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Indeterminate sentences breach human rights

The European Court of Human Rights (ECHR) today found that three offenders jailed indefinitely without being given access to courses which would have aided their rehabilitation had their human rights breached.

The ECHR gave judgment today in James, Wells and Lee v UK. Mike Pemberton, a partner at Stephensons Solicitors LLP, represented Jeffrey Lee in the action. Mike is a leading civil liberties lawyer with a reputation in this complex area of human rights law.

Mike said: “While Mr Lee has now been released from detention, today’s landmark decision acknowledges that his continuing detention had become illegal because of a lack of opportunity to demonstrate his risk had fallen.

“Mr Lee had been convicted of criminal damage in September 2005 and was sentenced automatically to an indeterminate sentence for public protection following a change in the law that had come into force in April 2005. He received a minimum term of only 163 days which meant that he could be released after this time if the Parole Board was satisfied that his risk could be managed in the community. Unfortunately the Parole Board consider whether risk can be managed by looking at what steps the prisoner has taken to rehabilitate themselves and specifically whether they have done courses which may help this.

“Mr Lee did not have any opportunity of accessing the required courses until some 25 months AFTER his minimum term had expired.”

A Court challenge was made which progressed through the High Court to the House of Lords in 2009 complaining that the ongoing detention without access to the courses was unlawful and breached Article 5(1) and 5(4) of the European Convention on Human Rights.

The House of Lords had held that the Secretary of State had breached the duty to provide courses, but this did not mean that the detention had become unlawful under English and Welsh law, or under the Convention. The case then proceeded to the ECHR, which unanimously disagreed and found that there had been a breach of Article 5 (1) meaning that Mr Lee had been detained arbitrarily. The court noted specifically that Mr Lee had experienced a further five-month delay following the recommendation for motivational work. By the time the recommendation was made, Mr Lee was already two years and ten months post-tariff past the minimum term of nine months

Mike continued: “The underlying problem with IPP sentencing has been a lack of resources leading to high numbers of prisoners stagnating in the system. While the concept of public protection is an important one; the costs to the tax payer of this sentence have been immense. It is estimated that an IPP prisoner costs on average £40,000 per year to imprison. There are currently about 6,500 such prisoners in the system, 3,500 of whom are over tariff.”

Tim Owen QC and Nick Armstrong of Matrix Chambers acted for Lee, instructed by Mike Pemberton.


Notes to editors:

• Mike Pemberton specialises in prison law, human rights and judicial review and has a special interest in all aspects of life and indeterminate sentences.
• Chambers UK recognises Mike Pemberton as a leader in his field of law.
• The firm has 30 partners and more than 350 staff across offices in Greater Manchester and Merseyside. For more information visit www.stephensons.co.uk

Media information:  Lianne Tracey
                                     Stephensons Solicitors LLP
                                     Tel: 01616 966 229
                                     Email: lianne.tracey@stephensons.co.uk