009. Later that year, he was found to still pose a very high risk of reoffending, and it was recommended that he complete a longer course. He was subsequently transferred to another prison, where the recommended course had not yet been established. K eventually completed the course in November 2011 and the Parole Board allowed his release in early 2014.
2.The second clamant (O) had been imprisoned for public protection in February 2008, with a minimum term of 14 weeks. A Parole Board review, held in March 2011, found that O posed too much of a risk to the public to be released. The next Parole Board review was delayed from December 2013 until June 2014 on the basis that necessary reports were not completed in time. The Parole Board allowed O’s release in July 2014.
3.While the claimants were serving IPP sentences, the Criminal Justice and Immigration Act 2008 altered the IPP provisions in the Criminal Justice Act 2003 so that an IPP could only be imposed where the minimum term was four years imprisonment or more.
4.The first defendant was the Parole Board. The second defendant was the Secretary of State for Justice. The claimants sought judicial review of the Parole Board’s and Secretary of State’s decisions to demand their continued detention beyond their minimum terms.
5.The issues before the court were whether:
(i)the detention of the claimants had become arbitrary and thus in breach of Article 5 ECHR;
(ii)the problems O encountered in partaking in the extended course breached Article 5;
(iii)there had been a breach of the right to a swift decision as to the lawfulness of O’s continued detention;
(iv)the July 2008 amendments made the claimant’s continued detention under the IPP regime arbitrary and discriminatory, and thus in breach of Article 5 when it is read in conjunction with Article 4; and
(v)the sheer length of the sentence caused a breach of Article 3.
6.K’s claim was refused. O’s claim was accepted in part.
7.First, it was held that the complainants assumed that punishment was the sole purpose of the sentence, and therefore that the assessment of arbitrariness hinged on the minimum term and the time they were actually detained for.
The sentences, however, served the purposes of both punishment and protection. As the public authority did not act in bad faith and there remained a clear casual connection between the sentence initially given and the continued detention, there was no breach of Article 5(1). Both claimants were detained for public protection because they had been held to meet the statutory test for risk. During their detention, the claimants had been assessed and had gone on courses to enable them to reduce the risk they posed. That risk was periodically re-assessed and, when the board considered it was low enough, their release was directed.
8.Second, in R (on the application of Kaiyam) v Secretary of State for Justice  UKSC 66,  2 WLR 76 it was held that one of the purposes of IPP was rehabilitation and that a failure to provide courses was a breach of duty implicit in Article 5(4). The appropriate remedy for such a breach was modest damages and not release. The period as a whole should be considered and allowances made for the fact that some periods of delay were inevitable. During K’s sentence, he had not been provided with courses. K completed his main course in July 2009 and his extended course in November 2011. K had not completed any further course after that date. He could have, however, moved to a different prison, where different courses were available. There had not been a breach of the Article 5 ancillary duty.
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9.Third, it was held that there had been a breach of Article 5(4) on the basis of the three month delay in holding O’s review. The decisions of the Parole Board were reasonable but they were decisions that it had been forced to make by a lack of planning and expedition by the Secretary of State. The Secretary of State was therefore liable and not the board. The court was, however, not satisfied that O would have been released earlier if the hearing had been held earlier. The delay did, however, cause stress and thus warranted the award of £300 in damages.
10.Fourth, the European Court of Human Rights jurisprudence did not suggest that detention became arbitrary for the purposes of Article 5(1), because sentencing law changed after the prisoner had been sentenced, such that if he had been sentenced later, he would have received a more lenient sentence. Nor had Article 14 been breached, as such a person was not in a materially analogous situation to that of a person who was sentenced to an IPP after that date.
11.Fifth, the length of the sentence would only cause a breach of Article 3 in extreme circumstances. Neither claimant met the necessary threshold.
-,  – Article 5(1).
-, - – Article 5(1) ancillary duty.
- – Breach of Article 5(4).
- – Articles 5 (1) and Article 14.
 – Article 3.