KAIYAM AND OTHERS v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Guido Raimondi;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
1. A list of the applicants is set out in the appendix. 3. Mr Kaiyam was convicted of robbery and drugs offences. He was sentenced on 20 July 2006 to a combination of determinate and indeterminate sentences, with the lead sentence (for the robbery) being one of imprisonment for the public protection (“IPP”) with a minimum term (“tariff”) of three years. 4. In January 2008 he was assessed as unsuitable for the Controlling Anger and Learning to Manage it (“CALM”) course and anger management was made a sentence-planning target. 5. In February 2008 he was transferred to HMP Lowdham Grange and in May 2008 he commenced the six-week Enhanced Thinking Skills (“ETS”) course. He completed the course in July 2008. He was assessed as having made some progress on the course, but there was doubt about his ability to carry the lessons into practice and about his honesty, self-control in prison and drug use. 6. Meanwhile, in June 2008 he was reduced from a Category B prisoner to the lower-risk Category C. He also completed a drug awareness course in July 2008 and a victim awareness course in October 2008. 7. Following his reclassification as a category C prisoner, Mr Kaiyam was disciplined on twenty-three occasions for offences including disobedience, assault, drug offences and the possession of mobile telephone parts. In January 2009, he was reclassified as a category B prisoner. 8. On 2 February 2009 the Parole Board reviewed his case. It noted that although he had begun to address his offending behaviour he still had much work to do. The decision also noted that he had previously been referred for the CALM course but that the assessment indicated that it was not suitable for him because his offending was not emotionally driven. However, some anger management work was nonetheless required. 9. In April 2009 Mr Kaiyam’s tariff expired. 10. In July 2009, he commenced one-to-one anger management consultations with his offender manager. 11. In January 2010, as a result of his previous misbehaviour in custody, he was transferred to a high security prison at HMP Long Lartin, where the priority was security and rehabilitative courses were comparatively few. During his time at HMP Long Lartin, he continued the one-to-one anger management consultations until October 2011. His behaviour underwent a significant improvement. 12. Meanwhile, regular sentence-planning meetings took place. In May 2010 the meeting concluded that he should be referred once again for the CALM course, notwithstanding the previous negative assessment, and that he should be assessed for FOCUS, a high-intensity drug abuse programme. By September 2010 a decision had been taken not to refer him for CALM and he had yet to be assessed for FOCUS. A referral was sent to the substance abuse team on 1 September 2010. 13. On 14 November 2010 the Parole Board again reviewed Mr Kaiyam’s case. The decision noted that Mr Kaiyam was motivated to undertake offence-focused work but had had little opportunity to do so at HMP Long Lartin. It considered it essential that necessary work on drug abuse and anger management be progressed as soon as possible. 14. On 3 December 2010 Mr Kaiyam was assessed as unsuitable for FOCUS and the Prisoners Addressing Substance Related Offending (“PASRO”) course was recommended instead. 15. On 11 January 2011 the prison authorities confirmed that a prison transfer would be required to enable him to undertake PASRO and anger management work. 16. A prison transfer was subsequently planned but was cancelled when Mr Kaiyam was accused of a further disciplinary offence in May 2011. The disciplinary proceedings lasted until August 2011, when the allegation was not proceeded with because the officer who made it became ill and could not continue. 17. Meanwhile, at a June 2011 sentence-planning meeting it was decided that Mr Kaiyam should be transferred to another prison to enable him to complete necessary coursework. Between June 2011 and November 2012 prison staff actively sought an appropriate prison transfer for Mr Kaiyam. However, this was further complicated by the opening of his parole window in February 2012, at which point, because of the need to allow the preparation of reports for the pending Parole Board review, transfers were usually not permitted. 18. On 1 October 2012 Mr Kaiyam lodged a judicial review claim seeking, inter alia, a declaration that his Article 5 § 1 rights had been violated as a result of the delay from January 2010 in providing access to rehabilitative courses, and damages. 19. In October 2012 Mr Kaiyam’s offender manager added the Self Change Programme (“SCP”) as a sentence-planning target. In November 2012 Mr Kaiyam underwent assessment for the programme and he began the SCP in January 2013. His Parole Board review was deferred, with his agreement, to enable him to complete the SCP. The next review was fixed for October 2013. 20. In its decision dated 8 November 2013, the Parole Board noted that good progress was being made but declined to recommend a transfer to open conditions. 21. By May 2014, Mr Kaiyam had been transferred to HMP Lindholme and was undertaking a course which had replaced PASRO, namely the Building Skills for Recovery Programme (“BSR”). 22. His judicial review claim was unsuccessful before the High Court and the Court of Appeal. He was given permission to appeal to the Supreme Court (see paragraphs 50-62 below). 23. In 2006 Mr Robinson was convicted of various sex offences. He had previous convictions for sexual offences. On 2 October 2006 he received an IPP sentence with a tariff of seven years. 24. In 2007 he completed the ETS programme. 25. In 2008 he completed the six-month Core Sex Offenders Treatment Programme (“SOTP”). 26. A Structured Assessment of Risk and Need (“SARN”) report dated 9 July 2008 concluded with the recommendation that there should be a full psychopathy assessment and that, so long as that did not provide contra-indications, he was suitable for the Extended SOTP (“ESOTP”). By February 2009, this was a formal sentence objective. 27. On 24 February 2010 Mr Robinson was moved to HMP Whatton, which specialises in sexual offenders, to access the ESOTP. On 17 March 2010 he was entered on the waiting list. 28. Following a Parole Board Review, on 31 March 2010 the Board declined to recommend that he be moved to open conditions. 29. In February/March 2011 the psychopathy test was conducted. 30. A July 2011 OASyS (Offender Assessment System) report noted that the sentence objectives for the following twelve months included completion of the ESOTP. 31. In October 2011 Mr Robinson was informed that he would not be offered a place on the ESOTP until 2013 at the earliest. 32. Mr Robinson was assessed as suitable for the ESOTP in April 2012. In her report, the Deputy Treatment Manager indicated that he might yet need also a Healthy Sexual Functioning course. 33. On 26 June 2012 Mr Robinson commenced judicial review proceedings, arguing, inter alia, that his Article 5 § 1 rights had been violated as a result of the delay in providing access to rehabilitative courses. 34. On 2 November 2012 the Parole Board declined to direct Mr Robinson’s release. 35. On 10 December 2012 Mr Robinson’s tariff expired. 36. In spring 2013 he was transferred to HMP Risley to commence the ESOTP. He completed the course in July 2013. 37. His judicial review claim was unsuccessful before the Divisional Court and he was given permission to appeal directly to the Supreme Court (see paragraphs 50-62 below). 38. Mr Massey was convicted in May 2008 of a total of five sexual assaults on four unrelated young men, committed over a period of more than ten years. All the victims were either young or vulnerable. He had two previous sex-related convictions. He received an IPP sentence with a tariff of two and a half years. 39. On an unknown date, Mr Massey participated in an alcohol awareness course. 40. In April 2009, he completed the ETS programme. 41. In November 2009 he completed the Core SOTP. 42. In July 2010, a SARN report recommended that he be assessed for the ESOTP and suggested the likely desirability of a subsequent Better Lives Booster (“BLB”) programme. 43. In September 2010 his tariff expired. At a Parole Board review the Board declined to order his release. By letter dated 21 October 2010, the Secretary of State agreed with the decision of the Parole Board and identified assessment for and, if suitable, completion of the ESOTP and the BLB as appropriate further interventions. He set the review period at twenty-four months, including ten months to complete the ESOTP, taking into account the time for assessment and the waiting list. 44. In April 2011 Mr Massey was assessed for the ESOTP. In a report dated November 2011 he was found to be suitable for the programme. 45. Meanwhile, in July 2011 he completed the Cognitive Skills Booster (“CSB”) programme. 46. At his Parole Board hearing in March 2012, the Board noted that he had completed the CSB course and that he was awaiting a place on the ESOTP, which was expected to address much of his outstanding treatment needs. It refused to order release. 47. On 18 December 2012 Mr Massey commenced judicial review proceedings arguing, inter alia, that his Article 5 § 1 rights had been violated as a result of the delay in providing access to rehabilitative courses. 48. He commenced the ESOTP in May 2013 and completed it in September 2013. 49. His judicial review claim was unsuccessful before the Divisional Court and he was given permission to appeal directly to the Supreme Court (see paragraphs 50-62 below). 50. The three appeals were heard together by the Supreme Court, which gave judgment on 10 December 2014. The court explained that it would consider whether and, if so, how far to modify its case-law in light of this Court’s judgment in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012, concerning access to rehabilitative courses. 51. Lord Mance and Lord Hughes delivered jointly the opinion of the court on the general issues of principle and in respect of Mr Kaiyam and Mr Massey. Separate opinions were given in respect of the appeal by Mr Robinson. 52. The Supreme Court observed that this Court’s reasoning in James, Wells and Lee opened the possibility that post-tariff detention could fluctuate between the lawful and unlawful, depending on whether a prisoner serving an IPP sentence was being offered an appropriate opportunity to progress in his sentence. The court pointed out that, according to the wording of Article 5 §§ 1 and 4, any detention not authorised by Article 5 § 1 ought to lead release. Thus in a case where detention was found to be arbitrary under Article 5 § 1, in application of the James, Wells and Lee approach, the prisoner should – according to this Court – be entitled to an immediate order for release. There was, the Supreme Court said, a real difficulty about accepting the proposition that the Convention required the release of an IPP prisoner before the Parole Board was satisfied that his detention was no longer required for the protection of the public. 53. As to this Court’s conclusion in James, Wells and Lee that detention following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system was unlawful, the court explained: “33. ... That exposes a problem. Particularly where a tariff is of a relatively long period, a prisoner’s progression towards release through courses and experience in open conditions should, where and to the extent feasible, be facilitated not merely after but also in advance of the tariff period, so as to keep open the possibility of release on or shortly after its expiry ... Yet, on the ECtHR’s approach, treating the present issue as falling within the text of article 5(1)(a), no complaint can apparently arise until the expiry of the tariff period, and any complaint can then only arise if the failure to provide courses, etc continues after the expiry of the tariff period. 34. The second, much more substantial problem ... is that logically it would, if followed in the United Kingdom, mean, as we have stated, that any prisoner not being progressed through the system should be released, and that the Crime (Sentences) Act 1997 section 28(6)(b) should be declared incompatible with the Convention rights insofar as it precludes this ... Many of the failings revealed by the cases which have come before the courts to date are simply incapable of being redressed at the drop of a hat or wig. Systems failed, due to lack of resources and facilities, and it takes time to mend such failures, whatever order a court might make. Moreover, in a case where the failure was repaired, as it might be by the time a court came to consider the case, by the provision of adequate opportunity to the prisoner, then the court would be left, on this view of the ECtHR decision, with detention which had been unlawful for a time but was no longer.” 54. The Supreme Court concluded that it was not possible to follow the reasoning of the Court in James, Wells and Lee. However, this did not mean that the House of Lords’ prior decision in that case should be followed. This Court had underlined the link which should be recognised between preventive detention and rehabilitation, and had also concluded that there should be an individual remedy in damages for failure to provide prisoners serving indeterminate sentences with proper means of progression towards release. The Supreme Court explained: “36. We consider that the Supreme Court should now accept the Fourth Section’s conclusion, that the purpose of the sentence includes rehabilitation, in relation to prisoners subject to life and IPP sentences in respect of whom shorter tariff periods have been set. We also consider that the Supreme Court can and should accept as implicit in the scheme of article 5 that the state is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. But we do not consider that this duty can be found in the express language of article 5(1). Treating it as an aspect of the duty to avoid ‘arbitrariness’ under article 5(1)(a) has unacceptable and implausible consequences which we have already identified. The Grand Chamber decision in Saadi also remains important authority that arbitrariness has a confined meaning, when used as a test of lawfulness in the context of article 5(1)(a). 37. Article 5(4) would be a more satisfactory home for any duty of the nature identified in the previous paragraph, if its language covered it (which it does not). Article 5(4) gives rise to an ancillary duty on the state, breach of which does not directly impact on the lawfulness of detention. The duty is to make available access to judicial review by a court or here the Parole Board, which will consider whether the information put before it justifies continued detention or release. Speedy access to the Parole Board like reasonable access to proper courses and facilities represents an important aspect of a prisoner’s progression towards release. But the language of article 5(4) is in terms confined to access to judicial review by the Parole Board on the basis of the information available from time to time. It does not cover the prior stage of provision of courses and facilities in prison, which gives rise to the information necessary on any Parole Board review. 38. The duty to facilitate the progress of such prisoners towards release by appropriate courses and facilities cannot therefore be brought, in our opinion, within the express language of either article 5(1)(a) or article 5(4). But it is on any view closely analogous, at an earlier stage, to the duty involved under article 5(4), and it is far more satisfactory to treat it as an analogous duty arising by implication at an earlier stage than that covered by article 5(4), rather than to treat article 5(1)(a) as incorporating it. We consider that a duty to facilitate release can and should therefore be implied as an ancillary duty - a duty not affecting the lawfulness of the detention, but sounding in damages if breached. Such a duty can readily be implied as part of the overall scheme of article 5, read as a whole ...” 55. The appropriate remedy for a breach of such a duty was not release of the prisoner but an award of damages for legitimate frustration and anxiety. Damages would be recoverable in respect of any period of extended detention which could be shown to have resulted after the expiry of the tariff period, whether the failure occurred before or after the expiry of the tariff period. A prisoner could also seek mandatory orders. 56. The Supreme Court noted that the prison service manager who reviewed Mr Kaiyam’s case accepted that there had been “regrettable delays” at some points. However, to say that more extensive coursework could have been made available to him was a very long way from saying that he had not been provided with a reasonable opportunity to rehabilitate himself and demonstrate that he no longer presented an unacceptable risk of serious harm to the public. According to the court, Article 5 did not create an obligation to maximise the coursework or other provision made to the prisoner, nor did it entitle the court to substitute, with hindsight, its own view of the quality of the management of a single prisoner and to characterise as arbitrary detention any case which it concluded might have been better managed. It continued: “60. ... It requires that an opportunity must be afforded to the prisoner which is reasonable in all the circumstances, taking into account, among all those circumstances, his history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use which has been made of such rehabilitative opportunity as there has been. It is plain that Kaiyam was not denied a fair or reasonable opportunity to rehabilitate himself or to demonstrate that his risk is acceptable. In the three years of his minimum term he was provided with courses in enhanced thinking, drug awareness and victim awareness. Sadly, his response was poor, there was doubt about his honesty, and his behaviour in prison attracted the many disciplinary adjudications mentioned above, all of which demonstrated that the risk he presented was far from removed. The transfer to HMP Long Lartin somewhat reduced the availability of rehabilitative courses, but there will inevitably be differences between prisons which can give emphasis to rehabilitation and those where the priority is security. It was his own misbehaviour which led to his transfer there, over a year after the expiry of his minimum term. The consequence was that PASRO, which was the course judged, plainly bona fide, as that most suitable for him, was not available. Even without PASRO, there was sustained one to one anger management work for over a year after transfer to HMP Long Lartin. Even if, with the benefit of hindsight, consideration of CALM and FOCUS courses involved some misjudgement, it was perfectly understandable. He very plainly had anger problems, whether or not his index offences were the result of loss of temper, and he very plainly had a drug-use and drug-supply background. The advice to take an SCP course was plainly a sensible expedient, given that transfer to a place where the first choice PASRO was available had proved unavailable despite considerable efforts. Once it was identified, SCP was begun within about two months. The attempts to find a transfer were clearly persisted in; they were complicated by Kaiyam’s wish to be in a prison near to his family, by the pending adjudication in May 2011 and by a ‘parole window’ in Spring-Summer 2012, quite apart from the competing needs of other prisoners in a large prison population. His case does not begin to approach the kind of failure of provision considered and chronicled in R (James). He was afforded reasonable opportunity to rehabilitate himself and to demonstrate that he was no longer a risk to the public, but did not do either. There was no breach in his case of the ancillary obligation under article 5.” 57. The Supreme Court referred to the Divisional Court’s finding that there had been a breach of the Secretary of State’s public-law duty because of an under-provision of the ESOTP. This did not, however, mean that the Secretary of State was under an obligation to provide the ESOTP to every prisoner for whom it might be suggested. The question was whether the Secretary of State had afforded Mr Robinson a reasonable opportunity to reform himself and to demonstrate to the Parole Board, by the time of tariff expiry or within a reasonable time thereafter, that he no longer presented an unacceptable risk to the public. As there were differences of opinion on this question among the members of the Supreme Court, two opinions were issued. 58. Lord Hughes, delivering the opinion for the majority, emphasised that the breach of the ancillary obligation under Article 5 which this Strasbourg court identified in James, Wells and Lee involved a wholesale failure to address rehabilitation. He continued: “86. ... It was of a quite different order from the complaint made by Robinson. Whereas the prisoners James, Lee and Wells in James v UK were left for a long time to languish in local prisons with no sentence planning and no rehabilitative work at all, no little effort was made with Robinson, who was provided with successive courses and had ample opportunity to change himself and to demonstrate that he was no longer a predatory sexual offender. The ETS and CSOTP courses with which he was provided supplied ample reasonable opportunity to do so. The latter in particular lasted six months or more and involved three or four sessions per week. Unfortunately, what was demonstrated was that Robinson remained a serious risk, since the initial scores for child abuse supportive beliefs proved false positives, and he remained manipulative, mistrustful and denying his principal offences, seeing himself as the real victim.” 59. Lord Hughes considered the strongest part of Mr Robinson’s claim to be the passage of time after the psychologist’s report of July 2008, before the ESOTP was begun in July 2013. However, in his view, since the minimum period was not due to expire until December 2012, there could have been very little complaint before at least the Secretary of State recognised the course as an objective in August 2010, and perhaps not until well after that. He further noted that in March 2011, still well before the expiry of the minimum period, there had been further detailed psychopathy assessment sessions. Although these were principally assessments rather than therapy, they provided ample opportunity to demonstrate change, or at least encouraging understanding of the true nature of what he had done. Instead, what those sessions revealed was that Mr Robinson still saw himself as the victim, denied his principal offences, believed that he had not harmed any of the children and remained manipulative. Lord Hughes continued: “89. ... There could be no clearer demonstration of the risk he continued to present. There has certainly been considerably greater delay in putting him onto the even more intensive ESOTP than one would choose to see in an ideal prison management system, but that is not the same as saying that he has not had a fair opportunity to reform himself or to demonstrate that he is no longer a danger. Despite the delay he was able to begin the ESOTP quite shortly after the expiry of his tariff. 90. There is a great danger, in considering Robinson’s case, of classifying the ESOTP as the acid test by which alone he could demonstrate his safety for release. Even if it were, it would not mean that he had not had reasonable opportunity to demonstrate this already. But it was not. The fact that the psychological recommendation that Robinson should take part in this programme did not have spoken conditions attached to it, does not mean that it was the only way in which he could demonstrate his safety. It was in fact neither a necessary nor a sufficient means of doing so. It was not sufficient since it is not designed to address the offenders’ sexual interest in pre-pubescent girls; even if made available, it would have been only part of the possible programmes which Robinson might have needed in the absence of his accepting that his behaviour, which he continued to characterise as innocent victimhood, was in fact a considerable danger to children, and in the absence of his recognition that it needed to alter. It was not necessary, because by this time he had had ample confrontation with his failings, and if he had recognised them and shown real willingness to change, for example in the course of the nine hours of interviews for the PCL-R assessment, then there may well have been no occasion for six months of ESOTP work.” 60. Lord Hughes emphasised that the responsibility for deciding what form of rehabilitative assistance was to be afforded to a prisoner had to rest with the individual State, providing that the minimum standard was met of a reasonable opportunity to him to demonstrate safety. The availability of limited resources, particularly at a time of national financial stringency, was an unavoidable factor. He continued: “91. ... The Core Sex Offenders’ Treatment Programme (“CSOTP”) administered in the prisons of England and Wales is of considerable intensity and makes extensive psychological demands on those offenders who take part in it. It is very likely that if it stood by itself it would meet the duty contemplated by James v UK and even more likely that it would do so if coupled, as it is, with the EST, BLB, HSP and other programmes, which are available. There is no legal obligation to provide an ESOTP course in the first place. It is simply one possible way of tackling recalcitrant attitudes in some prisoners and a welcome arrow in the quiver for the case of those who prove very difficult to change. To hold that a delay (including an unacceptable delay) in providing it constitutes a breach of article 5, via the ancillary duty recognised, would be likely to have the perverse effect of discouraging the prison service from providing it at all, and/or of discouraging recommendations for courses unless and until they are known to be shortly available, and/or of discouraging the prison service from devising and suggesting new forms of programme, especially if they are extremely expensive, as clearly the ESOTP is. All these effects would be an impediment to individualised prisoner assessment and management, and to eventual rehabilitation of those for whom it is possible.” 61. Lord Mance dissented, explaining that in his view a legislative scheme for IPP prisoners had to allow a reasonable opportunity to demonstrate safety and had to be accompanied by reasonable systems and resources to enable offenders to change and develop so as to be able to demonstrate that they were safe and to achieve release by tariff expiry or reasonably soon thereafter. As an element of this duty, he considered that there should be a reasonable degree of access for IPP prisoners to the ESOTP which many prisoners would need before they could hope to show that they were safe. That was the consequence of the scheme itself, under which it was otherwise inevitable that prisoners would languish in prison long after the tariffs set by reference to the seriousness of their actual offending. In his view, this was a consequence of the rehabilitative purpose of the IPP sentence. A finding that there was no breach of the ancillary duty in the present case could not, Lord Mance said, stand with the finding of the Divisional Court that the Secretary of State was in breach of his public law duty to make reasonable provision of systems and resources for the purpose of allowing Mr Robinson a reasonable opportunity to demonstrate to the Parole Board, by the time of tariff expiry on 10 December 2012 or reasonably soon thereafter, that he was safe to be released. He would therefore have upheld Mr Robinson’s appeal and awarded modest damages. 62. The Supreme Court upheld Mr Massey’s appeal. It said: “68. ... It is apparent that the less than two and a half years of his tariff (somewhat shortened, properly, by time spent on remand awaiting trial and sentence) was as well furnished with offender-behaviour work as one could reasonably expect. He first completed the ETS course, which is a frequent if not conventional first step, and he was placed on the CSOTP within his comparatively short tariff period. He completed the CSOTP in November 2009, and since it is a six month course it would appear that he must have been placed on it almost immediately after completing the ETS in April of that year. The SARN report which first mooted the ESOTP was in July 2010, so that there could never have been any prospect of his being both assessed for, and completing, the ESOTP by the time of his tariff expiry in September 2010. The chronology illustrates the fact that if standard, intensive, course work such as the CSOTP does not succeed and if lack of risk is not demonstrated at the end of it, it will be inevitable that a prisoner with this kind of tariff period will pass the end of the tariff without being able to be offered every course which the system has. 69. However, it is important to note that, no doubt mindful of the comparative brevity of his tariff, the Secretary of State by the formal letter of October 2010 effectively defined what was regarded as a reasonable opportunity for Massey to build on the partial progress which he had made and to demonstrate (if he could) that he was safe to release, namely over a two-year period. Neither this timetable nor anything approximating to it was honoured. Instead, it was not until after that period had come and gone that he was able to begin the ESOTP, and the letter shows that even if this produced a successful outcome, a further year or thereabouts was contemplated. We conclude that in Massey’s case there was a failure to provide him with the opportunity to try to demonstrate that he was safe for release which the Secretary of State regarded as reasonable. The assessment for ESOTP was in Spring 2011. If there had been a plentiful supply of places he might have been on it by about Autumn of that year, but no real complaint could have been made merely because this kind of course was not immediately available; if it had been provided in or about Spring 2012, there would we conclude have been no breach. There is thus an unacceptable delay of about a year, and all post tariff. The inference of legitimate frustration is justified and that period calls for an award of damages. Given that it was post tariff we assess it at £600.” 63. The relevant domestic law and practice is set out in the Court’s judgment in James, Wells and Lee, cited above.