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The Court of Appeal has given judgment in an important case relating to prisons and the scope of a claim under Article 5 of the European Convention on Human Rights.

The case concerned an allegation that the Secretary of State had acted unreasonably at common law and/or in breach of Article 5 by failing to provide the Claimant with offending behaviour work.The Claimant succeeded in his common law claim at first instance and, by way of cross-appeal, also sought to raise a claim based on Article 5 in the Court of Appeal.

In allowing the Secretary of State’s appeal (and dismissing the Claimant’s cross-appeal), the Court of Appeal emphasised that it is important to appreciate that even if the criterion of reasonableness inherent in the Article 5 ancillary duty (recognised in the case of Kaiyam v Secretary of State for Justice [2015] UKSC 66, [2015] AC 1344) is less restrictive than Wednesbury-unreasonableness, it does not impose a standard of perfection.  Moreover, the Court expressed scepticism about whether the apparent theoretical difference between the standards of review at common law and under Article 5 would in practice lead to different outcomes in many, if any, cases.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2016/38.html

Tom Weisselberg QC acted for the Secretary of State.

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