CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 septembre 2012

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text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC4CF4A9C { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt; text-align:justify } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       FOURTH SECTION             CASE OF JAMES, WELLS AND LEE v. THE UNITED KINGDOM   (Applications nos. 25119/09, 57715/09 and 57877/09)             JUDGMENT       STRASBOURG   18 September 2012   FINAL   11/02/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of James, Wells and Lee v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lech Garlicki, President ,   David Thór Björgvinsson,   Nicolas Bratza,   George Nicolaou,   Zdravka Kalaydjieva,   Nebojša Vučinić,   Vincent A. De Gaetano, judges , and Fatoş Aracı, Deputy Registrar , Having deliberated in private on 28 August 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos. 25119/09, 57715/09 and 57877/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three British nationals, Mr Brett James, Mr Nicholas Wells and Mr   Jeffrey Lee (“the applicants”), on 7 May 2009, 27 October 2009 and 27   October 2009 respectively. 2.     The applicants, who had been granted legal aid, were represented by Ms E. Restall, a lawyer practising in Bradford; Ms R. Walsh, a lawyer practising in Bolton; and Mr M. Pemberton, a lawyer practising in Wigan. The United Kingdom Government (“the Government”) were represented by their Agents, Ms H. Moynihan and Ms A. Sornarajah, of the Foreign and Commonwealth Office. 3.     The applicants alleged, in particular, that their detention in prison pursuant to indeterminate sentences following the expiry of their tariff periods was unlawful under Article 5 § 1 of the Convention and that there was no meaningful review of the legality of their post-tariff detention by a body with the power to order their release, in violation of Article 5 § 4. 4.     On 14 December 2010 the Vice-President of the Fourth Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     Mr James was born in 1985 and lives in Wakefield.   Mr Wells was born in 1983 and is currently in detention.   Mr Lee was born in 1965 and lives in Fleetwood. A.     The introduction of the IPP sentence 6 .     On 4 April 2005, by virtue of section 225 of the Criminal Justice Act 2003 (“the 2003 Act”), indeterminate sentences for the public protection (“IPP 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 the Parole Board 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 IPP prisoners, it would appear that in practice the tariff fixed is generally short: in the year following the entry into force of the provisions on IPP sentences, when the applicants in the present case were sentenced, the median tariff for IPP prisoners was thirty months, and seventy per cent of IPP sentences imposed involved tariffs of three years or less. 7 .     When IPP 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 2003 Act. 8 .     Pursuant to section 28 of the Crime (Sentences) Act 1997 (“the 1997 Act”), the Parole Board 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. 9 .     The consequence of the entry into force of the legislative provisions introducing IPP sentences was that a large number of individuals were sentenced to an IPP 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 IPP prisoners swamped the system in place for dealing with those serving indeterminate sentences. 10 .     The IPP scheme was subsequently amended by the Criminal Justice and Immigration Act 2008 (“the 2008 Act”) to deal with the problems encountered. In particular, the IPP sentence is no longer mandatory. Further, it now only applies to cases where, if imposed, the tariff would be fixed at more than two years, subject to certain limited exceptions. 11.     The domestic law, including the changes introduced by the 2008 Act, is set out in greater detail below (see paragraphs 124-142). B.     The first applicant (Mr James) 12 .     On 28 September 2005 Mr James pleaded guilty in the Crown Court 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 27 September 2005 prepared by the Probation Service 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 James was dangerous, particularly when he drank alcohol. He was sentenced to an IPP sentence pursuant to section 225 of the 2003 Act, with a tariff of two years, less time spent on remand. His tariff therefore expired one year and 295   days after the date of sentencing. 13 .     After being sentenced, Mr James remained at his local prison, HMP   Doncaster, 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. Parole Board reports indicated that he should also undertake the ETS (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 HMP Doncaster. 14 .     On 31 May 2006 the chairman of the Independent Monitoring Board (a statutory body established to monitor the welfare of prisoners) wrote to Mr James’ solicitors saying that Mr James had completed all the courses that were available to him at HMP Doncaster 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. 15 .     On 8 September 2006 the Lifer Governor at HMP Manchester wrote to Mr James’ solicitors explaining that he was thirty-fifth on the first stage lifer prison waiting list. He said: “As you will be aware we must now treat Indeterminate Public Protection (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/IPP numbers to 160 (and increasing) against a profiled maximum of 131. 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 almost a year. Unfortunately, this trend shows no sign of slowing down and I cannot predict when we might be able to accommodate Mr James.” 16 .     On 9 January 2007 Mr James’ solicitors wrote to the Secretary of State 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 HMP Doncaster. The letter highlighted that Mr James’ tariff would expire in seven months and that he wished to complete the relevant courses before tariff expiry and his Parole Board hearing. 17 .     On 12 January 2007 the Lifer Governor at HMP Manchester wrote that the number of lifer/IPP prisoners had increased to 192: “The increase in Lifer/IPP 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.” 18 .     On 3 March 2007 Mr James’ case was referred to the Parole Board in accordance with the standard procedure. 19 .     The Progress Report Summary prepared for the Parole Board by Mr   James’ Indeterminate Sentences Manager at HMP Doncaster, dated 2   April 2007, stated: “... The Court obviously considered Mr James 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 First Stage Lifer Centre, and the suggestion is that he is likely to need to undertake CALM and PASRO [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.” 20 .     Under the heading “Recommendation for allocation or release”, the report continued: “As Mr James has not as yet had his Sentence Plan or undertaken any work related to his offending, I cannot with any confidence recommend him for release or for transfer to open conditions.” 21 .     On 21 May 2007 Mr James applied to the High Court for permission to seek judicial review of the management and treatment of prisoners by the Secretary of State in light of the failure to provide him with the relevant courses to address his offending behaviour. 22 .     On 20 July 2007 Mr James’ tariff period expired. 23 .     Handing down his judgment in the judicial review proceedings on 20   August 2007, Mr Justice Collins outlined the background to the judicial review application as follows: “2. ... [Mr James’] tariff expired on 20th July of this year and the result is that he is now detained solely as a result of the IPP on the basis that he is dangerous. He has therefore the right to apply to the Parole Board 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. 3. In order to make a meaningful submission to the Parole Board, 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 Doncaster Prison, 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 the Parole Board and the Parole Board would be likely to be in the same position as the Board was in the case of Wells (which was dealt with by the Divisional Court together with Walker ). In that case, the Board, when Wells, 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 the Parole Board 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, Mr   Weatherby [counsel for Mr James] submits, is likely to be the approach of the Parole Board, before whom the claimant at the moment has a hearing fixed, as I understand it, for 14th September next.” 24 .     Collins J, relying on the decision of the Divisional Court in Walker   v. the Secretary of State (“ Walker ” – see paragraphs 51-54 below), declared Mr James’ detention unlawful and ordered his release, but stayed relief pending an appeal by the Secretary of State. He did not decide on Mr   James’ argument that there had been a violation of Article 5 § 4 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 the Court of Appeal to consider it. 25.     The Secretary of State appealed the decision of Collins J. 26 .     On 14 September 2007 the Parole Board 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 the Parole Board 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 the Parole Board in the case of Mr Wells (see paragraph 49 below) and in the case of Walker . He further advised the Parole Board that the case of Walker was pending before the Court of Appeal. In the circumstances the Parole Board 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 Walker . The Parole Board hearing was re-listed for January 2008. 27.     The Court of Appeal heard the appeal in Mr James’ case together with the appeal in Walker in November 2007. 28 .     On 21 December 2007 Mr James was transferred to HMP   Lindholme, a first stage prison. 29 .     On 1 February 2008 the Court of Appeal allowed in part the appeal of the Secretary of State 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 225 of the 2003 Act and section 28 of the 1997 Act, which rendered detention lawful until the Parole Board was satisfied that he was no longer dangerous (see paragraphs 128 and 139-142 below); and that the detention would not cease to be justified under Article 5 §   1 (a) of the Convention until it was no longer necessary for the protection of the public that Mr James 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 Walker that the Secretary of State had breached his public law duty. 30 .     Lord Phillips of Worth Matravers CJ, delivering the judgment of the court, considered the primary object of the IPP sentence to be clear from the wording of sections 224 and 225 of the 2003 Act (see paragraphs 124-125 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 State 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 State’s contention that the concession did not assist in the present case as it was for the Parole Board to decide whether to release an IPP prisoner, and not for the Secretary of State; and that it was for the Parole Board to decide what evidence satisfied it that an IPP prisoner should be released, he said: “39. 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 the Parole Board 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 State. 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.” 31 .     Lord Phillips referred to the decision of the Secretary of State to bring into force the provisions introducing IPP 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 the Parole Board, once the time for review arrived, that they were no longer dangerous (see paragraphs 145-150 below). He continued: “40. ... This cannot 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 Parliament (and the objective of Article 5 of which Parliament must have been mindful).” 32 .     Having established that the Secretary of State 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 Phillips indicated that the court could see no answer to the submission of the Parole Board and the Secretary of State that the 2003 Act made express statutory provision for the circumstances in which IPP prisoners could be released and that the Divisional Court’s judgment would require them to be released in disregard of the express requirements of the Act. He noted that section 225 of the 2003 Act made the release of IPP prisoners subject to the provisions of the 1997 Act, section 28 of which provided for the circumstances in which an IPP 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 detained’ under common law, and that in any event the common law had to give way to the express requirements of the statute. 33 .     Lord Phillips accordingly concluded that IPP prisoners who had completed their tariff terms remained lawfully detained. 34 .     As to whether there was a violation of Article 5 § 4 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 the Parole Board would be a foregone conclusion. 35 .     He concluded that the fact that the claimants remained in the local prison to which they were first sent would not formally prevent a review by the Parole Board. However, as a matter of substance rather than form, any such review would, in the circumstances of the case, be an empty exercise. He found this to be an unacceptable situation which, if it continued, was likely to result in a breach of Article 5 § 4. 36 .     Addressing the possibility of a violation of Article 5 § 1 arising on the basis that Article 5 § 4 had been violated, Lord Phillips considered that so long as the prisoner remained dangerous, his detention would be justified under Article 5 § 1 (a) whether or not it was subject to timely periodic review that satisfied the requirements of Article 5 § 4. 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 Article 5 § 1 (a). 37 .     On the question of the compliance with Article 5 § 1 of the continued detention in the applicant’s case, Lord Phillips noted that the primary object of the IPP 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. 38 .     He concluded: “72. This appeal has demonstrated an unhappy state of affairs. There has been a systemic failure on the part of the Secretary of State to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the relevant provisions of the 2003 Act to function as intended. So far as the two 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 5(4) and may ultimately also result in infringement of article 5(1) ...” 39.     Mr James appealed to the House of Lords against the judgment of the Court of Appeal. His appeal was eventually joined with the appeals in the cases of Mr Wells, the second applicant, and Mr Lee, the third applicant. 40 .     While the appeal was pending, a full Parole Board review in respect of Mr James took place on 14 March 2008. Mr James had still been unable to undertake the recommended courses. The Parole Board had before it, in addition to the hearing dossier: a victim contact report; MALRAP (Multi   Agency Lifer Risk Assessment Panel) minutes dated January 2006; a report by an external psychologist dated 7 March 2008; a progress report from an HMP Lindholme Life Manager, dated 12 March 2008; and a report prepared by the intended supervising probation officer dated 12   March   2008. The Parole Board also heard oral evidence. 41 .     At the hearing, Mr James requested his release and undertook to comply with the proposed licence conditions. The Secretary of State was of the view that Mr James should remain in closed conditions for the completion of the coursework. The Parole Board noted that a release plan had been constructed for Mr James 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, the Parole Board 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 Westgate 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 ...” 42 .     On 28 March 2008 Mr James was released on licence. 43.     On 6 May 2009 the House of Lords published its judgment in the three linked appeals (see paragraphs 100-121 below), finding that there had been no violation of Article 5 §§ 1 or 4 in Mr James’ case. C.     The second applicant (Mr Wells) 44 .     Mr Wells 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 14 November 2005 he was sentenced at Bolton Crown Court to an IPP sentence with a tariff of 12 months, less 58 days 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. 45 .     In March 2006 HMP Forest Bank, the local prison where Mr Wells was at that time detained, reported that he was motivated to address his offending behaviour but was having difficulties in prison and had seven adjudications against him. The report recommended that he engage in programmes for PASRO, ETS, CALM and Victim Awareness. None of these, however, were available to him at HMP Forest Bank. 46 .     Mr Wells’ tariff expired on 17 September 2006. A Parole Board hearing was fixed for 25 October 2006. However the dossier in his case was not available and was only received by his solicitor and the Home Office on 9 November 2006. As a result, the hearing did not take place. Further Parole Board hearings were fixed for 18 January 2007 and 29 March 2007 but had to be deferred because insufficient Parole Board members were available. A   hearing was subsequently fixed for 9 May 2007. 47 .     On 23 March 2007 Mr Wells issued an application for judicial review seeking an order that his case should be heard by the Parole Board forthwith, relying on Article 5 § 4 of the Convention. 48 .     On 19 April 2007, on the Parole Board’s concession, Sullivan J made a declaration that Mr Wells’ rights under Article 5 § 4 had been violated and ordered the Parole Board to hear Mr Wells’ case on 9   May   2007. 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. 49 .     The Parole Board heard Mr Wells’ case on 9 May 2007. However, on 15 May 2007 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 Panel 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 P-ASRO, ETS, 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 the Parole Board 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 Panel cannot direct your release as requested.” 50.     Following the decision of the Parole Board, the applicant pursued the judicial review proceedings, arguing that his continued detention was unlawful. His case was joined with the case of Walker . However, at the hearing Mr Wells’ counsel indicated that she was content to await the delivery of the judgment in Walker and then put in amended judicial review grounds or seek a fresh judicial review permission if either such course seemed appropriate 51 .     On 31 July 2007 the Divisional Court handed down its judgment in the judicial review proceedings regarding Mr Walker (Lord Justice Laws delivering an opinion with which Mr Justice Mitting agreed). Laws LJ considered that it was clear at the time the 2003 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 State’s policy set out in PSO 4700 (see paragraphs 145-150 below). 52 .     As to the numbers of IPP sentences imposed and the evidence of how the system had operated in practice, he said: “28. ... Statistics ... show that the number of serving lifers was 5,475 on 30 November 2003 (the 2003 Act was passed on 18 December 2003), 5,807 on 31 March 2005 (s.225 came into force on 4   April   2005) and 8,977 on 31 March 2007. Mr   Robson accepts there was an increase in the lifer population of 31% in 2006. On 20 April 2007 there were 2,547 prisoners serving IPP (the median tariff for IPP prisoners at April 2006 was 30 months). Yet the number of funded first stage and second stage prison places, within the meaning of PSO 4700, has not risen since April 2005 (though the number of core offending behaviour courses has risen from 13,265 in 2004/2005 to 16,959 in 2006/2007) ... Mr Robson [Deputy Head of the Public Protection Unit at the National Offender Management Service] believes ... that in present circumstances the Prison Service can deal ‘satisfactorily’ with about 6,500 lifers. IPP prisoners with a tariff of less than five years are languishing in local prisons where, as Mr Robson 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.” 53 .     Laws LJ explained that the tariff element of the IPP 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. Laws LJ emphasised that section 225(1)(b) of the 2003 Act (see paragraph 124 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 months or years later. 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. 54 .     Granting Mr Walker’s application for judicial review, Laws LJ concluded: “48. ... The Crown has obtained from Parliament 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 ss.28(5)(b) and 28(6)(b) of the 1997 Act). 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 cannot work as Parliament 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. 49. Such a consequence would not be averted merely by prompt and regular sittings of the Parole Board ... Periodic reviews by the Parole Board (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 cannot 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 IPP prisoner to progress is as inherent in the justification for his continued detention as are the Parole Board reviews themselves; and without them that detention falls to be condemned as unlawful as surely as if there were no such reviews.” 55 .     An OASys (Offender Assessment System) report dated 18 December 2007 rated Mr Wells as being at high risk of reconviction and as posing a high risk of harm to the public. 56 .     On 29 March 2008 Mr Wells was recommended for the same courses as had been recommended two years previously (see paragraph 45 above) and which still remained unavailable to him. 57 .     On 29 May 2008 Mr Wells’ supervisor recorded his “almost intolerable” frustration with his lack of progress. 58 .     Mr Wells issued a second judicial review application on 4   June   2008, arguing that his continued detention constituted a breach of his rights under Article 5 §§ 1 and 4. His case was joined with that of the third applicant in the present case, Mr Lee. 59 .     On 25 June 2008 Mr Wells completed an Alcohol Free Good Life course. 60 .     On 26 June 2008 Mr Wells was transferred to HMP Risley. 61 .     On 25 July 2008 Lord Justice Moses handed down his judgment in the judicial review proceedings involving Mr Wells and Mr Lee. He   indicated at the outset: “2. Their cases highlight the fundamental difficulty inherent in IPP 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 the Parole Board.” 62 .     Considering the applicants’ Article 5 § 1 complaint, Moses LJ considered it essential to identify the objectives which were sought to be achieved by the original imposition of the IPP sentence. Like Laws LJ, 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. 63 .     Moses LJ emphasised that it was for the Parole Board to assess the danger posed by a prisoner: if the Parole Board 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 State 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 the Parole Board was entitled on the material before it to reach a conclusion that the prisoner remained a danger, there could be no breach of Article 5 § 1 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, the Parole Board 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 Article 5 § 1. 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. 64 .     In respect of Mr Wells, he concluded that there had been no breach of Article 5 § 1, noting: “31. ... The evidence shows that Mr Wells 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 only 22 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 cannot be ascertained, and, in those circumstances, no basis for saying that the link between the original sentence and his continued detention has been broken.” 65 .     However, he found that the continuing failure to provide the relevant courses following the declaration of Sullivan J amounted to a breach of Article 5 § 4 of the Convention. 66.     Mr Wells appealed the finding that there had been no breach of Article 5 § 1. The Secretary of State did not appeal the finding that there had been a breach of Article 5 § 4. 67 .     Mr Wells subsequently completed the PASRO course (between   22   August and 26 September 2008) and the ETS course (between   28   October and 3 December 2008). 68.     On 11 December 2008 the Court of Appeal adjourned the appeal for inquiries to be made about an appeal from the decision of Moses   LJ direct to the House of Lords. On 17 December 2008 Moses LJ certified that the cases involved points of law of general public importance in respect of which the judge was bound by the Court of Appeal decision in Walker and James (see paragraphs 29-38 above) and which were fully considered by the Court of Appeal in that appeal. The House of Lords