This test case concerned the rights of prisoners sentenced to indeterminate sentences for the protection of the public (IPP). IPP sentences were first introduced in 2005. At this time, the courts were given no discretion and had to impose the same where the legal test was met. The effect of the sentence was to require an individual to serve a required period of time in prison known as a ‘mandatory tariff’. Once that mandatory tariff had expired, an individual could only be released upon satisfying the Parole Board that their risk to the public had been reduced. This was usually done through the completion of coursework designed to address an individual’s risk-offending behaviour. The problem with this though was that the Government did not provide additional resources for the prison system to meet the resulting extra demand for coursework created by the new IPP sentences. They assumed, wrongly, that the impact of the new sentences would be negligible.
The low threshold for imposing an IPP sentence meant that the prison system soon became swamped with such prisoners, contributing considerably to the overcrowding of prisons at that time. Between November 2003 and March 2007, as a result of IPP sentences, the lifer population in the system increased by more than 60%.
This increase and the failure to put in extra resources created an enormous backlog in system. The existing prison service just could not cope with the increased demand for rehabilitative courses. Many IPP sentenced prisoners only had a short mandatory tariff and they usually remained in local prisons for the duration of their mandatory tariff. Local prisons did not offer any rehabilitative courses and, due to the bottleneck which had arisen in the system, these prisoners could not be moved to the prisons which did provide such coursework. The result was therefore for numerous prisoners to reach the end of their mandatory tariff having not completed the relevant risk-offending behaviour coursework. As such, they were unable to satisfy the Parole Board that there risk had been reduced sufficiently to justify their release. This resulted in many IPP prisoners being detained months, if not years, beyond the mandatory part of their sentence with no idea of when they would be able to complete the relevant coursework necessary to secure their release. At the lower end of the scale, this meant prisoners who had been sentenced for fairly low level offences, which carried a short mandatory tariff, faced the prospect of being detained indefinitely.
Erica acted for Mr James in 2007, whist working for another firm of solicitors,in one of the cases which jointly challenged the Ministry of Justice (MOJ). Mr James had a history of engaging in violent behaviour when in drink and was sentenced to an IPP with a mandatory tariff of 2 years after assaulting an individual with a pint glass in a pub. It was identified that Mr James required coursework in prison to address his drinking and anger management. By the time his tariff expired, Mr James was still detained in a local prison and had not undertaken any of the identified courses to address his offending behaviour. When his case therefore came before the Parole Board, Mr James’ offender manager felt unable to recommend him for release. This was solely because he had not completed the required courses to address his offending behaviour. Despite this his OM recognised that this failure was not Mr James’ fault and that he had done everything possible within the confines of the local prison albeit that this was not sufficient. The Parole Board consequently adjourned hearing Mr James’ case pending the outcome of the proceedings for judicial review.
Proceedings for judicial review were brought in the Administrative Court. Despite initial success, the MOJ appealed the decision to the Court of Appeal who overturned the decision. The matter then went on appeal to be considered by the House of Lords in R (on the application of James and others) v Secretary of State for Justice  UKHL 22;  2 WLR 1149. Although the Law Lords recognised that the State had failed in its public law duty to put in place adequate systems and resources to meet the needs of the IPP population through offending focussed coursework, it refused to go further and say that IPP prisoners detained post-tariff were detained unlawfully and should be released. Similarly, the Law Lords did not find that there had been a breach of Article 5 of the European Convention of Human Rights (ECHR) (Right to liberty and security).
Erica, together with the solicitors for the other Claimants, assisted Mr James in applying to the European Court of Human Rights in Strasbourg on the basis that the UK Government had breach his rights under Article 5.On 18 September 2012 the European Court gave its judgement(James, Wells and Lee v UK ECHR 340 (2012)). The claims were successful. The Court found, unanimously, that there had been a breach of Article 5(1) ECHR regarding the Applicants’ detention after expiry of their mandatory tariff as the failure to provide sufficient rehabilitative coursework led to their arbitrary detention after this point in time. The Court considered that the point of IPP sentences was to enable prisoners to rehabilitate, and the UK Government had failed to give proper consideration to the impact of IPP sentences upon the prison system. In disagreeing with the House of Lords, the European Court found that the breach of the state’s public law duty to provide sufficient coursework did render the detention of an IPP prisoner post his mandatory tariff unlawful. By the time Mr James’ case came to be considered by the ECHR, he had completed the relevant coursework and had secured his release from Parole Board. The effect of the Court’s decision was therefore to grant him compensation for the period of time it considered he had been detained arbitrarily.