European Court of Human Rights rules against “arbitrary and unlawful” indeterminate sentences

Over 6,000 prisoners in England and Wales are serving open-ended sentences, which were introduced in April 2005 (under section 225 of the Criminal Justice Act 2003) on the premise that rehabilitative treatment be available for these prisoners. Based on this treatment, release dates would be examined on a case-by-case basis by the Parole Board. However, in the recent judgement of James, Wells and Lee v. the United Kingdom, the deficiencies in the recently-abolished system were brought to light.

The case was originally brought by three British prisoners — Brett James, Nicholas Wells, and Jeffrey Lee — who claimed they had no realistic chance of accessing the rehabilitation courses that would qualify them for release. The three men had been convicted in 2005 for violent offences and had each been given indeterminate sentences. The trial judge had ordered that they serve, respectively, a minimum of two years, twelve months, and nine months. When these periods expired and they were still awaiting access to the relevant courses, the men claimed they were being unlawfully detained.

They brought judicial review proceedings before the national courts, which were then appealed to the House of Lords.  However, despite harsh criticism by the Lord Judge of the “seriously defective structures” in the sentencing scheme, the applicants’ appeal was unanimously dismissed. Thus, in 2009, applications on behalf of the three men were lodged with the ECHR.

Though the ECHR found that, under the domestic legislation at the time, a trial judge would have had no option but to impose an indeterminate sentence if a risk of re-offending had been established (all three men had previous convictions), it ruled that the continued detention of the men was a violation of Article 5 §1 of the European Convention on Human Rights, which provides for the right to liberty and security. It considered that “a real opportunity for rehabilitation was a necessary element” of such sentences and that, while indeterminate sentences could be justified under the Convention, prisoners “had to be given reasonable opportunities to undertake courses aimed at addressing their offending behaviour and the risks they posed”. While there was no requirement that these courses be made immediately available, any delays or restrictions had to be reasonable. It agreed with the House of Lords that the delays, which it described as “substantial” and “considerable”, had been a result of inadequate resources due to a lack of necessary planning and a failure to give realistic consideration to the impact such sentences would have.

It concluded that, after the expiry of the applicants’ minimum sentences and until they were afforded appropriate rehabilitative treatment, their detention was arbitrary and, therefore, unlawful.

The unanimous ruling by seven judges, including British Judge Sir Nicolas Bratza, included an award in respect of non-pecuniary damages in the sums of €3,000 for Mr. James, €6,200 for Mr. Wells, and €8,000 for Mr. Lee. The three men were also awarded €12,000 each for legal costs. (At the time of publication of this piece, both James and Lee had been released, while Wells remained incarcerated.)

In a statement, the British Ministry of Justice expressed disappointment with the judgement and said it was considering an appeal. It confirmed that, of the 6,000 prisoners serving indeterminate sentences, more than half had already served time in excess of their minimum sentence. Thus, while the ECHR did not find that open-ended sentences were necessarily unlawful, and while the system was abolished under recent British legislation, it remains to be seen whether other prisoners being held under the scheme will seek a similar ruling.


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