Fri, 05 Feb 2016
Avoiding the question: the decision in Kaiyam, Massey and Robinson v United Kingdom (Application no. 28160/15; 28103/15 and 28443/15) and the protection of liberty from indefinite imprisonment in Article 5 ECHR
By its decision (of the First Section) published on 4 February 2016 the European Court of Human Rights has failed to grapple with the United Kingdom not implementing the Court’s judgment in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012, concerning access to rehabilitative courses.
The cases all concern prisoners sentenced to an indeterminate sentence the release from which depended upon successful reduction of risk, and detention might otherwise continue without end even after the punitive term had been completed.
In domestic proceedings the applicants Robinson and Massey had each established that his access to a rehabilitative programme required in order for him to have any realistic prospect of progression towards release was delayed in consequence of an unlawful failure to properly resource and operate the system of provision of that programme. However in domestic law it had been previously established at the House of Lords that such unlawful treatment did not also amount to a violation of Article 5(1) or 5(4) ECHR (R (James, Lee and Wells) v Secretary of State for Justice  1 AC 553).
The UK Supreme Court had therefore to consider whether it would modify the United Kingdom’s case-law to follow the judgment in James, Wells and Lee v. the United Kingdom, or continue to apply the House of Lords’ earlier ruling.
The Supreme Court decided that:
(1) it would follow the Strasbourg Court’s finding that rehabilitation is a purpose of the indefinite detention (paragraphs 35 to 36);
(2) but it would not follow or apply the reasoning that held there to be a breach of Article 5(1)(a) ECHR. The reason for that principally being that to make such a finding would appear to require release to be ordered of a prisoner who may remain dangerous, and in whose case the violation could be brought to an end by the provision of the programme so that the detention might again be rendered lawful, thus oscillating between being unlawful and lawful (paragraphs 33 to 34).
Instead the Supreme Court found a breach of an ancillary duty to progress indeterminate-sentence prisoners towards release implicit within Art. 5 ECHR. That led to an award of damages to Mr Massey, but on a lesser scale than applied in James, Wells and Lee v. the United Kingdom. The Court also noted that mandatory orders may be appropriate where a breach is continuing (paragraph 40). Upon Mr Robinson’s case the court was divided but by majority did not find a violation in his case of the ancillary duty.
The applications to the European Court of Human Rights therefore raised the fundamental question as to whether the Strasbourg Court would accept and adopt the reasoning of the Supreme Court at the international level; or conversely would insist upon its own reasoning in the James litigation and commence a dialogue that might require the UK to reconsider its application of the decision. However, declaring by a majority the application of Mr Massey to be inadmissible, the Strasbourg Court decides it is not its function to determine whether the UK has properly implemented the James judgment within its domestic legal order  (even though for Mr Massey the question of an effective remedy being available as required by Art. 13 ECHR was raised before the Court).
The result of this decision is that internationally the Court provides no guidance as to whether other national jurisdictions should now adopt and apply the ancillary obligation that the UK Supreme Court has identified.
For individuals within the UK itself the result is that there are now two different tests to be applied to establish whether an individual has suffered a violation of Article 5 ECHR.
71... In finding a breach of that “ancillary duty” in Mr Massey’s case, the Supreme Court referred solely to the failure to provide him with the opportunity which the Secretary of State had regarded as reasonable in his letter of October 2010 to try to demonstrate that he was safe for release. The nature and extent of the delay in affording Mr Massey access to the ESOTP was in and of itself sufficient to give rise to a violation of the “ancillary duty”.
72. It is not the role of this Court to determine in the abstract whether the United Kingdom has properly implemented the judgment in James, Wells and Lee within its domestic legal order. This is primarily a matter for the Committee of Ministers in the exercise of its jurisdiction under Article 46 § 2 of the Convention… This Court’s role is confined to determining whether delays in the provision of rehabilitative courses to the present applicants were such as to introduce a degree of disproportionality leading to “arbitrariness”, as understood by James, Wells and Lee,and thus rendering the relevant periods of detention “unlawful” within the meaning of Article 5 § 1 (a) of the Convention. In making this assessment, this Court cannot examine specific periods of delay in a vacuum: it must view any period of delay in the light of the detention as a whole and the specific factors identified in its case-law (see paragraphs 67-68 above). The fact that a delay occurred, even where that delay was at odds with what the Secretary of State had indicated as a reasonable opportunity to try and demonstrate safety for release, is not sufficient to meet the threshold required for the establishment of “arbitrariness” in breach of Article 5 § 1 (a) of the Convention under James, Wells and Lee. In this sense, the test applied by this Court to whether a violation of Article 5 § 1 (a) has been made out in cases concerning delayed access to rehabilitative courses might be said to be more stringent that the approach applied by the Supreme Court to whether a breach of the “ancillary duty” which it read into Article 5 to facilitate the progress of IPP prisoners towards release by appropriate courses and facilities has been demonstrated.
Accordingly this decision establishes a higher threshold test is applied to “arbitrariness” in breach of Article 5(1)(a) in distinction to that which applies to the ancillary rehabilitative obligation within Article 5 ECHR generally that has been recognised by UK law.
The consequence is that in domestic proceedings a claim may succeed for a breach of the ancillary obligation within Art. 5 ECHR and the prisoner may be entitled to a mandatory order, or to damages on account of a violation (to compensate either for anxiety and distress, or for any proven consequential loss of liberty). He may bring that claim both before and after a tariff-expiry date (the end of the punitive term). However he cannot seek a direction for release in consequence.
However the prisoner may also complain to the European Court of Human Rights of a violation of Article 5(1)(a) if his circumstances come within that more stringent test, and it appears to be assumed that if he remains detained he may be entitled to his release (paragraph 52; and note the observations made in James v UK). He or she may only make that complaint post-tariff however.
Philip Rule of No5 Chambers represented Mr Massey before the Strasbourg Court, and jointly represented Mr Robinson. He was instructed by Sara-Jayne Pritt of Swain and Co. solicitors, and Lorna Elliott of EBR Attridge LLP.