R (James) v SSJ [2009] UKHL 22

(1) Following the introduction of IPP sentences, the Secretary of State was in breach of his public law duty to make reasonable provision to enable IPP prisoners (if necessary by completing treatment courses) to demonstrate to the Parole Board their safety for release. The appropriate remedy was declaratory relief condemning the Secretary of State's failures and indicating that he is obliged to do more. The systemic failure has ended (following amendments including making the IPP sentence generally available only when the notional minimum term is at least 2 years) so no further relief is appropriate. (2) In relation to post-tariff detention, the systemic failure did not: (a) make the detention unlawful (detention remains lawful under statute until Parole Board release); (b) breach Article 5(1) (causal link with objective of detention remained until Parole Board decision); or (c) breach Article 5(4) (which is concerned with procedure not substance) although cases with prior findings or concessions of Art 5(4) breaches were remitted to Admin court for assessment of damages.


The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  


PRISONS — Prisoners’ rights — Release on licence — Indeterminate sentence for public protection — Expiry of tariff period — Prisoner’s need to demonstrate to Parole Board that detention no longer necessary — Performance of treatment courses likely prerequisite — Failure of Secretary of State to provide courses — Whether continued detention lawful — Whether breach of Convention rights — Crime (Sentences) Act 1997, s 28(6)(b)(7) — Human Rights Act 1998, Sch 1, Pt I, art 5(1)(4) — Criminal Justice Act 2003, s 225


The failure of the Secretary of State for Justice to provide courses to enable prisoners serving indeterminate sentences for public protection to enable them to demonstrate their safety for release to the Parole Board did not render their post-tariff detention unlawful.

The House of Lords so held in dismissing appeals by the claimant Brett James from the Court of Appeal (Lord Phillips of Worth Matravers CJ, Dyson, Toulson LJJ) (sub nom R (Walker) v Secretary of State for Justice (Parole Board intervening)) [2008] 1 WLR 1977B and by the claimants Jeffrey Lee and Nicholas Wells from Moses LJ [2008] EWHC 2326 (Admin)B. The Court of Appeal had allowed in part the Secretary of State’s appeal from Collins J [2007] EWHC 2027 (Admin)B.

LORD BROWN OF EATON-UNDER-HEYWOOD said that indeterminate sentences for public protection (“IPPs”) had been introduced by s 225 of the 2003 Act. It had been implicit in the statutory scheme that the Secretary of State would make reasonable provision to enable prisoners to demonstrate their safety for release to the Parole Board, by completing treatment courses if necessary. He conceded that, particularly with regard to short tariff prisoners, he had failed to do so and been in breach of duty. The claimants were short tariff prisoners. Their argument that their detention was or had been unlawful at common law was, however, unsustainable. Otherwise a court would have to order a prisoner’s release even where the Parole Board, on a delayed consideration of his case, had found him to be dangerous. The only remedy for the Secretary of State’s breach of duty would be declaratory. For detention to be justified under art 5(1)(a) of the Convention for the Protection of Human Rights and Fundamental Freedoms there had to be “sufficient causal connection between the conviction and the deprivation of liberty”: Weeks v United Kingdom (1987) 10 EHRR 293, para 42. Before the causal link could be adjudged broken the Parole Board would have had to be unable to form any view of the prisoner’s dangerousness for years rather than months. There was no breach in the claimants’ cases. Art 5(4) required no more than that “a court” (the Board) should speedily decide whether the prisoner continued to be lawfully detained, and that would be so unless and until it was satisfied of his safety for release or so long had elapsed without any effective review of his dangerousness that the art 5(1) causal link was broken. Art 5(4) required the basic dossier to be available, since it could not function without it, but no more. Since, however, Mr Lee’s art 5(4) claim had been conceded before Moses LJ and Mr Wells’ had been held established and that was unappealed, their consequential claims for damages should be remitted to the Administrative Court for assessment.

LORD HOPE delivered an opinion agreeing with Lord Brown and Lord Judge CJ.

LORD CARSWELL and LORD MANCE agreed with Lord Hope, Lord Brown and Lord Judge CJ.

LORD JUDGE CJ delivered a concurring opinion.


R (James) v Secretary of State for Justice (Parole Board intervening); R (Lee) v Same (Same intervening); R (Wells) v Same (Same intervening) (on appeal from R (Walker) v Same (Same intervening)) [2009] UKHL 22B; [2009] WLR (D) 145

HL(E): Lord Hope of Craighead, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance, Lord Judge CJ: 6 May 2009

Appearances: Pete Weatherby and Melanie Plimmer (Switalskis, Bradford) for James; Tim Owen QC and Nick Armstrong (Stephensons LLP, Wigan) for Lee and Wells; Nathalie Lieven QC and Steven Kovats (Treasury Solicitor) for the Secretary of State; Pushpinder Saini QC and Dan Squires (Treasury Solicitor) for the Parole Board for England and Wales, interested party, intervening.

Reported by: Michael Gardner, barrister


The IPP sentence scheme was introduced on 4/4/05 by s225 Criminal Justice Act 2003. The later amendments mentioned above took effect from 14/7/08 by s13 Criminal Justice and Immigration Act 2008.

See Prison law for links between prison law and mental health law.

External link


ICLR case report

Judgment on Parliament website