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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> GJD v Governor of HMP Wakefield Secretary of State for Justice  EWHC 345 (Admin) (25 February 2016)
Cite as:  EWHC 345 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|GOVERNOR OF HMP WAKEFIELD
SECRETARY OF STATE FOR JUSTICE
David Lowe (instructed by Government Legal Department) for the Defendants
Hearing dates: 13th and 14th January 2016
Crown Copyright ©
Mr. Justice Edis :
i) That the whole of his detention from 2nd August 2006 was unlawful and therefore a violation of Article 5 of EHCR. This is because the sentence of IPP was not available to the Crown Court which imposed it. He accepts that the order of the Court of Appeal in February 2015 cured that unlawfulness prior to 22nd November 2013.
ii) That the defendants failed to apply their own policies in providing sentence planning and rehabilitation work.
iii) That the defendants failed to provide the means for prisoners to access necessary offending-behaviour work to achieve reduction of risk and to satisfy the Parole Board that safe release was possible.
iv) (ii) and (iii) are said to constitute breaches of the defendant's public law duties and also to involve violations of Article 5 of the ECHR.
Right to liberty and security
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law
(a) the lawful detention of a person after conviction by a competent court;
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
The unlawful detention claim: direct breach of Article 5
Lawfulness in domestic law
"40. The main issue to be determined in the present case is whether the disputed detention was "lawful", including whether it complied with "a procedure prescribed by law". The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness.
"42. A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect that validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law."
"There are many words in common usage in the law which have no precise or constant meaning. But few, I think, have been used with so many different shades of meaning in different contexts or have so freely acquired new meanings with the development of the law as the word jurisdiction."
"47. Nor does the Court find that the detention was arbitrary. It has not been suggested that the magistrates who ordered B's detention acted in bad faith, nor that they neglected to attempt to apply the relevant legislation correctly."
"As a consequence a deprivation of liberty which is lawful under domestic law can still be arbitrary and thus contrary to the Convention. While the court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute "arbitrariness" for the purposes of Article 5.1, key principles have been developed on a case by case basis…."
i) Bad faith or deception by the court;
ii) A failure to attempt to apply the legislation correctly;
iii) The absence of any or any sufficient reasons being given by the judicial authority by reference to any legal provision which would have permitted the applicant's detention.
"27. If the Crown Court has passed a sentence that it had no power to impose (such as by exceeding the maximum sentence prescribed by law, or a sentence on an individual who was not of an age that permitted such a sentence), that sense, the sentences imposed were unlawful, i.e. in excess of jurisdiction. Much more commonly, however the Court of Appeal differs in its assessment of the merits of a particular case."
"29. In any event, the language used must not mask the effect of the sentence when passed as to which there is a long line of authority. In R v. Cain  AC 46, the House of Lords considered jurisdiction to appeal a criminal bankruptcy order where it was contended that the Crown Court had exceeded the power conferred by Parliament…."
"32. In the light of this analysis, I have no doubt that the appellant remained subject to imprisonment for public protection until the Court of Appeal allowed his appeal and reduced the sentence to the determinate term. Furthermore, the other domestic authorities cited in support of the proposition that a quashed sentence is unlawful and rendered of no effect do not support the contrary proposition. Mr. Rule's submissions were over-laden with excessive citation of authorities, clearly distinguishable by reference to the subject matter…"
i) That the court did not have jurisdiction over the case itself;
ii) That it sentenced in a procedural manner which involved a gross and obvious irregularity;
iii) that it made an order that had no proper foundation in law because it failed to observe a statutory condition precedent; and
iv) That it acted in a way that was arbitrary by virtue of bad faith or a failure to attempt to apply the law.
"….to engage this aspect of Benham it must be the exercise of power in a way that reveals a gross and obvious irregularity: in this case, although there were errors in the summing up, whether considered individually or cumulatively, they fall far short of being so serious and egregious as to amount to gross and obvious irregularities."
"..the detention of the appellant was justified by reference to the objectives of the sentence which he was then serving and the requisite causal link was present."
"21. In reviewing the matter, we have considered the whole of the material before us. We would again emphasise that it is important to appreciate that the appellant (as he now is) pleaded not guilty at his trial. It is evident from a number of reports before us that, in the period both before and after the passing of the sentence by the judge, he has sought to minimise his responsibility for the offence.
22. It is also clear from the documentation before us, all of which we have carefully considered, that, despite the very substantial efforts that have been made whilst he has been in prison, the appellant remains a significant risk of causing a high degree of serious harm to young females. Thus, there is nothing in the papers before us which would indicate that we should mitigate in any way the alternative sentence that we have to consider, namely, the sentence under section 80 extending the custodial term, or an extension of the licence period."
The breach of the ancillary Article 5 duty
"You admit to having been reluctant initially to participate but shortly after the course began, you recognised that it could be useful to you and you told the Offender Manager that you gained quite a lot from it. However the SARN post programme report says that you continue to have a limited understanding of your treatment needs and it is considered that you might benefit from suitable support to enable you to discuss your offending. As a consequence it is recommended that you should undertake the Rolling SOTP programme, possibly beginning with 1:1 work, should it be possible to make this available to you."