Thursday, 11 December 2014

Supreme Court ~ taking into account Strasbourg decision but not bound

The Supreme Court judgment in R (Haney, Kaiyam and Massey) v Secretary of State for Justice and R (Robinson) v Governor of HMP Whatton and Secretary of State for Justice [2014] UKSC 66 concerns individuals who had been sentenced to Imprisonment for Public Protection (IPP) under the regime imposed by the Criminal Justice Act 2003 s.225 (in force 4th April 2005) but now abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.123.   IPP applied to those convicted before 3rd December 2012.

Supreme Court judgment and associated press release.

IPP caused serious problems for the Prison Service and the Parole Board - see Oxford Human Rights Hub - James, Wells and Lee v UK.  The House of Lords
in James, Lee and Wells [2009] UKHL 22  criticised the ‘deplorable’ systemic failure of the Secretary of State to put in place the rehabilitative resources necessary to enable IPP prisoners to progress their sentences. However, they stopped short of holding that IPP prisoners were unlawfully detained. It was held that the purpose of IPP sentences was public protection, not rehabilitation. The Parole Board could still perform its review function. Therefore, in their view, the Applicants’ indeterminate imprisonment could not be considered arbitrary. The European Court in James, Lee and Wells v UK (2012) 56 EHRR 399, by contrast, unanimously held that the Applicants had been subjected to an arbitrary deprivation of liberty thereby rendering their continued detention unlawful.


The Supreme Court's judgment is of particular interest because of its discussion of the legal relationship between the Supreme Court and the European Court of Human Rights - see, for example, paragraphs 18-23, 30-37 and 38-39 of the judgment.  The Human Rights Act 1998 requires only that the courts in the UK 'take into account' judgments of the European Court.  The words 'take into account' have provoked considerable recent discussion.

The Supreme Court held that the express wording of Article 5(1) or 5(4) did not create any relevant duty to provide prisoners with a reasonable opportunity to progress their rehabilitation and release.  However, the overall scheme of Article 5 did impose an implied ancillary duty on the Secretary of State to facilitate prisoners' rehabilitation and release.  Breach of that duty would not affect the lawfulness of the detention but would entitle prisoners to damages. 

Thus, the Supreme Court found itself not entirely in agreement with Strasbourg but not entirely following the House of Lords either. A midway position was adopted.

Further reading see UK Supreme Court blog 10th December  and the excellent post by David Hart QC on UK Human Rights Blog 11th December.  

The handing down of the judgment may be seen via Youtube.


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