Cawser, R (on the application of) v Secretary of State for the Home Department

For many years now the Prison Service has been providing treatment courses for sex offenders, the Sex Offender Treatment Programme (“SOTP”) since 1992 and the Extended Sex Offender Treatment Programme (“ESOTP”) since 1997. Only very exceptionally will a life sentence prisoner convicted of sex offences be able to secure his release without have successfully attended one or both of these courses. There are not, however, enough of them. Sometimes prisoners are kept waiting for many months until a course is available. This appellant was such a prisoner. He had to wait 21 months from November 2001, when he was approved as suitable for an ESOTP until August 2003 when a place became available at Shepton Mallet. This delay must inevitably have delayed his likely release date: the tariff part of his sentence had expired in August 2001. Hence this challenge, advanced both under domestic public law and pursuant to Article 5 of the European Convention on Human Rights (“ECHR”).

Permission to apply for judicial review was refused by Mackay J on 10 February 2003. As Mr Owen QC for the appellant recognises, that refusal was inevitable having regard to a number of authorities in point. On 7 April 2003, however, Buxton LJ gave permission to appeal (and directed that the substantive challenge be heard in this court) on the basis that:

“[T]he applicant is entitled to have considered before the Full Court the extent to which, if at all, policy as to the provision of training that is or is potentially related to release decisions, including policy as to resource-allocation is susceptible to judicial scrutiny, more particularly under Article 5.”

With that briefest of introductions let me now set out the facts of the case to the limited extent necessary to identify and resolve the issues arising, issues which are acknowledged now to be academic with regard to this appellant (since he is already on a relevant course) but which are said to remain of importance to many others still awaiting treatment courses.

The appellant is a man of 51 with a number of convictions. In December 1978 he was convicted of the rape of a 13 year old girl and sentenced to a 12 year term of imprisonment (reduced on appeal to 9 years). In 1998 his partner separated from him when she found out about this conviction. When later they met to discuss the separation there was an argument after which the appellant drove her into the countryside and raped her in his car. He had been drinking.

On 17 February 1999 the appellant was found guilty of rape and was subsequently sentenced to life imprisonment under the automatic sentence provisions contained in s2 of the Crime (Sentences) Act 1997 (now s109 of the Power of Criminal Courts (Sentencing) Act 2000). The tariff was set at 2½ years (presumably on the basis that a determinate sentence for the offence would have been five years) which, as stated, expired in August 2001.

Release is a matter for the Parole Board pursuant to s28 of the Crime (Sentences) Act 1997. The appellant’s first Parole Board review was held in September 2001. The Board noted the progress that had been made during the sentence but observed that “serious concerns remain, and further work is yet to be done”. The work related to issues of alcohol use, victim empathy and sexual offending. In these circumstances the Board did not direct the appellant’s release and recommended that his next review take place the following year.

On 29 November 2001 a Prison Service psychologist reported that the appellant was suitable for an ESOTP and that he wished to undertake this at the earliest opportunity.

On 15 April 2002 the appellant’s solicitors wrote to the Lifer Unit noting that he was keen to attend an ESOTP but had been informed that there was no place available until 2003 or possibly 2004.

The appellant’s sentence plan recorded on 8 May 2002: “Needs to expedite a move to an establishment that offers the ESOTP”.

At the appellant’s second Parole Board review held on 11 December 2002 the Board noted the absence of the course work and expressed the hope that it be undertaken as soon as possible.

On 6 January 2003 the respondent Home Secretary set the date for the appellant’s next Parole Board review for December 2004 but noted “should you complete the Extended SOTP course before December 2004, then we may be able to bring your review date forward”.

As already stated, the appellant was not placed on an ESOTP course until August 2003.

As explained in a statement submitted in these proceedings by Mr Watts, a senior officer of the Prison Service Life Unit, the ESOTP is a therapeutically complex course designed for additional treatment to those higher risk prisoners who have already completed the SOTP (“core programme”) but who require further work to reduce risk. Resources required to provide the course are considerable. Generally it consists of 68 two-hour sessions with two to four sessions per week. There are said to be very few individuals with the appropriate skills available to provide the course. In the year ending April 2003 12 ESOTP courses were run in ten prisons. In the present year (ending April 2004) this has been increased to 19 planned courses providing a total of 152 places in eleven prisons. The courses are provided to both life prisoners and determinate sentence prisoners and there are, says Mr Watts, therapeutic advantages in running courses with a mix of both. As to the allocation of places on the courses, Mr Watts states:

“Places on ESOTP courses are allocated based on risk level, sentencing length/PED [Parole Eligibility Date] and motivation, within the context of a mix of determinate sentence prisoners and lifers normally being allocated to each programme (with the exception of Shelton Mallet which is an all lifer prison). Lifers who are considered ready, suitable and willing to undertake this work are prioritised, so far as possible, using their tariff expiry date as the main factor.”

The appellant’s solicitors queried that statement and asked:

“[I]s priority given to those who are approaching tariff expiry or to those who have served longer than their tariff period, based on the length of time served over tariff? Finally, can you confirm whether lifers are given priority over determinate sentenced prisoners and how priority is determined between those two groups.”

The respondent replied:

“Treatment Managers make decisions about individual cases, based on the criteria set out previously. Subject to this, lifers with expired tariffs would take priority over those approaching tariff in the interests of fairness. Lifers will not necessarily have priority over determinate sentence prisoners, particularly if a determinate sentence prisoner is approaching his release date.”

As noted at the outset, the appellant’s essential complaint is that he had to wait a long time for his place on a treatment course and in the result his likely release date has been substantially delayed. By s28(6)(b) of the Crime (Sentences) Act 1997 the Parole Board is precluded from directing a life prisoner’s release unless it is “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”.

Although Mr Watts suggests that “no accredited programme should be seen as a necessary pre-condition of release”, he acknowledges that:

“[T]he advantage of attending an accredited programme is that there is participation in a structure activity tailored to particular risk factors, and which has individual assessment and monitoring of change built in to it. It is therefore much easier for an offender to demonstrate he has addressed particular risk factors and that he has achieved a change via an accredited programme.”

The appellant’s solicitor is hugely experienced in this field and states:

“It has been my experience that prisoners convicted of sexual offences who do not attend the relevant course (SOTP and ESOTP) find it almost impossible to satisfy the test of release on licence. There are a few cases that I am aware of relating to determinate prisoners …. However, I am not personally aware of any lifer convicted of a serious sexual offence who has been able to secure release without attending offending behaviour programmes to address sexual offending”.

A life sentence consists of a tariff or punitive period (which only very exceptionally will be life) followed by a preventive period during which the prisoner ought to be released as soon as he can satisfy the Parole Board that he no longer remains a danger. The importance of keeping the preventive period as short as possible was underlined by this court’s decision in R (Noorkoiv) -v- Home Secretary [2002] 1 WLR 3284, holding that Article 5(4) of ECHR required the Secretary of State and the Parole Board to put in place a new system for pre-tariff expiry date oral hearings to ensure that, whenever possible, those no longer dangerous can be released on or very shortly after their tariff expiry dates. Article 5(4) provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The main argument advanced by Mr Owen on this appeal, however, is not under Article 5(4) but rather under Article 5(1). This provides so far as material:

“No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a competent court, …”

Mr Owen’s essential submission, as I understand it, is that the Secretary of State is under a duty (albeit one qualified by any lack of resources) to provide sufficient courses to enable life sentence prisoners who might benefit from them to undertake such a course with a view to a Parole Board review in the light of it at or as soon as possible after their tariff expiry date. But for this, he submits, the prisoner’s continued detention must be regarded as disproportionate and arbitrary and thus contrary to Article 5(1)(a).

Although argument in the case has hitherto been advanced principally under Article 5(4), Mr Owen now concedes that a challenge on that basis is hopeless. The reason why is to be found in a succession of authorities.

In R -v- Home Secretary ex parte Gunn [2000] Prison Law Reports 62 Buxton LJ in this court described such a challenge as misconceived in the context of the Secretary of State’s refusal to transfer a prisoner to open conditions with a view to improving his prospects of release:

“[Article 5(4)] is not to do with how persons are treated while they were detained or where they are placed in the prison system. Other parts of the Convention, none of which are suggested to have been infringed in this case, deal with those matters. That being so, there is no obvious way in which Article 5 has any connection with the decision which is at the moment complained of as to whether this man should in be enclosed or open conditions.”

Rose LJ in the Divisional Court in R (Burgess) -v- Home Secretary [2000] Prison Law Reports 257 fully considered and roundly rejected a similar challenge, concluding at paragraph 39:

“Article 5(4) does not … preclude the Secretary of State from taking a different view than the Discretionary Life Panel of the Parole Board as to whether or not the applicant should be moved to open conditions.”

Burgess was in turn considered by this court in R (Williams) -v- Home Secretary [2002] 1 WLR 2264 which concerned a prisoner’s challenge to the Category A Committee’s decision to retain that classification for him despite the Parole Board’s recommendation that he be moved to conditions of lower security with a view to his eventual release. Judge LJ, giving the judgment of the court, fully approved Rose LJ’s judgment in Burgess and pointed out that it had been reached after consideration of all relevant domestic and Strasbourg authorities including not least Ashingdane -v- United Kingdom (1985) 7 EHRR 528.

True, in Williams, as previously in R (Hirst) -v- Home Secretary [2001] Prison Law Reports 147 where the prisoner had been re-categorised and transferred to a higher category prison, the court allowed the prisoner’s appeal on procedural grounds namely on the basis that he had not been afforded sufficient opportunity to make representations in advance with regard to his proper categorisation. That, however, owed nothing to Article 5(4) (which in Hirst, indeed, had not even been mentioned) and cannot avail the appellant here. In a word, as was stated long ago in Ashingdane in the context of a detained mental patient, neither Article 5(1)(e) nor Article 5(4) are concerned with suitable treatment or conditions (see particularly paragraphs 44 and 52 of the ECtHR’s judgment).

If any further authority were required for this conclusion, it is to be found in the Privy Council’s decision in Anderson -v- Scottish Ministers [2002] 1 WLR 1460 which held that there was no requirement under Article 5(1)(e) that a patient’s detention should be for the purposes of treatment and which, as Mr Owen conceded, was fatal also to any argument under Article 5(4).

How, then, is the argument advanced under Article 5(1)(a)? Mr Owen’s starting point is to fix upon a number of brief dicta in certain of the leading authorities, for example a reference in paragraph 22 of Lord Hope’s speech in Anderson to the possibility of an Article 5 challenge on the ground that detention “is arbitrary because, for example, it was resorted to in bad faith or was not proportionate”, and a sentence in paragraph 16 of Lord Bingham’s speech in R -v- Lichniak [2003] 1 AC 903:

“With reference to Article 5, in determining the arbitrariness of any detention regard must be had to the legitimacy of the aim of detention and the proportionality of the detention in relation to that aim.”

In its final written formulation - submitted at our invitation after the hearing to deal with this court’s decision in R (Spence) -v- Home Secretary [2003] Prison Law Reports 290, rejecting a challenge to the Home Secretary’s decision to substitute a period of 18 months for the 9 months recommended by the Parole Board to be passed in open conditions before the prisoner’s next review - the proposition advanced is this:

“[The right not to be detained arbitrarily] can be breached as a matter of law if the Home Secretary does not take proper steps to offer available offending behaviour courses designed to reduce risk and assess the level to which risk has been reduced because, absent such a duty, post-tariff detention could be reduced to ‘warehousing’ and the right to a review could become hollow. … The claimant submits that the existence of a duty grounded in Article 5 allows a prisoner in an appropriate case to secure a remedial order from a court to prevent a breach of Article 5(1).”

Whilst Mr Rabinder Singh QC for the Secretary of State readily accepts that it would be irrational to have a policy of making release dependent upon the prisoner undergoing a treatment course without making reasonable provision for such courses, he argues that it is solely this public law duty to act rationally to which the Secretary of State is subject; detention in these cases would not become unlawful under Article 5(1) even were no provision made for such courses.

I have to say that in a real sense this question now seems to me academic (quite apart from its irrelevance to the case of this particular appellant). The Secretary of State is, within the limits of available resources, providing a reasonable, and indeed increasing, number of courses and I do not understand Mr Owen to contend otherwise. He certainly does not argue that the 21 month delay in the appellant himself getting onto such a course constituted any breach of Article 5. He expressly accepts, moreover, that any lack of resources qualifies whatever duty the Secretary of State may be under. Quite why, therefore, it matters whether the Secretary of State’s duty arises under Article 5 or under domestic public law I am at a loss to understand. That said, however, for my part I have no doubt that Mr Rabinder Singh’s submission is correct.

The Article 5(1) argument was rejected in Noorkoiv. As Lord Woolf CJ put it at paragraph 61:

“Article 5(1) is not relevant because the justification for the detention of a prisoner sentenced to life imprisonment (whether discretionary or automatic or mandatory) is that sentence and not the fixing of the tariff period.”

See too my own judgment in Noorkoiv at paragraphs 52 - 54 where I observed that although the required causal connection between the conviction and the deprivation of liberty might eventually come to be broken so as to give rise to a breach of Article 5(1), that would be so only very exceptionally and “mere delay in Article 5(4) proceedings, even after the tariff expiry date, would not in my judgment break the causal link.” If the Parole Board’s delay in deciding on the prisoner’s continuing dangerousness does not break the causal link, still less in my judgment would it be broken by a delay in providing (or a failure to provide) treatment which itself may or may not thereafter serve to establish the absence of continuing dangerousness.

I should at this point take notice of a further argument which Mr Owen advances based on Moses J’s decision in R (Cavanagh) -v- Home Secretary [2002] Prison Law Reports 120 that there is nothing irrational in denying enhanced status and privileges to prisoners who refuse to undertake treatment courses. In paragraph 42 of his judgment - a paragraph expressly approved by the Court of Appeal in a reasoned judgment refusing permission to appeal, [2002] Prison Law Reports 130 - Moses J said:

“There is, to my mind, nothing unfair or inappropriate in requiring a sex offender, guilty of serious sexual offences as these claimants were, to attend an SOTP even if he denies he is guilty of those offences. It is a key purpose of imprisonment to encourage constructive behaviour by a prisoner and thereby reduce the risk of his reoffending and increase protection to the public. It is, therefore, fair and rational to encourage participation in a course which may reduce risk of reoffending by means of the schemes for providing an incentive to attend such a course and granting privileges to those who undertake such courses.”

Relying on that approach - and a variety of statements in the Prison Rules, the Prison Service’s Framework Document and the Life Manual emphasising the rehabilitative purposes of imprisonment and the Prison Service’s duty to help prisoners to lead a good and usual life, statements reflected in Moses J’s judgment - Mr Owen submits that if there is a duty on prisoners to undertake courses on pain of adverse consequences if they refuse, there must be a corresponding duty on the Home Secretary to provide such courses. The argument is, to my mind, unsound. The prisoner’s duty only arises if courses are offered. The appellant must look elsewhere for any duty on the Secretary of State to offer them. In my judgment that can only be found as a corollary of the requirement for prisoners to undergo such courses as a pre-condition of release in their post-tariff period and it is, as I have already suggested, a duty qualified by the extent of available resources and subject only to the test of rationality. It is, indeed, difficult to see how it could sensibly be otherwise. Resources must inevitably be stretched and there are many different ways in which it might be possible to assist in the preparation of prisoners for release. Difficult judgments have to be made as to which prisoners would benefit from these courses and when they would best be able to do so. The Secretary of State could hardly be under an absolute duty to devise and provide courses for all who want them and, moreover, to do so early enough in the prisoner’s sentence to maximise his hope of release on or very soon after his tariff expiry date. In short, this argument to my mind carries the appellant’s case no further forward.

Mr Owen advances one final argument which I can deal with rather more shortly. He submits that the Secretary of State acts irrationally by failing to prioritise life sentence prisoners (other than whole life tariff prisoners) over determinate sentence prisoners in the provision of treatment courses. Asked why the life sentence prisoner in the post tariff period of his sentence should be any more favourably treated than the determinate sentence prisoner who has reached his parole eligibility date, Mr Owen points out that the former, unlike the latter, is entitled to Article 5(4) protection - see, for example, the recent decision of the House of Lords in R (Giles) -v- Parole Board [2003] 3 WLR 736. It follows, he submits, that life sentence prisoners should be given preferential treatment so as to be able to satisfy the Parole Board, on what for them will be an Article 5(4) review of the legality of their detention, of their suitability for release.

I confess to some difficulty with this argument. Take this very case. The appellant’s 2½ year tariff period must surely equate to a five year determinate sentence. In other words, he would presumably have been sentenced to five years’ imprisonment had he not been unable to displace the presumption of dangerousness (see Offen [2001] 1 WLR 253) and so been liable to an automatic life sentence. It is hard to understand why the Secretary of State should be obliged to prioritise treatment course placements so as to give him a better prospect of release after 2½ years than his five year determinate sentence counterpart. I recognise, of course, that the life sentence prisoner is liable to be detained for what may be many years after his tariff expiry date if he fails to persuade the Parole Board that he is no longer dangerous, whereas the determinate sentence prisoner’s liability to continuing detention is altogether more restricted - in the case of a five-year prisoner merely the ten months between the halfway point in his sentence when he becomes eligible for parole and the two-thirds point at which he is automatically released. That, I readily accept, should be a consideration in determining the allocation of courses. But the Article 5(4) point does not seem to me to go further than that.

Is there any basis on the material before us for concluding that the Secretary of State’s policy fails to reflect this consideration or otherwise operates unfairly as between life sentence and determinate sentence prisoners? I have already summarised the evidence with regard to policy in paragraphs 13 - 15 above. The position seems to me clear and cogent. In my judgment the Secretary of State’s approach to allocating places on courses is not open to criticism. This argument too is unsustainable.

It follows from all this that in my judgment the application should be dismissed.

I agree that this application should be dismissed for the reasons given by my Lord Simon Brown LJ whose judgment, and that of my Lady Arden LJ, I have had the advantage of reading in draft. I gratefully adopt Simon Brown LJ’s account of the facts and the relevant learning. I add a few observations of my own first in order to express and explain my respectful agreement with Simon Brown LJ upon the point in the case on which he and Arden LJ differ, and secondly to demonstrate the extent to which it seems to me that Mr Owen’s principal argument, as finally formulated, is contrary to principle.

Arden LJ takes the view (paragraphs 1 and 3 of her judgment) that there may be a violation of ECHR Article 5(1)(a), in an exceptional case, where the Secretary of State fails to provide an appropriate course of treatment for a prisoner whose release is in practice dependent upon his undergoing such a course. She states (paragraph 3) that the test for such a violation would not be akin to the conventional domestic rationality test (Wednesbury Corporation [1948] 1 KB 223) but would rather consist in the question whether the “causal link” between the prisoner’s conviction and the period of his sentence has been broken by the Secretary of State’s failure; a test which might give a different result from Wednesbury. Arden LJ opines that the causal link might be broken if his failure is sufficiently prolonged in time, and cites Van Droogenbroeck v Belgium (1982) 4 EHRR 443, 447 (paragraph 40). In paragraphs 6 and 7 she offers another example, one in which the prisoner has developed dementia such as to disable him from reaping the benefits of a treatment course on which he has obtained a place. And it appears from paragraph 4 that Arden LJ has in mind not one but two causal links, that between the objectives of the original sentence and the decision not to release, and that between the conviction and the period of the sentence.

In my judgment, with respect, there is an important difficulty in the way of this approach. It is that the concept of a break in the “causal link” is itself by no means value-free; where it is said to be broken, that is nothing but a shorthand for the court’s conclusion in any given case that the Secretary of State’s actions or inactions fall short of a standard upon whose fulfilment the court insists. If that standard is more onerous than the conventional rationality standard, the court would be committed to a review of the merits of a kind which in the particular context I consider to be misplaced. I do not think the matter is taken forward by Van Droogenbroeck; the form of judicial control contemplated in the passage cited by Arden LJ is perfectly consistent with an approach based on good faith and reasonableness. And while the example she gives, of the prisoner with dementia, would no doubt yield a number of problems for the reasonable Secretary of State, with respect I cannot myself see that it points to an application of Article 5(1)(a) such as Arden LJ favours.

My reasons for holding that a more intrusive form of review is misplaced engage what I desire to say about Mr Owen’s principal argument. As to that, I adopt with gratitude my Lord Simon Brown LJ’s summary (at paragraph 21 of his judgment) of Mr Owen’s submission as being to the effect that “the Secretary of State is under a duty (albeit one qualified by any lack of resources) to provide sufficient courses to enable life sentence prisoners who might benefit from them to undertake such a course with a view to a Parole Board review in the light of it at or as soon as possible after their tariff expiry date. But for this … the prisoner’s continued detention must be regarded as disproportionate and arbitrary and thus contrary to Article 5(1)(a)”. And at paragraph 29 my Lord has set out Mr Owen’s submission as it was put into writing after the hearing. I repeat it for convenience:

“[The right not to be detained arbitrarily] can be breached as a matter of law if the Home Secretary does not take proper steps to offer available offending behaviour courses designed to reduce risk and assess the level to which risk has been reduced because, absent such a duty, post-tariff detention could be reduced to ‘warehousing’ and the right to a review could become hollow. … The claimant submits that the existence of a duty grounded in Article 5 allows a prisoner in an appropriate case to secure a remedial order from a court to prevent a breach of Article 5(1).”

Mr Owen first faces the difficulty, insuperable to my mind, that his complaint cannot on the facts be vindicated as disclosing a violation of ECHR Article 5(1)(a) without doing hopeless violence to the authorities. I have in mind in particular this court’s decision in Noorkoiv [2002] 1 WLR 3284, paragraphs 52 – 54 and 61, to which my Lord has referred at paragraph 32. But however that may be, and whether categorised in terms of domestic or Convention law, Mr Owen’s argument involves this antithesis: he acknowledges on the one hand that the duty which he proposes may be qualified by the resources available to the Secretary of State, yet on the other he contends (since otherwise he would accept Mr Rabinder Singh’s approach) that in supervising the Secretary of State’s execution of his duty the court will adopt a standard of review more intrusive than one based on rationality. That implies the court taking a view of the merits, whether in the name of proportionality or any other principle, that must entail a judgment about the use of resources: a judgment of a kind which I understood Mr Owen to eschew.

Since the coming into force of the Human Rights Act 1998 it has of course become commonplace, in various factual settings, for the court to impose standards on decision-makers more rigorous than the conventional Wednesbury approach, and in safeguarding the Convention rights it will often be the court’s responsibility to do no less. But here Article 5(1)(a) imposes no duty on the Secretary of State as such; no other provision of the Convention is engaged; all one has – whether by reference to domestic principle or the Strasbourg jurisprudence – is the residual possibility that the Secretary of State might impose a condition on the release of a post-tariff prisoner so hard of fulfilment that his continued detention, for failure to meet the condition, ought no longer to be regarded as justified by the original sentence of the criminal court. Such a residual possibility cannot in my judgment arise by reference to any judicial perception that scarce resources in the hands of the administration might have been better deployed by the Secretary of State; far less by any such perception that greater resources ought to have been made available. Such approaches confine the functions of the democratic arms of government without that being justified (as sometimes it is indeed justified) either by the principles of the common law or our duty to safeguard the Convention rights.

I have had the benefit of reading in draft the judgments of Simon Brown and Laws LJJ. I agree with the judgment of Simon Brown LJ save on one point. I would not accept without qualification Mr Rabinder Singh QC’s submission that it is solely a public law duty to act rationally to which the Secretary of State is subject with respect to the provision of treatment courses where the Secretary of State has adopted a policy of making release dependent upon the prisoner undergoing such a course. In my judgment, there could in some circumstances be a violation of article 5(1)(a) if the Secretary of State failed to provide a course for a prisoner whose release is in practice dependent on taking such a course. I would accept that Mr Singh’s submission is correct in the vast majority of cases but there can be exceptional cases where it is not only public law that has to be considered. It follows that I respectfully disagree with Laws LJ on this point too.

Article 5(1)(a) of the Convention provides:-

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a competent court; …”

Thus, there is no duty as such on the Secretary of State under the Convention. However, under Strasbourg jurisprudence a custodial sentence imposed by a competent court becomes unlawful for the purposes of article 5(1)(a) if the causal link between the conviction and the period of the sentence is broken. It follows, in my judgment, that in a very exceptional case the failure by the Secretary of State to provide a particular prisoner with an appropriate treatment course, which in practice is a condition of release, may, if sufficiently prolonged, break that causal link and render the detention unlawful. Such a case was envisaged by the European Court of Human Rights in Van Droogenbroeck v Belgium (1982) 4 EHRR 443, 447 at paragraph 40. The court said this:-

“Attempting to achieve these objectives [the objectives of the law under which the sentence was imposed] requires that account be taken of circumstances that, by their nature, differ from case to case and are susceptible of modification. At the time of its decision, the court can, in the nature of things, do no more than estimate how the individual will develop in the future. The [Secretary of State], for his part, is able through and with the assistance of his officials, to monitor that development more closely and at frequent intervals but this very fact means that with the passage of time the link between his decisions not to release or to re-detain and the initial judgment gradually becomes less strong. The link might eventually be broken if a position were reached in which those decisions were based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5.” (emphasis added).

If the court had to consider a case in which the prisoner contended that the causal link between the objectives of his original sentence and the decision not to release him had ceased so as to break the causal link necessary under article 5(1)(a), the key issue would not be whether the Secretary of State was irrational in failing to provide an adequate number of treatment courses for those prisoners whose release was dependent on their undergoing such courses, but whether the causal link described above was broken. Thus, for example, the Strasbourg Court in the passage quoted envisaged an enquiry as to whether the connection had ceased to exist or whether the assessment on which the decision not to release was made was unreasonable in terms of the objectives of the original sentence. The court would, therefore, be concerned with a different issue from that which arises where there is solely a public law duty to act rationally although there might be some overlap with respect to the relevant considerations. A similar question arose in Spence [2003] Prison Law Reports 290. At paragraph 35, this court held that, in determining whether the interval between the review dates complied with article 5(4) on the facts of a particular case:-

“the court asks itself whether the interval was reasonable. The answer to this question is a matter for the court. The court does not, therefore, apply the Wednesbury test and ask whether the interval was not one which a reasonable decision-maker could determine. In considering the question of reasonableness, the court would give appropriate weight to the views both of the Home Secretary and of the Parole Board.” (paragraph 35).

It is accordingly conceivable that a violation of article 5(1)(a) might occur in a case where there was no breach by the Secretary of State of his duty under domestic law to act rationally. This is because, under the Convention, the issues considered by the court will be different and must, therefore, be capable of leading to a different answer. It follows that, with respect to Simon Brown LJ, the question of the application of article 5(1)(a) to a case where a prisoner cannot obtain a place on a treatment course to which his release is subject is not entirely academic, although it does not arise on the facts of this case.

The causal connection would, for example, be broken if before the prisoner obtained a place on a treatment course he developed dementia which disabled him from benefiting from it. In that case article 5(1)(a) would be engaged. The public law duty on the Secretary of State to act rationally would also be applicable in that example but the application of domestic public law does not preclude the application of article 5(1)(a).

The Wednesbury test might not always, however, lead to the same answer as article 5(1)(a). Suppose that there was a conflict of medical opinion as to whether the dementia was reversible. If the Secretary of State acted in reliance on the opinion that the dementia was reversible and that reliance could not be said to be perverse, the Wednesbury test would be satisfied. If, however, article 5(1)(a) was invoked, the issue would be whether reliance on that opinion was reasonable. This is a different and lower hurdle for the prisoner seeking to challenge the Secretary of State’s decision than that which he has to meet if he seeks to challenge the Secretary of State’s decision on grounds of irrationality.

Mr Tim Owen QC, for the appellant, has not addressed the situation where the reason for the failure to provide a place on a treatment course is lack of resources. He accepts that lack of resources would mean that the Secretary of State was not in breach of his public law duty to act rationally. Laws LJ points out that it is not for the courts to determine what resources should be made available for the provision of treatment courses. I agree.

However, under Strasbourg jurisprudence the issue is a different one. Under the Convention, a state may have regard to the limitations on its resources in any particular case. However, such limitations will not excuse excessive delay (see, for example Garrett, Mascarenhas Falcâo v Portugal, applications nos. 29813/96 and 30229/96, European Court of Human Rights, 11 January 2000, which concerned article 1 of the First Protocol to the Convention). Once a state has subscribed to the Convention, a lack of resources does not justify a violation of a Convention right brought about by extraordinary delay.

In the light of this jurisprudence, provisionally it seems to me that if due to a lack of resources the Secretary of State cannot provide a place on a treatment course for someone in the applicant’s position for an inordinately long period, it may be arguable that the reason for the prisoner’s continued detention was not the original conviction or the objectives of the sentence but rather the refusal of the Secretary of State to allocate adequate resources. In that event there would be a breach of article 5(1)(a) even if the original sentence had not expired. In an extreme case there would also be a violation of article 3 if the delay was prolonged and the effect of the delay was to cause mental distress to the prisoner of the severity required by this article. These are, however, very extreme situations which I would not expect to occur in practice.

With those qualifications, I agree with the judgment of Simon Brown LJ.