Robinson, R (on the application of) v HMP Whatton & Anor

This is the judgment of the court, to which both members of the court have contributed, in relation to claims for judicial review by two prisoners serving sentences of imprisonment for public protection (“IPP”). The claimants are Mr Andrew Robinson and Mr Geoffrey Massey. The minimum period (or tariff) that each of them is required to serve under his sentence of IPP has expired. They complain that they have not been given a timely opportunity to demonstrate to the Parole Board that they are safe to be released. Their complaints centre on delays they experienced in gaining access to a prison course they were assessed as needing to complete.

There was a degree of elision between some of the grounds advanced on the claimants’ behalf by Mr Rule, and the precise nature of the argument under each ground was not always clear. It appears to us, however, that the case raises the following substantive issues:

whether the Secretary of State was in breach of the public law duty vouchsafed in R (James) v Secretary of State for Justice [2009] UKHL 22, [2010] 1 AC 553 (“James”), which relates essentially to the making of reasonable provision of systems and resources to allow IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they are safe to be released;

whether the Secretary of State was in breach of a public law duty and/or acted irrationally in the allocation of available resources in relation to IPP prisoners, in particular in determining priorities for access to a course known as the Extended Sexual Offenders Treatment Programme (“ESOTP”);

whether the Secretary of State’s failures, and in particular the delay in enabling each of the claimants to participate in the required ESOTP, rendered their post-tariff detention arbitrary and in breach of article 5(1)(a) of the European Convention on Human Rights;

whether the Secretary of State’s failures, and in particular the delay in enabling each of the claimants to participate in the required ESOTP, amounted to a breach of their rights under article 8 of the Convention; and

whether, in the case of Mr Massey, the setting of a 21 month period between his Parole Board review in March 2012 and his next review amounted to a breach of his right under article 5(4) of the Convention to a speedy review of the lawfulness of his detention.

Issue (4) is one for which Mr Rule requires permission to apply for judicial review. But we heard full argument on that, as on the other issues. Mr Weisselberg, on behalf of the Secretary of State, sensibly disavowed any technical points and expressed a willingness (which he put into practice) to engage with the substance of the challenges.

With that brief introduction we can proceed to set out the facts relating to each of the claimants, and the evidence relating to the provision of systems and resources, before turning to consider the issues we have identified.

Mr Robinson received an IPP sentence on 2 October 2006. He had been found guilty of eight counts of breaching a Sex Offender Prevention Order, two counts of attempted rape and four counts of sexual activity with a child. He received a total tariff of seven years’ imprisonment, with credit of 296 days spent on remand in custody, leaving an unexpired period of 6 years and 69 days. His tariff period expired on 10 December 2012.

In 2007 he completed the Enhanced Thinking Skills programme at HMP Manchester and in the following year completed the Core Sexual Offenders Treatment Programme (“SOTP”) in the same prison. On 9 July 2008 a Structured Assessment of Risk and Need Report (“SARN”) was completed. Such a report provides a static risk classification, predicting the risk of sexual offending, violent offending or combined risk, and provides a treatment needs analysis and a risk report. Mr Robinson’s risk report concluded that he presented a high level of dynamic risk, displaying strong risk factors in four domains, namely offence related sexual interests, child abuse supportive beliefs, suspicious angry and vengeful attitudes, and having no intimate relationship. It was accepted that Mr Robinson had gained some insight into his offending since attending the Core SOTP, but he was recorded as being in denial as to his offending, believing that he had been “set up” by the police and that his victim had been bullied into providing evidence against him. The recommendation was that he complete the ESOTP. The ESOTP became a formal sentence objective by at least February 2009.

The ESOTP is an established course which has been in existence for some years. It is designed to address the needs of sex offenders assessed as having a high or very high likelihood of sexual re-offending. The course consists of 74 sessions plus some individual work and generally lasts for six months, with multiple sessions a week. Over the relevant years under consideration, the course has been delivered at HMPs Bure, Frankland, Full Sutton, Isle of Wight, Shepton Mallet, Swinton Hall, Risley, Usk, Wakefield and Whatton.

HMP Whatton is a specialist prison housing only sex offenders. It is a national resource for the management of this group of offenders and has offered the ESOTP for a number of years. In the course of the hearing, we were told that HMP Whatton is the largest prison for sex offenders in Europe. In the evidence of Simon Boddis, Deputy Director and Head of Commissioning Group of the National Offender Management Service (“NOMS”), the court was given some sense of the scale of this prison and its programme aimed at tackling offending behaviour. In 2012/2013 HMP Whatton expended £960,000 on programmes aimed at tackling offender behaviour, out of an overall budget for the prison of just over £16m, representing a cost of more than 5% of the annual budget of the prison.

Some 18 months after the requirement that he should undergo an ESOTP, Mr Robinson was transferred to HMP Whatton on 24 February 2010. At this stage, there were more than 2 years to run to the end of his tariff period. In April 2010, he was assessed as suitable for the Thinking Skills Programme (“TSP”) and was put forward for a course starting in July. However, on the date of the commencement of the planned course he was seen by a member of the psychology team and informed that before he attended the TSP course, he was required to undergo a specific psychopathy assessment (“PCL-R”). This assessment had been recommended in the SARN report completed as early as July 2008 in HMP Manchester. In the meantime, he had been placed on the waiting list for the ESOTP course on 17 March 2010.

On 31 March 2010, the Parole Board reviewed Mr Robinson’s case at pre-tariff stage. The Parole Board noted that:

On 6 August 2010, the Secretary of State issued his decision on the pre-tariff expiry review, agreeing with the recommendations of the Parole Board that further work was required in closed conditions. The next formal review of his case was set to take place in the immediate period before the expiry of tariff on 10 December 2012. This was in order to allow the Claimant to complete the ESOTP, if assessed suitable, as well as the PCL-R, so that his outstanding risk factors could be addressed.

It is worth noting that by November 2010 Mr Robinson’s solicitors were already raising the connection between the availability of programmes and the upcoming expiry of the tariff. On 9 November 2010, the solicitors wrote to the principal psychologist at HMP Whatton asking:

The psychologist replied in an undated letter noting that Mr Robinson was on the waiting lists of both the PCL-R and the ESOTP, re-assuring the solicitors that the lists for the two were “closely aligned” and that “therefore Mr Robinson’s progress is not being impeded in anyway”.

An internal prison service email dated 14 January 2011, apparently stimulated by the solicitors’ concern, noted that Mr Robinson was on the waiting list for the ESOTP and that his tariff is “due in 2012” and went on to note that there were:

The PCL-R assessment on Mr Robinson was prepared by a forensic psychologist on 16 March 2011. The conclusion was that there was no diagnosis of psychopathic traits and he was suitable for “further treatment options”. Somewhat confusingly, the evidence of Lynn Saunders, Governor at HMP Whatton, records that it was only following this assessment that he was placed on the waiting list “to undergo an ESOTP suitability assessment”. Her evidence goes on:

Mr Robinson appealed against the decision on his complaint. On appeal, he was advised on 14 November 2011 by HMP Whatton’s Head of Programmes, Peter Mills, that he could not access the programme any sooner:

On 6 March 2012, Mr Robinson’s solicitors sent a pre-action letter challenging what was described as the failure to prioritise him for assessment and access to the ESOTP. On 12 March 2012, a reply was sent by the forensic psychologist and ESOTP Treatment Manager at Whatton, informing Mr Robinson that he was on the relevant waiting list and:

On 25 April 2012, he was assessed as suitable for the ESOTP and was maintained on the waiting list. These proceedings were issued by him on 26 June 2012.

The Parole Board completed its second tariff review on 2 November 2012, shortly before expiry of his tariff period on 10 December. The Parole Board noted that there was a very high risk of sexual reconviction. The Board (again) was not satisfied that he had reduced his risk factors to a sufficient degree and therefore did not direct release. The Board recommended completion of ESOTP. On 18 December 2012, the Secretary of State agreed with that recommendation and confirmed that Mr Robinson would be subject to a further 18 months’ review period so that he could complete the ESOTP and engage in further risk reduction work. The Secretary of State’s letter expected that his next Parole Board Review would take place in May 2014, at which date he would be 16 months post tariff.

In the event, Mr Robinson commenced the ESOTP on 1 July 2013 and was expected to have completed it by the time this judgment is handed down. That is over 5 years after completion of the course was first recommended and over 9 months after his sentence expiry date.

Mr Massey was born on 30 October 1959. He has criminal convictions for robbery, theft and benefit fraud during the early to mid 1980s. In 1986, he was convicted of indecent assault on a male. On 15 May 2008, he was convicted of two offences of indecent assault, two counts of sexual assault contrary to section 3 of the Sexual Offences Act 2003 and a count of inciting a child under 16 to engage in sexual activity, contrary to section 10 of the Sexual Offences Act 2003. He was sentenced to IPP with a tariff period of 2½ years, credit to be given for 65 days spent on remand in custody. He was placed on the Sex Offenders Register for life. His tariff expired on 11 September 2010.

Mr Massey was briefly in HMP Nottingham but transferred to HMP Whatton on 24 October 2008.

Whilst in Whatton, he has undergone a number of courses. In March and April 2009 he completed the Enhanced Thinking Skills Programme. In November 2009, he underwent the Core SOTP. Shortly before his tariff expired, a SARN report was completed for him on 21 July 2010. In that report, he was assessed as posing “a high risk of sexual re-conviction according to static factors”. The conclusions of the SARN Report read as follows:

Mr Massey went before the Parole Board in 2010. The Panel refused to direct his release or recommend his transfer to open conditions. Their conclusion was as follows:

On 21 October 2010, the Secretary of State set the maximum period of 24 months before the next parole hearing. The decision was expressed as being:

2 months to complete a PCL-r assessment

10 months to complete the E-SOTP, including assessment and waiting list

6 months to complete the BLB including assessment and waiting list

6 months post programme testing period and completion of reports.

Subsequent to that decision it was decided that the PCL-R was not necessary, as there was insufficient information to support the relevant assessment. Mr Massey attended and completed a Cognitive Skills Booster Programme on 3 June 2011. On 4 November 2011, the Deputy Extended Treatment Manager at Whatton, Melanie Woodward, assessed him as suitable for the ESOTP course. She did however note that “… the situation is dynamic and the waiting list is subject to change …”. Although this report is dated 4 November 2011, it appears that the assessment upon which it was based was concluded in April 2011. In a report of 3 October 2011, the prison had already noted that ESOTP was the only remaining sentence plan objective.

According to an Offender Manager Report of January 2012, by this stage Mr Massey was frustrated with the delay in providing him with an ESOTP. The Offender Manager noted that:

On 9 March 2012, the Parole Board reviewed Mr Massey’s case on paper, and again declined to direct release or recommend open conditions. Nor did it recommend that an oral hearing should be convened. It again made reference to the need for an ESOTP which it concluded “should address much of his outstanding treatment needs”.

Following the Parole Board’s decision, the Secretary of State wrote to Mr Massey on 23 April 2012 setting the review period at 21 months from that date, to commence in June 2013 with the aim of concluding in February 2014. The reasoning for the decision was set out as follows (with original emphasis):

Following this, Mr Massey contacted HMP Bure to see if he could be accommodated on an earlier ESOTP course there. However, on 11 September 2012, HMP Bure informed the relevant team at Whatton that no ESOTP course would be run there until May/June 2013. They were unsure whether Mr Massey fell to be treated as a priority for that course. He was therefore informed that he would not be offered an ESOTP course before May 2013. In fact, he was considered a priority for the May 2013 ESOTP course to be held at Whatton.

In the event, he commenced the course in May 2013 and completed it on 23 September 2013. This was some 34 months after the need for the course was first indicated, and a little over 3 years after his tariff period had expired. If the programme laid down by the Secretary of State in April 2012 is followed, then he faces 16 months further work before the overall programme intended to improve his safety, and therefore his prospects of release, can be completed.

The details of each of these two claims exemplify the problems faced in the provision of relevant courses in the period following the decision of the House of Lords in James (see para 2(1) above and paras 49 ff. below). By the time of the hearing before the House of Lords in January 2009, steps had already been taken to address the lack of systems and resources required by IPP prisoners. We are concerned with the continuation of that process. The evidence from Simon Boddis, Deputy Director and Head of the Commissioning Group of NOMS, and the evidence of Governor Saunders of HMP Whatton, both deal in their different ways with the changes in the system since the decision in James emphasised the problems.

In 2010, a new Indeterminate Sentence Prisoners Co-ordination Group (“ISPCG”) was formed, according to Mr Boddis, “in order to provide strategic, whole system, oversight and coordination for the management of” Indeterminate Sentence Prisoners (“ISPs”). The ISPCG meets quarterly and is intended to ensure proper overall control of provision for this group of prisoners.

Mr Boddis confirms that the IPP population at 31 December 2012 stood at 5,920, a drop from 6,020 three months before. Of those 5,920 prisoners, 3,538 had passed their tariff expiry dates. The figures given by Mr Boddis for releases from IPP sentences are strikingly low. In 2009, 53 prisoners were released. In 2010 the number was 97, in 2011 the number was 300 and between January and September 2012 there were 312 first releases from IPP sentences. Although these figures have obviously risen over these years, they are low figures set against the total IPP population.

Management information from the end of March 2012 apparently showed that 769 IPP prisoners had a requirement for the Core SOTP and that 135 IPP prisoners had a requirement for the ESOTP. In each case around 80% of the prisoners were located in a prison where the relevant course was supplied. For the year 2011 to 2012, prisons throughout the system completed 497 Core SOTPs and 139 ESOTPs.

In June 2011, NOMS launched the National Intervention Directory (“NID”). The aim was to provide information on all the courses and interventions delivered nationally and where they might be found. The NID is accessible as part of the sentence planning system in order to allow prisoners to undergo the courses they need.

Mr Boddis records that the current policy (at the date of his witness statement in May 2013) is to manage IPP prisoners in accordance with the policy for life sentenced prisoners, set out in PSI 36/2010 (PSO 4700, New Chapter 4, Serving the Indeterminate Sentence). This involves detailed risk assessments and the development and implementation of a sentence plan, aimed at understanding and reducing risk in order to prepare prisoners for the Parole Board, for transfer to open conditions, or for release.

A new Prison Service Instruction on sentence planning came into effect in December 2012 (PSI 41 of 2012).

In the course of outlining the facts in the case of Mr Robinson, we have already made reference to the range of prisons at which the Core SOTP and ESOTP have in the past been available. We have also given an indication of the projected expenditure within HMP Whatton on NOMS Accredited Programmes. Mr Boddis provides the figures for the ESOTP waiting lists at HMPs Whatton, Bure and Risley. As at the end of February 2013, the waiting lists for this course consisted of 71 prisoners (Whatton), 57 prisoners (Bure) and 30 prisoners (Risley) respectively. Not all of those on the waiting lists have been fully assessed or are considered ready to engage in the programmes.

The commissioning round for 2013/2014 was completed at the end of March 2013. In 2013/14 HMPs Bure, Risley and Whatton will offer 18, 9 and 18 ESOTP places respectively. It follows that within that year a total of 45 places on ESOTP courses will be available in the three prisons, where the respective waiting lists already contain a total of 158 prisoners awaiting the course. These planned places according to Mr Boddis represent a:

Mr Boddis had been asked whether any reports had been commissioned or carried out into IPP prisoners and the time taken to access interventions identified in the sentence plans. As at the date of his witness statement in May 2013, no such reports existed. Mr Boddis recognised that there are delays in offenders being able to access accredited programmes. His evidence is that these delays “are caused by the tight financial situation across the organisation, and complicated by the demands of the ESOTP, which is a necessarily demanding programme to deliver, given the high risk, high need, population for which it is designed.”

Mr Boddis describes the commissioning process in place for offender services. His evidence is that:

The process is described in “NOMS Commissioning Intentions for 2013-2014 (Negotiating Document)”, “An Introduction to NOMS Offender Services Commissioning 2011” and “Segmentation: Needs and Evidence Tables for the Commissioning Round of 2013-2014”. In effect, prisons prepare submissions including a proposed number of “interventions” and these bids are discussed with the Commissioning Directorate. Mr Boddis makes the point that:

Mr Boddis also makes the point that interventions such as the ESOTP programme cannot be reserved only for indeterminate sentence prisoners:

We have also already touched on some of the evidence from Governor Saunders in the course of setting out the facts in relation to the claimants. Her statements of 14 March and 21 October 2013 give a fairly full picture of the decision-making processes in relation to ESOTPs in Whatton. She emphasises that the highest waiting list at Whatton is for the Core SOTP, which is unsurprising given that it is a primary treatment pathway. She goes on to state that “it is inevitable that, as a tranche of offenders complete the Core SOTPs, there is likely to be an increase in referrals for the ESOTP.” Therefore, within the largest prison for sexual offenders in England and Wales, demand for ESOTP places is set to rise as the provision has fallen. She notes that, over the years, the funding for ESOTP courses has been incorporated into the prison’s “baseline funding”. Where originally only one ESOTP of nine places was historically run in a year, there were two courses in 2010/11, and three in 2011/12. Three were offered in 2012/13, but 2013/14 will be reduced as we have already set out above. Governor Saunders emphasises, perfectly understandably, that these courses are resource-heavy and intensive.

Seven criteria have been set by the Rehabilitation Services Group within NOMS for the allocation of access to accredited programmes. These criteria are published in a guidance document entitled “Suitability for Accredited Interventions (June 2010)”. Governor Saunders tells us that the seven criteria “are not meant to be considered in any order of strict priority”. The criteria are:

“Risk of harm: higher risk of harm cases take priority over lower risk of harm cases

Likelihood of re-offending: higher risk cases take priority over lower risk cases

Timing of hearings: in custody, those who have imminent parole/oral hearings are prioritised over those who do not as are those likely to be subject to release under Home Detention Curfew arrangements

Likelihood of positive impact: who is the most suitable, the most motivated, and the most ready to engage?

Group composition: what is the balance of needs and different characteristics within a group and how will this affect group dynamics?

Other opportunities for treatment: those who have no other opportunities to attend similar treatment, for instance later on in their sentence or after release, are prioritised over those who will have other opportunities.

Proximity to release/expiry of order: those who are closer to release or who are reaching the end of a community order or licence requirement should take priority.”

However, in an effective qualification of those criteria, Governor Saunders goes on to say this:

This principle of according priority to proximity of release date among those on the waiting list is illustrated by Governor Saunders in a table analysing the course composition of ESOTP prisoners. It is not necessary to incorporate the table within this judgment, but the table certainly illustrates that on a number of occasions prisoners with determinate sentences are placed on ESOTP courses far earlier than are prisoners with indeterminate sentences, who may often be far beyond their tariff dates by the time they get admission to this course.

The proceedings in James arose out of the introduction of sentences of IPP by the Criminal Justice Act 2003 without the provision of the resources needed to enable IPP prisoners to demonstrate to the Parole Board that they were safe to be released on expiry of their tariff period. The Court of Appeal found that the Secretary of State was thereby in breach of a public law duty: [2008] EWCA Civ 30, [2008] 1 WLR 1977. The Secretary of State did not appeal that finding. The case in the House of Lords was concerned with the further question whether in the circumstances the claimants’ post-tariff detention was unlawful at common law or in breach of article 5(1)(a). The way the breach of duty was described by the House of Lords is nonetheless important, since it was the premise on which the remaining arguments proceeded.

Lord Hope described the breach in this way (see [2010] 1 AC 553 at para 3):

Lord Brown adopted a slightly different formulation, but evidently without intending any difference of substance, when he noted (at para 28):

Lord Judge CJ observed (at paras 121-122) that the preparation for the inevitable consequences of the new sentencing provisions relating to IPPs was wholly inadequate – they were comprehensively unresourced – and that the claimants and other prisoners were victims of systemic failures. In relation to that early period he said that “the conclusion that the Secretary of State was in breach of his public law duties owed to the appellants and many others subject to the IPP regime is inevitable”.

There has been a definite improvement in the situation since the period under consideration in James. Even by the time of the hearing before the House of Lords, as Lord Judge explained at para 121, the deficiencies were being made good. The essential question under issue (1), however, is whether, notwithstanding the improvements made, there has been a continuing breach of the public law duty described in James, in particular by the failure of the Secretary of State to provide the resources needed to enable IPP prisoners such as the claimants to complete an ESOTP by the time of the expiry of their tariff periods, or reasonably soon thereafter, in circumstances where completion of the course is necessary if they are to have a reasonable opportunity of demonstrating to the Parole Board that they are safe to be released.

So far as the particular claimants are concerned, the question is strictly academic, since they have both now been admitted to the ESOTP course and will both have finished the course by the time this judgment is handed down. But the issue is one of importance for other IPP prisoners within the system. In any event the same ground has to be covered for the purposes of issue (3), the application of article 5(1)(a). We therefore think it appropriate to deal with the point.

As regards the correct legal approach, it seems to us, on the basis of what was said by the House of Lords in James, that the question is whether the Secretary of State has made reasonable provision of systems and resources for the relevant purpose. The duty is not an absolute one. Nor, however, is the test simply whether the Secretary of State has acted rationally. It is for the court to decide on all the evidence before it whether reasonable provision has been made, so as to amount to compliance with the duty. The purpose for which provision is to be made is to allow prisoners serving sentences of IPP a reasonable opportunity to demonstrate to the Parole Board, by the time of the expiry of their tariff periods or reasonably soon thereafter, that they are safe to be released (or at least that they are ready to be moved to open conditions as a step towards their release).

We were referred to a number of first instance cases in this general area. In R (Mehmet) v Secretary of State for Justice [2009] EWHC 1202 (Admin), decided shortly after the decision of the House of Lords in James, it was held that the failure, without good cause (and in fact as a result of an unexplained general backlog), to provide to the Parole Board for nearly a year a report on how the claimant’s performance on a course impacted on the assessment of risk in his case was a breach of the Secretary of State’s public law obligations. In R (Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin), (2010) 13 CCLR 193, it was held that the Secretary of State had breached his obligations towards the claimant by failing to take steps to enable the claimant to undertake offending behaviour work, though that finding was not based on the James public law duty. In R (Haney & Jarvis) v Secretary of State for Justice [2013] EWHC 803 (Admin) the Secretary of State conceded that there had been a breach of duty through excessive delay in transferring the claimants to open conditions because of a systemic failure in the arrangements for the transfer of ISP prisoners. In R (Kaiyam) v Secretary of State for Justice [2013] EWHC 1340 (Admin), a contention advanced on the basis of James that the Secretary of State owed a duty to each and every ISP that they be given a reasonable opportunity to demonstrate their safety for release at tariff expiry and at further parole reviews was said to be misconceived. The fact-specific decisions in those cases do not seem to us to be of any real assistance for the resolution of the issue before us in the present case.

In R (Weddle) v Secretary of State for Justice [2013] EWHC 2323 (Admin), Cranston J sought to draw together the threads from those and other authorities in the form of the following propositions:

Weddle itself was decided on the basis of the public law duty to act rationally, referred to in Cranston J’s propositions (4) and (5). The present issue relates to his propositions (1) to (3). In our respectful view, however, those propositions need to be approached with a degree of caution. For example, proposition (1) does not build in the point about reasonable provision of systems and resources which is to be found in James, and proposition (2) likewise refers to the provision of appropriate systems and resources rather than to reasonable provision of systems and resources to enable IPP prisoners to demonstrate their safety for release. In the circumstances we think it preferable to proceed on the basis of the approach, derived from James, which we have set out at para 55 above.

It is clear from the factual circumstances of the claimants’ own cases, and from the general evidence we have summarised concerning systems and resources, that a serious problem still exists in relation to the provision of ESOTP courses which many sex offenders serving an IPP need to complete before they can have any realistic prospect of demonstrating to the Parole Board that they are safe for release. The delays experienced by these two claimants are troubling in themselves. Despite pressure over a lengthy period, neither claimant managed to get admitted to an ESOTP course until after the expiry of his tariff period (in Mr Massey’s case, almost three years after its expiry); and since, after completion of the course, each of them has to wait for a substantial further period until their next Parole Board review, their first reasonable opportunity to demonstrate to the Parole Board that they are safe to be released will come long after the expiry of their tariffs.

It is clear that the claimants’ experience is far from exceptional. The evidence summarised at paras 34 ff. above shows that the number of IPP prisoners with a requirement for an ESOTP greatly exceeds the number of placements available on ESOTP courses and that many such prisoners are failing to get onto courses until after the expiry of their tariff periods. In some cases the delay can no doubt be explained by reasons specific to the individual prisoner, but the under-provision of courses appears to us to be the primary reason for delay and to be accurately described as a systemic problem. Nor is there any immediate prospect of improvement. On the contrary, we have noted at para 45 above that at HMP Whatton demand for places on ESOTP courses is set to rise as the provision of places has fallen.

We understand the tight financial situation across the entire prison estate and the difficulty of allocating limited resources between a range of competing demands. But the duty is to make reasonable provision, and that duty plainly requires sufficient resources to be made available for its fulfilment.

In conclusion, we are satisfied that there is a continuing failure on the part of the Secretary of State to make reasonable provision of systems and resources, specifically the reasonable provision of ESOTP courses, for the purpose of allowing IPP prisoners a reasonable opportunity to demonstrate to the Parole Board, by the time of the expiry of their tariff periods or reasonably soon thereafter, that they are safe to be released. In this respect the Secretary of State is in continuing breach of the James public law duty. But the breach no longer affects the claimants themselves and we reject Mr Rule’s submission that we should make a declaration at their behest that the Secretary of State is in breach. The point is dealt with sufficiently by what we have said in this part of our judgment.

Issue (2) concerns the allocation of available resources, as distinct from the question in issue (1) whether there has been the reasonable provision of resources overall. Mr Rule contends that the Secretary of State has failed to apply his sentence planning policies, and/or has acted irrationally, in failing to provide the effective and timely delivery of the courses that the claimants need, and in particular in determining priorities between prisoners waiting to gain access to the ESOTP.

In so far as the claimants’ arguments on this issue are expressed in terms of breach of duty, they are based on the judgment of the Court of Appeal in R (Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522, [2004] UKHRR 101. That case concerned delay in providing a life sentence prisoner with a place on the ESOTP. Counsel for the Secretary of State accepted 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”, and argued that “it is solely this public law duty to act rationally to which the Secretary of State is subject” (para 30). Simon Brown LJ accepted that submission (para 31). At para 34, he referred to it as “a duty qualified by the extent of available resources and subject only to the test of rationality”, observing that difficult judgments have to be made as to which prisoners would benefit from courses and when they would best be able to do so. This is also no doubt the “public law duty on the Secretary of State to act rationally” to which Cranston J was referring in his proposition (4) in Weddle, set out at para 57 above. It seems to us, however, that the arguments on issue (2) come down in substance to a straightforward irrationality challenge and gain no material assistance from reference to breach of a public law duty.

The evidence relating to the NOMS criteria for allocation of access to accredited programmes and the way in which the criteria are applied in practice is summarised at paras 46-48 above.

Mr Rule makes four main points in relation to it:

First, he complains about the giving of priority to prisoners serving determinate sentences over those serving IPPs. He submits that the James duty does not apply to determinate sentence prisoners, since their release does not depend on the completion of courses for the purpose of demonstrating that they are safe to be released; and if choices have to be made within limited resources, priority should be given to indeterminate sentence prisoners whose release does depend on the completion of such courses.

His second complaint concerns the failure to have regard to the length of a prisoner’s tariff. He submits that short-tariff prisoners such as Mr Massey ought to have priority over those with a longer tariff, as a consideration distinct from the date of tariff expiry.

Thirdly, he submits that the proper application of relevant factors to Mr Robinson (in particular, the grant of priority by reference to higher risk of harm, higher risk of re-offending, imminence of parole hearing, likelihood of positive impact, and lack of other opportunities for treatment) ought to have favoured Mr Robinson for priority and that he was adversely affected by the erroneous concentration on tariff/sentence expiry date.

The fourth complaint is that no consideration is given to how long a prisoner has been on the waiting list for a particular course. This factor is not included in the NOMS list of criteria, but the list is not exhaustive and the factor should have been taken into account in individual decision-making.

In our judgment, none of those matters makes good the case of irrationality.

As to the first point, it is perfectly reasonable, in setting priorities, to take account of the release dates of determinate sentence prisoners who have been assessed as needing an ESOTP. It is true that the release date of such prisoners is fixed and does not depend on their first satisfying the Parole Board that they are safe to be released, so that the rationale for the duty in James does not apply to them. There is, however, an obvious public interest in their undergoing the course before release in order to reduce the risk to the public on their release. We were told by Mr Weisselberg, and we accept, that the stringent requirements of the ESOTP are such that the course is not and cannot be provided either in open conditions or to prisoners on licence, and we are not persuaded that the equivalent of an ESOTP can be achieved outside closed conditions. There can therefore be no sensible objection to including determinate sentence prisoners with an imminent release date among those accorded priority for places on the course.

As to Mr Rule’s second point, it would be open to the prison authorities to take the length of a prisoner’s tariff into account in determining priorities, but it is not irrational to leave that consideration out of account. The consideration of central importance is the tariff expiry date, and it is reasonable to concentrate on that without factoring in the length of the tariff. We should spell out that the fact that a consideration can permissibly be taken into account does not make it mandatory to take it into account. This is one of those areas where the selection of considerations to be taken into account is a matter for the decision-maker (see the line of cases referred to in Fordham, Judicial Review Handbook, 6^th edition, para 56.2.1).

The third point, concerning the application of the NOMS criteria to the case of Mr Robinson, proceeds on the premise that it was erroneous to concentrate on the tariff expiry date. But it was not irrational to place the weight that was evidently placed in practice on that criterion; nor was it irrational, in applying the criteria as a whole, to conclude in all the circumstances that Mr Robinson did not have the priority to qualify for admission to a course earlier than he did.

The fourth point, that length of time on the waiting list should have been taken into account, is open to a similar objection as that advanced above in relation to the second point. It would be open to the prison authorities to take length of time on the waiting list into account, but it is not irrational to leave it out of account.

Article 5 provides, so far as relevant:

In James, the House of Lords held that the Secretary of State’s failure to provide the systems and resources needed by IPP prisoners did not mean that their continued detention was in breach of article 5(1)(a). For imprisonment to be justified under that provision there had to be a sufficient causal connection between the conviction and the deprivation of liberty. That causal link had not been broken by the Secretary of State’s failures. It was acknowledged that in extreme circumstances a break-down of the system might render continued detention arbitrary and unlawful, but the facts of the case were considered to fall far short of such a situation. As Lord Hope put it (at para 15):

When the matter went to Strasbourg, in James & Others v United Kingdom (2013) 56 EHRR 12 (“James (Strasbourg)”), the ECtHR took a different view, holding that on the particular facts the continued detention of the claimants was arbitrary and therefore unlawful under article 5(1). We do not propose to go into the full detail of the lengthy judgment, including the court’s exposition of the principles relating to arbitrariness, but the court’s reasons for finding arbitrariness in the particular cases of the applicants are apparent from the following passages:

The implications of James (Strasbourg) for our domestic law have not yet been the subject of an authoritative decision by the courts of this country. The Supreme Court in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23, [2013] 2 WLR 1157, took the view that the decision of the ECtHR was not relevant to the appeals in that case (see per Lord Reed JSC at para 23). In R (Haney & Jarvis) v Secretary of State for Justice (see para 56 above), all the parties submitted that the judgment in James (Strasbourg) was inconsistent with the decision of the House of Lords in James but that the first instance court was bound to follow the decision of the House of Lords. Lang J accepted that approach, dismissed the claims under article 5(1) but granted permission to appeal (see paras 94-95). In R (Kaiyam) v Secretary of State for Justice (ibid.), which involved issues similar to those in the present case, Supperstone J took the view that the article 5(1) claim must be dismissed following the decision of the House of Lords in James. He refused permission to appeal but it appears that permission was subsequently granted by the Court of Appeal. We were told at the hearing of the present claims that the appeals in Haney & Jarvis and Kaiyam were listed for hearing in mid-November. We were invited to give judgment on the claims without waiting for the judgment of the Court of Appeal in those cases. (We have ascertained that the appeals were in fact heard on 19 November 2013 and that judgment is expected to be handed down very soon.)

Mr Rule submits that the treatment of the present claimants was such that their continued detention after the expiry of their tariff periods was arbitrary and in breach of article 5(1)(a). He advances that case on two distinct bases:

First, he submits that the facts of this case are sufficiently extreme to justify a finding of arbitrariness on the basis left open by the House of Lords in James.

Alternatively, he submits that the facts justify a finding of arbitrariness and breach of article 5(1)(a) on the basis of the reasoning of the ECtHR in James (Strasbourg). If we are precluded by the decision of the House of Lords in James from applying the approach in James (Strasbourg), he submits that we should dismiss the claim but grant permission to appeal in the same way as was done in Haney & Jarvis.

We reject both ways in which the case is put.

We have held in relation to issue (1) that the Secretary of State is in continuing breach of the James public law duty. That breach, however, is less serious than the “deplorable” default that was of such concern to the House of Lords in James. Yet even the factual circumstances under consideration in James were regarded by the House of Lords as falling far short of a situation rendering continued detention arbitrary and unlawful under article 5(1). Thus, applying the approach laid down by the House of Lords, it is clear that the circumstances of the present case come nowhere near to rendering the claimants’ continued detention arbitrary for the purposes of article 5(1).

Although the ECtHR in James (Strasbourg) differed from the House of Lords in finding arbitrariness on the facts of that case, the default in the present case is again less serious. The ECtHR laid stress on the complete failure to progress the applicants through the prison system with a view to providing them with access to appropriate rehabilitative courses. In the case of each of the present claimants, by contrast, a great deal was done to progress them through the system and to provide them with access to appropriate rehabilitative courses. The one real failure was in providing them with timely access to the ESOTP. Whilst that was an important failure, given the practical importance of the ESOTP for their ability to satisfy the Parole Board of their safety for release, it was in our judgment insufficient to render their detention arbitrary even on the approach that the ECtHR took in applying the concept of arbitrariness in James (Strasbourg).

Article 8 confers a right to respect for private and family life. Mr Rule submits that the article is engaged in this case because of “the essential need for rehabilitation to regain increased aspects of residual personal and private life that are not inevitably required to be removed by the sentence itself”, and that the delay in giving the claimants access to the ESOTP amounted to an unjustified interference with their article 8 rights. He attaches particular importance to the period before the expiry of their tariffs, contending that the delay held them back from rehabilitation and the possibility of gaining a move to open conditions. He does not place the same weight on it in relation to the post-tariff period because, as we understand his submissions, he accepts that article 5 may eclipse its significance in relation to that period.

In R (Haney & Jarvis) v Secretary of State for Justice (cited at para 56 above), at paras 96-102, Lang J considered an argument that delay in transfer from closed conditions to open conditions was in breach of a claimant’s article 8 rights. She referred to case-law showing the scope for the application of article 8 in the prison context, pointing to the reliance on it in a series of cases concerning the availability of temporary leave from prison and in cases involving a policy which restricts benefits to a particular case (e.g. a policy not to allow babies to remain in mother and baby units after they attain the age of 18 months, and a policy to refuse prisoners access to artificial insemination save in exceptional cases). But she held that the delay in transfer to open conditions did not interfere with the claimant’s article 8 rights because the transfer, of itself, did not bestow upon him temporary leave in the community, to visit his family or to pursue employment decisions: the decision whether or not to grant such leave would be made separately from the transfer decision and would depend upon a specific assessment of risk.

Mr Weisselberg submitted to us that Lang J’s decision in relation to article 8 was based in essence on a finding that the link between transfer to open conditions and private or family life was too remote. He invited us to adopt a similar approach here, namely that a delay in providing rehabilitative work in a closed prison is too remote to constitute an interference with a prisoner’s article 8 rights.

We agree with Mr Weisselberg’s submission. In our view it cannot be right that a delay in giving a prisoner access to a rehabilitative course in prison engages article 8, even if the delay is unjustified and the course is important. The link between access to a particular course and release or transfer to open conditions is not sufficiently strong to bring the situation within the scope of article 8. Release and transfer to open conditions are the subject of a separate decision-making process, and the decisions taken are based on a wide-ranging assessment of risk in which a prisoner’s completion of relevant courses, although potentially important, is only one consideration.

In order to put all the issues on the same procedural footing, and in the light of Mr Weisselberg’s sensible stance (see para 3 above), we grant permission for the article 8 issue to be included with the claims for judicial review; but we reject the claimants’ substantive case on the issue.

This final issue is a discrete one relating to Mr Massey alone. It is contended that the decision of the Secretary of State to set a period of 21 months between the Parole Board’s March 2012 review and the next review (see para 29 above) amounted to a breach of Mr Massey’s rights under article 5(4), which provides:

A helpful summary of principles relevant to the application of that provision in the context of Parole Board reviews is to be found in the judgment of Males J in R (Parratt) v Secretary of State for Justice [2013] EWHC 17 (Admin), [2013] ACD 59, at para 32:

Mr Rule was counsel for the claimant in Parratt and referred in his present skeleton argument to the possibility of an appeal against the decision; but, whilst arguing that the Secretary of State’s expertise carries no weight where there is no dispute as to whether a course is necessary, he made no serious challenge to the correctness of Males J’s summary of the relevant principles for present purposes. In the circumstances we think it appropriate to proceed by reference to those principles and without citation of further authority.

Once the relevant principles are established, Mr Rule’s submission to us is a short one. It is that the right to a speedy review under article 5(4) required in this case the setting of a period shorter than the 21 months set by the Secretary of State.

The period of 21 months was lengthy, indeed it was close to the statutory maximum of 24 months, but we are not persuaded that it was excessive and in breach of article 5(4). While keeping in mind that it is for us to decide whether the review period was appropriate, we have had due regard to the Secretary of State’s decision and in particular to the reasoning for it (set out at para 29 above). It seems to us that the various elements making up the 21 months (5 months for ESOTP, 6 months for post-programme objections / SARN assessment, 3 months for BLB programme, and 7 months to complete areas of work identified, etc.) were realistic and that there was a real risk that the setting of a shorter overall period would have led to a further review at a time when Mr Massey would not be sufficiently prepared for it and would therefore be prejudiced in his attempt to demonstrate safety for release or readiness for a move to open conditions, all of which would have been counter-productive.

For the reasons we have given, we dismiss both claims.