CASE OF JAMES, WELLS AND LEE v. THE UNITED KINGDOM

Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-a - Conviction);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court);Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Phillips of Worth Matravers;Vincent A. De Gaetano;Zdravka Kalaydjieva

Mr PERSON was born in DATE and lives in GPE . PERSON was born in DATE and is currently in detention . Mr PERSON was born in DATE and lives in ORG .

On DATE , by virtue of section CARDINAL of LAW DATE ( “ the DATE LAW ) , indeterminate sentences for the public protection ( “ ORG sentences ” ) were introduced . These sentences are indeterminate sentences ( i.e. sentences of no fixed length ) , and , like sentences of life imprisonment , require the direction of ORG in order for the prisoner to be released . A minimum term which has to be served before a prisoner can be released , known as the “ tariff ” , is fixed by the sentencing judge . In cases involving ORG prisoners , it would appear that in practice the tariff fixed is generally short : in DATE following the entry into force of the provisions on ORG sentences , when the applicants in the present case were sentenced , the median tariff for ORG prisoners was DATE , and MONEY of ORG sentences imposed involved tariffs of DATE or less .

When ORG sentences were first introduced , they were mandatory in all cases where an individual was convicted of a “ serious offence ” and was deemed by the sentencing judge to be at risk of committing a further “ specified offence ” . Risk was to be assumed in cases where the individual in question had previously been convicted of a “ relevant offence ” , unless the sentencing judge considered it unreasonable to conclude that there was a risk of further specified offences being committed . The terms “ serious offence ” , “ specified offence ” and “ relevant offence ” were defined in the CARDINAL Act .

Pursuant to CARDINAL of ORG “ the DATE LAW ) , ORG was given the power to direct the release of indeterminate sentence prisoners to whom the section applied if it was satisfied that detention was no longer necessary for the protection of the public .

The consequence of the entry into force of the legislative provisions introducing ORG sentences was that a large number of individuals were sentenced to an ORG sentence . Although it had been intended that the new provisions would be resource - neutral , it soon became clear that existing resources were insufficient and the large number of ORG prisoners swamped the system in place for dealing with those serving indeterminate sentences .

The ORG scheme was subsequently amended by ORG “ the LAW ” ) to deal with the problems encountered . In particular , the ORG sentence is no longer mandatory . Further , it now only applies to cases where , if imposed , the tariff would be fixed at DATE , subject to certain limited exceptions .

The domestic law , including the changes introduced by LAW , is set out in greater detail below ( see paragraphs CARDINAL - CARDINAL ) .

On DATE Mr PERSON pleaded guilty in ORG to unlawful wounding with intent . He had previous convictions for , among other things , battery , common assault , affray , disorderly behaviour , racially abusive behaviour and assault occasioning actual bodily harm . A pre - sentencing report dated DATE prepared by ORG referred to the offence forming part of a pattern of violence and threatening behaviour largely linked to Mr James’ excessive drinking . It recommended counselling to address alcohol and substance abuse . The sentencing judge accepted that Mr PERSON was dangerous , particularly when he drank alcohol . He was sentenced to an ORG sentence pursuant to LAW , with a tariff of DATE , less time spent on remand . His tariff therefore expired DATE and DATE after the date of sentencing .

After being sentenced , Mr PERSON remained at his local prison , HMP GPE , and while there took all courses that he was able to take . The courses he completed included a short alcohol awareness course , an IT course , a first aid course and a Think First course . ORG reports indicated that he should also undertake the ORG ( Enhanced Thinking Skills ) course , the ASRO ( Addressing Substance Related Offending ) course and the CALM ( Controlling Anger and Learning to Manage it ) course , none of which were available to him at ORG .

On DATE the chairman of ORG ( a statutory body established to monitor the welfare of prisoners ) wrote to Mr James’ solicitors saying that Mr PERSON had completed all the courses that were available to him at ORG and that he was unable to move to a first stage lifer prison to complete the rest of the courses needed for release because all the places at the first stage lifer prisons were full .

On DATE the Lifer Governor at ORG wrote to Mr James’ solicitors explaining that he was CARDINAL on the first stage lifer prison waiting list . He said :

“ As you will be aware we must now treat ORG ( IPP ) sentenced prisoners as lifers and they are all serving short tariff sentences ... The massive influx of IPPs along with other sentenced lifers from our courts has inflated our lifer / ORG numbers to CARDINAL ( and increasing ) against a profiled maximum of CARDINAL . This increase above our profiles numbers , without any additional resources , has meant that we have not been able to accept anyone from our first stage waiting list for DATE .

Unfortunately , this trend shows no sign of slowing down and I can not predict when we might be able to accommodate Mr PERSON . ”

On DATE Mr James’ solicitors wrote to the Secretary of ORG explaining his situation and requesting that he be transferred to a first stage lifer prison in order to complete the relevant courses , or that the courses be made available to him at ORG . The letter highlighted that Mr James’ tariff would expire in DATE and that he wished to complete the relevant courses before tariff expiry and his ORG hearing .

On DATE the Lifer Governor at ORG wrote that the number of lifer / IPP prisoners had increased to CARDINAL :

“ The increase in ORG numbers and the fact that most of these individuals have come to us with short tariffs means that we now seem to do mostly report writing and are largely unable to get on with our ‘ real’ job of risk assessment and sentence planning work . ”

On DATE Mr James’ case was referred to ORG in accordance with the standard procedure .

The Progress Report Summary prepared for ORG by Mr James’ Indeterminate Sentences Manager at ORG , dated DATE , stated :

“ ... The ORG obviously considered Mr PERSON to be a danger to the public when it imposed an Indeterminate Sentence for Public Protection , but that risk would seem to have been reduced somewhat both by his increasing maturity and by the work he has already undertaken . A full assessment will only be done at the Sentence Planning stage , at his ORG , and the suggestion is that he is likely to need to undertake CALM and PERSON [ Prison : Addressing Substance Related Offending ] courses prior to release in order to ensure that his risk is reduced to an acceptable level . He professes himself happy to do these . ”

NORP Under the heading “ Recommendation for allocation or release ” , the report continued :

“ As Mr PERSON has not as yet had his ORG or undertaken any work related to his offending , I can not with any confidence recommend him for release or for transfer to open conditions . ”

On DATE Mr PERSON applied to ORG for permission to seek judicial review of the management and treatment of prisoners by the Secretary of ORG in light of the failure to provide him with the relevant courses to address his offending behaviour .

On DATE Mr James’ tariff period expired .

Handing down his judgment in the judicial review proceedings on DATE , Mr Justice PERSON outlined the background to the judicial review application as follows :

“ CARDINAL . ... [ Mr James’ ] tariff expired on DATE and the result is that he is now detained solely as a result of the ORG on the basis that he is dangerous . He has therefore the right to apply to ORG for his release on the basis that he is no longer to be regarded as dangerous and that therefore the continued detention would not be justified .

In order to make a meaningful submission to ORG , it was necessary that he undertake courses to seek to deal with his problems , particularly those of drink and anger management . There are such courses which are made available by the prison service . Unfortunately , the resources have not been provided to enable such courses to be provided for [ prisoners ] such as the claimant , who has a short tariff period . Indeed , he has been incarcerated at FAC , which is a local prison , and which does not have the facilities for the necessary courses . He has , as I understand it , undertaken a short course in relation to alcohol and an equally short one in relation to anger management but it is recognised that they would be likely to be insufficient to provide the necessary information to ORG and ORG would be likely to be in the same position as the ORG was in the case of ORG ( which was dealt with by ORG together with PERSON ) . In that case , ORG , when PERSON , who was a post - tariff prisoner , came before it , commented that he had not undertaken any offence focused work , which was not his fault because he wanted to do so , but it was not the remit of ORG to make up the deficiencies of the prison service and , because he had not been able to do any of the appropriate courses , he was unable to demonstrate any reduction in risk from the time that he was sentenced . That , PERSON ORG [ counsel for Mr PERSON ] submits , is likely to be the approach of ORG , before whom the claimant at the moment has a hearing fixed , as I understand it , for DATE . ”

PERSON , relying on the decision of ORG in PERSON v. the Secretary of ORG ( “ Walker ” – see paragraphs CARDINAL below ) , declared Mr James’ detention unlawful and ordered his release , but stayed relief pending an appeal by the Secretary of ORG . He did not decide on Mr James’ argument that there had been a violation of LAW as a result of the failure to provide the courses , although he recognised the possible force of the argument and indicated that it would be “ desirable ” for ORG to consider it .

NORP The Secretary of ORG appealed the decision of PERSON

On DATE ORG convened to consider Mr James’ case . His representative applied for a deferral of the hearing on the grounds that the absence of a satisfactory life sentence plan and the non - availability of relevant offending behaviour courses meant that ORG would be unable to carry out a sufficiently informed risk assessment to decide whether the test for release was satisfied , referring to the conclusions of ORG in the case of PERSON ( see paragraph DATE below ) and in the case of PERSON . He further advised ORG that the case of PERSON was pending before ORG . In the circumstances ORG agreed that the hearing before it would serve no useful purpose and directed that the hearing be deferred until after the determination of the appeal in Mr James’ case and in the case of PERSON . ORG hearing was re - listed for DATE .

The Court of Appeal heard the appeal in Mr James’ case together with the appeal in ORG in DATE .

On DATE Mr PERSON was transferred to ORG , a first stage prison .

On DATE ORG allowed in part the appeal of the Secretary of ORG in Mr James’ case , holding that his continued detention following the expiry of his tariff was not unlawful in light of the express terms of section CARDINAL of the CARDINAL Act and section CARDINAL of LAW , which rendered detention lawful until ORG was satisfied that he was no longer dangerous ( see paragraphs CARDINAL and CARDINAL - CARDINAL below ) ; and that the detention would not cease to be justified under LAW ( a ) of the LAW until it was no longer necessary for the protection of the public that Mr PERSON be detained or so long had elapsed without a meaningful review of the question that the detention had become disproportionate or arbitrary . However , it upheld the declaration made in PERSON that the Secretary of ORG had breached his public law duty .

Lord PERSON of Worth Matravers CJ , delivering the judgment of the court , considered the primary object of the ORG sentence to be clear from the wording of sections CARDINAL and CARDINAL of the CARDINAL Act ( see paragraphs CARDINAL below ) , namely to detain in prison serious offenders who posed a significant risk to members of the public of causing serious harm by the commission of further serious offences until they no longer posed such a risk . He noted that in a previous case the Secretary of ORG had conceded 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 that his position in the present case was that the concession stood . As to the Secretary of ORG ’s contention that the concession did not assist in the present case as it was for ORG to decide whether to release an ORG prisoner , and not for the Secretary of ORG ; and that it was for ORG to decide what evidence satisfied it that an ORG prisoner should be released , he said :

“ DATE . We found [ these ] submissions lacking in realism . Courses are provided because experience shows that these are usually necessary if dangerous offenders are to cease to be dangerous . It is for this reason that performance of the appropriate courses is likely to be a prerequisite to a prisoner satisfying ORG that he has ceased to be dangerous ... The reality is that the possibility for dangerous prisoners both to cease to be dangerous and to show that they have ceased to be dangerous lies largely in the hands of the Secretary of ORG . It has been his policy to provide the necessary courses and to do so within a time scale that gives lifers a chance to demonstrate that they are safe for release by the time that they complete their tariff periods , or reasonably soon thereafter . ”

Lord PERSON referred to the decision of the Secretary of ORG to bring into force the provisions introducing ORG sentences without having first ensured that there existed the necessary resources to give effect to the policy that would ordinarily have given IPP prisoners a fair chance of demonstrating to ORG , once the time for review arrived , that they were no longer dangerous ( see paragraphs CARDINAL below ) . He continued :

“ CARDINAL . ... This can not simply be regarded as a discretionary choice about resources , which is pre - eminently a matter for the government rather than the courts . We are satisfied that his conduct has been in breach of his public law duty because its direct and natural consequence is to make it likely that a proportion of IPP prisoners will , avoidably , be kept in prison for longer than necessary either for punishment or for protection of the public , contrary to the intention of ORG ( and the objective of LAW which ORG must have been mindful ) . ”

Having established that the Secretary of ORG had breached his public law duty in failing to provide the necessary courses , the court went on to examine the lawfulness of the continued detention . Lord PERSON indicated that the court could see no answer to the submission of ORG and the Secretary of ORG that the DATE Act made express statutory provision for the circumstances in which ORG prisoners could be released and that ORG judgment would require them to be released in disregard of the express requirements of the LAW . He noted that section CARDINAL of the DATE Act made the release of IPP prisoners subject to the provisions of LAW , section CARDINAL of which provided for the circumstances in which an ORG prisoner had to be released once he had served the tariff period . He considered that it was not possible to describe a prisoner who remained detained in accordance with these provisions as ‘ unlawfully ORG under common law , and that in any event the common law had to give way to the express requirements of the statute .

Lord PERSON accordingly concluded that ORG prisoners who had completed their tariff terms remained lawfully detained .

As to whether there was a violation of LAW in Mr James’ case , he distinguished between the role of treatment in changing the prisoner so that he ceased to be dangerous and the opportunity that treatment provided for assessing whether the prisoner was dangerous . He considered that without a sentence plan and monitoring of the prisoner ’s performance against that plan , realistically the outcome of any review by ORG would be a foregone conclusion .

CARDINAL

Addressing the possibility of a violation of LAW arising on the basis that LAW had been violated , Lord PERSON considered that so long as the prisoner remained dangerous , his detention would be justified under LAW ( a ) whether or not it was subject to timely periodic review that satisfied the requirements of LAW . He noted , however , that if a very lengthy period elapsed without a review , a stage could be reached at which the detention became arbitrary and no longer capable of justification under LAW ( a ) .

On the question of the compliance with LAW of the continued detention in the applicant ’s case , Lord PERSON noted that the primary object of the ORG sentence was to protect the public , and not to rehabilitate offenders . Accordingly , detention of the applicants would cease to be justified only when the stage was reached that it was no longer necessary for the protection of the public that they be confined , or if so long elapsed without a meaningful review of this question that their detention became disproportionate or arbitrary . He found that this stage had not yet been reached .

He concluded :

“ DATE . This appeal has demonstrated an unhappy state of affairs . There has been a systemic failure on the part of the Secretary of ORG to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the relevant provisions of the DATE Act to function as intended . So far as the CARDINAL claimants are concerned the appropriate remedy is limited to declaratory relief . For the reasons that we have given , however , the prevailing situation is likely to result in infringement of article CARDINAL(CARDINAL ) and may ultimately also result in infringement of article QUANTITY ) ... ”

Mr PERSON appealed to ORG against the judgment of ORG . His appeal was eventually joined with the appeals in the cases of PERSON , the second applicant , and PERSON , the third applicant .

While the appeal was pending , a full ORG review in respect of Mr PERSON took place on DATE . Mr PERSON had still been unable to undertake the recommended courses . ORG had before it , in addition to the hearing dossier : a victim contact report ; ORG ( ORG ) TIME dated DATE ; a report by an external psychologist dated DATE ; a progress report from an ORG Manager , dated DATE ; and a report prepared by the intended supervising probation officer dated DATE . ORG also heard oral evidence .

At the hearing , Mr PERSON requested his release and undertook to comply with the proposed licence conditions . The Secretary of ORG was of the view that Mr PERSON should remain in closed conditions for the completion of the coursework . ORG noted that a release plan had been constructed for Mr PERSON involving his accommodation at a hostel and further cognitive skills work , relapse prevention work and the completion of the CALM course to be conducted in the community . Following the hearing , ORG directed Mr James’ release on licence , explaining :

“ The panel noted the strong recommendations for your release and therefore took some time to gain an understanding from you of your responses and attitudes ; they were satisfied , within your intellectual boundaries , that you have achieved a level of understanding and insight which mean that you will willingly engage with the careful structure of the ORG hostel which has been outlined for you . The panel recognised that further work is required ... but after careful consideration of all available evidence the panel saw that work as developmental more than core risk reduction and agreed ... that your risk of violent offending has now reached a level such that it could safely be managed within the community ...

In making their decision the panel recognised that their decision was exceptional : however , the reasons for their conclusions have been clearly set out ... ”

On DATE Mr PERSON was released on licence .

On DATE ORG published its judgment in the CARDINAL linked appeals ( see paragraphs QUANTITY below ) , finding that there had been no violation of LAW or CARDINAL in Mr James’ case .

Mr PERSON was convicted of the attempted robbery of a taxi driver . He had previous convictions for both violent and acquisitive offences , linked to the misuse of drugs . On DATE he was sentenced at ORG to an ORG sentence with a tariff of DATE , less DATE spent on remand . Pre - sentence reports assessed him at high risk of reconviction but as posing a low risk of causing serious harm save for a medium risk with regard to prison staff .

In DATE ORG , the local prison where PERSON was at that time detained , reported that he was motivated to address his offending behaviour but was having difficulties in prison and had CARDINAL adjudications against him . The report recommended that he engage in programmes for ORG , ORG , CALM and Victim Awareness . None of these , however , were available to him at ORG .

Mr Wells’ tariff expired on DATE . ORG hearing was fixed for DATE . However the dossier in his case was not available and was only received by his solicitor and ORG on DATE . As a result , the hearing did not take place . Further ORG hearings were fixed for DATE and CARDINAL DATE but had to be deferred because insufficient ORG members were available . A hearing was subsequently fixed for CARDINAL DATE .

On DATE Mr Wells issued an application for judicial review seeking an order that his case should be heard by ORG forthwith , relying on LAW .

On DATE , on ORG concession , PERSON made a declaration that Mr Wells’ rights under LAW had been violated and ordered ORG to hear Mr Wells’ case on CARDINAL DATE . He adjourned the judicial review proceedings for evidence to be served and for consideration to be given to whether it would be appropriate to grant any further declaratory relief .

ORG heard Mr Wells’ case on CARDINAL DATE . However , on CARDINAL DATE it decided not to direct Mr Wells’ release , noting :

“ ... Whilst in custody you have accumulated a number of adjudications both for drug taking and for bad behaviour . You have not undertaken any offence - focussed work . It is fair to say that that is not your fault . There are no appropriate offending behaviour courses at your current prison . The ORG accept your evidence that you would like to undertake such courses . However , this will require your move to another prison , which the prison authorities have failed to arrange ...

In her most recent report your home probation officer states that your risk will remain high until you have satisfactorily completed appropriate courses , such as ORG - ASRO , ORG , CALM and Victim Awareness and Empathy .

In evidence that probation officer urged the panel to release you so that you could undertake these courses in the community subject to strict conditions ...

Unfortunately it is not the remit of ORG to make up for the deficiencies of the prison service . We are charged with a duty not to release life prisoners while their risk of serious offending remains high . Because you have not been able to do any of the appropriate courses you are unable to demonstrate any reduction in risk from the time of your sentence . Because your risk remains high , the ORG can not direct your release as requested . ”

Following the decision of ORG , the applicant pursued the judicial review proceedings , arguing that his continued detention was unlawful . His case was joined with the case of PERSON . However , at the hearing PERSON Wells’ counsel indicated that she was content to await the delivery of the judgment in PERSON and then put in amended judicial review grounds or seek a fresh judicial review permission if either such course seemed appropriate

On DATE ORG handed down its judgment in the judicial review proceedings regarding PERSON ( Lord Justice Laws delivering an opinion with which Mr ORG agreed ) . Laws LJ considered that it was clear at the time the DATE Act was passed that there was a settled understanding shared by Government , relevant agencies and professionals that upon the coming into force of the new sentencing provisions , procedures would be put in place to ensure that courses in prison would be available to maximise the opportunity for lifers to demonstrate they were no longer a danger to the public by the time their tariff expired , or as soon as possible thereafter , so as to allow the prisoner ’s release once that was shown . He was of the view that this understanding was a premise of the legislation , and that it was certainly inherent in the way the legislation was intended to work in practice , and to be given effect by the Secretary of ORG ’s policy set out in ORG CARDINAL ( see paragraphs CARDINAL below ) .

As to the numbers of ORG sentences imposed and the evidence of how the system had operated in practice , he said :

“ CARDINAL . ... Statistics ... show that the number of serving lifers was CARDINAL on DATE ( the DATE Act was passed on DATE ) , CARDINAL on DATE ( s.CARDINAL came into force on CARDINAL April CARDINAL ) and CARDINAL on DATE . Mr PERSON accepts there was an increase in the lifer population of PERCENT in DATE . On DATE there were CARDINAL prisoners serving ORG ( the median tariff for ORG prisoners at DATE was DATE ) . Yet the number of funded first stage and second stage prison places , within the meaning of ORG CARDINAL , has not risen since DATE ( though the number of core offending behaviour courses has risen from CARDINAL in DATE to CARDINAL in DATE ) ...

Mr PERSON [ Deputy Head of ORG at ORG ] believes ... that in present circumstances ORG can deal ‘ ORG with CARDINAL lifers . IPP prisoners with a tariff of DATE are languishing in local prisons where , as Mr PERSON acknowledges ... , there are few offending behaviour programmes ... The stark consequence is that IPP prisoners , or at least a very high proportion of them , at present have no realistic chance of making objective progress , with the assistance of appropriate initiatives within the prison , towards a real reduction or even elimination of their risk factor by the time their tariff expires . ”

Laws LJ explained that the tariff element of the ORG sentence fulfilled the aims of punishment , while the post - tariff element fulfilled the aim of public protection . He considered that the justification that was required for a prisoner ’s detention after tariff expiry was not at all justified by or at the time of sentence , because the extent to which , or the time for which , the prisoner would remain a danger was unknown at the time of sentence . It could only be ascertained on a continuing basis , by periodic assessment . ORG emphasised that section CARDINAL(CARDINAL)(b ) of LAW ( see paragraph CARDINAL below ) required the sentencing court to assess the presence or absence of danger , and its extent , at the time of sentence , and not at any other time . Accordingly , when sentence was passed it was not to be presumed against the prisoner that he would still be dangerous after his tariff expires , let alone DATE . To the extent that the prisoner remained incarcerated after tariff expiry without any current and effective assessment of the danger he posed , his detention could not be justified and was therefore unlawful .

Granting Mr PERSON ’s application for judicial review , ORG concluded :

“ CARDINAL . ... The ORG has obtained from ORG legislation to allow – rather , require : the court has no discretion – the indefinite detention of prisoners beyond the date when the imperatives of retributive punishment are satisfied . But this further detention is not arbitrary . It is imposed to protect the public . As soon as it is shown to be unnecessary for that purpose , the prisoner must be released ( see PERSON ) and CARDINAL ) of LAW ) . Accordingly there must be material at hand to show whether the prisoner ’s further detention is necessary or not . Without current and periodic means of assessing the prisoner ’s risk the regime can not work as ORG intended , and the only possible justification for the prisoner ’s further detention is altogether absent . In that case the detention is arbitrary and unreasonable on first principles , and therefore unlawful .

Such a consequence would not be averted merely by prompt and regular sittings of ORG Periodic reviews by ORG ( or any person or institution ) only have value to the extent that they are informed by up - to - date information as to the prisoner ’s progress . So much is at least required . But so also are measures to allow and encourage the prisoner to progress , for without them the process of review is a meaningless one ... Reducing the risk posed by lifers must be inherent in the legislation ’s purpose , since otherwise the statutes would be indifferent to the imperative that treats imprisonment strictly and always as a last resort . Whether or not the prisoner ceases to present a danger can not be a neutral consideration , in statute or policy . If it were , we would forego any claim to a rational and humane ( and efficient ) prison regime . Thus the existence of measures to allow and encourage the ORG prisoner to progress is as inherent in the justification for his continued detention as are the ORG reviews themselves ; and without them that detention falls to be condemned as unlawful as surely as if there were no such reviews . ”

An OASys ( Offender Assessment System ) report dated DATE rated PERSON as being at high risk of reconviction and as posing a high risk of harm to the public .

On DATE Mr Wells was recommended for the same courses as had been recommended DATE previously ( see paragraph CARDINAL above ) and which still remained unavailable to him .

On DATE Mr Wells’ supervisor recorded his “ almost intolerable ” frustration with his lack of progress .

Mr Wells issued a second judicial review application on DATE , arguing that his continued detention constituted a breach of his rights under LAW and CARDINAL . His case was joined with that of the third applicant in the present case , Mr PERSON .

On DATE Mr PERSON completed an Alcohol Free Good Life course .

On DATE Mr PERSON was transferred to ORG .

On DATE Lord Justice PERSON handed down his judgment in the judicial review proceedings involving PERSON and PERSON . He indicated at the outset :

“ CARDINAL . Their cases highlight the fundamental difficulty inherent in ORG sentences where short minimum terms have been imposed . That difficulty has now been recognised by the amendment to the law . That fundamental difficulty was the failure to ensure that there were in place methods not only of timely assessment as to whether a prisoner remained dangerous , but also systems , such as accredited courses which would enable a prisoner to reduce or extinguish his level of dangerousness and to demonstrate that he had done so to the satisfaction of ORG . ”

Considering the applicants’ Article CARDINAL § CARDINAL complaint , PERSON considered it essential to identify the objectives which were sought to be achieved by the original imposition of the ORG sentence . Like ORG , he indicated that there could be no assumption that , although a prisoner had been regarded as dangerous at the time when the original sentence was imposed , he would remain dangerous throughout his time in prison , although he added that the amount of time which had passed since sentence or the offender ’s behaviour in prison could provide ample justification for such a conclusion .

Moses LJ emphasised that it was for ORG to assess the danger posed by a prisoner : if ORG was in a position to judge that the prisoner remained a danger , it could not direct his release even if the reason it reached its conclusion was through no fault of the prisoner ’s but rather because the Secretary of ORG had deprived him of the opportunity of reducing his level of dangerousness or of demonstrating that he had ceased to be a danger . He considered that where ORG was entitled on the material before it to reach a conclusion that the prisoner remained a danger , there could be no breach of LAW as the primary objective and rationale for his continued detention remained . However , he contrasted this position with one where , by reason of the lack of course work , ORG could not determine the level of dangerousness . In such circumstances , the justification for continuing to detain him would no longer exist , and there would be a breach of LAW . He concluded that there would have to be clear evidence before the court that the failure to provide courses and opportunity for assessment with up - to - date information had led to a situation where it could safely be concluded either that the prisoner was not a danger or that it could not be ascertained whether he was a danger or not .

In respect of PERSON , he concluded that there had been no breach of LAW , noting :

“ DATE . ... The evidence shows that PERSON has been frustrated by the lack of progress which was inevitable following the loss of opportunity to go on those courses which he sought to attend . It is dispiriting to record that position when one appreciates that he is still a very young man and was CARDINAL when the sentence was originally passed . But the fact of the matter remains that the evidence before this court is that on assessment he remains at risk of reconviction , a risk assessed as high / medium with some risk of violent offences . Until he undergoes the accredited work , his past , coupled with his prison behaviour , affords what is described as an indication of the nature of the ongoing risk . It requires no imagination to appreciate that the frustration which has led to his bad behaviour in prison has no doubt been aggravated by the fact that he has been unable to undergo the necessary programmes of work . But that of itself does not break the link between the purpose for which the original sentence was passed and his continuing detention . There is no basis for saying that the current level of dangerousness can not be ascertained , and , in those circumstances , no basis for saying that the link between the original sentence and his continued detention has been broken . ”

However , he found that the continuing failure to provide the relevant courses following the declaration of PERSON amounted to a breach of LAW .

Mr Wells appealed the finding that there had been no breach of LAW . The Secretary of ORG did not appeal the finding that there had been a breach of LAW .

Mr Wells subsequently completed the ORG course ( DATE and DATE ) and the ORG course ( MONEY October and DATE ) .

DATE . On DATE ORG adjourned the appeal for inquiries to be made about an appeal from the decision of PERSON LJ direct to ORG . On DATE PERSON LJ certified that the cases involved points of law of general public importance in respect of which the judge was bound by ORG decision in PERSON and PERSON ( see paragraphs CARDINAL - CARDINAL above ) and which were fully considered by ORG in that appeal . ORG subsequently heard Mr Wells’ appeal , together with the appeals of Mr PERSON and PERSON , DATE .

On DATE Mr PERSON requested a ORG hearing .

Mr Wells subsequently completed the CALM course ( DATE and DATE ) .

On DATE ORG published its judgment in the CARDINAL linked appeals ( see paragraphs QUANTITY below ) and found that there had been no violation of LAW in Mr Wells’ case . It also disagreed with the unappealed finding of ORG that there had been a violation of LAW .

A Parole Board hearing took place in Mr Wells’ case on DATE . ORG directed that Mr Wells be released on DATE .

On DATE Mr Wells was recalled to custody for breaching the conditions of his licence . He currently remains in custody .

On DATE , while under the influence of alcohol , Mr PERSON caused criminal damage to a flat in which his former wife and young children were present . He was arrested and remanded in custody DATE . He had a total of CARDINAL previous convictions , including offences of assault occasioning actual bodily harm and criminal damage . Following his conviction , on DATE Mr PERSON was sentenced at ORG to an ORG sentence with a tariff of DATE , less time spent on remand . His tariff period therefore expired DATE after sentence .

A probation officer ’s pre - sentence report assessed PERSON as a medium risk of reconviction but a high risk of causing serious harm to PERSON or alternatively any other woman with whom he may form a close attachment ” . A consultant forensic psychiatrist said that during childhood Mr PERSON had developed a range of emotional and behavioural problems with poor temper control and had a limited ability to cope with stress . He concluded that Mr PERSON could therefore be said to suffer from a personality disorder with a mixture of dissocial , emotionally unstable and obsessional traits .

DATE . Following sentence , reports at his local prison , ORG , described Mr PERSON as motivated to change and actively seeking out offending behaviour programmes . However , none of the relevant courses were available to him .

Mr PERSON ’s tariff expired on DATE .

A ORG hearing took place on DATE and ORG decided not to direct Mr PERSON ’s release . ORG noted that :

“ The risk factors identified by PERSON have yet to be addressed by attendance at offending behaviour programmes . Through no fault of your own these have not been available , but the ORG note your willingness and motivation to engage in the same . ”

It concluded that :

“ ... the alcohol and violence risk factors must be addressed in closed conditions before your risk is sufficiently reduced to enable you to be transferred to open conditions . ”

In a report dated CARDINAL DATE the prison probation officer reported that “ due to the current overcrowding and difficulties with allocation of ORG prisoners to first stage lifer prisons , PERSON has not had the opportunity to sit a sentence plan ORG ” and that he needed accredited courses .

ORG fixed a further review of Mr PERSON ’s case to take place in DATE . However , the hearing was postponed due to the failure of the authorities to provide the necessary assessments and reports .

Mr PERSON issued a judicial review claim on DATE alleging that his detention breached LAW and CARDINAL . His case was joined with that of the second applicant , PERSON .

On DATE Mr PERSON was transferred to ORG where a number of assessments were carried out . On DATE it was recommended that Mr PERSON be assessed for ORG ( “ HRP ” ) to explore what psychological risk factors were present .

In the context of the judicial review proceedings , the Secretary of ORG made the following concession :

“ the defendant concedes that PERSON has not had a speedy review of the lawfulness of his detention and thus there has been a breach of article CARDINAL(CARDINAL ) in this case . ”

As noted above ( see paragraph CARDINAL ) , judgment in the judicial review claim was handed down on DATE . Specifically as regards PERSON claim , PERSON noted that there has been a very serious failure to provide the courses which he should have attended not only to reduce his level of dangerousness but to demonstrate that he had done so . PERSON also recalled that Mr PERSON would not have ever been sentenced to ORG under the amended ORG regime ( see paragraphs CARDINAL - CARDINAL below ) . He observed that the reports available showed a dramatic change in PERSON attitude and in his character , and that he had proved a model prisoner . There was therefore ample material to suggest that he was not a danger but , he emphasised , that assessment was the function of ORG and not of the court . However , the court was nonetheless required to determine whether the continued detention of PERSON was lawful , a question which could not be deferred to ORG .

On the facts of the case , PERSON concluded that there had been no violation of LAW in PERSON case :

“ DATE . In PERSON ’s case , there is , as I have said , much material to show a recognisable difference in the level of danger from that which pertained when he was originally sentenced . But that is not an end of the matter . There has been laid before the court material from a forensic psychologist in training based at Her FAC Prison Wymott . That psychologist has reached the conclusion that there are areas relevant to Mr PERSON ’s risk of committing violence within the domestic context in the future which , as she puts it , need to be targeted , and until those matters have been ‘ targeted’ , she takes the view that the overall risk of domestic violence is medium to high ... Given that conclusion ... she recommends further treatment under an accredited programme known as ORG in closed conditions . It will be for ORG to say whether it agrees with that conclusion , and the hearing before ORG will no doubt permit not only that conclusion to be challenged , but also the process by which she reached that conclusion ...

All of that leads to my conclusion that it is not possible on the material before me to say that it can not be ascertained whether Mr PERSON remains a danger or not , and thus the causal link between the original sentence and his continuing detention has been broken . In those circumstances , I decline to find in his case also a breach of article CARDINAL ) . ”

Mr PERSON appealed the finding of PERSON that there had been no violation of LAW in his case . His appeal was heard directly by ORG together with the appeal of PERSON .

Also on DATE ORG reviewed Mr PERSON ’s case . However , it deferred its decision until receipt of ORG judgment ( which it did not receive until DATE ) .

On DATE Mr PERSON was transferred to PERSON to be assessed for the moderate version of the HRP .

On DATE ORG again deferred its review of the case until after PERSON assessment for and , if appropriate , completion of the moderate HRP . It was anticipated that this would be done by DATE .

Mr PERSON was due to commence the DATE HRP programme on DATE . In the event , he did not do so , for reasons which are in dispute between the parties . A psychologist report dated DATE recorded that there were aspects of the course which PERSON did not wish to undertake because of his concern about their impact on his mental health as he had previously suffered from depression . She concluded that PERSON should complete an accredited domestic violence programme preceded by motivational enhancement work . However , such motivational enhancement work was not available at FAC in the short term .

ORG issued a decision on DATE expressing concern about recent developments :

“ In summary , it would appear that PERSON current sentence plan is that he should remain in closed conditions in PERSON doing nothing to reduce his risk until he is prepared voluntarily and without support to ask to see ... a psychologist and then persuade that psychologist that he is sufficiently motivated to undertake ORG , that he is then assessed as suitable for that programme and then await the next available place on that course and then completes that programme . This impasse could continue indefinitely . The Secretary of ORG and those concerned with PERSON sentence and current status as a category C prisoner do not appear to have considered whether it is proportionate to continue to detain PERSON . ”

On DATE , ORG adopted another decision , in which it summarised the position regarding Mr PERSON :

“ Mr PERSON will not be offered CARDINAL - to - one work nor will he be provided with motivational work to assist him in overcoming his fears about taking the moderate HRP . The offender manager has not made any proposals as to the way forward save that , if PERSON unilaterally changes his mind and demonstrates ( in ways not specified ) that he is prepared to take the moderate ORG , he can then be assessed for that programme and , if assessed as suitable , take the programme and as part of that programme be risk assessed . The initial assessment for suitability is not a risk assessment but merely a programme selection process to test motivation and ability to understand and participate in the programme . No timetable for this open - ended sentence pathway is offered and PERSON future in closed conditions is apparently both open ended and not subject to any finality save for that provided for by ORG at the current or any future review hearing . ”

As noted above , on DATE ORG published its judgment in the CARDINAL linked appeals ( see paragraphs QUANTITY below ) . It found that there had been no violation of LAW in PERSON case . It further disagreed with the concession of the Secretary of ORG that LAW had been breached .

A hearing of ORG took place on DATE . In DATE prior to the hearing , PERSON was assessed by a senior forensic psychologist . His concerns regarding the HRP were discussed and he demonstrated a willingness and motivation to participate in the HRP . It was therefore arranged that PERSON would commence the ORG “ in the near future ” at FAC , with a view to completion in DATE and a report being available by DATE . ORG hearing was adjourned to the first reasonably practicable date after CARDINAL DATE .

A Parole Board hearing took place in Mr PERSON ’s case on DATE . In a reasoned decision dated DATE , ORG declined to direct Mr PERSON ’s release but recommended a transfer to open conditions . ORG noted :

“ ... In summary , having balanced your interests in sentence progression against the interests of public protection , the panel were satisfied that sufficient evidence exists that your risk of violent offending has been reduced to a level such that ... it is safely manageable in open prison conditions . The panel did not consider that sufficient evidence of risk reduction exists to enable them to make a direction that you be released ; there is a necessity , in the panel ’s view ( in the interests of public protection ) , for there to be a period of testing and gradual reintegration into the community before release . ”

NORP The Secretary of ORG authorised a transfer to open conditions on CARDINAL DATE .

On DATE Mr PERSON was transferred to ORG . The delay in the transfer was due to transportation problems in the prison estate .

A Parole Board hearing took place on DATE . On DATE ORG directed PERSON release . In its decision letter , ORG noted , inter alia :

“ ( g ) You are DATE over tariff .

( h ) You were one of the first prisoners to be sentenced for public protection , at a time when dangerousness was , by statute , assumed , and there was no real assessment of your actual dangerousness despite a probation report indicating that a suspended sentence would be the appropriate disposal . ”

On DATE the ORG unanimously dismissed the ORG appeals .

Lord Judge referred to the CARDINAL specific purposes of sentencing set out in section CARDINAL ) of LAW ( see paragraph CARDINAL below ) , which included reform and rehabilitation of offenders and protection of the public . However , he noted that this section was expressly disapplied to ORG sentences and considered the reason to be plainly that the first and obvious purpose of these provisions was the protection of the public from the risks posed by dangerous offenders . A second purpose was punishment , which was not concerned with the potential dangerousness of the offender .

NORP In his view , the sentencing court was required to make an informed predictive assessment of the risk at the date of sentence , and that the justification for detention beyond the tariff period was therefore found in the judgment of the court that an ORG sentence was necessary . Disagreeing with the views expressed by ORG and PERSON ( see paragraphs CARDINAL and DATE above ) , he indicated that in his judgment detention beyond the tariff period was justified because the sentencing court had decided that the prisoner would continue to be dangerous at the expiry of the punitive element of the sentence : the necessary predictive judgment would have been made . He explained that the statutory regime for dealing with indeterminate sentences was predicated on the possibility that , in most cases , prisoners could be reformed or would reform themselves . A fair opportunity for their rehabilitation and the opportunity to demonstrate that the risk they presented at the date of sentence had diminished to levels consistent with release should therefore be available to them . He continued :

“ ... The ORG sentence does not require the abandonment of all hope for offenders on whom it is imposed . They are not consigned to penal oblivion . To the contrary , common humanity , if nothing else , must allow for the possibility of rehabilitation ...

We can not be blind to the realities . The reality for the offender subject to ORG is that the prison regime in which he may ( or may not ) be provided with the opportunity for rehabilitation is dependent on the structures provided by the Secretary of ORG . The similar reality for ORG is that the material on which to form its decision that the offender may ( or may not ) have ceased to represent a public danger is equally dependent on the regime structured for this different purpose by the Secretary of ORG . ”

Finally , Lord Judge considered that it was an inevitable consequence of the legislation , and the application of the statutory presumption in section CARDINAL(CARDINAL ) of the LAW ( see paragraph CARDINAL below ) , that even when the tariff was measured in DATE rather than DATE , ORG sentences would arise for consideration . He explained that sentencing judges loyally followed the unequivocal terms of the statute and very many more defendants than anticipated were made subject to ORG sentences . However no extra resources were made available to address the inevitable increase in the number of inmates subject to indeterminate custody , and the result was the “ seriously defective structures ” identified in the ORG cases . He noted that numerous prisoners continued to be detained in custody after the expiration of their tariff periods , without the question either of their rehabilitation or of the availability of up - to - date , detailed information becoming available about their progress . He concluded that the preparation for the inevitable consequences of the new sentencing provisions relating to ORG sentences was wholly inadequate and continued :

“ CARDINAL . ... To put it bluntly , they were comprehensively unresourced ...

Notwithstanding the undoubted improvements , the appellants and indeed other prisoners were victims of the systemic failures arising from ill considered assumptions that the consequences of the legislation would be resource - neutral . Having applied the identical policies and rules relating to life imprisonment to IPPs , the Secretary of ORG failed to provide the resources to implement them . As tariff periods expired , nothing had been done to enable an informed assessment by ORG of the question whether the protection of the public required the prisoner ’s continued detention ... ”

ORG . Several others of their Lordships commented on the problems incurred following the entry into force of the legislation introducing IPPs . Lord Hope of PERSON indicated that the Secretary of ORG had failed deplorably in the public law duty that he had accepted when he persuaded ORG to introduce ORG sentences . He had failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to ORG by the time of the expiry of their tariff periods , or reasonably soon thereafter , that it was no longer necessary for the protection of the public that they should remain in detention . He observed that the Secretary of ORG had accepted that it was implicit in the statutory scheme that he would make provision which allowed ORG prisoners a reasonable opportunity to demonstrate to ORG that they should be released ; the scheme was such that it was not rational for him to fail to do so .

Lord PERSON referred to the “ draconian provisions ” of section CARDINAL of the CARDINAL Act ( see paragraphs CARDINAL - CARDINAL below ) , which he said left no room for the exercise of any judicial discretion and created entirely foreseeable difficulties when sentences for imprisonment for public protection were passed with short tariff terms .

Lord PERSON of PERSON - under - PERSON noted that ORG prisoners rapidly swamped the prison system with increasing numbers of life sentence prisoners , many with comparatively short tariffs . As a consequence , for much if not all of the time until the amendment of section CARDINAL in DATE ( see paragraphs CARDINAL and CARDINAL below ) , it was not possible to give effect to the Secretary of ORG ’s published policy to give all life sentence prisoners “ every opportunity to demonstrate their safety for release at tariff expiry ” ( see paragraph CARDINAL below ) .

He later added :

“ CARDINAL . ... I can not , however , part from this case without registering a real disquiet about the way the ORG regime was introduced . It is a most regrettable thing that the Secretary of ORG has been found to be DATE has indeed now admitted being – in systemic breach of his public law duty with regard to the operation of the regime , at least for DATE . It has been widely and strongly criticised , for example by ORG . Many of the criticisms are to be found in the judgments below and I shall not repeat them . The maxim , marry in haste , repent at leisure , can be equally well applied to criminal justice legislation , the consequences of ill - considered action in this field being certainly no less disastrous . It is much to be hoped that lessons will have been learned . ”

As to whether there had been a violation of LAW , Lord Hope referred to this ORG ’s jurisprudence on the need for a causal connection between the sentence and the detention and concluded that it was hard to see how there could ever be an absence of such a causal connection in the case of a prisoner whose case has been referred to , and was still under consideration , by ORG . He considered that such a prisoner ’s continued detention could not be said to be arbitrary , or in any other sense unlawful , until ORG had determined that detention was no longer necessary .

NORP However , he envisaged limited circumstances in which detention could become arbitrary , namely in circumstances where the system broke down entirely , with the result that ORG was unable to perform its function at all . Continued detention could be said to be arbitrary in such a case because there was no way in which it could be brought to an end in the manner that the original sentence contemplated . However , in Lord PERSON ’s view , the failures for which the Secretary of ORG accepted responsibility , while highly regrettable , could not be said to have created a breakdown of that extreme kind .

Lord PERSON noted the Secretary of ORG ’s acknowledgment that it was implicit in the statutory scheme that he would make reasonable provision to enable ORG prisoners to demonstrate to ORG , if necessary by completing treatment courses , their safety for release , and his concession that during the systemic failure to make such provision he was in breach of his public law duty . As to whether the provision of such courses was one of the objectives of the ORG sentence , PERSON , like Lord Judge , emphasised that the sentencing objectives were expressly disapplied in the case of ORG sentences and that rehabilitation was accordingly not an objective of the sentence . Thus a decision not to release an ORG prisoner because ORG remained unsatisfied of his safety for release could never be said to be inconsistent with the objectives of the sentencing court or to have no connection with the objectives of the legislature and the court .

Lord PERSON concluded that the only possible basis upon which LAW could ever be breached in these cases was that contemplated by ORG in ORG , namely after “ a very lengthy period ” without an effective review of the case ( see paragraph CARDINAL above ) , involving an inability on the part of ORG to form any view of dangerousness for DATE rather DATE .

On the question of compliance with LAW , Lord Judge agreed with the conclusions of ORG . He considered that if one of the purposes of an ORG were rehabilitation , and if the continued detention after the expiry of the tariff period were dependent on a specific finding by ORG that it would be inappropriate to direct the prisoner ’s release , then it would be arguable that the causal link was broken . However , in his view that proposition was ill - founded .

Lord Judge concluded :

“ CARDINAL . ... I should not exclude the possibility of an article CARDINAL ) challenge in the case of a prisoner sentenced to ORG and allowed to languish in prison for DATE without receiving any of the attention which both the policy and the relevant rules , and ultimately common humanity , require . ”

NORP The question whether there had been a violation of LAW remained live solely in respect of Mr PERSON . Lord Hope referred to the principles set out by ORG and Others v. GPE [ ORG ] , no . CARDINAL/CARDINAL , ORG DATE and considered that the procedure and the role of ORG complied with these principles .

Lord Hope concluded that there had been no violation of LAW . He further indicated that , in his view , ORG in ORG went too far in terms of this ORG ’s jurisprudence when it said that the ORG reviews would be an empty exercise that would be likely to result in a breach of LAW if they were unable to make a meaningful challenge to the lawfulness of their detention at the time their cases were heard by ORG ( see paragraph CARDINAL above ) . He indicated that LAW required that a system which met the requirement of procedural fairness be in place for making an assessment at reasonable intervals ; how that system worked in practice in any given case was a matter for ORG itself to determine and it was open to it to decide how much information it needed . It would only be if the system broke down entirely because ORG was denied the information that it needed for such a long period that continued detention had become arbitrary that LAW would be violated and the prisoner would be entitled to a remedy in damages .

Lord PERSON noted that the ORG dossier would always contain a good deal of information . He observed that even when , as in Mr James’ case , it never became possible to provide ORG with a full risk assessment , ORG was in fact able to determine risk and order his release largely through the evidence of an independent psychologist commissioned by Mr PERSON himself , and ORG own forecast was thus belied . However , he accepted that there would be occasions when , unless a prisoner could undertake a course necessary to demonstrate his safety for release , it would be impossible for ORG to reach any judgment as to his dangerousness so that the review would in that sense be an empty exercise and the default position of continued detention would inevitably result .

As to whether the Secretary of ORG ’s concession that in such cases LAW would be breached , he concluded that the LAW required no more than that a court , in this case ORG , had to decide speedily whether the prisoner continued to be lawfully detained . He accepted that it was inherent in this requirement that the basic dossier be made available , but he did not accept that it required anything more in the way of enabling the parole Board to form its judgment .

Lord PERSON therefore held that Mr PERSON CARDINAL § CARDINAL claim failed . He further regarded Mr PERSON ’s and Mr Wells’ claims as having been unsustainable , but since the former was conceded and the latter held established and unappealed , he considered that there was no alternative but to remit their claim for damages to ORG for assessment , referring to the terms of LAW .

Lord Judge considered that LAW was not directed to the operational inadequacies of a prison regime which might make it impossible for the prisoner to address his offending with a view to his reform and rehabilitation . It addressed a prisoner ’s ability to take proceedings to demonstrate that his continued detention was no longer justified just because the basis on which it would otherwise continue no longer applied . He agreed with ORG conclusions about the proper disposal of LAW CARDINAL § CARDINAL claims of Mr Wells and Mr PERSON .

Although no violation of LAW was found in the ORG cases , and thus the question of remedies did not fall to be decided , some views were nonetheless expressed as to the availability of remedies had the court held that there was a violation of LAW . Lord PERSON noted that Mr PERSON was no longer in custody , so the remedy which he seeks is compensation for delay in his being released . Mr PERSON and Mr Wells , on the other hand , were still serving their sentences , and so sought a direction that they should be released , and compensation for delay . He noted that these remedies were not available at common law . He continued :

“ CARDINAL . NORP The question then is whether the appellants are able to show that the Secretary of ORG has acted in a way which was incompatible with their Convention rights . If he has , his act is made unlawful by section CARDINAL(CARDINAL ) of LAW DATE . This in turn opens up the possibility of obtaining a judicial remedy under section CARDINAL , which enables the court to award damages . But regard must also be had to section CARDINAL(CARDINAL)(a ) of LAW , which provides that section CARDINAL(CARDINAL ) does not apply to an act if , as a result of CARDINAL or more provisions of primary legislation , the public authority could not have acted differently . The effect of that provision is to narrow the scope for argument as to the respects in which the Secretary of ORG ’s conduct was unlawful within the meaning of section DATE ) .

Section CARDINAL(CARDINAL ) of LAW provides that a prisoner to whom that section applies may require the Secretary of ORG to refer his case to ORG at any time after he has served the minimum term ordered by the sentencing judge . It has not been suggested by the appellants that the Secretary of ORG was in breach of that duty in their cases . The effect of section CARDINAL(CARDINAL ) , which provides that it is the duty of the Secretary of ORG to release the prisoner on licence when directed to do so by ORG , is that he has no power to release the prisoner until ORG gives him that direction . Notwithstanding the criticisms that may be made of the Secretary of ORG ’s failure to provide the means by which the appellants could demonstrate to ORG that their continued detention was no longer necessary , the terms of the legislation are such that it can not be said that he was acting unlawfully in not releasing them until directed to do so by ORG . The court , for its part , would not be acting unlawfully if it too declined to order their release until ORG was satisfied that it was no longer necessary for the protection of the public that they should be confined . Section CARDINAL(CARDINAL)(a ) of the DATE Act leads inevitably to these conclusions . ”

Lord PERSON noted considered that , had the applicants succeeded on their LAW claims , section CARDINAL(CARDINAL)(a ) of LAW DATE would have presented them with acute difficulty because , given section CARDINAL of LAW , it was difficult to see how either the Secretary of ORG or ORG could have acted differently . However , he concluded that in light of the findings on the substantive claims , such discussion was academic and he preferred to express no further view upon the question .

NORP Before the entry into force of the ORG provisions in LAW DATE on DATE , section CARDINAL of ORG ) Act DATE ( “ the CARDINAL Act ” ) already provided for a longer than commensurate sentence to be passed on dangerous offenders .

Any longer than commensurate sentence imposed under LAW remained a determinate ( i.e. fixed ) sentence and release was subject to the ordinary principles which applied to determinate sentences .

IPP sentences were introduced with effect from DATE by LAW . The bulk of the provisions remain in force , although some were the subject of later amendment ( see paragraphs CARDINAL - CARDINAL below ) . Pursuant to subsection ( CARDINAL ) thereof , section CARDINAL applies where :

“ ( a ) a person aged DATE or over is convicted of a serious offence committed after the commencement of this section , and

( b ) the court is of the opinion that there is significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences . ”

“ Serious offence ” , defined in section CARDINAL(CARDINAL ) , covers CARDINAL specified categories of violent or sexual offences punishable by imprisonment for life or for DATE or more . Section CARDINAL(CARDINAL ) defines “ serious harm ” as “ death or serious personal injury , whether physical or psychological ” . The term “ specified offences ” is defined in section CARDINAL(CARDINAL ) and ( CARDINAL ) ; almost all “ specified offences ” involve danger to life or limb or interference with sexual autonomy .

Section CARDINAL(CARDINAL ) provides that if the offence is CARDINAL which renders the offender liable to a sentence of life imprisonment and the court considers that the seriousness of the offence is such as to justify the imposition of such a sentence , then the court must impose that sentence .

At the relevant time , section CARDINAL ) provided that in a case not falling within TIME ) , the court “ must impose a sentence of imprisonment for public protection ” .

Section CARDINAL(CARDINAL ) defines a sentence of imprisonment for public protection as :

“ ... a sentence of imprisonment for an indeterminate period , subject to the provisions of LAW of ORG as to the release of prisoners and duration of licences . ”

Section CARDINAL of the DATE Act applies where a person has been convicted of a specified offence and it falls to the court to assess whether there is a significant risk to members of the public of serious harm by the commission by the offender of further specified offences posed by an offender . At the relevant time , section CARDINAL ) provided that in making its assessment where the applicant had not previously been convicted of any relevant offence , the court :

“ ( a ) must take into account all such information as is available to it about the nature and circumstances of the offence ,

( b ) may take into account any information which is before it about any pattern of behaviour of which the offence forms part , and

( c ) may take into account any information about the offender which is before it . ”

Where the offender had previous relevant convictions , that is convictions for any specified offence , section CARDINAL ) provided that :

“ ... the court must assume that there is [ a significant risk to members of the public of serious harm by the commission by the offender of further specified offences ] unless , after taking into account–

( a ) all such information as is available to it about the nature and circumstances of each of the offences ,

( b ) where appropriate , any information which is before it about any pattern of behaviour of which any of the offences forms part , and

( c ) any information about the offender which is before it ,

the court considers that it would be unreasonable to conclude that there is such a risk . ”

Section CARDINAL of the CARDINAL Act provides :

“ ( CARDINAL ) The [ ORG must , in dealing with cases as respects which it makes recommendations under this LAW or under ... LAW , consider–

( a ) any documents given to it by the Secretary of ORG , and

( b ) any other oral or written information obtained by it ;

and if in any particular case ORG thinks it necessary to interview the person to whom the case relates before reaching a decision , ORG may authorise CARDINAL of its members to interview him and must consider the report of the interview made by that member .

( CARDINAL ) ORG must deal with cases as respects which it gives directions ... on consideration of all such evidence as may be adduced before it .

( CARDINAL ) The Secretary of ORG may also give to the ORG directions as to the matters to be taken into account by it in discharging any functions ... ; and in giving any such directions the Secretary of ORG must have regard to–

( a ) the need to protect the public from serious harm from offenders , and

( b ) the desirability of preventing the commission by them of further offences and of securing their rehabilitation . ”

Section CARDINAL(CARDINAL ) of the DATE Act imposed a general obligation on every court passing sentence to have regard to CARDINAL specific purposes of sentencing , namely :

“ ( a ) the punishment of offenders ,

( b ) the reduction of crime ( including its reduction by deterrence ) ,

( c ) the reform and rehabilitation of offenders ,

( d ) the protection of the public , and

( e ) the making of reparation by offenders to persons affected by their offences . ”

NORP However , at the relevant time section CARDINAL(CARDINAL)(c ) expressly disapplied section CARDINAL(CARDINAL ) to sentences imposed under “ any of sections CARDINAL - CARDINAL of the Act ( dangerous offenders ) ” , which included ORG sentences .

The CARDINAL Act was amended by ORG . In particular , ORG sentences are no longer mandatory : amended section CARDINAL now provides that in a case not falling within subsection ( CARDINAL ) , the court “ may impose a sentence of imprisonment for public protection ” if the condition in subsection ( CARDINAL ) ( “ at the time the offence was committed , the offender had been convicted of an offence specified in Schedule CARDINALA ” ) or subsection ( CARDINALB ) ( the tariff which would be set together with time spent on remand is DATE ) is met . Schedule CARDINALA sets out a list of CARDINAL serious offences in GPE and GPE , GPE and GPE .

Section CARDINAL , regarding the assessment of dangerousness , was also amended by LAW . LAW ) now provides that in making the assessment of whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences , whether the individual in question has previous conviction or not , the court :

“ ( a ) must take into account all such information as is available to it about the nature and circumstances of the offence ,

( aa ) may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world ,

( b ) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph ( a ) or ( aa ) forms part , and

( c ) may take into account any information about the offender which is before it . ”

Section CARDINAL(CARDINAL ) ( see paragraph CARDINAL above ) has accordingly been repealed .

Section CARDINAL(CARDINAL)(c ) , which previously disapplied the CARDINAL sentencing objectives in ORG cases , was amended to delete the exclusion of ORG sentences from the CARDINAL sentencing objectives .

The new provisions apply to all sentences passed on or after DATE .

ORG is responsible for the release of prisoners sentenced to life imprisonment . Under section CARDINAL(CARDINAL ) of ORG ( “ the DATE LAW ) :

“ As soon as–

( a ) a life prisoner to whom this section applies has served the relevant part of his sentence , and

( b ) ORG has directed his release under this section ,

it shall be the duty of the Secretary of ORG to release him on licence . ”

Section PERSON ) provides :

“ ORG shall not give a direction under subsection ( CARDINAL ) above . . . unless—

( a ) the Secretary of ORG has referred the prisoner ’s case to the ORG ; and

( b ) the ORG is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined . ”

Section CARDINAL(CARDINAL ) provides that a life prisoner may require the Secretary of ORG to refer his case to ORG at any time after tariff expiry and :

“ ( b ) where there has been a previous reference of his case to ORG , after the end of DATE beginning with the disposal of that reference . ”

Section CARDINAL(CARDINAL)(CARDINAL)(d ) of LAW ( as amended by LAW ) clarifies that “ life prisoner ” includes a person serving an ORG .

NORP The Secretary of ORG has issued directions to the ORG pursuant to section CARDINAL of the CARDINAL Act . Direction CARDINAL , issued in DATE , provides , in so far as relevant :

“ In assessing the level of risk to life and limb presented by a lifer , the ORG shall consider the following information , where relevant and where available , before directing the lifer ’s release , recognising that the weight and relevance attached to particular information may vary according to the circumstances of each case :

( d ) whether the lifer has made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence ;

( h ) the lifer ’s awareness of the impact of the index offence , particularly in relation to the victim or victim ’s family , and the extent of any demonstrable insight into his / her attitudes and behavioural problems and whether he / she has taken steps to reduce risk through the achievement of life sentence plan targets ... ” ( original emphasis )

Prison Service Order CARDINAL ( “ ORG CARDINAL ” ) on the generic parole process came into effect on DATE . It includes detailed provisions on the dossier which should be made available to ORG in the case of ORG prisoners .

NORP The Secretary of ORG ’s policy on the management and treatment of life sentence prisoners , including ORG prisoners , is primarily contained in DATE of the “ ORG ” ORG ( ORG ) CARDINAL ( “ ORG CARDINAL ” ) . This chapter was substantially amended in DATE ( see paragraph CARDINAL below ) .

At the relevant time , ORG CARDINAL set out the various phases of detention under a life sentence :

“ CARDINAL.CARDINAL.CARDINAL A typical male lifer will generally go through the following stages of his life sentence in custody prior to release on licence :

ORG prison

First Stage – High Security / Category B

Second Stage – High Security / Category B / Category C

Third Stage – Category D / Open / Semi - open / Resettlement .

While no CARDINAL life sentences will be identical , the majority of life sentences will conform to this general pattern . It will be necessary , however , to fast - track short - tariff lifers ( see CARDINAL below ) if they are to have the opportunity to be released on tariff expiry if risk factors permit ... ”

It continued :

“ CARDINAL.CARDINAL.CARDINAL ... Wherever possible , lifers should be allocated to a cell on a landing ... where there are other long or medium - term prisoners . In most cases newly sentenced lifers will remain there to await a vacancy in a ORG lifer prison . Local prisons are an integral part of the lifer system and it is at this stage that Life Sentence planning begins . ”

Paragraph CARDINAL.CARDINAL.CARDINAL continued :

“ ... The intention is that lifers will move on from their local prison to a ORG prison within DATE of their sentence subject of the availability of places . Local prisons should provide lifers with information about the role and location of ORG prisons . ”

Paragraph CARDINAL.CARDINAL.CARDINAL of ORG CARDINAL explained that the period spent at first stage :

“ is generally from DATE upwards , but ... may be reduced for some prisoners especially those with short tariffs or those who are making exceptionally good progress . ”

PSO CARDINAL contained specific provisions on short - tariff lifers :

“ CARDINAL.CARDINAL.CARDINAL Short tariff lifers are normally regarded as those who have a tariff of DATE or less ...

CARDINAL Lifers with short tariffs are managed differently from lifers with longer tariffs because of the overall objective to release lifers on tariff expiry if risk factors permit . The statutory entitlement to a review by ORG may for a short tariff lifer be triggered relatively shortly after conviction ... The essential elements of the policy for short tariff lifers and arrangements for their management through their period in custody are as follows :

They must be prioritised for offending behaviour programmes according to the length of time left till tariff expires . The same principle must apply for all lifers , so that length of time to tariff expiry is taken into account when allocating offending behaviour programme resources . In other words , lifers must be given every opportunity to demonstrate their safety for release at tariff expiry . ” ( original emphasis ) .

NORP The policy for management of indeterminate sentence prisoners was substantially amended from DATE by ORG CARDINAL/CARDINAL , which introduced a new chapter CARDINAL . In particular , indeterminate sentence prisoners no longer have to move through set stages in order to progress through their sentences . Pursuant to Paragraph CARDINAL.CARDINAL.CARDINAL of the revised policy , it must be ensured that indeterminate sentence prisoners in a given region are not disadvantaged in their ability to work towards , or demonstrate , reduction in their risk factors , particularly in terms of prospects for release post - tariff , compared to indeterminate sentence prisoners in other regions . Paragraph CARDINAL.CARDINAL.CARDINAL and CARDINAL have been replaced with the following :

“ CARDINAL Short tariff ISPs [ indeterminate sentence prisoners ] are normally regarded as those who have a tariff of DATE or less ...

CARDINAL ISPs with short tariffs may need to be managed differently from ISPs with longer tariffs because of the overall aim to ensure ORG has appropriate information upon which to make its risk - based decision as to whether a prisoner should be released ... The essential elements of the policy for short tariff ISPs and arrangements for their management throughout the period in custody are as follows :

- all ISPs should be prioritised for interventions and offending behaviour programmes according to the risk of harm they pose and length of time left till tariff expiry . In other words , and taking into account the ORG ’s own responsibility to address the risk of harm they present to the public and known victims , the ORG must be offered reasonable opportunity , as far as possible given the available resources , to address their risk factors in time for their ORG review .

On DATE in ORG , during the passage of the PERSON which led to LAW through ORG , ORG of ORG , then Minister of State at ORG , explained the new provisions :

“ The new sentence will ensure that such offenders can not be released until their risk is considered manageable in the community . It therefore provides for indeterminate custody for that small group of offenders for whom a determinate sentence would not provide a sufficient guarantee of public safety . However , that must be seen in the context of everything that we are trying to achieve in prisons ; that is , first , to address the nature of the underlying offending behaviour and , secondly , to try and rehabilitate , if rehabilitation is possible , some of the more serious offenders through training , education and opportunities . I have mentioned that once an offender is in prison , there will be an assessment of the nature of his difficulties and the risks that he poses so that , while he is in prison , we can seek to address those problems .

... I reassure the noble Lord that we intend to make sure that all prisoners benefit from the risk assessment procedure . If we are able to roll it out , and we hope to be able to do so over a period of time , ORG will have the kind of tools necessary to make the assessment which will help to bring about change , but which will also identify those people who may not be as amenable to change as we would like and who therefore continue to pose a risk to members of the public . ”

NORP In her report on ORG , ORG of Prisons noted :

“ ORG has withdrawn the enhanced thinking skills programme for reasons of economy . This meant that there were no programmes for prisoners who are likely to spend a significant part of their sentence at GPE . This was particularly important for those who had received the new Indeterminate Sentence for Public Protection ( ISPP ) . For these prisoners , who often have short tariff dates , the absence of any opportunity to address offending behaviour inevitably meant that they risked a longer time in custody . ”

ORG was commissioned by the Secretary of ORG to assess the seriousness of the problems facing those serving ORG sentences and to make recommendations for improving the situation . The report noted that reliance on the lifer management arrangements for dealing with all ORG prisoners had failed and that ORG prisoners were stacking in local prisons and are not moving to establishments where their needs could be assessed or better met .

The report continued :

“ CARDINAL . IPPs are dealt with through the lifer system : they spend time in local prisons until space is found at a first stage life centre ; intensive assessment is conducted at the first stage lifer centre ; IPPs are then transferred on within the training estate for further interventions .

The reliance on a small number of specialised lifer centres creates a bottleneck . This prevents timely access to interventions necessary to reduce risk in some cases . Over CARDINAL ISPs ( of which CARDINAL are IPPs ) are currently being held in local prisons since space in lifer centres is simply unavailable and turnover is slow . ”

Committee of Ministers Resolution CARDINAL(CARDINAL ) of CARDINAL DATE made a series of recommendations to member GPE regarding long - term and life sentence prisoners . These included :

“ CARDINAL . take the necessary legislative and administrative measures in order to promote appropriate treatment during the enforcement of [ long - term ] sentences ;

ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted ;

grant the prisoner conditional release , subject to the statutory requirements relating to time served , as soon as a favourable prognosis can be formulated ; considerations of general prevention alone should not justify refusal of conditional release ;

adapt to life sentences the same principles as apply to long - term sentences ... ”

Committee of Ministers Recommendation Rec ( DATE ) CARDINAL of DATE recommended that member ORG governments be guided in their legislation , policies and practice on conditional release by the principles contained in the appendix to the recommendation . The appendix set out , inter alia , the following general principles :

“ CARDINAL . Conditional release should aim at assisting prisoners to make a transition from life in prison to a law - abiding life in the community through post - release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community .

ORG . In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community , the law should make conditional release available to all sentenced prisoners , including life - sentence prisoners . ”

Regarding the granting of conditional release , it noted , inter alia :

“ CARDINAL . The minimum period that prisoners have to serve to become eligible for conditional release should be fixed in accordance with the law .

The relevant authorities should initiate the necessary procedure to enable a decision on conditional release to be taken as soon as the prisoner has served the minimum period .

The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit . They should also be realistic in the sense that they should take into account the ORG personalities and social and economic circumstances as well as the availability of resettlement programmes . ”

DATE Committee of Ministers Recommendation Rec ( DATE ) CARDINAL of DATE sets out CARDINAL objectives for the management of life sentence and other long - term prisoners . CARDINAL is to increase and improve the possibilities for these prisoners to be successfully resettled in society and to lead a law - abiding life following their release .

NORP The general principles for the management of life sentence and other long - term prisoners include :

“ CARDINAL . Consideration should be given to the diversity of personal characteristics to be found among life sentence and long - term prisoners and account taken of them to make individual plans for the implementation of the sentence ( individualisation principle ) .

Individual planning for the management of the prisoner ’s life or long - term sentence should aim at securing progressive movement through the prison system ( progression principle ) . ”

On sentence planning , the recommendation indicates that comprehensive sentence plans should be developed for each individual prisoner , and should include a risk and needs assessment in order to inform a systematic approach to , inter alia , the prisoner ’s participation in work , education , training and other activities that provide for a purposeful use of time spent in prison and increase the chances of a successful resettlement after release ; and interventions and participation in programmes designed to address risks and needs so as to reduce disruptive behaviour in prison and re - offending after release .

Recommendation Rec ( DATE ) CARDINAL of ORG to member GPE on ORG of DATE ( “ FAC ” ) includes in its basic principles :

“ CARDINAL . All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty . ”

Paragraph CARDINAL concerns sentence planning and provides :

“ CARDINAL The regime for sentenced prisoners shall commence as soon as someone has been admitted to prison with the status of a sentenced prisoner , unless it has commenced before .

CARDINAL As soon as possible after such admission , reports shall be drawn up for sentenced prisoners about their personal situations , the proposed sentence plans for each of them and the strategy for preparation for their release .

CARDINAL Such plans shall as far as is practicable include :

a. work ;

b. education ;

c. other activities ; and

d. preparation for release . ”

On the release of sentenced prisoners , ORG provide :

“ CARDINAL.CARDINAL Sentenced prisoners shall be assisted in good time prior to release by procedures and special programmes enabling them to make the transition from life in prison to a law - abiding life in the community .

Article CARDINAL of LAW DATE provides :

“ CARDINAL . All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person .

The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation . Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status . ”

The United Nations Standard Minimum Rules for the Treatment of Prisoners ( “ the ORG Rules ” ) , adopted by ORG on ORG and the Treatment of Offenders in DATE and approved by ORG on DATE , include in their general principles the following :

“ DATE . The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime . This end can only be achieved if the period of imprisonment is used to ensure , so far as possible , that upon his return to society the offender is not only willing but able to lead a law - abiding and self - supporting life .

To this end , the institution should utilize all the remedial , educational , moral , spiritual and other forces and forms of assistance which are appropriate and available , and should seek to apply them according to the individual treatment needs of the prisoners . ”

Specific provisions on treatment include :

“ CARDINAL . The treatment of persons sentenced to imprisonment or a similar measure shall have as its purpose , so far as the length of the sentence permits , to establish in them the will to lead law - abiding and self - supporting lives after their release and to fit them to do so . The treatment shall be such as will encourage their self - respect and develop their sense of responsibility .

CARDINAL(CARDINAL ) To these ends , all appropriate means shall be used , including religious care in the countries where this is possible , education , vocational guidance and training , social casework , employment counselling , physical development and strengthening of moral character , in accordance with the individual needs of each prisoner , taking account of his social and criminal history , his physical and mental capacities and aptitudes , his personal temperament , the length of his sentence and his prospects after release . ”

ORG on Life Imprisonment DATE notes , at paragraph CARDINAL :

“ Specific treatment programmes thus serve a dual function : they offer the prisoner an opportunity for self - examination , whereby he or she can confront previous or present problems and they provide the prison staff with a better opportunity to understand particular behavioural patterns . ”

NORP The report continues at paragraph CARDINAL :

“ In the absence of structured treatment programmes , long term prisoners are left on their own to find the means with which to cope with their sentences . This has detrimental effects , not only for the prisoner but also for the prison authorities in that a situation of ‘ them’ and ‘ us’ often develops ... ”

Finally , at paragraph CARDINAL , the report concludes :

“ International instruments on imprisonment and human rights suggest that the deprivation of liberty may only be justified if accompanied by review and assessment procedures that operate within commonly accepted judicial standards . Indeterminate life sentencing can not be allowed to open the door for arbitrary detention . ORG , unprejudiced assessment programmes offer possible checks against this . ”