EHRM, 18-09-2012, nr. 25119/09, nr. 57715/09, nr. 57877/09

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.

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.

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.

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.

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.

The domestic law, including the changes introduced by the 2008 Act, is set out in greater detail below (see paragraphs 124-142).

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.

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.

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.

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:

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.

On 12 January 2007 the Lifer Governor at HMP Manchester wrote that the number of lifer/IPP prisoners had increased to 192:

On 3 March 2007 Mr James' case was referred to the Parole Board in accordance with the standard procedure.

The Progress Report Summary prepared for the Parole Board by Mr James' Indeterminate Sentences Manager at HMP Doncaster, dated 2 April 2007, stated:

Under the heading ‘Recommendation for allocation or release’, the report continued:

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.

On 20 July 2007 Mr James' tariff period expired.

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:

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.

The Secretary of State appealed the decision of Collins J.

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.

The Court of Appeal heard the appeal in Mr James' case together with the appeal in Walker in November 2007.

On 21 December 2007 Mr James was transferred to HMP Lindholme, a first stage prison.

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.

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:

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:

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.

Lord Phillips accordingly concluded that IPP prisoners who had completed their tariff terms remained lawfully detained.

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.

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.

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).

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.

He concluded:

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.

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.

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:

On 28 March 2008 Mr James was released on licence.

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.

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.

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.

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.

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.

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.

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:

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

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).

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

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.

Granting Mr Walker's application for judicial review, Laws LJ concluded:

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.

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.

On 29 May 2008 Mr Wells' supervisor recorded his ‘almost intolerable’ frustration with his lack of progress.

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.

On 25 June 2008 Mr Wells completed an Alcohol Free Good Life course.

On 26 June 2008 Mr Wells was transferred to HMP Risley.

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:

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.

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.

In respect of Mr Wells, he concluded that there had been no breach of Article 5 § 1, noting:

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.

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.

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).

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 subsequently heard Mr Wells' appeal, together with the appeals of Mr James and Mr Lee, between 27 and 29 January 2009.

On 27 February 2009 Mr Wells requested a Parole Board hearing.

Mr Wells subsequently completed the CALM course (between 6 January 2009 and 3 March 2009).

On 6 May 2009 the House of Lords published its judgment in the three linked appeals (see paragraphs 100-121 below) and found that there had been no violation of Article 5 § 1 in Mr Wells' case. It also disagreed with the unappealed finding of Laws LJ that there had been a violation of Article 5 § 4.

A Parole Board hearing took place in Mr Wells' case on 6 November 2009. The Parole Board directed that Mr Wells be released on 30 December 2009.

On 23 February 2010 Mr Wells was recalled to custody for breaching the conditions of his licence. He currently remains in custody.

On 13 April 2005, while under the influence of alcohol, Mr Lee caused criminal damage to a flat in which his former wife and young children were present. He was arrested and remanded in custody the following day. He had a total of eight previous convictions, including offences of assault occasioning actual bodily harm and criminal damage. Following his conviction, on 2 September 2005 Mr Lee was sentenced at Bolton Crown Court to an IPP sentence with a tariff of nine months, less time spent on remand. His tariff period therefore expired 163 days after sentence.

A probation officer's pre-sentence report assessed Mr Lee as a medium risk of reconviction but a high risk of causing serious harm to Mrs Lee ‘or alternatively any other woman with whom he may form a close attachment’. A consultant forensic psychiatrist said that during childhood Mr Lee 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 Lee could therefore be said to suffer from a personality disorder with a mixture of dissocial, emotionally unstable and obsessional traits.

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

Mr Lee's tariff expired on 12 February 2006.

A Parole Board hearing took place on 30 June 2006 and the Board decided not to direct Mr Lee's release. The Parole Board noted that:

It concluded that:

In a report dated 13 August 2007 the prison probation officer reported that ‘due to the current overcrowding and difficulties with allocation of IPP prisoners to first stage lifer prisons, Mr Lee has not had the opportunity to sit a sentence plan Board’ and that he needed accredited courses.

The Parole Board fixed a further review of Mr Lee's case to take place in January 2008. However, the hearing was postponed due to the failure of the authorities to provide the necessary assessments and reports.

Mr Lee issued a judicial review claim on 27 February 2008 alleging that his detention breached Article 5 §§ 1 and 4. His case was joined with that of the second applicant, Mr Wells.

On 7 March 2008 Mr Lee was transferred to HMP Wymott where a number of assessments were carried out. On 20 June 2008 it was recommended that Mr Lee be assessed for the Healthy Relationships Programme (‘HRP’) to explore what psychological risk factors were present.

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

As noted above (see paragraph 61), judgment in the judicial review claim was handed down on 25 July 2008. Specifically as regards Mr Lee's claim, Moses LJ 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. Moses LJ also recalled that Mr Lee would not have ever been sentenced to IPP under the amended IPP regime (see paragraphs 134-138 below). He observed that the reports available showed a dramatic change in Mr Lee's 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 the Parole Board and not of the court. However, the court was nonetheless required to determine whether the continued detention of Mr Lee was lawful, a question which could not be deferred to the Parole Board.

On the facts of the case, Moses LJ concluded that there had been no violation of Article 5 § 1 in Mr Lee's case:

Mr Lee appealed the finding of Moses LJ that there had been no violation of Article 5 § 1 in his case. His appeal was heard directly by the House of Lords together with the appeal of Mr Wells.

Also on 25 July 2008 the Parole Board reviewed Mr Lee's case. However, it deferred its decision until receipt of Moses LJ's judgment (which it did not receive until 6 October 2008).

On 18 September 2008 Mr Lee was transferred to HMP Erlestoke to be assessed for the moderate version of the HRP.

On 24 October 2008 the Parole Board again deferred its review of the case until after Mr Lee's assessment for and, if appropriate, completion of the moderate HRP. It was anticipated that this would be done by January 2009.

Mr Lee was due to commence the three-month HRP programme on 30 October 2008. In the event, he did not do so, for reasons which are in dispute between the parties. A psychologist report dated 1 December 2008 recorded that there were aspects of the course which Mr Lee 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 Mr Lee should complete an accredited domestic violence programme preceded by motivational enhancement work. However, such motivational enhancement work was not available at HMP Erlestoke in the short term.

The Parole Board issued a decision on 22 December 2008 expressing concern about recent developments:

On 12 January 2009, the Parole Board adopted another decision, in which it summarised the position regarding Mr Lee:

As noted above, on 6 May 2009 the House of Lords published its judgment in the three linked appeals (see paragraphs 100-121 below). It found that there had been no violation of Article 5 § 1 in Mr Lee's case. It further disagreed with the concession of the Secretary of State that Article 5 § 4 had been breached.

A hearing of the Parole Board took place on 7 May 2009. In the week prior to the hearing, Mr Lee 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 Mr Lee would commence the HRP ‘in the near future’ at HMP Erlestoke, with a view to completion in October 2009 and a report being available by January 2010. The Parole Board hearing was adjourned to the first reasonably practicable date after 22 February 2010.

A Parole Board hearing took place in Mr Lee's case on 29 March 2010. In a reasoned decision dated 7 April 2010, the Parole Board declined to direct Mr Lee's release but recommended a transfer to open conditions. The Parole Board noted:

The Secretary of State authorised a transfer to open conditions on 4 May 2010.

On 1 October 2010 Mr Lee was transferred to HMP Kirkham. The delay in the transfer was due to transportation problems in the prison estate.

A Parole Board hearing took place on 11 July 2011. On 25 July 2011 the Parole Board directed Mr Lee's release. In its decision letter, the Parole Board noted, inter alia:

On 6 May 2009 the House of Lords unanimously dismissed the applicants' appeals.

The Parole Board is responsible for the release of prisoners sentenced to life imprisonment. Under section 28(5) of the Crime (Sentences) Act 1997 (‘the 1997 Act’):

Section 28(6) provides:

Section 28(7) provides that a life prisoner may require the Secretary of State to refer his case to the Parole Board at any time after tariff expiry and:

Section 34(1)(2)(d) of the 1997 Act (as amended by the 2003 Act) clarifies that ‘life prisoner’ includes a person serving an IPP.

The Secretary of State has issued directions to the Parole Board pursuant to section 239 of the 2003 Act. Direction 6, issued in 2004, provides, in so far as relevant:

(original emphasis)

Prison Service Order 6010 (‘PSO 6010’) on the generic parole process came into effect on 1 April 2009. It includes detailed provisions on the dossier which should be made available to the Parole Board in the case of IPP prisoners.

Committee of Ministers Resolution 76(2) of 17 February 1976 made a series of recommendations to member States regarding long-term and life sentence prisoners. These included:

Committee of Ministers Recommendation Rec (2003) 22 of 24 September 2003 recommended that member State 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:

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

Committee of Ministers Recommendation Rec (2003) 23 of 9 October 2003 sets out three objectives for the management of life sentence and other long-term prisoners. One 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.

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

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 (2006) 2 of the Committee of Ministers to member States on the European Prison Rules of 11 January 2006 (‘the European Prison Rules’) includes in its basic principles:

Paragraph 103 concerns sentence planning and provides:

On the release of sentenced prisoners, the European Prison Rules provide:

Article 10 of the International Covenant on Civil and Political Rights 1966 provides:

The United Nations Standard Minimum Rules for the Treatment of Prisoners (‘the UN Rules’), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955 and approved by the Economic and Social Council on 13 May 1977, include in their general principles the following:

Specific provisions on treatment include:

The United Nations Report on Life Imprisonment 1994 notes, at paragraph 38:

The report continues at paragraph 40:

Finally, at paragraph 69, the report concludes:

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Court considers that these complaints raise complex issues of fact and law which cannot be resolved at the admissibility stage. It follows that the complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established. They must therefore be declared admissible.

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.