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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 >> Fletcher & Ors v Governor of HMP Whatton & Anor [2015] EWHC 3451 (Admin) (02 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3451.html Cite as: [2015] EWHC 3451 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd December 2015

Mr Justice Dingemans :

Introduction

1. This case arises because of the very serious delays which have occurred in providing access to courses which prisoners serving indeterminate sentences for public protection ("IPP's") are required to undertake. In practical terms the prisoners serving IPP's are required to complete successfully the courses so that they can satisfy the Parole Board that they are fit to be released into society. While they are waiting for the courses the prisoners remain in prison, even if the tariff part of the sentence has expired. The tariff part of the sentence represents the period of time that the prisoners would have served if they had been sentenced to a determinate sentence of imprisonment.
2. IPP's have now been abolished by Parliament, but those who were sentenced to IPP's under the law as it then stood and who have not yet been released are still subject to the IPP's. The problems caused by IPP's have been highlighted in a very considerable number of cases, the details of which it is not necessary for me to repeat. The evidence before me shows that there were, as at 30^th September 2015, 4,431 prisoners still serving IPP's of which 3,443 prisoners had served the tariff part of their sentences. This gives an indication of the enormity of the continuing problem.

This hearing

3. This hearing is directed to the issue of "whether any further hearing or relief is required with respect to the breach of the public law duty". The public law duty is to provide systems and resources that prisoners serving IPP's need to demonstrate to the Parole Board, by the time of expiry of their tariff periods or reasonably soon thereafter, that it is no longer necessary for the protection of the public that they remain in detention. The public law duty was confirmed by the House of Lords in R(James) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553. I identified that the Secretary of State for Justice ("the Secretary of State"), who is the main Defendant in this action, was in breach of the public law duty in my judgment dated 3^rd November 2014, [2014] EWHC 3586 (Admin); [2015] 3 All ER 558.
4. In that judgment I granted a declaration that the Secretary of State had acted in breach of the public law duty. I granted the declaration, notwithstanding submissions to the effect that the fact of a judgment finding breach should be sufficient. This was because the evidence showed that statements made by other Judges in other judgments about breaches of the public law duty by the Secretary of State had not led to a situation where the Secretary of State was no longer in breach of his public law duty.
5. I did not make a mandatory order at that stage, but I adjourned the issue of relief to another hearing date so that information could be provided to show what steps were being taken to comply with the public law duty, breach of which had been in issue up to the first hearing. I had not made a mandatory order because it was not appropriate for a Court to attempt to micro-manage the attendance of the Claimants on the courses which they had been required to attend by the Parole Board (which were Healthy Sex Programme courses ("HSP courses")), nor was it appropriate to prefer the Claimants to other prisoner serving IPP's who were waiting for HSP courses but who were not before the Court. Adjourning the issue of relief seemed to me to be the most effective way of securing effective relief for the Claimants, while avoiding impermissible management by the Court, which management remains a matter for the Secretary of State.
6. A further hearing was heard on 12^th December, and in a judgment dated 19^th December 2014 [2014] EWHC 4338 (Admin) I set out the steps which were then being taken by the Secretary of State to address the breach of the public law duty, and which it was hoped would lead to a situation where the Claimants were put on the HSP course. I adjourned again the issue of relief. This was because it would have been wrong to make a mandatory order at that stage. This was because it is not for the Court to determine how to discharge the public law duty, and because it was apparent that the Secretary of State had committed further resources to address the problems. I concluded that it would also be wrong to conclude the proceedings at that stage. This was because the evidence showed that the backlog of persons serving IPP's waiting for the HSP course was continuing and that the Claimants were still waiting to access the HSP course. It remained possible that a mandatory order might, in certain circumstances, be appropriate.
7. This hearing was due to be relisted in July, but it appears that there were difficulties in agreeing a date suitable for counsel who had all been involved in the case throughout and who could not be replaced without unnecessary extra cost. In the event the hearing took place before me on 27^th October 2015. Towards the end of the hearing the Secretary of State sought permission, which I granted, to lodge further written submissions and evidence. This was after I had expressed the provisional view on the evidence that was then before me that a mandatory order might now be necessary. I granted permission for the further submissions and evidence even though there was understandable objection to further delays by the Claimants. I granted permission because the continuing delays are affecting so many other prisoners serving IPP's waiting for the HSP, that the effect of granting a mandatory order was very likely to adversely affect another prisoner. I made provision for the Claimants to respond to those further submissions and evidence. In the event the following submissions and evidence were lodged: further submissions of the Defendant following the hearing on 27^th October 2015, and the second witness statement of Simon Marshall ("Mr Marshall"); submissions on behalf of the First and Second Claimants dated 9^th November 2015; the Third Claimant's submissions dated 10^th November 2015; the Defendant's submissions in response to the Claimants' submissions of 10-11 November 2015; the Reply submissions on behalf of the First and Second Claimants; and a letter from the Government Legal Department dated 19^th November 2015. The submissions on behalf of the First and Second Claimants dated 9^th November 2015 did not get forwarded to me (it appears that this was because I was still sitting in Bristol, where the hearing of 27^th October 2015 had taken place), and it was only when my draft judgment was circulated to the parties in the normal way that this became apparent. As it is I have therefore had to make some changes to the judgment to reflect those submissions, but those submissions did not cause me to alter the relief which I had decided to grant as set out in this judgment.

The updated position

8. In order to understand this short judgment it is necessary to know that the three Claimants are all prisoners serving IPP's. They have all served the tariff part of their sentences. The three Claimants were all identified by the Secretary of State as needing to complete, and in practical terms required by the Parole Board to undertake, the HSP course. The three Claimants brought these proceedings because of continuing delays in providing them with access to the HSP course.
9. At the hearing on 27^th October 2015 there was evidence of the updated position from Mr Marshall. Mr Marshall is the acting Head of Commissioning Group at the National Offender Management Scheme ("NOMS"). The evidence showed that the number of HSP courses had increased considerably, and that very real efforts were being made to address the problems caused by prisoners serving IPP's waiting to access the HSP course. The number of HSP courses had increased to 71, which was up from 38, with a possibility of 3 more places. The evidence also showed that the First and Third Claimants had by then accessed and completed the HSP course.
10. However the evidence also showed that the Second Claimant was only likely to access the HSP course between April 2016 and April 2017. The Second Claimant's tariff had expired on 11 May 2012, and this would mean that he would wait up to 5 years for access to a course which (if the public law duty were to be discharged) he should have accessed by 11 May 2012 or reasonably soon thereafter. This was not any significant improvement on the situation which existed at the date of my first judgment, see paragraph 28 of that judgment. The evidence also showed that, in real terms, the delays faced by prisoners serving IPP's waiting to access the HSP course had not improved in measurable terms, even though the number of courses had increased. I accept that the problems caused by the fact that there are prisoners serving IPP's who are waiting to access courses cannot be solved "at the drop of a hat or wig", see R(Kaiyam)v Secretary of State for Justice [2014] UKSC 66; [2015] AC 1344 at paragraph 34. However the hearing before me took place on 27^th October 2015, after I had declared a breach of the public law duty on 3^rd November 2014, and after I had had a hearing on 12^th December 2014 directed to the issue of relief.
11. The fact that matters had not improved for prisoners serving IPP's waiting to access the HSP course, notwithstanding the real efforts that had been made to improve the situation and increase the number of HSP courses, was acknowledged by Mr Lowe to come as a surprise to those at NOMS and the Ministry of Justice who were attempting to sort out the problems caused by the IPP's. It was because the evidence showed that, notwithstanding all that hard work, matters had not improved for the Second Claimant that I indicated at the hearing that my provisional view was that I should make a mandatory order directing that the Second Claimant be provided with access to a HSP course. This is because the Courts have set their face against indefinite detention by order of the executive, see R(Lumba) v Secretary of State for the Home Department [2012] 2 AC 245 at paragraphs 181, 200 and 341. Although prisoners serving IPP's have been sentenced by the Courts, the continued detention of prisoners serving IPP's after expiry of their tariff because of continuing breaches on the part of the executive of the public law duty raises issues which the Courts must ensure are addressed.

The further evidence

12. The further evidence served after the hearing on behalf of the Secretary of State comprised a second witness statement from Mr Marshall. This showed that the number of HSP courses had increased from 27^th October 2015 to 105. It is fair to note, as the Claimants did in written submissions, that there was no real explanation of how it had become possible to increase the number of predicted courses from 71 (or 74 at the most) to 105. Mr Marshall simply stated that there had been "significant activity" to increase the numbers of those able to deliver the HSP course.
13. The effect of this further evidence is that NOMS is highly confident that the Second Claimant will be offered a HSP course in April-June 2016, see paragraph 8 of the second witness statement of Mr Marshall. This is an important improvement from the position which had been outlined before me on 27^th October 2015.

Relief

14. I accept that it is for the Secretary of State, who is subject to the public law duty, to determine how that public law duty is to be discharged. It is not the role of the Courts to manage how the duty is to be discharged. This is because the way in which the public law duty is to be discharged raises issues of policy for the Secretary of State, and because the Courts do not have the expertise to manage the discharge of the public law duty. I also accept that it is important that prisoners serving IPP's who are also waiting to access HSP courses and who are also the beneficiaries of the public law duty, should not be ignored because they are not Claimants before the Courts.
15. However it needs to be recorded that there has been, and remains, a serious and continuing breach of the public law duty. The fact that it was intended that the Second Claimant should wait for up to 5 years after the expiry of his tariff period before he was provided with access to the HSP course proves that something has gone seriously wrong with the management of prisoners serving IPP's.
16. In circumstances where it is now apparent that the Second Claimant should be provided with a HSP course in April-June 2016 it is no longer necessary to make a mandatory order. However, in order to ensure that the Second Claimant is not again neglected and forced to wait for access to a course that should have been provided years ago, I will conclude the case by giving the Second Claimant permission to apply to the Court for further or other relief if he is not provided with access to a HSP course commencing in the period April-June 2016.

Conclusion

17. For the detailed reasons given above I will give the Second Claimant permission to apply to the Court for further or other relief if he is not provided with access to a HSP course in the period April-June 2016. I am very grateful to Mr Rule, Mr dos Santos and Mr Lowe and their respective legal teams for their submissions and assistance.