On 1 November 2017, in its judgment in Brown v Parole Board for Scotland, Scottish Ministers and another [2017] UKSC 69, the Supreme Court has reversed its earlier decision of December 2014 reached in the case of R.(Kaiyam) v SSJ [2015] AC 1344.

Kaiyam’s ancillary duty implicit within the scheme of Article 5

In Kaiyam the Court had identified the ancillary duty to progress indeterminate-sentence prisoners towards release by ensuring a reasonable opportunity for rehabilitation was afforded to the individual. That duty arose implicitly within the scheme of article 5 of the European Convention on Human Rights (“ECHR”), and it was appropriate to award damages to two prisoners who suffered unreasonable delays in provision of essential facilities to enable progression.

Brown considers and decides

In Brown Lord Reed (giving the judgment of the Court) considered a prisoner’s case concerning:

(1)   an extended sentence of 10 years’ imprisonment, comprising a custodial term of 7 years and an extension period of 3 years;

(2)   a prisoner released on licence but recalled to custody after committing a further offence;

(3)   who then remained in prison until the sentence had been served in full;

(4)   the complaint before the court was that he was not provided with appropriate rehabilitation courses following his recall to prison.

The Court decides that:

(1)   the duty under article 5(1)(a) ECHR to provide prisoners with a real opportunity for rehabilitation applies to prisoners serving extended sentences during the extension period [62]-[63];

(2)   the duty applies in the case of an indeterminate prisoner only after the expiry of his punitive term (the “tariff”) [39];

(3)   the domestic courts should cease to treat the obligation to provide opportunities for rehabilitation as an ancillary obligation implicit in article 5 as a whole [44];

(4)   a violation of the duty, rendering detention “unlawful” in Convention terms, does not mean that the prisoner is entitled to release. Other remedies exist which can remedy the lack of opportunity for rehabilitation [43];

(5)   the test is one of arbitrariness not reasonableness [40]. A high threshold has to be surmounted in order to establish a violation of the obligation [45];

(6)   there was no violation of article 5(1)(a) in Brown’s case.

A fundamental change

As Lord Reed explains, this change is important because the Supreme Court’s earlier approach was (in theory at least) more onerous upon the prison authorities and significantly different to the duty imposed at Strasbourg. The question of whether the obligation to provide rehabilitation opportunities arises under article 5(1) or was implicit in article 5 as a whole affected the substance of the obligation, including the period during which the obligation applies, the standard of the duty, and the weight to be placed on the Secretary of State’s assessment of what amounts to a reasonable opportunity for that individual [39]-[42].

How and why has the Court changed its mind?

It is of course surprising that the Supreme Court has reversed its own judgment within three years (indeed a case in which two of the same judges sat, including the former President), but the explanation is rooted in three key considerations.

Firstly, this decision seeks to follow the approach taken by the Strasbourg Court which had seemingly refused to follow suit and adopt or recognise the ancillary duty Kaiyam had identified. The usual position was that the domestic courts would seek to keep pace with human rights jurisprudence in Strasbourg but not exceed it. Having failed to succeed in their challenge before the Supreme Court some of the appellants had pursued an application to the European Court of Human Rights. By its paper-only process that Court refused to admit the claims for full consideration. In Kaiyam v United Kingdom (2016) 62 EHRR SE 13 the Court rejected the article 5(1) complaints as inadmissible. It did so on the basis that the relevant breach of article 5(1)(a) required arbitrary detention post-tariff. On the facts it determined that a real opportunity for rehabilitation had, as a whole, been provided to those prisoners during the course of their sentences and that any delay had not been of such a degree as to render the detention arbitrary. The Kaiyam approach of the Supreme Court was not adopted (though it was not expressly criticised either).

The second feature that enabled the Supreme Court to reverse its approach was the evaluation that at the time of Kaiyam the James v UK decision (which was not of a Grand Chamber) did not form part of a clear and constant line of decisions; but the Strasbourg Court had in fact (and since) followed the same approach and applied that decision on several other occasions [21], [24], [38].

The third and final key determinant is the different view taken in Brown as to the UKSC’s concern in Kaiyam (examined in Brown at [23]-[26]) that the Strasbourg approach applying Art. 5(1)(a) would entail an obligation to secure an immediate release. Once it was determined that release is not required and that other remedies exist which can remedy the lack of opportunity for rehabilitation that basis for differing from the European Court’s approach fell away [42]-[43].

Lord Reed analysed the Strasbourg decision in James v UK and observed that there had been no assumption that those applicants would have been at liberty but for the breach of Art. 5(1), and no breach of the right to an effective remedy (guaranteed by Art. 13 ECHR) [14]-[16]. It may be observed of course, that the Strasbourg Court was concerned with prisoners already released, and referring to causation of loss from lack of timely access to rehabilitation courses said “it cannot be assumed that, if the violations in the present cases had not occurred, the applicants would not have been deprived of their liberty” (James v UK, [244])

Questions arising for the future

This decision raises a significant question as to the circumstances in which it can be right that a person is unlawfully detained within the meaning of Art. 5 ECHR but is not entitled to release from that unlawful detention violating Art. 5 ECHR. In each case where this has been considered thus far the situation of unlawfulness was historic in the sense that it had already ended before the court pronounced judgment.

Lord Reed observes, in this context, that “Applying the court’s reasoning as to the position under article 5(4) of the Convention, however, there cannot in ordinary circumstances be a right to immediate release under domestic law,… where detention is in violation of article 5(1) by reason of a failure to provide a real opportunity for rehabilitation, an appropriate remedy is provided by an order requiring such an opportunity to be provided, with monetary compensation for the absence of the opportunity in appropriate cases.” [27].

In an ordinary case a mandatory order may be appropriate therefore; but what constitutes the situation beyond the ordinary? This is a question for another day.

Similarly, given public law duty breaches of a systemic kind that remain in the present prison system, what will be the position if there is no prospect of compliance with a mandatory order, or a failure to comply with it in any timescale set by the court? That may be a question future courts in other cases (on very different facts to Brown’s case) cannot sensibly avoid.

A further observation may be made. After his recall Brown had received two treatment programmes, allowed some home leaves, and was transferred to open conditions from which he was twice returned to closed conditions for drugs-related matters. Technically, there being no breach of Art. 5(1)(a) in his case the question did not arise to require any decision by the Court as to what relief might be appropriate. Furthermore he, being an extended but determinate sentence prisoner, had been released automatically and mandatorily in 2015 [80] (or, if that was technical, may possibly have been on remand facing fresh serious offence allegations [78]). Such consideration might be said to be obiter dicta. In his case the question of release would no doubt have been assisted by the fact he had been committing and found guilty of serious and repeated assault offences in prison during his recall, had not been able to start courses due to his fighting causing him to be moved, and had been assessed by a Parole Board on five occasions and found to pose a high risk. To the contrary it had been strictly necessary to address the issue of relief in Kaiyam, where offenders did remain in indefinite custody at the date of judgment despite the breach of duty. Nor did the Strasbourg Court in Kaiyam v UK suggest the Supreme Court had been wrong in its assessment that release would have been required (which is referred to at [71] of Kaiyam v UK).

However it is submitted that it remains entirely clear that in other (more commonplace) contexts of a breach of Article 5(1) release is required from unlawful detention; and Lord Reed’s comments must not be misconstrued as extending to other circumstances of unlawfulness in detention outside the scope of the failure to provide courses and facilities necessary as a precursor to demonstrating rehabilitation. For example, once a decision has been taken that an individual’s risk no longer warrants imprisonment, or where immigration detention has become excessive, or where the grounds for mental health detention have ceased to exist, there can be no justification for continued detention as a matter of domestic or ECHR law. Directions for release will remain the only appropriate relief in such cases.

Philip Rule is a member of the Public Law Group at No5 and was named Legal Aid Barrister of the Year 2017.