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The Court of Appeal has delivered an interesting judgment relating to the scope of the ancillary duty held to be implied into the overall scheme of Article 5 ECHR by the Supreme Court in Kaiyam v Secretary of State for Justice [2015] AC 1344, which duty requires indeterminate sentence prisoners to be provided with a reasonable opportunity for rehabilitation during the course of their sentence.

The Court of Appeal allowed the Parole Board’s appeal against a finding of breach of that duty by Hickinbottom J [2016] EWHC 288 (Admin).  The Secretary of State intervened in the Court of Appeal to assist with the Parole Board’s challenge to that finding.

The Claimant prisoner had brought proceedings complaining that his transfer to open conditions had been delayed as a result of delays in the Parole Board considering his case.  He complained that there had been a six month delay in his case being heard by the Parole Board and that as a result, he had been deprived, in breach of the ancillary duty, of a reasonable opportunity to demonstrate at tariff expiry, or reasonably soon thereafter, that his continued detention was no longer necessary. Hickinbottom J accepted that argument.

The Court of Appeal disagreed.  It held that, while the Claimant’s Parole Board hearing had been delayed by six months, there had been no breach of the ancillary duty in circumstances where (a) the Claimant was transferred to open conditions around two years before the expiry of his tariff and (b) there was nothing in the Secretary of State’s policies or conduct that required the Claimant to be transferred at an earlier moment in time in order to give him the reasonable opportunity to which he was entitled. 

The Court emphasised that a failure promptly to provide, pre-tariff, one or more requisite courses or steps at a given moment in time does not of itself by any means compel a conclusion that, overall, no reasonable opportunity will have been offered to demonstrate at tariff expiry a lack of continued risk.  The Court held that it is essential not to look at individual failures occurring before expiry of tariff on a “snapshot” approach. Rather, the situation is to be assessed as a matter of totality and by reference to the entire custodial term in considering whether or not overall there has been a deprivation of a reasonable opportunity to demonstrate at tariff expiry (or a reasonable time thereafter) that a prisoner is safe to be released. It thus is always, in this kind of case, most important to focus on the prospective position as at tariff expiry (or a reasonable time thereafter).

Tom Weisselberg QC and David Lowe acted for the Secretary of State for Justice.