Weddle, R (on the application of) v The Secretary of State for Justice

The Respondent, Mr Weddle (to whom I will refer as “the Claimant”), is aged 47. On 17 February 1994 he was sentenced to life imprisonment for the murder of a police officer. The minimum term set by the Judge before he became eligible for parole was 25 years (less 333 days served on remand). His “tariff period” is thus due to expire on 24 March 2018. During the entirety of the period with which we are concerned he has been a category A prisoner, mostly in HMP Frankland but latterly in HMP Full Sutton.

On 8 February 2012 the Claimant commenced proceedings against the Secretary of State for Justice in the Administrative Court complaining of (1) “the defendant’s failure to provide offending behaviour work”, described as “ongoing”, and (2) a decision taken on 22 July 2011 to maintain his category A status. The latter challenge was subsequently abandoned, and I need say no more about it. The former is of a kind now familiar from a number of cases. In essence, what the Claimant said was that he had not been given access to sufficient opportunities to give him a fair chance to demonstrate a reduction in the risk that he posed to the public so that he might, initially, be re-categorised and, eventually, prove himself eligible for release at the expiry of the tariff period. I give more details below of the factual basis of the claim and of how it is put in law, but it is necessary to make the point at this stage that it was based entirely on the Claimant’s rights at common law. In the light of the decision of the House of Lords in James and Walker v Secretary of State for Justice[2009] UKHL 22, [2010] 1 AC 553, it was believed that no claim was open to him under article 5 of the European Convention of Human Rights (“the ECHR”); and no such claim was advanced.

The claim was heard before Cranston J on 12 July 2013. As is not uncommon in the Administrative Court, the parties proceeded by agreement on the basis that the Court’s consideration should not be limited to the position as at the date of the commencement of the proceedings but should cover any decisions made, or not made, up to the date of the hearing. This practice can cause difficulties; and, as will appear, I believe that it did so in this case.

By a judgment handed down on 30 July 2013 ([2013] EWHC 2323 (Admin)) Cranston J allowed the claim. There was a hiccup about the form of the order, but as eventually issued the substantive part consisted of a declaration “that the Defendant has acted irrationally in the provision of courses or other means by which the Claimant can demonstrate reduced risk”.

The Secretary of State appeals against that decision. There is, however, a complication. By an Amended Respondent’s Notice lodged on 25 February 2015 the Claimant asks the Court to declare that the Secretary of State had breached his rights under article 5 of the Convention and to award him damages. That application was a response to the decision of the Supreme Court in Kaiyam v Secretary of State for Justice[2015] UKSC 66, [2015] AC 1344, handed down on 10 December 2014, which departed from the position that had been taken by the House of Lords in James. (It was because the appeal in Kaiyam was pending that this appeal was not listed sooner.)

Before us the Secretary of State has been represented by Mr Tom Weisselberg QC and the Claimant by Mr Hugh Southey QC and Ms Leonie Hirst. Mr Weisselberg and Ms Hirst appeared before the Judge.

The facts are set out in full in the judgment of Cranston J. For present purposes they can be sufficiently summarised as follows.

At the time of the murder the Claimant, who did not have a history of violent offending, was under the influence of alcohol and temazepam. The attack on the officer was extremely violent and involved him being initially attacked with palings torn from a fence and then stabbed several times with a knife. The Claimant, while accepting that he committed the murder, has always maintained that he has no recollection of what occurred.

Over the first fifteen years of his sentence the Claimant completed a number of offending behaviour programmes and other courses. These include (in 2000) the Enhanced Thinking Skills (“ETS”) programme. He has also worked with the CARAT drug treatment team and followed the FOCUS substance abuse programme. I need only pick the story up in more detail in 2009.

In January 2009 the Claimant was seen by a forensic psychologist. She regarded him as having a limited insight into his offending behaviour and believed that while that remained the case it would be difficult for him to demonstrate a reduction of risk. She considered whether he would benefit from re-taking the ETS programme but decided against it. She recommended that he be assessed for the Controlling Anger and Learning to Manage It (“CALM”) course.

That assessment took place in July, but it was decided that the Claimant was unsuitable because of “an absence of reported emotional precursors, a lack of previous violent offences and a lack of recollection about the index offence”. He was told that the CALM course would be removed as a sentence planning target. The following year, however, he was told that it would be suitable in the future if he were to remember more about his commission of the murder.

The Claimant was also assessed in 2009 for the Cognitive Self-Change Programme ("CSCP"), which is designed to address violent offending. However, it was decided that he did not meet the criteria for the programme because he did not have a history of violent offending and his score on an OASys assessment was too low. Further assessment for the CSCP programme was not recommended.

In May 2010 the Parole Board considered the Respondent's suitability for open conditions. The panel member commented that since both CSCP and CALM were unavailable following assessments “it is not clear from the dossier as to what direction [he] should now take”. He concluded that outstanding areas of risk needed to be addressed before the Claimant could be moved to open conditions.

There was a sentence planning review two months later, in July 2010. The Claimant declined to attend. The meeting noted that the CALM programme was unsuitable because he could not recall the offence: the situation would be monitored by the CALM team, “and should [he] recall the index offence, it has been recommended that he contact the psychology department”. The meeting had received a report from the psychology department that it was examining the possibility of acquiring assessment tools which might help the Claimant to improve his recollection so that an accurate assessment of his treatment needs could be completed. It had, however, also identified as suitable for him a programme called the Thinking Skills Programme (“TSP”). It was recommended that he participate in TSP, in order to address risk factors that he was currently unable to address through CALM.

In June 2011 a Local Advisory Panel recommended that the Claimant complete the TSP and CALM programmes and also do further CARAT work.

The following month the category A review team (“CART”) decided that the Claimant should remain in Category A, because without him having completed the relevant courses, including in particular TSP and CALM, there was no convincing evidence of a significant reduction in risk.

That decision led to the Claimant’s solicitors writing a letter before claim. In his reply, dated 6 October 2011, the Secretary of State said that the CART team was satisfied that means were available to the Claimant to discuss and address his offending “either through psychological assessments or identified intervention programmes should his recall of his offending change”. He added that the team considered that the Claimant [had] “precluded himself from progression due to his lack of recall, and that any impasse relating to his progress has not been imposed from outside”.

I need not set out the Claimant’s grounds as pleaded in the Claim Form filed on 8 February 2012 because the way this part of his case is put has moved on. In essence his case was that it was unfair that his inability to recall the circumstances of the murder should be treated as an absolute barrier to his being able to demonstrate risk reduction and that the Secretary of State was “obliged in the circumstances to forgo the usual reliance on accredited programmes and to provide real and effective means by which [he] can demonstrate that he is no longer a risk” (para. 30).

I likewise need not summarise the Secretary of State’s Detailed Grounds of Resistance. But I should record that they make clear that the Claimant’s inability to recollect the details of the offence was not being treated as an absolute barrier to his demonstrating the necessary reduction in risk. There is an explicit plea (at para. 50) that “courses (such as TSP or CALM) are not the only means to demonstrate to the CART that a prisoner is progressing”. Para. 51 pleads various means, other than participation in offending behaviour programmes, by which the Claimant could demonstrate reduced risk. At sub-para. (1) it is pleaded that the Secretary of State had

The Claimant’s behaviour had generally been quite good, though not perfect. In June 2012, however, he was threatening and abusive towards a member of the prison staff and he acted violently during an interview in August held as part of the preparation for his next sentencing planning board. That board meeting took place on 20 August and he was set various targets, including being assessed for TSP (which had not yet occurred despite the recommendation of the previous year).

On 23 November 2012 the Claimant was examined by a clinical neuropsychologist, Dr David Millar, instructed by his solicitors. In his report Dr Millar reviewed the possible causes of his reported lack of memory of the murder. He concluded that the most likely explanation was dissociative amnesia – that is, a genuine inability, of psychological origin, to recall the incident. His conclusion reads:

There was a further review of the Claimant’s category A status in late 2012, including a consideration of Dr Millar’s report. The result was notified to him in a two-page document dated 2 January 2013. I need not reproduce it in full, but I should note the following points:

The CART team referred to the Claimant having “taken part in intervention work to address your drug use and thinking skills”. But it continued that his “use of extreme violence has remained essentially unexplored and unaddressed, principally due to your lack of recall of the present offence”.

It referred to recent incidents of anger and physical aggression towards prison staff, which it said “could not be ignored in your overall risk assessment, taking into account the nature of your offending and lack of progress exploring your emotional control and aggression”. It noted that the Claimant “had made no further progress discussing and addressing these key issues through intervention work or contact with psychology staff”. It continued:

As for Dr Millar’s report, it said:

On 25 March 2013 the Claimant was transferred from Frankland to Full Sutton. A sentencing planning meeting was held there on 26 June between the Claimant and his Offender Manager, John Finnigan, in preparation for a decision of the Sentencing Planning Board. The report of that meeting, which was only some three weeks before the hearing before Cranston J, was served on the Claimant’s solicitors, with Mr Weisselberg’s skeleton argument, on 3 July, i.e. just over a week before the hearing. There was no witness statement verifying or explaining its contents. There was, however, no objection to its admission before the Judge, and no attempt was made to ask any questions about its contents. The key points are:

In the section headed “Review of Progress” the previous year’s targets were noted. It was also noted that the Claimant’s position was that he wanted to progress and to come out of category A, but that he felt as though he was being held back. He admitted that he had had a “blip” the previous year as a result of the death of his father.

In the section headed “Planning for the Next 12 Months” it was noted that the previous year’s target should remain the same (i.e. as in 2012 – see para. 20 above) and that the Claimant was to be “encouraged to participate with a TSP assessment”. It was also recorded that he was in contact with the mental health team.

In a section headed “Short Term Objectives” it is provided that the TSP assessment should occur within the next three months. There is also reference to his applying for a victim awareness course, within the same time-frame.

A section headed “Long Term Objectives” (which we were told meant beyond the following twelve months) reads simply “To be assessed for RESOLVE”. The Judge heard no evidence about what RESOLVE was, but it was described in a footnote to Mr Weisselberg’s skeleton argument as follows:

The final section is headed “Board Recommendations and Summary”. It contains the same material as the earlier sections but in more discursive form. I should note that it ends with a record that the Respondent was “reminded that there was support for him and where to access it” and that he said that he was aware of that.

We were informed of various developments regarding the Claimant which had occurred since the hearing before Cranston J, but I do not see how these can be material to the questions which we have to decide on this appeal.

The position at common law is authoritatively summarised in the judgment of Lord Dyson MR in R (Kaiyam) v Secretary of State for Justice[2013] EWCA Civ 1587, [2014] 1 WLR 1208. He accepted a submission by counsel that the public law duties with respect to the provision of offending behaviour courses and assessments for indeterminate sentence prisoners could be analysed as threefold, albeit closely related, as follows:

There is a duty, implicit in the legislative scheme for indeterminate sentences, “to provide [the] systems and resources necessary to afford to prisoners a reasonable opportunity to demonstrate that they are no longer dangerous” – see para. 28 (p. 1216 E-F). This is the duty established by the decision of the House of Lords in James. It is referred to in the subsequent case-law, rather confusingly, as “the Walker duty”, because in the Court of Appeal, where the duty was first formulated, the lead appellant was not Mr James but Mr Walker.

This aspect of the case was not in issue on the subsequent appeal to the Supreme Court, but Lord Dyson’s summary was, in effect, endorsed by Lord Mance and Lord Hughes (see the beginning of para. 41 of their judgment, quoted at para. 29 below).

It is authoritatively established that even if the detention of a prisoner can be shown to have been prolonged as a result of a breach of any of those duties, it does not thereby become unlawful: see James (as regards the first duty) and Cawser (as regards the second). Nor, on ordinary principles, could such a breach give rise to a claim for damages.

I have already referred to the fact that in James the House of Lords had held that a failure by the Secretary of State to provide adequate courses by which a prisoner serving an indeterminate term could prove that he was no longer dangerous did not involve any breach of his Convention rights. A different view was taken by the Strasbourg Court in James v United Kingdom(2012) 56 EHRR 399; and the issue was consequently revisited by the Supreme Court in Kaiyam.

In Kaiyam the Court was not prepared to adopt the approach of the Strasbourg Court, but it did nevertheless depart from the decision of the House of Lords in James. In summary, it held that it followed from the terms of article 5 that the Secretary of State was under a duty to provide an offender sentenced to imprisonment for public protection or to life imprisonment with “an opportunity reasonable in all the circumstances … to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public”: see para. 36 of the judgment of Lord Mance and Lord Hughes, with which the other members of the Court agreed, (p. 1369 C-D). The duty is expressed at para. 38 (p. 1369G) in slightly different language, as being “to facilitate the progress of such prisoners towards release by appropriate courses and facilities”. Lord Mance and Lord Hughes acknowledged that the duty could not be directly found in the express terms of article 5 (which accordingly I need not set out), but they said that it was implicit in the scheme of the article: it is thus characterised as “ancillary”. Where a prisoner was denied that reasonable opportunity to rehabilitate himself his continued imprisonment did not thereby become unlawful, but he would have a private law claim for damages for the frustration and anxiety occasioned by the potential delay to his release: see paras. 39-40 (p. 1370). At paras. 41-42 (pp. 1370-1), under the heading “The Content of the Duty”, Lord Mance and Lord Hughes go on to say:

Having identified the possibility of a claim under article 5, Lord Hughes and Lord Mance proceed to consider whether such a claim had been established on the facts of the particular cases before them – Kaiyam, Haney, Massey and Robinson. They agreed about the outcome in the first three cases but disagreed about Robinson, in which accordingly they delivered separate judgments. The other members of the Court agreed with the judgment of Lord Hughes.

I should note three particular points which emerge from the discussion in Kaiyam beyond what appears in the passage already quoted:

Lord Mance and Lord Hughes make it clear that in principle a claim for breach of the article 5 ancillary duty can be brought prior to the expiry of the tariff period: see paras. 39 (p. 1370 C-D) and 48 (p. 1373D). (Indeed Haney’s claim, which was allowed, was brought almost a year before his tariff expiry date.) Mr Weisselberg submitted that in such a case damages should not be awarded unless by the date of judgment the tariff had expired and the claimant continued to be detained. For reasons which will appear, I need not express a concluded view about that submission. I am doubtful whether it is correct in principle, but I can certainly accept that claims brought long in advance of the tariff expiry date are likely to face serious difficulties as regards both liability and remedy: we were referred to the recent decision of Dove J in R (Dunn) v Governor of HMP Frankland [2015] EWHC 858 (Admin).

It seems unlikely that following the decision of the Supreme Court in Kaiyam there will be many cases in which prisoners seek to rely on a public law claim based on the common law duties identified at para. 25 above. The article 5 duty cannot be any less extensive than either the Walker duty or the rationality duty (though that may be an understatement – see below); and it offers the possibility of private law remedies. The relationship between the two duties might therefore appear to be a matter of only academic interest. But in the present case the availability of an article 5 claim to the Claimant is dependent on his being given permission to advance such a claim in his cross-appeal; and Mr Southey accordingly sought to argue that the decision in Kaiyam had impacted on the common law duty also. He drew our attention to recent authorities which have emphasised that the concept of irrationality is flexible and not confined to the classic “Wednesbury approach” and that the intensity of review will vary according to the context; and he submitted that that will particularly be so where Convention rights are in play. He relied in particular on two passages from the judgments in Pham v Secretary of State for the Home Department[2015] UKSC 19, [2015] 1 WLR 1591: see per Lord Carnwath at para. 60 (p. 1613 A-D) and Lord Mance at paras. 94-96 (pp. 1621-2). He submitted that in a case involving the liberty of the subject the degree of review should be “relatively intense”, and he said that such an approach would have the advantage of bringing the common law test in line with that applying under article 5.

I have no problem with Mr Southey’s general proposition that the degree of intensity of the Court’s review will be affected by the nature of the decision in question or that it may be informed by the engagement of Convention rights. But the proposition that decisions about what rehabilitation courses should be offered to prisoners should be at the “high-intensity” end of the spectrum is not supported by authority. In Cawser Simon Brown LJ discussed the test of rationality in terms which emphasise the difficult and multifactorial nature of the decisions required in this field (see para. 34); and Laws LJ, albeit in the context of an argument based on article 5, deprecated what he described as “a more intrusive form of review” (para. 42) or one “more rigorous than the conventional Wednesbury approach” (para. 44). Mr Southey contended that the law had moved on since then. But that was not the approach taken by the Supreme Court in Kaiyam. On the contrary, in the passage quoted at para. 29 above from para. 41 of their judgment Lord Mance and Lord Hughes characterise the common law duty of rationality explicitly in Wednesbury terms – “so egregious as to satisfy the Wednesbury standard of unreasonableness” – and say that “liability for breach of article 5 is [not] similarly limited”. It is true that they go on to say that the rights conferred by article 5 are individual rights, and I did at one stage wonder whether that – i.e. the distinction between a private and a public law claim – was the only point being made. But when the passage is read as a whole I think it is clear that their point is, rather, that, whereas at common law review is possible only on the somewhat restricted grounds which they summarise, the question whether a particular prisoner has been given a reasonable opportunity to rehabilitate himself is potentially broader and involves “a careful individual analysis of [the] applicant’s prison history” – albeit that that point is itself then qualified by what they go on to say in para. 42.

I would therefore reject the submission that as a result of the decision in Kaiyam the Claimant’s common law claim requires a peculiarly intense standard of review.

After setting out the facts, the Judge at paras. 24-42 of his judgment addresses what he describes as the “legal and policy framework”. At that point this Court had not yet decided Kaiyam, but his analysis is essentially in accordance with Lord Dyson’s analysis. At para. 42 he summarises the relevant principles as follows:

Against that background the Judge proceeds to his dispositive reasoning, which I can summarise as follows.

At para. 43 he identifies that the claim is not based on the Walker duty but only on irrationality in the decisions made in the Claimant’s particular case. He starts para. 44 with the statement that the reality is that “at present it is impossible for this claimant to demonstrate a reduction in risk”. There was some discussion before us of what he meant by “at present”; but I think it is clear that he meant on the basis of the Secretary of State’s current stance. He proceeds to discuss why that is the case. I need not set out the discussion in full. He accepts that the Claimant is unable to recall the circumstances of the murder and that that is unlikely to change. He points out that the CART team’s stance is that the Claimant must “address his use of extreme violence”, but he says that there are no rehabilitative courses enabling him to do so. TSP did not address extreme violent behaviour as a risk factor. CALM and CSCP had been ruled out, at least partly because of his inability to recall the murder. As for the RESOLVE programme, this was “too far off, and there is no evidence about its availability to and suitability for him” (para. 45). At para. 46 he acknowledges that “rehabilitative programmes are not the only means by which the claimant could address his extreme violence”, but he says that the Secretary of State has failed to provide any other such means. He expresses puzzlement at the reference in the Grounds of Resistance to “psychological assessments” (see para. 19 above); he accepts that “one-to-one psychological intervention is perhaps more promising” but says that nothing has been done to provide it.

The Judge summarises his conclusion at paras. 47-48 of the judgment, which read as follows:

In short, the Judge’s finding was that the Secretary of State had acted irrationally by denying the Claimant access to any means whereby he could demonstrate a reduction in risk.

Mr Weisselberg had submitted that the claim was premature. The Judge addresses that issue at paras. 49-50 of the judgment, as follows:

The Secretary of State pleads four grounds of appeal, but they appear to be for the most part variants of a single point, namely that the Judge was wrong to conclude that it was “impossible” for the Claimant to progress with his rehabilitation. Mr Weisselberg submitted that, on the contrary, the evidence established that at least three means had been identified by which he could establish that he no longer presented a risk, and could do so within the four-and-a-half years still remaining before the expiry of his tariff period. These were:

TSP. This had been recommended in 2011 and 2012 (see paras. 15 and 20 above), and the recommendation was repeated at the sentencing planning meeting in March 2013 (see para. 23 (2)). Mr Weisselberg acknowledged that the evidence was that the TSP did not address extreme violent behaviour as a risk factor, but he contended that it did not follow that it could not benefit the Claimant or that successful completion of the programme could not contribute to a conclusion that his risk of violent behaviour had reduced.

RESOLVE. This too was recommended at the sentencing planning meeting in March 2013 (see para. 23 (4) above). Mr Weisselberg argued that the Judge was wrong to describe it as “too far off”: it was scheduled for consideration after twelve months, during which time the Claimant would hopefully have undertaken the TSP. In a situation where there were still five years to go before tariff expiry, that was an entirely reasonable time-frame. As for his comment that there was no evidence about its availability or suitability for the Claimant, the report of the sentencing planning meeting was clear evidence of its availability, and it was clear from the explanation in the skeleton argument that it was potentially suitable: whether it was actually suitable would, inevitably but unobjectionably, have to await the Claimant’s assessment in due course. At this stage, what mattered was that there was a plan, and one with a realistic prospect of success.

One-to-one psychological intervention. The CART report of January 2013 explicitly recognised the possibility of such intervention (see para. 22 (3) above), and it was also acknowledged in the Detailed Grounds of Resistance (para. 19). Mr Weisselberg submitted that the Judge was wrong to dismiss this on the basis that no such intervention had yet been provided: the Secretary of State was entitled to see first what happened about the TSP and RESOLVE.

Mr Southey in response defended the Judge’s reasoning. He emphasised that the TSP was not as such directed at reducing risk in offenders with a history of extreme violence. As regards RESOLVE, he emphasised the paucity of information available about it as a result of the late stage at which it was first referred to. It was simply not shown that it would address the Claimant’s particular problems or in any event do so in sufficient time before the expiry of the tariff. He also observed that it had not been referred to by the CART team, who he described as “the gatekeepers to progress”. As for one-to-one psychological intervention, even on the Secretary of State’s case that was no more than a possibility at some point in the future, and no weight should be put on it.

I have not found the appeal altogether straightforward. If the position had to be assessed as at the commencement of the proceedings, I should have been inclined to find that the Secretary of State’s stance was indeed irrational. The response to the letter before claim (see para. 17 above) does tend to suggest that the Claimant’s inability to recall the circumstances of the murder was being treated as an absolute bar to progress, and there are some other indications to the same effect; and I very much doubt whether that was rational. It is true that at that stage tariff expiry was still six years distant; but if the Secretary of State’s position had been set in stone at that point I cannot see that a claim would have been premature, since nothing was going to change over the rest of the tariff period. However, it is now clear that that initial response does not reflect the Secretary of State’s stance as at the date that the Judge was, by agreement, considering. His position at that date was that it was not impossible for the Claimant to demonstrate the necessary reduction in risk even if he remained unable to recall the circumstances of the murder, and particular means had been identified by which he could do so. That is first clearly stated in the Grounds of Resistance, but it is reinforced by the June 2013 sentencing planning document, which puts at least some flesh on the bones of the pleaded generalities.

The real question in those circumstances is whether it was right to conclude, as the Judge in effect did, that the plan contained in the June sentencing planning report, coupled with the possibility of one-to-one psychological intervention acknowledged in the Grounds of Resistance, could not be regarded as affording the Claimant any realistic chance to progress.

I can understand the temptation to reach the conclusion which the Judge did. The report had been generated only very shortly before the hearing; it was unsupported by any witness evidence; and it was very short on detail. However, in the end I have come to the conclusion that he was not entitled to dismiss it. The report appears to reflect a genuine attempt to plot a course for the Claimant towards re-categorisation and eventual release, and there is no inherent reason why that should not occur before tariff expiry. It was not suggested that the report was produced for forensic purposes: it was apparently produced when it was in accordance with the usual timetable for the sentencing planning process and following the Claimant’s move to Full Sutton. It was for the Claimant to establish, not simply that that plan was sub-optimal or could have been developed sooner, but that – irrationally – it gave him no real opportunity to prove the necessary reduction of risk. To show that it was not fully detailed or was uncertain of success is not enough. If a case of irrationality is to be made out, the plan must be obviously chimerical. I do not believe that the criticisms made by the Judge, as set out at paras. 37-38 above, justify such a conclusion. Mr Weisselberg’s answers to them, set out at para. 41, are in my view convincing.

I would add, in relation to RESOLVE, that the absence of any detail in the June 2013 document is not in itself surprising or suspicious: this was a working document designed for professionals who would not need to be told what RESOLVE was. If the Claimant’s advisers wanted to know more than appeared in Mr Weisselberg’s skeleton argument they were entitled to ask for more information and/or to insist on a witness statement (and, if necessary, the opportunity to cross-examine) – though I am not to be understood as criticising them for choosing to leave matters as they stood.

In short, therefore, I do not believe that the evidence established that the Claimant was being denied a real opportunity to demonstrate a sufficient reduction of risk by the end of the tariff period. Since that was the basis on which the Judge found that the Secretary of State had acted unlawfully, that is sufficient to require that the appeal be allowed.

Before the Judge Ms Hirst for the Claimant explicitly disavowed any claim under article 5 of the ECHR. As I have already indicated, such a claim could not have succeeded on the then state of the authorities; but Mr Southey asks us to allow it to be advanced in the light of the decision of the Supreme Court in Kaiyam. In theory the Claimant could before Cranston J have formally reserved the right to advance an article 5 case pending the outcome of James in the Strasbourg court. But that is a counsel of perfection, and I do not think he or his advisers can be criticised for proceeding on the basis of the law as then recently declared by the House of Lords. If it were possible safely – and without any procedural prejudice to the Secretary of State – to conclude on the basis of the Judge’s findings that the Secretary of State was in breach of the duty recognised by the Supreme Court in Kaiyam, I would be prepared to allow the claim on that basis.

The starting-point must be to ask whether it necessarily follows from my conclusion that the common law claim fails that any article 5 claim would fail also. For the reasons discussed at para. 33 above, I do not think that that is the case: the Supreme Court has made it clear that a breach of the article 5 right may occur even in circumstances where the failure cannot be characterised as systemic or as so egregious as to be Wednesbury-unreasonable.

However, in my view in the particular circumstances of this case my conclusion as regards the common law claim does also mean that a claim for breach of the article 5 ancillary duty should fail. In assessing the Secretary of State’s conduct in the Claimant’s case Cranston J in practice applied a test substantially identical to that required by the article 5 duty – that is, whether he was being afforded a reasonable opportunity to rehabilitate himself and to demonstrate, by the expiry of the tariff period or within a reasonable time thereafter, that he no longer presented an unacceptable danger to the public. The effect of my reasoning in disagreeing with the Judge’s conclusion is that the Claimant was being afforded such an opportunity, or in any event that it had not been established that he was not. It is important to appreciate that even if the criterion of reasonableness inherent in the article 5 ancillary duty is less restrictive than Wednesbury-unreasonableness, it does not impose a standard of perfection: see paras. 42 and 60 of the judgment of Lord Mance and Lord Hughes in Kaiyam, as quoted at paras. 28 and 30 (3) above. I am indeed for my part somewhat sceptical about whether the apparent theoretical difference between the standards of review at common law and under article 5 would in practice lead to different outcomes in many, if any, cases.

I would accordingly dismiss the cross-appeal.

I agree.

I also agree.