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Cite as: [2016] EWHC 345 (Admin)

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Neutral Citation Number: [2016] EWHC 345 (Admin)
Case No: CO/3569/2014


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


- and -




Philip Rule (instructed by EBR Attridge LLP) for the Claimant
David Lowe (instructed by Government Legal Department) for the Defendants
Hearing dates: 13th and 14th January 2016



Crown Copyright ©

    Mr. Justice Edis :

  1. This claim for Judicial Review is brought with permission granted by Kenneth Parker J on 23rd June 2015 after an oral hearing. Some of the history of this case is already in the public domain in the judgments of the Divisional Court and Court of Appeal Criminal Division handed down on 17th February 2015, [2015] EWHC 3501 (Admin) and [2015] EWCA Crim 599. The Sexual Offences Act 1992 applies to protect the victims in the two prosecutions of the claimant which are relevant to the sentencing which is the subject of this claim. No material may be published during their lifetimes which may lead to their identification as victims of sexual crime. This is why this judgment does not identify the claimant by name. He was named in the proceedings and the judgment is drafted in this way so that it can be published without a breach of the Act.
  2. The Secretary of State for Justice is the Second Defendant. He was joined as such in his capacity as the minister responsible for prisons. It has recently become apparent that the claimant advances a claim in relation to a judicial act, in addition to his claim about the way in which his prison sentence has been administered. By section 9(4) of the Human Rights Act 1998 the Lord Chancellor is a necessary defendant to such a claim. The Lord Chancellor and the Secretary of State for Justice are, of course, the same person. A procedural issue has arisen as to whether the Lord Chancellor should be formally joined. I propose to deal with the case on the basis that the Lord Chancellor is a defendant to the claim although not named as such in the title to the action. A formal amendment could be made to cure any technical defect but this would cost some money and achieve nothing. I also propose to deal with the claim without regard to any limitation defence. There are challenges here to decisions made long ago as well as to more recent ones. If I am persuaded that they have merit, I will grant any necessary extension of time. If not, they will fail on the merits. This is because the claim raises a question about whether the claimant was lawfully imprisoned and the true status of that sentence was only established in the proceedings described at paragraph 1 above.
  3. The history

  4. The essential chronology is that in 2006 the claimant was convicted of raping his daughter who was under the age of 13 at the time of the offence. On 2nd August 2006 he was sentenced to imprisonment for public protection (IPP) with a specified minimum term (tariff) of 6 years less 254 days served on remand. As will appear, that was not a lawful sentence. The tariff was fixed by the sentencing judge in the conventional way. This involved identifying a notional determinate sentence for the offence. That was fixed at 12 years. The tariff would not be subject to the early release provisions allowing release after ˝ of the time specified, whereas the notional determinate sentence would be. The tariff was therefore reduced to 6 years so that it equated to the notional determinate sentence in its practical effect. The time served on remand prior to sentence also had to be deducted by order of the court.
  5. The tariff expired on 22nd November 2011 but the claimant was not released until after the order of the Court of Appeal in February 2015. This was because the Parole Board had not decided that it was no longer necessary in the public interest for him to be confined. IPP was a sentence which was available under the Criminal Justice Act 2003 for offences committed after the relevant provisions came into force on 4th April 2005 until it was abolished in December 2012 by the Legal Aid Sentencing and Punishment of Offenders Act 2012. The rape took place between 2nd August 2004 and 31st January 2005. It was therefore committed before the 2003 Act came into force and this is why the IPP sentence was unlawful in the sense which I explore further below. The Court of Appeal expressed astonishment that no-one had noticed this until these proceedings came to be amended in December 2014 (a year after the letter before action). Even when these proceedings were first issued to challenge aspects of the sentence, it was not appreciated that the sentence had been unlawful from the start. No application for leave to appeal out of time to the Court of Appeal Criminal Division or any other relief was made by the claimant's new lawyers soon after they were instructed which was in 2013. They did not do this because they did not know the date of the relevant offence. It appears that it was not stated in the documents which they obtained when they were first instructed. They did not receive any document specifying the date of the offence until November 2014 when they obtained the Pre-Sentence Report. This judgment is not concerned to allocate blame, if there is any, for the fact that no proactive enquiry was made by the new lawyers into the facts of the offence for which the claimant had been sentenced. I have simply not considered the scope of their duty in that regard. If there is any blame it is shared. It is an unhappy fact that the legal error was made by the judge, and missed by the trial lawyers. The new lawyers no doubt assumed that the sentence must have been within the powers of the sentencing court because the system is designed to ensure that this is so. The Parole Board also considered the case on a number of occasions during the sentence but no-one appreciated the problem on those occasions either.
  6. The pre-action protocol letter submitted on behalf of the claimant was dated 30th December 2013 and made lengthy complaints about the courses he needed to go on before he could be released. In fact, his release ought not to have been conditional on any courses being completed and this was a diversion of effort.
  7. On 5th November 2014 His Honour Judge Anthony Thornton QC granted a stay of these proceedings to await the decision of the Supreme Court in R (Kaiyam) (Haney) (Massey) (Robinson) v. Secretary of State [2014] UKSC 66; [2015] AC 1344 which I shall deal with below and refer to as Kaiyam. By that date the claimant should have been at liberty already and Kaiyam had only a limited relevance to the issues in this case. Judge Thornton did this because he was asked to do so, and no-one had by then appreciated that the IPP sentence should not have been passed. The decision in Kaiyam was handed down on 10th December 2014 and the claimant filed amended grounds on 31st December 2014, finally raising the real point in the case. Instead of making an immediate application for leave to appeal out of time and bail to the Court of Appeal Criminal Division, the claimant issued an application for a Writ of Habeas Corpus. Mr. Philip Rule who appears for the claimant before me, told me that he had decided that this was the right procedure. He was concerned that an application for leave to appeal out of time would involve a long delay and felt that the application for habeas corpus was the quickest route to a solution. The Divisional Court held that although the sentence was beyond the powers of the sentencing judge, her order was lawful until set aside by the Court of Appeal Criminal Division. It declined an invitation to reconstitute itself as a Court of Appeal Criminal Division and adjourned the application so that a Notice of Appeal could be lodged to initiate the appeal formally. Mr. Rule had obtained a direction from the single judge in the Administrative Court that the case should be listed before a Divisional Court "which can, if necessary, re-constitute itself as a Court of Appeal Criminal Division" and had raised the issue in correspondence with the court. The Divisional Court did not proceed as Mr. Rule and the single judge thought it might. This was because the answer to the appeal was not straightforward. It was clear that the IPP sentence could not stand, but the order which should be made in its place required careful consideration by the Court of Appeal following its usual procedures. The appeal came on for hearing quickly and the court first sat as a Divisional Court and dismissed the habeas corpus claim. A hearing before the Court of Appeal then followed immediately and the appeal was decided as described above.
  8. The Court of Appeal (after a formal application was finally made to it on 30th January 2015) quashed the sentence and substituted a determinate sentence of 12 years' imprisonment (the equivalent of the minimum term imposed by the Judge) and an extended licence period under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 and a Sexual Offences Prevention Order. The terms of the licence and the Sexual Offences Prevention Order were designed to reflect the finding by the Court of Appeal that this claimant is a very serious sexual offender who is dangerous within the meaning of the 2003 Act.
  9. This does not mean that the Court of Appeal decided that the proper sentence in 2006 should have been that which it imposed. The claimant had a previous conviction for a very similar offence when he came to be sentenced in 2006 against another of his children. The court was careful not to express any view on whether a life sentence might have been imposed at the Crown Court in under the regime which applied before the 2003 Act came into force Since it had no power to substitute such a sentence that issue simply did not arise. It is important to appreciate that a life sentence may well have been imposed by the sentencing judge, if she had properly appreciated her powers in 2006, or by the Court of Appeal, if it had had a free hand to decide the sentence for itself in an appeal brought in 2006. I am not expressing any disagreement with it when I say that the result of the appeal was by no means the only proper result available to a sentencing judge in 2006. An IPP sentence and a life sentence were very similar in their effect, although they were arrived at by different routes. The judge did in fact consider the imposition of a life sentence and, had she appreciated that such a sentence was the only way of imposing an indeterminate sentence for the protection of the public, may well have imposed one.
  10. Because of section 29(4) of the Criminal Appeal Act 1968 the term of the sentence passed by the Court of Appeal began to run from the time when it would have begun to run if passed in the 2006 proceedings. This means that the claimant was entitled to be released after two thirds of the sentence, that is on 22nd November 2013. The sentencing regime which existed prior to the dangerousness provisions and the early release provisions of the 2003 Act continued to apply to offences committed before their commencement. That sentencing regime provided for release on licence after two thirds of sentences in excess of four years. It also means that, on any view, until that date he was detained lawfully under a lawful sentence. This case concerns the period between 22nd November 2013 and the date in February 2015 when he was finally released.
  11. The order of the Court of Appeal therefore brought about the release of the claimant from prison. Apart perhaps from a declaration, the claimant now seeks no public law remedy and this claim is, in truth, a private law claim for damages relating to the period of detention between November 2013 and February 2015, and for damages because of an alleged failure to provide a reasonable opportunity to rehabilitate himself between May 2012 and a date in either 2013 or 2014. Declaratory relief would serve no useful purpose in a case where the lawfulness of the claimant's detention has now been resolved by the orders of the Divisional Court and the Court of Appeal. The damages are sought under the Human Rights Act 1998 and no claim in tort is advanced.
  12. The Grounds for Judicial Review have been amended and supplemented during the course of these proceedings. They now run to 38 pages. They contain extensive material outlining the route to the result in Kaiyam. As first drafted, before the claimant's lawyers appreciated that the IPP sentence was unlawful, the claim relied on the well-known difficulty which the IPP sentence involved. Those sentenced in that way could only be released if the Parole Board was satisfied that it was no longer necessary for the protection of the public for them to be confined (see section 28 of the Crime (Sentences) Act 1997). In order to demonstrate that they could be released safely, offenders were required to complete courses and other activities. They had to progress through the system. Because of the prison population and the lack of resources in the system those courses and activities were often not available, or not available soon enough to enable the Parole Board to consider release at the end of the specified minimum term. Offenders might therefore serve longer than the punitive element of the sentence without ever having been given a reasonable opportunity to demonstrate that it was safe to release them. This state of affairs often involved a breach by the Secretary of State for Justice of a public law duty, see James and others v. Secretary of State for Justice [2010] 1 AC 553 at paragraph 3 per Lord Hope. That duty has been further explained recently by the Supreme Court in Kaiyam which principally concerned the impact of Article 5 of the ECHR on this situation.
  13. In summary, the claimant now contends
  14. 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.

  15. These submissions fall into two distinct parts: the unlawful detention which is said to be a direct breach of Article 5 and the failure to provide a reasonable opportunity for rehabilitation which is said to be a breach of the ancillary duty in Article 5 recognised in Kaiyam. Article 5 is at the heart of the claimant's case on both limbs and I will set it out here so far as relevant:-
  16. ARTICLE 5
    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;
    (b) …….
    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

  17. It will be observed that Article 5 concerns the lawfulness of the detention concerned, and not, directly, the order of the court which required the detention. The answer to the claimant's contention that the detention was unlawful as a matter of domestic law is short: it was rejected by the Divisional Court in the application for a Writ of Habeas Corpus against the Governor of Her Majesty's Prison Grendon on 17th February 2015. The sentence of Judge Butler QC was unlawful in the sense that it exceeded her powers but until set aside by an appeal court having statutory jurisdiction to do so it was a valid order of the Crown Court and the defendants in this case were required to obey it. The defendant was sent to prison following conviction for a serious offence by a court which had power to impose a maximum sentence of life imprisonment. Such is the complexity of modern sentencing legislation that courts make mistakes as to their powers quite frequently. Such errors are corrected by the appellate process when detected. The system contains safeguards for the person detained which did not function correctly in this case. They include representation by skilled lawyers at the public expense.
  18. It does not follow that if Judge Butler QC had correctly appreciated her sentencing powers the claimant would have been at liberty between November 2013 and February 2015. As the Court of Appeal said at paragraph 17, her options included a life sentence and an extended determinate sentence under section 80 of the Powers of Criminal Courts (Sentencing) Act 2000. Section 80 contained the power to pass a sentence which was longer than a sentence commensurate with the seriousness of the offence where necessary for the protection of the public. Although the Court of Appeal did not exercise either of these powers as things stood in 2015, I find that Judge Butler QC would probably have done so if she had realised in 2006 that she could not impose IPP. This is a finding of fact based on what happened in the Crown Court in 2006 and my own experience of the sentencing process. This claimant's previous conviction in 1989 was for an offence which was charged as incest, but his child was too young to consent to sexual intercourse. In 2006 he fell to be sentenced for an extremely serious sexual offence against a child having already been convicted of a very similar offence. The protection of the public would have been at the forefront of the judge's mind. Had she elected to impose a life sentence or a section 80 sentence, the claimant would, on the balance of probabilities, still be in custody now. The effect of her mistake was therefore to cause the release into the community of a man whom the Parole Board had decided should still be confined in the public interest. There is therefore no causal link between her mistake and the relevant period of detention. She had power lawfully to detain him during it, and she would probably have done so. She chose an unlawful way of doing something which was lawful and proportionate. To the limited extent to which IPP was a lesser sentence than a life sentence, she had jurisdiction to impose a more severe sentence than she actually passed. None of this conflicts with the decision of the Court of Appeal Criminal Division which had to deal with things as they were in 2015.
  19. My finding in the preceding paragraph does not only go to causation. It also explains the nature of the error in the order made by Judge Butler QC in 2006 which caused the Court of Appeal to quash it. This is important in assessing whether it was such as to render it unlawful for the purposes of Article 5(1)(a) and of deciding whether her order was not made in accordance with a procedure prescribed by law for the purposes of Article 5(1). In Benham v. United Kingdom 22 EHRR 293 at 40 and 42 the court said this
  20. "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."
  21. Although the Strasbourg court will review for itself the lawfulness of detention under domestic law, I consider that I am bound by the decision of the Divisional Court in this case on that issue. The order of the Crown Court was valid until quashed and the detention under it was lawful as a matter of domestic law. The issue is whether notwithstanding that it was arbitrary in some way which violated Article 5.
  22. Arbitrariness

  23. It is difficult to extract a rule from the Strasbourg jurisprudence which has been cited to me which will assist in deciding whether an error as to the existence of a particular sentencing power in the Crown Court is capable of amounting to a violation of Article 5 and, if so, in what circumstances. Mr. Lowe, who appeared for the Secretary of State before me, analysed Benham v. UK and submitted that its reference to decisions of courts which were taken in excess of jurisdiction being unlawful for the purposes of Article 5 should not be applied to the Crown Court. This is because the jurisdiction in question there was that of the magistrates and the domestic law which the court considered was derived from McC v. Mullan [1985] AC 528. That case concerned the law relating to immunity from civil suit of those exercising judicial functions in the United Kingdom. Magistrates enjoyed a limited immunity and it was relevant to decide whether a particular decision had been within their jurisdiction or not in order to decide whether the immunity applied. Judges in the superior courts enjoy an immunity which is not limited, and it was not necessary to consider the same question in respect of them. I consider that there is force in Mr. Lowe's submission that these decisions are of limited value in deciding whether a sentence passed by a Crown Court exercising a power which is not available in the particular case is guilty of arbitrariness for the purposes of Article 5. That was not, after all, what they concerned. The Strasbourg court decided that Benham's detention was lawful as a matter of domestic law because it was within the jurisdiction of the Magistrates. I have already resolved the domestic law issue.
  24. I have been invited to consider whether the error was such a gross and obvious irregularity that it violates Article 5 notwithstanding its lawfulness as a matter of domestic law. There has been debate before me about whether this is a free-standing part of the test to be applied to the claim, or whether it is a way of measuring arbitrariness. The argument is in my judgment somewhat academic. It is clear that this test is part of the required assessment and how it was derived is not a matter of the first importance. I propose to decide the case fundamentally by deciding whether the order of Judge Butler QC was arbitrary in the sense explained below and to use the "gross and obvious" test as part of that assessment.
  25. No doubt the word "jurisdiction" is relevant in assessing what is arbitrary, but it is not appropriate to be caught up in technicality. As Lord Bridge in Mullan observed
  26. "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."
  27. Some decisions which may be described as in excess of jurisdiction will be arbitrary but others to which that phrase may be applied will not be.
  28. The decision in Benham on the arbitrariness issue is of interest in identifying a test of arbitrariness:-
  29. "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."
  30. In Mooren v. Germany (2010) 50 EHRR 23 the court said this at [77]:-
  31. "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…."
  32. The court then identified three categories as having emerged by this process:-
  33. 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.

  34. If it was enough that the legislation had been misapplied, an enquiry into whether the court had made an attempt to get it right before misapplying it would be superfluous.
  35. From this review of authority I conclude wthat a court which does its best to apply the law in good faith will not generally be acting arbitrarily for the purposes of Article 5 simply because it makes a mistake as to the existence of a particular power. A person detained by order of a court in a system which includes an appellate jurisdiction for the correction of errors will not generally be able to complain that this detention was arbitrary. No doubt some errors may be so flagrant and recklessly made that the result cannot be properly characterised as a judicial act at all. Want of power to make an order of the kind made may in some cases be evidence supporting such a finding, but it will not generally suffice on its own. Want of a particular power is not the same thing as lack of jurisdiction in the usual sense. The Crown Court has jurisdiction to sentence those convicted of rape and power to do so which includes a power to impose a life sentence.
  36. It is necessary to consider whether the statement of the law at paragraph 26 above is consistent with recent UK authority. Consideration of Bayliss v. Parole Board [2014] EWCA Civ 1631, Wright v. Lord Chancellor [2015] EWHC 1477, Webster v. Lord Chancellor [2015] EWCA Civ 742 and LL v. Lord Chancellor [2015] EWHC 3273 (QB) will suffice for this purpose.
  37. Bayliss was a claim for judicial review against the Parole Board. By the time it was determined, it was a claim for damages for unlawful detention in violation of Article 5 because the claimant had been released. He had been sentenced to IPP. The Parole Board had not released him at the end of his tariff. The Court of Appeal Criminal Division later quashed his sentence and substituted a determinate sentence from which he was released. That case was very much like the present except that the IPP was not quashed because there had been no power to impose it, but because the Court of Appeal Criminal Division took a different view of the risk posed by the claimant from that of the sentencing judge. The Court of Appeal Civil Division explained this distinction in the judgment of Sir Brian Leveson, President of the Queens Bench Division:-
  38. "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."
  39. The Court concluded that the case before it was one where the sentencing judge had acted within his jurisdiction. The sentence was lawful and the appellant remained subject to it until it was quashed. Mr. Rule relies on this passage and submits that it follows that in the present case the outcome must be different because it falls in the first category identified by Sir Brian Leveson and not the second. This ignores paragraph 29 of the judgment which appears just below the passage just cited:-
  40. "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 [1985] 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…."
  41. The judgment then cites a passage from Cain and two other authorities to the same effect and continued:-
  42. "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…"
  43. This means that Mr. Rule's argument in that case was hopeless because the Crown Court had acted within its jurisdiction and imposed a lawful sentence. Even if it had not done so, and if the sentence was unlawful in the sense described in paragraph 27 of the judgment, the case was still doomed to fail on clear authority. As I have said, Mr. Rule submits that this decision is in his favour. It is not. It dismisses the argument which he has sought to advance before me. Further, having decided that there is no operative distinction in domestic law between the two classes of case identified in paragraph 27, the court considers the argument that there should be no distinction either when it comes to Article 5(1). The court then refers to Benham and Kryzcki v. Germany [1978] 13 DR 57 and comes to the conclusion that this is the case.
  44. In Wright v. the Lord Chancellor [2015] EWHC 1477 (QB) McGowan J dismissed a claim for damages under the Human Rights Act 1998 following the quashing by the Court of Appeal Criminal Division of extended sentences which were unlawful (in the Bayliss category 1 sense) because the total term of the sentences imposed exceeded the maximum available. The claim relied on Article 5(1) and the defendant submitted that the claimant had to establish not only that the sentences were unlawful but that it was so flawed as to be in excess of the jurisdiction of the Crown Court. This was to be tested, said the defendant, by requiring the claimant to establish at least one of the following four failings:-
  45. 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.

  46. McGowan J accepted that submission and applied that test. She did not need to decide whether it was the correct test because the defendant's approach favoured the claimant, although she dismissed his claim because he had failed to satisfy the proposed and, it appears, agreed test. Part (i)-(iii) are derived, essentially, from the approach taken in Benham to the question of determining whether the sentence was within the jurisdiction of the magistrates as a matter of domestic law. The "gross and obvious" test is undoubtedly part of the relevant test whether in the assessment of compliance with domestic law or as part of the arbitrariness assessment, see Mooren v. Germany [75] and the domestic authorities reviewed below. Part (iv) concerns the different question of arbitrariness but does not specify all varieties of arbitrariness which might arise because they have not been comprehensively formulated by the Strasbourg court, see Mooren cited above. The detention pursuant to an order of the Crown Court was lawful as a matter of domestic law, see the Divisional Court decision in this case and Bayliss, and it was only arbitrariness which really remained for decision. McGowan J found that the detention was not arbitrary.
  47. Sir Brian Leveson P, with whom the other members of the Court agreed, dismissed an appeal by the claimant in Webster v. Lord Chancellor [2015] 3 WLR 1909; [2015] EWCA Civ 742. This was decided after Bayliss which was not cited although it must have been in Sir Brian's mind. The claimant had served a substantial period of imprisonment following a conviction which was later quashed by the Court of Appeal. He sought damages relying on the enforceable right to compensation in Article 5(5) of the Convention. The court reviewed Benham, McC (A minor) and Krzycki v Germany, all cited above. The judgment proceeded on the basis that Benham applies to decisions of the Crown Court and that a "gross and obvious irregularity" in the proceedings there will found a violation of Article 5. None existed, and the claim failed. Sir Brian said this at [46] about how that test is to be applied:-
  48. "….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."
  49. Foskett J had a similar task in LL v. Lord Chancellor [2015] EWHC 3273 (QB) in which he determined a claim for damages by a man who had been imprisoned for contempt of court in Family Proceedings by a High Court Judge. The Court of Appeal Civil Division quashed that order. Foskett J analysed the authorities and concluded that the essential test for determining Article 5 compliance in this kind of case was whether a gross and obvious irregularity was revealed by the way in which the power was exercised when the order detaining the claimant was made. He relied on Webster. He concluded that the threshold for such claims following a judicial determination is very high and cited Mooren v, Germany. In paragraph 21 he observed that there are certain difficulties in reconciling the "gross and obvious" test with Cain and held that he did not need to resolve them because he was prepared to accept that gross and obvious irregularities by a judge should, if demonstrated, lead to compensation. He found that it was not demonstrated on the facts in that case.
  50. I therefore conclude that the statement of the law at paragraph 26 above is correct. In deciding whether a claim for damages should succeed following the quashing of a sentence by the Court of Appeal Criminal Division, the court should apply the "gross and obvious irregularity test" remembering that the claimant is fundamentally required to establish that the decision was arbitrary in the sense used in Mooren. A properly considered judicial decision is the opposite of arbitrariness even if it should transpire that the judge has made an error which she ought not to have made. It is in that context that the words "gross and obvious" have to be understood.
  51. In my judgment, the decision of the sentencing judge in this case cannot be so categorised. She followed a fair procedure and heard from both sides. She gave a reasoned judgment following a genuine attempt to apply the law. She acted in good faith. She made a mistake about her sentencing powers which she ought not to have made. In that mistake she was not assisted by counsel on either side whose duty it was to correct her. No-one noticed for years afterwards. If the mistake had been appreciated before sentence in 2006 she could, and in my judgment probably would, have imposed a sentence which would have caused the claimant to be detained during the relevant period in any event. She did have power to achieve that but not the power she exercised. It is not only the UK authorities which refer to a high threshold in this kind of case. The Strasbourg authorities also refer to such a remedy as exceptional. In my judgment the detention was lawful as a matter of domestic law and not arbitrary.
  52. A separate ground on which detention may be arbitrary arises where there is no longer a causal link between the detention and the offence, or the risk which the offender presents: James and others v. United Kingdom (2013) 56 EHRR 12, and Kaiyam. This could arise during indeterminate sentences where the parole system is unable to function for extended periods because the Parole Board is unable to form a proper view of dangerousness. If that is so, then the continued detention may be a result of that bad management rather than the offence or any continued risk posed by the offender. I do not consider that this argument is open to the claimant in this case. It involves an evaluation of the nature of the offence and the risk posed against the length of the detention, in the sense that it is necessary to consider the operative cause of the claimant's detention at the time of the assessment by the court. Had he committed his offence in 2006, rather than 2004, the IPP would have been lawful. The offence and the risk in each case are the same. The difference is a change in the law as to sentencing powers. In any event, as I have found above, sentencing powers existed which would probably have been used to result in the claimant's detention during the relevant period had the case been properly analysed. For these reasons it is not arguable that the causal link between the offending and the detention during the relevant period did not exist. I will consider his case on the ancillary duty to manage such sentences properly below, but on the facts of this case and in line with Khaiyam I reject the claim that the detention during the relevant period was unlawful on this ground. Bayliss at paragraphs 38-42 supports this approach, in particular at paragraph 41:-
  53. "..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."
  54. This is precisely true in the present case. To the extent that the claimant alleges that the IPP sentence was or became disproportionate in length, and to the extent that he is entitled to rely on proportionality for the purposes of Article 5(1)(a), it appears to me that the finding that the detention under the IPP was justified by reference to the objectives of the sentence is fatal to this contention. The effect of the sentence was that he should be detained until the Parole Board decided that it was safe for him to be released. The Parole system had not collapsed in his case and there was material on which it could, and did, form a view about the level of risk he posed. The Court of Appeal Criminal Division said this:-
  55. "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."
  56. Those findings reflect my own review of the documents which I have undertaken for the purposes of this case, and to which I now turn in more detail for the purposes of considering the claim for damages for an alleged breach of the ancillary Article 5 duty. That being so, the IPP sentence was causally linked to the claimant's detention throughout its duration and was proportionate (if that is a valid ground for challenging detention under an order of a court for the purposes of Article 5). They are also highly material to the claim for damages under the ancillary duty, in that they involve the finding that in this case very substantial efforts were made while he was in prison to address the risk which he poses.
  57. The breach of the ancillary Article 5 duty

  58. Mr. Lowe accepts that if the IPP sentence was valid while it lasted the defendant had a duty to implement it in accordance with law. The public law duties and convention rights existed in the same way as if the sentence had been imposed in respect of an offence committed after 4th April 2005. That is the corollary of my finding that the detention of the claimant further to the sentence was lawful for the purposes of an action against the defendant.
  59. Kaiyam recognises an ancillary duty in Article 5 to provide a prisoner on an IPP sentence a reasonable opportunity to rehabilitate himself and thus to demonstrate to the Parole Board that his confinement is no longer necessary. A breach of that duty does not directly impact upon the lawfulness of the detention and would, in most cases, result only in an award of damages for frustration and anxiety caused by the denial of the opportunity.
  60. I propose to deal with this aspect of the case on the facts. In judicial review proceedings that requires an assessment of the documentary evidence. I have not heard from the claimant. The claimant contends that the way in which his sentence was handled after he completed the intensive Core Sex Offender Treatment Programme (Core SOTP) in 2011 together with the finding of systemic failures in IPP sentences identified in James and the first instance decisions in Robinson and Massey v. SSJ and Fletcher Young and Bentley v. SSJ (heard on appeal with Kaiyam, cited above), proves that the duty was breached in his case also.
  61. The claimant's route through his sentence was not rapid, but I am not persuaded that this was because of any failure by the Secretary of State to provide a reasonable opportunity to demonstrate rehabilitation. There were systemic flaws in the system for the administration of IPP sentences, but these did not cause this claimant any difficulty. The problems were most acute for IPP sentences with short tariffs. The tariff would often be over before any meaningful work could be done with the prisoner which could enable the danger he presented to be reduced. It does not follow (and has not been suggested) that because there were systemic flaws with IPP any IPP prisoner is entitled to damages under Article 5 of the Convention. A prisoner with a long tariff had time to complete courses before its expiry and therefore in such a case a careful examination of the evidence is required to determine whether there was a failure by the Secretary of State and, if so, what its consequences were.
  62. The claimant was not always co-operative in seeking to avail himself of the opportunities which were offered to him during the tariff. The documents show that by January 2008 he had been assessed for a place on the Enhanced Thinking Skills programme and had declined it three times. He did not complete that programme until December 2008. He completed the Core SOTP in November 2011, at or soon after the end of the tariff. The evidence shows that this programme is designed for medium and high risk sex offenders and is delivered over 86 sessions over a period of 6 months. It is the programme which is designed for offenders like the claimant. There are programmes for high risk offenders only, but he was not assessed as requiring those. A Parole Board Review of 28th October 2012 noted that he had completed the Core SOTP and said this
  63. "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."
  64. This referred to the 16th May 2012 Structured Assessment of Risk and Needs ("SARN") report which showed that he still needed further work before he could be released. The criticisms made of the Secretary of State in this case all turn on that document and on what was done in the light of it. That contained the Rolling SOTP recommendation. This was because it was not necessary for him to repeat all of the Core Programme again but he needed to engage in further exploration of his understanding of his offending in a structured setting "such as the Rolling Programme". After that, a further SARN would be prepared which would consider further treatment for him.
  65. At the sentencing planning review meeting on 15th January 2013 the claimant accepted that he had not been pro-active in seeking to progress his treatment since May 2012 and had left it entirely to the prison. The review Board advised that it was recommending a transfer to a Category B prison to find him a place on the Rolling SOTP.
  66. In the result, the Rolling SOTP was discontinued in March 2013 before he could undertake it. This was a national decision taken on the ground that the Rolling SOTP was not effective, and was based on research evidence. Discussions were undertaken nationally to identify an alternative programme. It is not suggested that this was an irrational decision, and it is open to the Secretary of State to discontinue programmes which are not an effective use of resources because they do not work.
  67. Between March and September 2013 nothing very much happened. On 11th September 2013 the claimant was advised that the Rolling SOTP was being phased out and that alternatives would need to be considered. The alternative approach chosen in November 2013 was for him to join a therapeutic community. The claimant caused a problem in swiftly joining one by indicating that was not willing to go to HMP Grendon. That meant that he had to be accepted at HMP Dovegate, which is where he wanted to go for geographical reasons. After some delay in his papers being considered by that prison, his application to go there was rejected by it on 31st March 2014. He was later relocated to Grendon after all, which is where he was when he was released. He was only still there then because his release occurred before he could be transferred back to Wakefield. He had been adjudged unsuitable for the therapeutic community because of his superior attitude to other prisoners and refusal to accept challenge.
  68. The facts set out above show that the claimant was given an opportunity to undertake the principal course designed for offenders in his category, the Core SOTP. It had achieved some benefit, but not enough and further work was required. Delays occurred because of the suspension of the Rolling SOTP but these did not arise from a failure by the Secretary of State to provide the opportunity required, but from the conclusion he reached that that programme was not fit for purpose. In any event, when alternative treatment was made available it was not successful. The reasons for delays were complex and do not show a failure to provide a reasonable opportunity to demonstrate rehabilitation. There were Parole Board Reviews and Sentence Planning Meetings and the rehabilitation opportunities showed that he was not sufficiently rehabilitated to be released. The documents show that the claimant suffered undoubted frustration at his delayed relocation to a Category B prison. This was delayed first by the withdrawal of the Rolling SOTP, then by his decision to apply only to HMP Dovegate, then by the refusal of his application by that prison and by the time it took to relocate him to Grendon. Things may have been done more quickly than they were in an ideal world, but the Secretary of State did, on the facts, provide this claimant with a reasonable opportunity to demonstrate rehabilitation.
  69. In any event, the reports of his conduct which I have briefly referred to above do not suggest that the claimant was thirsting to take advantage of every course available to him. He was turned down by HMP Dovegate because of his reported attitude to group work and rejected by HMP Grendon for a similar reason. It was inevitably going to be a long haul towards release in his case and the Parole Board reports suggest that he knew and accepted that. It appears to me that the principal cause of his frustration was the delay in sending him to a Category B prison. This was not a result of any breach of duty by the Secretary of State. The claimant's own conduct played a large part in it. The Court of Appeal Criminal Division reached a similar conclusion at paragraphs 21 and 22 of its judgment at [2015] EWCA Crim 599.
  70. For these reasons I do not consider that an award of damages ought to be made. I am not satisfied on the evidence that there was a breach of duty.

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