James, Wells and Lee v UK: Indefinite Detention and Arbitrary Deprivations of Liberty
More than 6000 UK prisoners are currently subject to indefinite detention without means of progressing towards parole. In James, Wells and Lee v UK the European Court of Human Rights held that prisoners serving indeterminate sentences of imprisonment for public protection (IPP) were arbitrarily deprived of their liberty in violation of Article 5(1) ECHR.
Under the IPP scheme, introduced by s225 of the Criminal Justice Act 2003, those convicted of a second serious violent or sexual offence were mandatorily sentenced to serve imprisonment for a (usually short) tariff period and thereafter to be detained indefinitely for public protection. A Parole Board would assess their suitability for release, based partly on evidence of their completion of certain rehabilitative courses. The Applicants complained that some of the requisite courses were not made available to them, even after the expiration of their tariff periods. Thus they had no real prospect of parole and remained indefinitely detained.
The House of Lords noted that the operation of the IPP scheme had caused severe problems for the UK prison system. The statutory assumption of the risk of commission of a further offence and mandatory imposition of an IPP sentence led to severe overcrowding. Their Lordships vehemently criticized the ‘deplorable’ systemic failure of the Secretary of State to put in place the rehabilitative resources necessary to enable IPP prisoners to progress their sentences. However, they stopped short of holding that IPP prisoners were unlawfully detained. It was held that the purpose of IPP sentences was public protection, not rehabilitation. The Parole Board could still perform its review function. Therefore, in their view, the Applicants’ indeterminate imprisonment could not be considered arbitrary.
The European Court, by contrast, unanimously held that the Applicants had been subjected to an arbitrary deprivation of liberty. There was a sufficient causal connection between the original sentence and the continuing deprivation of liberty; the deprivation was in compliance with domestic law; and the domestic law had subsequently been changed by legislation to address some of the problems highlighted by the House of Lords (in particular, imposition of an IPP sentence was no longer mandatory). However, the European Court was not content simply to conclude that the purpose of such sentences was exclusively for public protection. The Court recognized that it was a premise of the IPP sentencing scheme that rehabilitative resources would be made available. The government’s failure to do so, with the consequence that the Applicants would remain indefinitely detained without prospect of progressing their sentences, meant that the deprivation of liberty was arbitrary.
Reiterating the fundamental importance of the liberty interest involved, especially regarding the indeterminacy of IPP sentences, it is argued that the European Court’s analysis with greater focus on the cost to these individuals of the lack of available resources with which to progress towards release provides a better foundation for protecting prisoners’ rights. Although provision of rehabilitative courses may be inconvenient for domestic authorities, it is submitted that they are necessary to ensure that those subject to indefinite detention are provided with the means through which to regain their liberty. The UK’s deficiency in this regard signifies a lack of concern for such people. It is hoped that for the 6000+ still indefinitely detained, the finding of unlawfulness of their detention will generate a commitment to remedying the arbitrary deprivation of their liberty.