After recall from licence, a prisoner serving an extended sentence argued that the failure to provide suitable rehabilitation courses made his continued detention arbitrary under article 5 of the European Convention on Human Rights. The Supreme Court held that the duty to provide a real opportunity for rehabilitation applies where a prisoner is detained during the extension period solely because of the risk of serious harm to the public. On the facts, that opportunity had been provided, so the detention was not arbitrary.
The sentence and the complaint
On 5 January 2006 Mr Brown was convicted at the High Court at Edinburgh of culpable homicide, having fatally stabbed another youth. He received an extended sentence of ten years, backdated to 3 August 2005, comprising a custodial term of seven years and an extension period of three years. Under section 210A of the Criminal Procedure (Scotland) Act 1995, the custodial term is the imprisonment the court would have imposed anyway. The extension period is a further period on licence, imposed because the licence that would have followed an ordinary sentence was not considered adequate to protect the public from serious harm.
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Mr Brown was released on licence after serving two-thirds of the custodial term. Following a further offence, the Scottish Ministers revoked his licence on the recommendation of the Parole Board. A short concurrent sentence followed, but the court made no section 16 order returning him to custody for the unexpired term. He remained in prison until the extended sentence expired in 2015.
Article 5 and the rehabilitation duty
Article 5 protects against arbitrary deprivation of liberty. Article 5(1)(a) permits lawful detention after conviction by a competent court, but detention must not be arbitrary. The European Court of Human Rights has long required a relationship between the permitted ground of detention and the place and conditions of detention. In James v United Kingdom it applied that principle to prisoners held after the punishment part of an indeterminate sentence solely because of the risk they posed to the public. In those circumstances a real opportunity for rehabilitation must be provided. Substantial periods without access to offending-behaviour work, caused by a lack of planning and resources, made the detention arbitrary and therefore unlawful under article 5(1). The European Court did not treat that finding as a right to immediate release. Judicial review could require the courses to be provided, and the Parole Board could order release if satisfied that the prisoner was no longer dangerous. Compensation was for distress and frustration, not for a deprivation of liberty that should never have occurred.
In R (Kaiyam) v Secretary of State for Justice this court accepted that a duty to provide a real opportunity for rehabilitation existed, but did not locate it in article 5(1). Concerned that the James reasoning might require immediate release, it treated the duty as ancillary to article 5 as a whole, applicable throughout the sentence, and assessed by a standard of reasonableness. In two of the cases it treated the Secretary of State’s own view of what was reasonable as decisive. Later Strasbourg decisions, including the rejection of the Kaiyam prisoners’ applications as manifestly unfounded and the Grand Chamber’s citation of James in Murray v The Netherlands, established a clear and constant line. Lord Reed, with whom Lord Neuberger, Lady Hale, Lord Hodge and Lord Carloway agreed, held that this court should now follow that approach and cease to treat the duty as an ancillary obligation. The duty arises under article 5(1)(a). For an indeterminate sentence it is engaged after the punishment part, although earlier progress is relevant to the overall assessment. The test is arbitrariness, and violations will be rare. A breach does not entitle the prisoner under the Convention to immediate release: the appropriate response is to end the feature that makes the detention unlawful, with compensation in a proper case, while release on grounds of safety remains a matter for the Parole Board.
Extended sentences
During the custodial term, or a period ordered under section 16 after a further imprisonable offence, the prisoner is in a position analogous to a prisoner serving a determinate sentence. The court has fixed a term as appropriate for the offence. Recall during that period is still service of the term imposed by the court, so the original order is sufficient to make the detention lawful under article 5(1)(a).
During the extension period the original sentence contemplated supervision in the community. If a recalled prisoner remained in custody solely to protect the public, continued detention depended on a risk which could change. The Parole Board reviewed that risk, and the prisoner needed a real opportunity to reduce it. An outer time limit on the extension period did not remove that need. The Court distinguished imprisonment under a further sentence or a separate section 16 order.
Whether Mr Brown was given that opportunity
Both before and after recall, Mr Brown had taken courses and attended case reviews. At times there were delays in assessing him or securing a place. At other times misconduct interrupted his progress towards less restrictive conditions.
He was transferred to start one programme sooner, completed two programmes in 2013 and moved to open conditions. His later return to closed conditions followed further incidents. In 2014 the Board concluded that completing the courses had not yet reduced the risk sufficiently for release.
Viewed as a whole, the history showed courses, regular planning, efforts to provide rehabilitative work and movement to less restrictive conditions. It bore no resemblance to the long periods of inactivity condemned in James. The reason he served the sentence in full was his own misconduct, not a failure to provide a real opportunity for rehabilitation. His detention during the extension period was not arbitrary.
Verdict: The Court unanimously dismissed Mr Brown’s appeal. Article 5(1)(a) applied to his continued detention for public protection during the extension period, but he had received a real opportunity for rehabilitation. His detention was not arbitrary.
Source: Brown v The Parole Board for Scotland, The Scottish Ministers and another [2017] UKSC 69
