FOURTH SECTION

CASE OF ALEXANDER v. THE UNITED KINGDOM

(Application no. 54119/10)

JUDGMENT

STRASBOURG

30 June 2015

This judgment is final but it may be subject to editorial revision.
In the case of Alexander v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Nona Tsotsoria, President,
	Paul Mahoney,
	Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 9 June 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 54119/10) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Kieran Lee Alexander (“the applicant”), on 17 September 2010.
2.  The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell, of the Foreign and Commonwealth Office.
3.  Relying on Article 5 § 1, the applicant alleged, in particular, that his detention following the expiry of his tariff was unlawful because the Parole Board had refused to recommend his release on the ground that he had not yet completed a specific rehabilitative course, despite the fact that he was unable to access that course.
4.  On 9 September 2013 the complaint under Article 5 § 1 was communicated to the Government and the remainder of the application was declared inadmissible.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1986 and is currently in detention at HMP Risley.
6.  On 17 April 2007, after pleading guilty to counts of rape, indecent assault and robbery, the applicant was sentenced to an indeterminate sentence for the public protection (“IPP”). The minimum term that the applicant had to serve before being eligible for release (the “tariff”) was set at 4 years 273 days. His tariff was due to expire on 16 January 2012.
7.  On 16 October 2007 the applicant completed alcohol in cell work and on 31 October 2007 he completed an alcohol awareness course.
8.  In March 2008 the applicant was transferred to HMP Wayland. From 30 May 2008 to 2 July 2008 he participated in the Enhanced Thinking Skills (“ETS”) course.
9.  In November 2008 the applicant completed the Living with Loss course.
10.  On 16 July 2009 the applicant completed the Core Sex Offenders Treatment Programme (“SOTP”). In a post-programme progress review dated 30 November 2009, further work to reduce his risk of reoffending was identified, namely full engagement in the Structured Assessment of Risk and Need (“SARN”) process and full engagement in further assessments for sexual offending programmes.
11.  A SARN Report dated 8 April 2010 prepared by a forensic psychologist in training noted that the applicant was assessed at a high statistic and high dynamic risk of sexual reoffending. It recommended personality and psychiatric assessments followed by completion of the extended Sex Offenders Treatment Programme (“ESOTP”) in order to reduce his risk. It concluded that the risk presented by the applicant was not low enough for him to be transferred to open conditions. The applicant was placed on a waiting list for the ESOTP.
12.  On 20 May 2010 the applicant was informed by the Parole Board that it had not directed his release on licence or transfer to open conditions as some risk factors were outstanding. It noted that the Secretary of State had identified the need for sex offending and alcohol awareness work to reduce the level of risk. The applicant’s next parole process was to commence in May 2011, with an oral hearing in November 2011.
13.  On 13 September 2010 the applicant made a formal application to HMP Bure, where he was then detained, to ask whether it intended to run the ESOTP. He was advised in reply that the prison planned to run the ESOTP in around April 2011. The applicant was not selected to participate in the course.
14.  On 13 July 2011 the applicant completed a further alcohol awareness course.
15.  On 26 September 2011 the Parole Board decided, on the papers, not to direct the applicant’s release. It noted that the applicant had completed an accredited alcohol course, the ETS course and the SOTP and that he hoped to complete the Thinking Skills Programme (“TSP”) and ESOTP in the near future. It concluded:
“You have been consistently well motivated to engage with all work identified as necessary for you. This is to your credit, as is your calm and personable approach. You have made some progress in that you now talk more openly and in more depth about your sexual offences. This has enabled you to work constructively with programme facilitators, and has provided a foundation on which to build in the ESOTP. You are motivated to complete that programme, and it is only available in the closed estate – any move to open conditions would therefore be premature. Release is, at present, out of the question. There is some lack of clarity around some of the risk factors in your case, and you yourself recognise that there is more to be done in terms of addressing risk ...”
16.  In November 2011 the applicant completed the TSP.
17.  By letter dated 1 December 2011, the applicant was informed that the Secretary of State had considered the Parole Board recommendation and agreed that the applicant was not suitable for release or transfer to open prison conditions. The next review period was set at twenty months, allowing eight months for completion of TSP, six months for completion of ESOTP and six months for production of a further SARN report. The review would therefore commence in October 2012 with a view to completion by July 2013.
18.  In a Sentence Planning and Review Report dated 5 December 2011, it was recognised that ESOTP was a course that the applicant should concentrate on as part of his sentence plan. The report observed that the applicant’s need to improve his use of alternative styles of thinking had been addressed through his attendance at the TSP. The report further noted:
“Alcohol was an area that was problematic before his incarceration ... He has completed an accredited alcohol course (TADS) and continues to work with CARATS to address this issue. Mr Alexander has completed TSP and reports following completion were positive ... His sentence plan also recommends that he is assessed for the Extended SOTP. I understand from the programmes department that due to lack of resources this remains an objective. However, I am confident that subject to local prioritization strategy this should be completed in 2013.”
19.  The applicant’s tariff expired on 16 January 2012.
20.  On 27 April 2012 the Prison Service notified the applicant’s solicitors that the applicant was listed on their database “as a priority for assessment” prior to the next ESOTP scheduled to commence in August 2012. The applicant was not selected to participate in the course.
21.  On 24 May 2012 the applicant completed a “Change is Possible” group work session. On an unknown date, he attended a brick-laying course.
22.  On 12 October 2012 the applicant made a formal application to HMP Bure to ask for an assurance that he would have a place on the next ESOTP. He was advised in reply that no such assurance could be given but that he was a “high priority”.
23.  On 28 November 2012 the Prison Service advised the applicant’s solicitors that he would continue to be considered for the next group to participate in the ESOTP, in line with the prioritisation strategy.
24.  On 18 December 2012 the applicant’s Parole Assessment Report commented on the work done to date and noted:
“Unfortunately, Mr Alexander has yet to get a place on the [ESOTP] and it is hoped that he will in March 2013.”
25.  In its recommendation, the report stated:
“It is hoped that [the applicant] will be able to participate in the ESOTP (6 months in duration) that is scheduled for March 2013. Until that programme is completed and a further SARN written to identify whether further intervention is required to manage risk, there can be no change to his current assessments and there is no support for a move to less secure conditions at this time ...”
26.  On 12 February 2013 the Parole Board decided on the papers not to direct the applicant’s release, deeming him still a risk to the public until he completed the ESOTP. Its report stated:
“Through no fault of your own, you have been unable to complete ESOTP but it is anticipated that you will have the opportunity to do so in 2013.”
27.  On 13 February 2013 the applicant was informed by HMP Bure programmes team that his placement onto the ESOTP expected to run in June 2013 would depend on the assessment process, which was ongoing, and on his level of priority.
28.  On 11 March 2013 the applicant’s solicitors advised him that HMP Bure had informed them that the applicant would be assessed for a place on the ESOTP to commence in May 2013.
29.  On 13 March 2013 the applicant was informed that the Parole Board decision of February 2013 was final and that the next review would commence in October 2013, with a view to a hearing in May 2014.
30.  On 2 April 2013 the applicant was assessed as being suitable for the ESOTP.
31.  On 10 April 2013 the applicant’s solicitors advised him that they had been informed by HMP Bure that he was a “relatively high priority” to complete the next ESOTP running at HMP Bure in May/June 2013.
32.  In June 2013 the applicant was transferred to HMP Whatton. In February 2014 he underwent further assessments for the ESOTP in order for prison staff to decide whether he could access the ESOTP at another prison or whether he should undertake the course at HMP Whatton.
33.  On an unknown date in autumn 2014 the applicant commenced the ESOTP at HMP Risley. He was due to complete the course in March 2015.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
34.  The relevant domestic law and practice is set out in the Court’s judgment in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012.
35.  According to the Government, HMP Whatton provided a number of ESOTP courses over the period during which the applicant was waiting for a place on the course. Thus, two programmes were provided in 2010/11, three programmes were provided in 2011/2012 and in 2012/2013 and two programmes were provided in 2013/2014.
THE LAW
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
36.  The applicant complained under Article 5 § 1 of the Convention that his detention was arbitrary because the Parole Board had refused to recommend his release on the ground that he had not yet completed the ESOTP, despite the fact that he was unable to access that course. Article 5 § 1 reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court ...”
37.  The Government contested the argument that there had been a violation of Article 5 § 1 in the case.
A.  Admissibility
38.   The Government argued that the applicant had failed to exhaust domestic remedies since he had not commenced judicial review proceedings alleging a breach of Article 5 § 1 of the Convention. In the alternative, they invited the Court to declare the applicant’s complaint inadmissible as manifestly ill-founded. Citing Hall v. the United Kingdom (dec.), no. 24712/12, § 32, 12 November 2013, they argued that the applicant had been given access to numerous courses and assessments both pre- and post-tariff and that his post-tariff detention could therefore not be considered “arbitrary”.
39.  The Court is satisfied that at the point at which the applicant lodged his application, the possibility of judicial review proceedings offered no prospect of success as regards systemic delay in access to rehabilitative courses (see Black v. the United Kingdom (dec.), no. 23543/11, § 52, 1 July 2014). The Government’s objection is accordingly dismissed.
40.  The Court further considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
41.  The applicant claimed that during his imprisonment he had participated in only two attributed courses: the SOTP and the ESOTP. Following completion of the SOTP, he had been informed that further assessments were required. He had waited for four years for these assessments but they were never carried out. He had twice been moved prison to try and get a place on the ESOTP. Finally, he complained that he had recently been informed that he might have to do further courses. In his view, this amounted to over-treatment.
42.  The Government emphasised that prior to tariff expiry, the applicant enjoyed regular access to a wide range of course and other activities to assist him in addressing his offending behaviour and demonstrating a reduction of his risk to the satisfaction of the Parole Board. They referred to this Court’s recent case-law on IPP sentences which they argued showed the narrowness of the claim for a breach of Article 5 § 1 on the grounds of a lack of progress leading to arbitrariness in detention (citing Hall v. the United Kingdom (dec.), no. 24712/12, § 32, 12 November 2013; Dillon v. the United Kingdom, no. 32621/11, 4 November 2014; David Thomas v. the United Kingdom, no. 55863/11, 4 November 2014; and Gareth Taylor v. the United Kingdom, no. 2963/12, 3 March 2015).
43.  In James, Wells and Lee, cited above, § 209, the Court explained that in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation was a necessary element of any part of the detention which was to be justified solely by reference to public protection. This required reasonable opportunities to undertake courses aimed at helping prisoners to address their offending behaviour and the risks they posed. While Article 5 § 1 did not impose any absolute requirement for prisoners to have immediate access to all courses they might require, any restrictions or delays encountered as a result of resource considerations had to be reasonable in all the circumstances of the case, bearing in mind that whether a particular course was made available to a particular prisoner depended entirely on the actions of the authorities (see § 218 of the judgment).
44.  In examining whether an applicant’s detention post-tariff has been unjustified for the purposes of Article 5 § 1 (a) of the Convention the Court “must have regard to the detention as a whole” (see James, Wells and Lee, cited above, § 201). Thus, where, as in the present case, the applicant claims that delay in his access to prison courses constituted a violation of Article 5 § 1 (a), the applicant’s general progression through the prison system must be assessed in light of the particular circumstances of the case (see, inter alia, Hall, cited above, § 32; and Black, cited above, § 54).
45.  It is clear from the papers before the Court that the applicant’s progress through the prison system began at an early stage. Less than six months after his conviction in April 2007, he had completed a first alcohol awareness course (see paragraph 7 above). In July 2008 he completed the ETS course, followed by the Living with Loss course four months later (see paragraphs 8-9 above). In early 2009 he commenced the SOTP, completing it in July 2009 (see paragraph 10 above). Following completion of that course, a period of evaluation began and a SARN report was prepared (see paragraph 11 above). The applicant completed a further alcohol awareness course in July 2011 and the TSP in November 2011 (see paragraphs 14 and 16 above). It can be seen that, prior to the expiry of his tariff in January 2012, the applicant had completed no fewer than six courses designed to help him address his offending behaviour and demonstrate to the Parole Board a reduction in his risk.
46.  It is true that following the expiry of his tariff and with the exception of some group work, the applicant does not appear to have participated in any rehabilitative programmes until autumn 2014, despite the ESOTP having been recommended in April 2010 (see paragraphs 11, 21 and 33 above). However, it is clear that throughout the period during which the applicant was awaiting a place on the ESOTP, he was being monitored and assessed as appropriate with a view to ensuring his progress through the prison system and eventual release (see paragraphs 20, 23, 27-28 and 30-32 above). The reasonableness of the delay in accessing the ESOTP must further be viewed in the context of the gravity of his offence, which necessitated extensive offending behaviour work, and the imposition of a tariff of almost five years (see paragraph 6 above). It must also be considered against the backdrop of the wide range of rehabilitative courses which the applicant had already accessed before the expiry of his tariff and which had allowed him to present evidence to the Parole Board of a reduction in the level of risk that he posed.
47.  Finally, in so far as the applicant appeared to complain about further rehabilitative work now required, it is not for this Court to second-guess the decisions of the qualified national authorities as regards the appropriate sentence plan (see Dillon, cited above, § 50).
48.  In the present case, it can be seen that unlike in the case of James, Wells and Lee, prompt steps were taken to begin the applicant’s progression through the prison system. He was given access to a wide range of rehabilitative courses which enabled him to present evidence of risk reduction. In these circumstances the Court is satisfied that a real opportunity for rehabilitation was provided to the applicant and that there was no unreasonable delay in providing him access to courses. There has accordingly been no violation of Article 5 § 1 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint application admissible;

2.  Holds that there has been no violation of Article 5 § 1 of the Convention.

Done in English, and notified in writing on 30 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Nona Tsotsoria
	Deputy Registrar	President