On appeal from: [2015] CSIH 59

This case considered whether the ancillary duty in ECHR, art 5 to facilitate rehabilitation and release applies to recalled extended sentence prisoners.

The Supreme Court unanimously dismissed the appeal, holding that there was no breach of art 5(1)(a). Case law before the ECtHR has held that after the punishment part (the “tariff period”) of an indeterminate sentence for public protection (“IPP”) has been served and the prisoner remains in detention for reasons of public protection, a real opportunity for rehabilitation should be provided (James v United Kingdom (2013) 56 EHRR 12). However, the Supreme Court in the UK has previously held that the duty to provide a real opportunity for rehabilitation was an ancillary duty in the overall scheme of art 5 and existed throughout the prisoner’s detention (R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66).

In the instant case, the Court considered that it should now adopt the same approach to the interpretation of art 5(1)(a) as the ECtHR in James, and cease to treat the obligation to provide opportunities for rehabilitation as an ancillary obligation implicit in art 5 as a whole. The Supreme Court held that was no doubt that the appellant was provided with a real opportunity for rehabilitation during his custodial sentence and extended sentence. There were courses provided and completed, regular planning meetings, efforts made to find appropriate rehabilitative work, and transfers to less restrictive conditions and as such the problem which resulted in the appellant’s serving the whole of his sentence was not the failure of the prison authorities to provide appropriate courses, but his own misconduct.

For judgment, please download: [2017] UKSC 69
For Court’s press summary, please download: Court’s Press Summary

To watch the hearing, please visit: Supreme Court Website (14 Jun 2017 morning session) (14 Jun 2017 afternoon session) (15 Jun 2017 morning session)