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Supreme Court recognises ‘extended’ duty to rehabilitate prisoners in landmark ruling

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Supreme Court recognises ‘extended’ duty to rehabilitate prisoners in landmark ruling

01 November 2017

Following its historic first sitting in Edinburgh earlier this year, the UK Supreme Court has ruled that the duty to afford prisoners a reasonable opportunity for rehabilitation extends beyond those subject to ‘life’ sentences, to include prisoners serving ‘extended’ determinate sentences.  

The judgment marks a radical departure from the UK Supreme Court’s earlier ruling in the case of R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, which recognised an ‘ancillary duty’ to facilitate the progress of ‘life’ prisoners towards release (contrary to an earlier decision of the House of Lords in R (Walker) v Secretary of State for Justice [2009] UKHL 22 that no such duty arose) but otherwise declined to follow the approach of the European Court of Human Rights in James v United Kingdom that such a duty arose directly from article 5 (right to liberty) of the European Convention. 

The significance of this latest judgment is twofold.  First, it abandons the concept of ‘ancillary duty’, thereby bringing domestic law into line with the approach of the European Court.  Secondly, it confirms that the resulting duty under article 5 of the Convention applies not only to ‘life’ prisoners but also to prisoners detained during the ‘extension’ period of an extended sentence.

Lord Reed (with whom Lord Neuberger, Lady Hale, Lord Hodge and Lord Carloway agreed) considered (para 62) that:

“Having regard to…the indefinite (albeit not unlimited) duration of detention during the extension period, its preventive purpose, and the possibility of change in response to opportunities for rehabilitation – the reasoning which led the European court to decide in James, in the context of IPP sentences [ie indeterminate sentences for public protection], that article 5(1)(a) imposed an obligation to provide the prisoner with a real opportunity for rehabilitation is equally applicable.”

Previously, in Kaiyam, the court had perceived a risk that prisoners, who had not been afforded a reasonable opportunity for rehabilitation, might be entitled to seek immediate release from ‘arbitrary’ detention.  However, Lord Reed emphasised (para 43) that, according to the approach of the European Court in James and subsequent cases, such breaches of article 5 would not entail an obligation to secure prisoners’ immediate release.  It would be sufficient for the authorities to bring to an end the aspect of the detention which had rendered it unlawful, namely the lack of access to rehabilitative courses, and to enable prisoners to secure their release by the Parole Board thereafter.   

Despite the sea-change in the court’s reasoning, there was no question of the appellant’s detention having been arbitrary in the circumstances of the particular case before the court.  Accordingly, the appeal was dismissed. 

Axiom members (Gerry Moynihan QC; Lord Keen of Elie QC, The Advocate General for Scotland; Roddy Dunlop QC and Jacqueline Fordyce) appeared for the successful respondents and the intervener. 

The judgment in Brown v The Parole Board for Scotland and others [2017] UKSC 69 is available here: