Three violent criminals to receive cash payouts after Euro judges rule their indefinite sentences unlawful

The European Court of Human Rights held unanimously that the controversial sentences, which Ken Clarke as Justice Secretary announced he was scrapping last year, breached prisoners’ rights to liberty and security.

More than 6,500 offenders have been sent to jail without any fixed date for their release using indeterminate sentences for the protection of the public (IPPs) since they were brought in by Labour in 2005.

Such a large number of people were sentenced to IPPs that “it soon became clear that existing resources were insufficient” and “IPP prisoners swamped the system in place for dealing with those serving indeterminate sentences”, the human rights judges ruled.

The case concerned Brett James from wakefield and two other Britons - Nicholas Wells and Jeffrey Lee - who were given automatic IPP sentences in 2005 and claimed that a failure to ensure they had access to courses in prison harmed their ability to show they were rehabilitated and able to be released. All three are now in line for cash compensation.

James was told he must serve at least two years before being considered for release after being convicted of unlawful wounding with intent.

He had previous convictions for battery, common assault, affray, disorderly behaviour, racially abusive behaviour and assault occasioning actual bodily harm.

Wells, who is back in jail after being recalled in February 2010 for breaching the conditions of his release, was given a minimum tariff of 12 months after being convicted of the attempted robbery of a taxi driver.

He had previous convictions for both violent and theft offences, linked to the misuse of drugs.

And Lee, of Fleetwood, was jailed for a minimum of nine months after being convicted of drunkenly causing criminal damage to a flat in which his ex-wife and young children were present.

He had previous convictions for assault occasioning actual bodily harm and criminal damage.

The trio were all given IPP sentences for violent offences in 2005 as a result of their previous criminal history.

All three were recommended to take part in courses, such as Enhanced Thinking Skills (ETS), Addressing Substance Related Offending (Asro), Controlling Anger and Learning to Manage it (Calm), and the Victim Awareness and Healthy Relationships Programme, the court said.

But by the time their tariffs expired, they were all still in local prisons with no access to courses and were awaiting transfer to prisons where the courses were available.

The trio brought judicial review proceedings before the UK courts, leading to criticism over the systemic failure to put in place the necessary resources.

The judges said: “It is clear that the delays were the result of a lack of resources.”

While resource implications were relevant, the inadequate resources “appeared to be the consequence of the introduction of draconian measures for indeterminate detention without the necessary planning and without realistic consideration of the impact of the measures”, they added.

“Further, the length of the delays in the applicants’ cases was considerable: for around two and a half years, they were simply left in local prisons where there were few, if any, offending behaviour programmes.

“The stark consequence of the failure to make available the necessary resources was that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariff periods expired.

“Further, once the applicants’ tariffs had expired, their detention was justified solely on the grounds of the risk they posed to the public and the need for access to rehabilitative treatment at that stage became all the more pressing.

“In these circumstances, the court considers that following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses, their detention was arbitrary and therefore unlawful within the meaning of Article 5:1 of the convention.”

Before the Law Lords, Lord Judge referred to “seriously defective structures” and the fact that the new sentencing provisions were “comprehensively unresourced”, Europe’s human rights judges noted.

This led to numerous prisoners being detained after the expiry of the punitive element of their sentences “without the question either of their rehabilitation or the availability of up to date, detailed information about their progress”.

But their appeals were dismissed in May 2009, with the UK judges saying their detention could not be said to be arbitrary or unlawful as the causal connection between the ground for the detention and the detention itself had not been broken.

IPPs were replaced last year with a system of longer sentences for some offenders coupled with extensive supervision and monitoring after release.

The Government must also pay almost £14,000 in damages and almost £30,000 for costs and expenses, the court ruled.

It must pay James about £2,413 (the sterling equivalent of 3,000 euros), Wells £4,987 (6,200 euros) and Lee £6,435 (8,000 euros) for damages, the court said.

It must also pay them £9,652 (12,000 euros) each for costs and expenses.

The ruling raises the possibility that the Government could have to pay compensation to up to 3,500 prisoners currently sentenced to IPPs who have already served their minimum tariff.

There were 6,017 prisoners serving an IPP sentence at the end of March, with 3,506 of these being held beyond their tariff expiry date, the latest figures released by the Prison Reform Trust showed.

Juliet Lyon, the trust’s director, said: “This judgment should prompt the new Secretary of State to institute a review of the cases of over 3,500 people held beyond their indeterminate sentence tariff dates, use his discretion under the Legal Aid, Sentencing and Punishment of Offenders Act (2012) to change the release test and eradicate a stain on our justice system.

“It is shaming to have so many people locked up in our prisons, not for what they have done but for what they might do in the future.

“Many of these prisoners are condemned to years of uncertainty during which time they must somehow prove, from the confines of a bleak overcrowded jail, that they no longer present a risk to the public.

“The means to do this, attendance at scarce and not always reliable offending behaviour programmes, is barred to people with a mental illness, learning disability, many on medication and anyone with a low IQ score, trapping these most vulnerable people in a maze with no exit.

“To put matters right, more trust could be placed in prison governors and staff, probation and the Parole Board to determine the risk to the public presented by a few dangerous people rather than relying on the current obstacle race facing so many prisoners and their families.

“The IPP has attracted near universal criticism from judges, Parole Board members, the prisons inspectorate, the prison governors’ association, staff and prisoners and families alike.

“Now Government has abolished the Kafkaesque indeterminate sentence for public protection, it’s time to return to a sensible system of fairness, proportionality and just desserts.”

The ruling of Europe’s human rights judges does not become final for three months, pending any appeals.

A Ministry of Justice spokesman said: “We are disappointed by this judgment and are currently considering our grounds to appeal.

“Public protection will not be put at risk - the judgment does not find that indeterminate sentences are unlawful, and will not mean prisoners currently serving IPP sentences will have to be released.

“The Government has already announced that the complex IPP system will be replaced by a new regime of tough, determinate sentences.

“This will see more dangerous criminals given life sentences, and others spending longer periods in prison, with tough licence conditions on release.”