Kaiyam, R (On the Application Of) v The Secretary of State for Justice

These two appeals concern claims arising from the continued detention of the appellants following the expiry of the “minimum terms” or “tariff periods” of their indeterminate terms of imprisonment. Once a minimum term of imprisonment has been served, the respondent is obliged to refer the case to the Parole Board and he must thereafter continue to do so at regular intervals until the prisoner is released. The Parole Board is required to direct that the prisoner is released once it is satisfied that it is no longer necessary for the protection of the public that he or she should remain in detention.

Mr Haney is currently serving an automatic life sentence, which was imposed on 13 November 2003 following his conviction for robbery. His minimum term of three years expired on 13 November 2012. He claims damages and a declaration that the respondent has violated his rights under articles 5(1) and 14 of the European Convention on Human Rights (“the Convention”) as a result of the delay in his transfer to open prison conditions (such transfer being a condition for his being realistically considered suitable for release by the Parole Board). He makes two complaints. First, he says that his continuing detention has been arbitrary and in breach of article 5(1). Secondly, he says that his detention has been in breach of article 14 in conjunction with article 5 in that he has been treated less favourably than a comparable “post-tariff” prisoner solely on the basis of his status as a “pre-tariff” ISP.

Mr Kaiyam was sentenced to imprisonment for public protection on 30 July 2006 for a minimum term of 2 years and 257 days. That sentence was imposed for a number of offences including robbery. His minimum term expired on 3 April 2009. He complains of the respondent’s delay in providing him with a suitable course which would afford him a reasonable opportunity to reduce the risk of his reoffending and thereby persuade the Parole Board to direct his release. He claims that the resultant prolonged period of his detention gives rise to a breach of article 5(1) of the Convention in respect of which he claims damages and a declaration. He also claims that the delay in providing a suitable course constitutes a breach of a public law duty at common law in respect of which he claims declaratory relief (but not damages).

All these claims were rejected in the courts below. Both Lang J (in the case of Mr Haney) and Supperstone J (in the case of Mr Kaiyam) held that the decision of the House of Lords in R (James and others) v Secretary of State for Justice [2009] UKHL 22, [2010] 1 AC 553 obliged them to dismiss the claims for breach of article 5 of the Convention, notwithstanding that the ECtHR subsequently held in its decision reported at (2013) 56 EHRR 12 that the House of Lords decision was wrong. Lang J also held that the decision of the House of Lords in R (Clift and others) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484 obliged her to dismiss the claim for breach of article 14 (taken with article 5), notwithstanding that the ECtHR subsequently held in its decision in Application No 7205/07 (unreported, 13 July 2010) that this House of Lords decision was wrong too.

It is common ground that, in the light of Kay and others v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465 paras 40 to 45, both judges were right to regard themselves as bound to follow the House of Lords decisions: It is not argued that this is an exceptional case which would justify departing from the general domestic rules of precedent. It is also clear that, although we are obliged to follow the House of Lords decisions, we can (but are not obliged to) review the Convention arguments and express our views on them.

Since it is accepted that we have no choice but to dismiss the Convention claims in both appeals, the issues before this court in relation to the Convention issues are narrow. They are (i) whether we should grant permission to appeal to the Supreme Court; and (ii) whether we should review the arguments and express our views about them. The additional issue arising in the case of Kaiyam is whether Supperstone J was right to dismiss his common law claim.

The appellants say that we should grant permission to appeal. The respondent says that we should not do so.

In relation to the article 5(1) issue, Mr Weisselberg submits that (i) James is distinguishable from the case of Mr Haney (in particular because Mr Haney’s case does not concern a failure to provide a prisoner with a course); and (ii) the ECtHR decision in James should not be followed inter alia because (a) the House of Lords reached the unanimous, emphatic and unqualified conclusion that the applicants’ rights under article 5(1)(a) had not been violated; (b) the ECtHR decision was based on a misunderstanding of domestic law; and (c) the decision was otherwise “unclear and unsound”: see Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 per Lord Bingham at para 18.

As regards article 14, the case advanced on behalf of Mr Haney is that, as a pre-tariff prisoner, he received different treatment from that accorded to post-tariff prisoners and this difference was on the grounds of “other status” within the meaning of article 14. In Clift, the House of Lords held that the classification of a prisoner as serving “a determinate sentence of 15 years or more (but less than life) was not a form of status protected by article 14 because article 14 was only intended to protect personal characteristics”. The ECtHR disagreed. It is submitted on behalf of the respondent that permission to appeal should not be granted in relation to the article 14 issue since Mr Haney’s claim should be dismissed in any event because (i) as regards the possibility of transfer to open conditions in order to assist in demonstrating safety for release, pre-tariff prisoners were not in a truly analogous situation to post-tariff prisoners; and (ii) any difference in treatment as between pre-tariff prisoners and post-tariff prisoners was objectively justified.

In relation to article 5(1), I accept that it is arguable that there are material factual differences between the case of Mr Haney and the James cases. But I am not persuaded that this means that the cases of Mr Haney (and certainly that of Mr Kaiyam) are unsuitable vehicles for the Supreme Court to resolve the conflict between our domestic jurisprudence and that of the ECtHR. I accept that a better case might turn up at some time in the future. But enquiries have been made and these have not indicated that any other case (let alone a better one) is in the pipeline. This important area of the law is currently in an unsatisfactory state. The problem can only be resolved by the Supreme Court. In my view, the sooner this is done the better. I see no point in putting the parties to the additional expense and delay that would be entailed in their having to seek permission to appeal from the Supreme Court itself.

It would make little sense to refuse permission to appeal in relation to the article 14 point, but grant it in relation to the article 5 point. In any event, in my view the Supreme Court should resolve the conflict between the domestic jurisprudence and that of the ECtHR here too. The facts of Mr Haney’s case may not be ideal for this purpose, but I believe that they are good enough.

I recognise that there are some cases where it may be desirable for the Court of Appeal to consider the issues in detail, even where (i) binding authority requires it to decide the appeal in a certain way and (ii) it gives permission to appeal to the Supreme Court. A detailed analysis of the arguments may be of assistance to the Supreme Court, although the Court of Appeal is no better placed than the Supreme Court to address the issues. But I see little purpose in doing so in the particular circumstances of these appeals. The issue of whether the Supreme Court should follow either or both of the Strasbourg decisions in preference to its own (relatively recent) decisions is one pre-eminently for it to determine. Our courts are required by section 2(1) of the Human Rights Act 1998 to do no more than “take into account” the relevant Strasbourg jurisprudence. In these circumstances, whether the Supreme Court decides to follow Strasbourg raises policy questions of some delicacy. I see no point in second guessing how the Supreme Court will approach the question.

It was for these reasons that we told the parties that we did not wish to hear argument on the substance of the Convention claims and we did not do so. We did, however, hear full argument on Mr Kaiyam’s common law claim to which I now turn.

As I have said, Mr Kaiyam’s minimum period of imprisonment expired on 3 April 2009. For almost two years from the date of his sentence on 20 July 2006, he remained in a “local prison”, HMP Leeds, where virtually no offence-focused work was available. He was transferred to HMP Lowdham Grange on 12 February 2008 where he commenced an Enhanced Thinking Skills programme which he completed in July. The Parole Board reviewed his case on 2 February 2009, noting that he still had much work to do in order to address his risk factors.

He was transferred to HMP Long Lartin on 27 January 2010. On 20 May 2010, a Sentence Planning Meeting concluded that he should be assessed for CALM (an anger management course) and FOCUS (a high intensity drug abuse programme). By 1 September 2010, the prison authorities had decided that he would not in fact be re-assessed for CALM and nothing had been done regarding the FOCUS course.

His case was reviewed again by the Parole Board on 14 November 2010. They said that he was “well motivated” to undertake offence-focused work, but that he had had “little opportunity” to do so at HMP Long Lartin. They also noted that he still had not been given the opportunity to complete the necessary work on drugs and anger management, despite the fact that the need for this had been raised at his last Parole Board review. It was “essential” that course work was progressed as soon as possible.

On 3 December 2010, he was assessed as unsuitable for the FOCUS course and the Prison Addressing Related Offending (“PASRO”) course was recommended instead. On 11 January 2011 and after repeated correspondence from Mr Kaiyam’s solicitor, the prison authorities confirmed that he needed to be transferred to another prison in order to undertake the PASRO and anger management courses.

By letter dated 14 January 2011, the respondent indicated that his next Parole Board review would take place in November 2012. On 9 June 2011, a further Sentence Planning Meeting was held at which it was again decided that Mr Kaiyam should be transferred to another prison in order to undertake anger management and PASRO courses.

These judicial review proceedings were issued on 1 October 2012. On 19 November 2012, Mr Kaiyam was assessed as suitable to undertake the Self Change Programme (“SCP”). This was a new instrumental violence course which replaced the course which had been available at HMP Long Lartin since Mr Kaiyam’s arrival there in January 2010. He commenced the SCP on 7 January 2013.

In a witness statement dated 13 February 2013, Paul Dennehy, a Prison Manager at HMP Long Lartin, reviewed the history of Mr Kaiyam’s detention in the prison and concluded:

“Given the regrettable delays that have already occurred in this case, every effort will be made by HMP Long Lartin to treat the Claimant’s case as a priority in order to prevent further delay.”

The pleaded case as set out at paras 18 to 21 of Mr Kaiyam’s Detailed Statement of Facts and Grounds was that the facts in this case (some of which I have summarised above) disclosed a breach of the public law duty that was articulated by the House of Lords in James.

In James, it was held that it is implicit in the statutory scheme governing the release of prisoners sentenced to indeterminate sentences that the Secretary of State will make reasonable provision to enable them to demonstrate to the Parole Board (if necessary by completing treatment courses) that, after they have completed the minimum terms of their sentences, they no longer pose a danger to the public and that it is safe to release them. The House of Lords decided that the respondent’s failure to make such provision was a breach of public law duty; but it did not make a post-tariff detention that was consequent on a breach of that duty unlawful at common law. A prisoner’s only remedy for such breach of public law duty was to obtain an appropriate declaration.

It is central to the submission of Mr Weatherby QC that the House of Lords stated that the respondent is subject to three distinct, but closely-related, public law duties with respect to the provision of offending behaviour courses and assessments for indeterminate sentence prionsers. These are the duty: (i) to act rationally in the provision of courses and assessments; (ii) to provide and operate a reasonable and sufficient system of courses and assessments in accordance with the statutory scheme and its underlying policy; and (iii) to follow his own policy that is current at the material time.

In my view, the public law duty articulated by the House of Lords was the duty summarised by Lord Hope at para 3 “to provide the systems and resources that prisoners serving [indeterminate] sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention”. Lord Hope added that it was very properly accepted by the Secretary of State that this duty is “implicit in the statutory scheme”. Mr Weatherby attaches significance to the fact that at the end of para 3, Lord Hope said: “As Miss Lieven QC for the Secretary of State put it, the scheme was such that it was not rational for him to fail [to make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released.]”

There are further references in the speeches of their Lordships to the systemic nature of the duty. At para 5, Lord Hope again referred to the public law duty “to have a system in place”. Importantly, he said that this duty does not confer on individuals who are affected by this breach a right to damages. A mandatory order may be obtained to ensure that the system works properly. But it is not open to the courts to set the system aside by directing release contrary to the provisions of the statute. At para 28, Lord Brown referred to the Secretary of State’s acknowledgement that it “was implicit in the statutory scheme that he would make reasonable provision” to enable IPP prisoners to demonstrate to the Parole Board that it was safe to release them. At para 36, he referred to the duty as being “inherent in the legislation” and (with apparent approval) to the words of Laws LJ (in the Divisional Court) “the legislation’s ‘underlying premise’”.

Lord Judge CJ adopted a similar approach at para 105: “the statutory regime for dealing with indeterminate sentences is predicated on the possibility that, save for [whole life cases], prisoners may be reformed or will reform themselves. A fair opportunity for their rehabilitation and the opportunity to demonstrate that the risk they presented at the date of sentence has diminished to levels consistent with release into the community should be available to them”. It is true that Lord Judge also referred to the Secretary of State’s Policy PSO 4700 and the Parole Board Rules and said at para 112 that he was under a public law duty to ensure that these were complied with.

Lord Carswell and Lord Mance agreed with the reasoning of the other members of the Appellate Committee.

I consider that the only public law duty that is to be derived from James is the duty (implicit in the legislative scheme) to provide systems and resources necessary to afford to prisoners a reasonable opportunity to demonstrate that they are no longer dangerous.

That is not to say that there is not also a public law duty to provide systems and resources in a rational way. The duty to act rationally is a thread that is common to all public law activities undertaken by a public authority. The existence of such a duty in the present context was asserted by this court in R (Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522, [2004] UKHRR 101. It was held in that case that it would be irrational to have a policy of making release dependent on a prisoner undergoing a treatment course without making reasonable provision for such courses.

I also accept that there is a public law duty on a public authority to act in accordance with his own policy: see In Re Findlay [1985] 1 AC 318 at p 338E to G and R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at para 35.

It follows that I agree with Mr Weatherby that, in relation to the provision of systems and resources, the Secretary of State is subject to the three public law duties to which I have referred at para 23 above. But as I have already said, Mr Kaiyam’s case was pleaded on the basis of the James duty (implicit in the statutory scheme) to provide adequate systems and resources. His case was not pleaded on the basis that the systems and resources provided were irrational or that, in the provision of systems and resources, the Secretary of State had failed to follow PSO4700 (or any other policy).

At the hearing below, counsel for Mr Kaiyam (not Mr Weatherby) attempted to make good this omission in various ways. He submitted to Supperstone J that a James challenge of itself embraces a rationality challenge. But he did not contend that the Secretary of State had acted irrationally in relation to the allocation of resources for programmes across the prison estate (see para 16 of the judgment). Instead, he sought to argue that the Secretary of State had acted irrationally in relation to Mr Kaiyam as an individual on the footing that it is not rational to take 35 months to place a prisoner on a course that is available throughout that period. The judge refused to allow him to advance such a case. He said at para 15:

“It would not in my view be sufficient for the Claimant to do, as Mr Jagadesham proposes, namely to add words to the Claim Form stating there is a rationality challenge. The Defendant would need to know which individual decisions taken on behalf of the Defendant were irrational. The rationality challenge would need to be set out in some detail and the Defendant would have to have an opportunity to respond. Individual decisions were taken some time ago; the Defendant may wish to raise the issue of delay in relation to particular decisions; prison officers may have moved on which may lead to difficulty in responding to individual complaints. There is also the issue of cost to be considered. The Claimant is now on a course that he accepts is appropriate which will lead to his case being considered by the Parole Board, at most nine months later than it should have been considered. It would not, in my view, be proportionate in terms of costs to allow a new claim to be added at this stage in the proceedings.”

It is not clear to me whether Mr Weatherby seeks to challenge this case management decision. But in my view, the decision is clearly correct for the reasons given by the judge which in my view are unassailable.

Counsel for Mr Kaiyam also sought to argue that the Secretary of State was in breach of the amended Chapter 4 of his policy PSO4700. Mr Weisselberg objected to the breach of policy point being advanced at the hearing on the grounds that it had not been pleaded. The judge recorded the objection at para 32 in these terms:

“If there had been a breach of policy complaint in the grounds of claim, as for example in R (on the application of Dennis Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin) at paras 77-79, then the Defendant would have sought to identify when and in what respects it was said the Defendant had acted in breach of his policies and would have responded to any such complaint. There is nothing in the grounds of claim to indicate what policy had been breached. It is not inevitable, Mr Weisselberg submits, that by alleging breach of the James duty a claimant is alleging breach of an individual PSO.”

The judge acceded to Mr Weisselberg’s submissions. Mr Weatherby submitted to us that the breach of policy challenge was in fact raised at para 22 of the detailed statement of facts and grounds. It is true that this paragraph contains a reference to “a breach of the SSJ’s published policy at the time in respect of prioritisation of coursework for prisoners with short tariffs”. But this allegation (which does not identify the policy relied on) was raised in the context of a claim that there had been a breach of article 5(1) of the Convention. It was not the basis of an independent common law claim. If the detailed statement of facts and grounds is read as a whole, the common law claim was unequivocally based on the James public law duty. The judge’s analysis of the pleading was correct. He was entitled to refuse to allow Mr Kaiyam to advance the common law claim on the basis of a breach of policy. This too was a case management decision which in my view is unassailable.

I cannot improve on the judge’s statement at paras 35 and 36 of the reasons why a James challenge failed on the facts of this case. He said:

“35.

If there were no courses at all for IPP prisoners or no sex offender courses in a prison that houses only sex offenders, that would be a systemic breach. Similarly the existence of a backlog that was not cleared because of a lack of resources may on the facts of a particular case amount to a systemic breach. That is what Mehmet was about. Similarly a failure to have in place a system that allows for IPP prisoners to transfer to open prisons could amount to a systemic failure, as the Defendant conceded in Haney. These are very different cases to the case put forward in the present claim in which the nature of the duty contended for by the Claimant is a duty owed individually to each and every prisoner where the mere fact of delay will be the basis for contending that a breach of public law duty had occurred.

36.

Further the Claimant's case is based on the benefit of hindsight. It is that the Claimant was not put on the right course when he started at Long Lartin and therefore there was an ongoing breach of the Defendant's public law duty in his case. The Claimant could have brought an irrationality challenge as envisaged in Cawser, but he has not done so. The reason why the Claimant's complaint is made with the benefit of hindsight is because in 2009-2010 the Parole Board did not suggest that the SCP was suitable and necessary for him. It was not until the Claimant had a new offender supervisor, Mr Clive Petgrave, in August 2012 that it was suggested he should go on a SCP course, and on 17 October 2012 assessment for the SCP was added to the Claimant's sentence plan.”

No evidence has been adduced in the present case to show that the system and resources that were provided were unreasonable or were less than what was implicitly required by the statutory scheme. As to the operation of the system, there is no evidential basis for saying that the system has not operated properly for indeterminate prisoners as a class. The fact that Mr Kaiyam suffered some regrettable delays in securing access to interventions designed to address the risk that he poses to the public does not demonstrate that the system is not a reasonable system. That is not to say that a series of egregious delays in individual cases may not be evidence of a deficient system. But that is not how Mr Kaiyam’s case was put. An individual will usually be more concerned to make a claim based on a particular allegedly irrational decision (or a series of particular allegedly irrational decisions) affecting him rather than one based on a failure of system.

In summary, therefore, the judge was right to hold that the pleaded common law claim was based on a breach of the James duty and to dismiss it.

Mr Kaiyam could have mounted a rationality challenge to one or more of the individual decisions that affected his particular case. That is the kind of case that he attempted to advance which the judge rejected for the reasons stated at para 15 of the judgment. But he did not do so.

The way that Mr Kaiyam’s common law claim has been presented has been confusing. If a claim for breach of a public law duty is made, it is essential that the nature of the duty and breach is clearly identified in the pleading. At one stage, it appeared that the claim that Mr Kaiyam was seeking to bring was a private law claim. That would have been misconceived and Mr Weatherby made it clear to us that he did not seek to advance such a claim. His pleaded position is limited to a claim for breach of the public law duty to provide and resource a system of the kind that is implicitly required by the statutory scheme. He does not claim damages and is right not to do so. His claim is not put on the basis that there has been a breach of a public law duty that is owed to him as an individual. Rather, it is that there has been a breach of a public law duty to provide a suitable system and adequate resources and that he, as a person affected by the breach, has a sufficient interest to give him standing to bring the claim.

For the reasons that I have given, I would dismiss both the Convention and common law claims.

I agree.

I also agree.