Secretary of State for Justice v Walker  EWCA Civ 30 (1 February 2008) In this decision, the UK Court of Appeal found that there may be a breach of arts 5(4) and 5(1)(a) of the European Convention on Human Rights where a prisoner is detained for longer than is necessary for the protection of the public. These provisions may also be infringed where a prisoner is detained for a lengthy period without a meaningful review of the risk that they pose to the public.
The Secretary of State for Justice in the United Kingdom has a policy for the treatment of prisoners serving life imprisonment and indeterminate sentences for public protection (‘IPPs’). One objective of this policy is to release such prisoners at the expiry of their minimum term (or ‘tariff period’), if they can demonstrate that their continued detention is no longer necessary for the protection of the public. To have any prospect of being released, these prisoners need to attend offending behaviour programs, which are mostly available at First Stage lifer prisons. First Stage lifer prisons are typically for male adults whose escape would be dangerous to the public. Under the policy, detention at such a prison is the first of three stages of a life sentence.
The respondents, Mr Walker and Mr James, were both sentenced to IPPs, with tariff periods of less than five years. They were detained at a local prison and unable to move to a First Stage lifer prison, due to a lack of vacancies. As such, the respondents had no access to the courses needed to demonstrate that their release after the tariff expiry was justified.
The respondents argued that the conduct of the Secretary of State, in failing to provide for access to the programs, infringed, or was capable of infringing, their rights under arts 5(1) and 5(4) of the Convention.
Article 5(1) of the Convention prohibits the deprivation of a person’s liberty. One exception to this prohibition is ‘the lawful detention of a person after conviction by a competent court’: art 5(1)(a). Under art 5(4), anyone who is deprived of their liberty is entitled to challenge the lawfulness of their detention, and to be released if their detention is not lawful.
European Court Jurisprudence
The Court first considered jurisprudence of the European Court of Human Rights, which has recognised that an indeterminate prison sentence can only be justified by art 5(1)(a) where it is necessary to protect the public. In such circumstances, art 5(4) requires a court to undertake periodic review to decide ‘whether or not the detention remains justified’.
The Court then considered two domestic decisions involving alleged infringements of arts 5(1) and 5(4).
In R (Noorkoiv) v Secretary of State  EWCA Civ 770, it was held that a delay of two months between the claimant’s tariff expiry and parole hearing infringed his art 5(4) right, but not his art 5(1) right. The Court endorsed these findings, and observed that the detention of a dangerous prisoner will be justified under art 5(1)(a), even where it is not subject to periodic review that satisfies art 5(4). However, if a lengthy period passes without such a review, the detention may cease to be justified.
In R v Secretary of State ex p Cawser  EWCA 1522, the Court held that the appellant’s detention was justified under art 5(1)(a), despite a delay in arranging for him to attend a sex offender treatment program.
Application of Jurisprudence
First, the Court found that if the respondents remained in the local prison, the conduct of the Secretary of State would be likely to infringe art 5(4). This conduct prevented an assessment of whether their detention was necessary for public protection, and thereby gave them ‘no realistic prospect of being released’. As such, a stage may be reached where the respondents have been prevented from ‘making a meaningful challenge to the lawfulness of [their] detention’.
Second, the Court found that the respondents’ art 5(1)(a) rights had not yet been infringed. Namely, their detention remained necessary for public protection, and had not yet become ‘disproportionate or arbitrary’. The Court highlighted that non-compliance with art 5(4) ‘will not, of itself, result in infringement of art 5(1)(a)’. However, it also suggested that ‘the prevailing situation … may ultimately … result in infringement of art 5(1)’.
Implications for the Victorian Charter
This decision may have implications for ss 21(1) and 21(3) of the Victorian Charter, which are very similar to art 5(1) of the Convention. It may also be relevant to s 21(7) of the Charter, which is very similar to art 5(4).
The decision suggests that there may be a breach of ss 21(1), 21(3) and 21(7) of the Charter where a prisoner is detained for longer than is necessary for public protection. These provisions may also be infringed where a prisoner is detained for a lengthy period without a meaningful review of the risk that they pose to the public, such that their detention becomes ‘disproportionate or arbitrary’.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2008/30.html.
Brinsley Saw, Human Rights Law Group, Mallesons Stephen Jaques