Kaiyam, R (On the Application Of) v The Secretary of State for Justice

Factual and Procedural Background

These appeals arise from claims by the appellants regarding their continued detention following the expiry of the minimum terms ("tariff periods") of their indeterminate prison sentences. Upon expiry of the minimum term, the respondent is required to refer the prisoner’s case to the Parole Board, which must direct release if the prisoner no longer poses a risk to public safety.

The first appellant, referred to as Plaintiff A, is serving an automatic life sentence imposed in 2003 for robbery, with a minimum term that expired in 2012. He claims damages and declarations alleging breaches of Articles 5(1) and 14 of the European Convention on Human Rights ("the Convention") due to delays in his transfer to open prison conditions, a prerequisite for consideration for release by the Parole Board. He contends his detention is arbitrary and discriminatory compared to other post-tariff prisoners.

The second appellant, Plaintiff B, was sentenced to imprisonment for public protection in 2006 with a minimum term expiring in 2009. He complains of delays in receiving access to suitable courses aimed at reducing his risk of reoffending, which he argues breaches Article 5(1) of the Convention and a public law duty at common law. He seeks damages and declaratory relief.

Both appellants’ claims were dismissed in lower courts, which followed binding House of Lords decisions despite subsequent European Court of Human Rights (ECtHR) rulings that those decisions were incorrect. The appeals focus on whether permission to appeal to the Supreme Court should be granted and whether the Court of Appeal should express views on the Convention arguments. Additionally, Plaintiff B challenges the dismissal of his common law claim.

Legal Issues Presented

1. Whether permission to appeal to the Supreme Court should be granted in respect of the Convention claims.
2. Whether the Court of Appeal should review and express views on the Convention arguments despite being bound by precedent.
3. Whether the dismissal of Plaintiff B’s common law claim for breach of public law duty was correct.

Arguments of the Parties

Appellants' Arguments

• Plaintiff A contends that his continued detention is arbitrary under Article 5(1) due to delays in transfer to open prison conditions and discriminatory under Article 14 in conjunction with Article 5, as he was treated less favourably than comparable post-tariff prisoners.
• Plaintiff B argues that delays in providing suitable offending behaviour courses breach Article 5(1) and a public law duty to provide reasonable opportunities to demonstrate suitability for release. He seeks damages for the Convention breach and declaratory relief for the public law claim.
• Appellants submit that the House of Lords decisions relied upon by the lower courts are distinguishable or incorrect, and that the Supreme Court should resolve the conflict between domestic and Strasbourg jurisprudence.

Respondent's Arguments

• The respondent argues that permission to appeal should be refused, maintaining that the House of Lords decisions remain binding domestic authority despite ECtHR disagreement.
• Regarding Article 14, the respondent contends that differences in treatment between pre-tariff and post-tariff prisoners were objectively justified and that the cases are not truly analogous.
• For Plaintiff B’s common law claim, the respondent asserts that the claim was properly dismissed as it was based on a systemic public law duty, not individual irrationality or breach of policy, and that no evidence showed the system or resources provided were inadequate.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (James and others) v Secretary of State for Justice [2009] UKHL 22	Obligation to provide reasonable provision enabling prisoners to demonstrate suitability for release after minimum term; breach of Article 5 claims dismissed due to this binding authority.	Lower courts and this court held themselves bound to dismiss Article 5 claims despite ECtHR later holding the House of Lords decision was wrong.
R (Clift and others) v Secretary of State for the Home Department [2006] UKHL 54	Classification of prisoners as determinate sentence holders not protected status under Article 14; used to dismiss discrimination claims.	Lower courts and this court followed this binding precedent, dismissing Article 14 claims despite ECtHR disagreement.
Kay and others v Lambeth London Borough Council [2006] UKHL 10	Binding nature of House of Lords decisions; courts must follow unless exceptional circumstances justify departure.	Confirmed that this court was bound by the House of Lords decisions in James and Clift.
Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270	Principles regarding when ECtHR decisions should be followed domestically.	Used to support argument that ECtHR decisions should not be followed if based on misunderstanding or are unclear.
R (Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522	Public law duty to act rationally in provision of courses and assessments for prisoners.	Supported the existence of a rationality duty in the provision of resources and courses for indeterminate sentence prisoners.
In Re Findlay [1985] 1 AC 318	Public authorities must act in accordance with their own policies.	Supported the principle that the Secretary of State is bound by his own policy in providing systems and resources.
R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245	Public law duty to comply with policies and act rationally.	Reinforced the obligations on public authorities to follow policies and act rationally in resource provision.
R (on the application of Dennis Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin)	Requirement to specify breaches of policy in claims.	Used to reject unpleaded breach of policy claims in this case.

Court's Reasoning and Analysis

The court acknowledged it was bound by the House of Lords decisions in James and Clift, despite later ECtHR rulings finding those decisions incorrect. The court therefore had no choice but to dismiss the Convention claims. However, it recognized the conflict between domestic and Strasbourg jurisprudence and considered that the Supreme Court should resolve this important legal uncertainty. Consequently, the court granted permission to appeal to the Supreme Court on both the Article 5 and Article 14 points.

The court declined to review and express detailed views on the Convention arguments itself, reasoning that such policy-sensitive questions are for the Supreme Court to determine and that the Court of Appeal’s detailed analysis would not assist.

Regarding Plaintiff B’s common law claim, the court examined the public law duty established in James requiring the Secretary of State to provide systems and resources enabling prisoners to demonstrate suitability for release. The court emphasized that this duty is systemic, not owed individually to prisoners, and does not confer a right to damages. The claim was based solely on systemic failure, not on irrationality or breach of policy relating to individual decisions.

The court upheld the lower court’s refusal to allow Plaintiff B to advance a rationality challenge or breach of policy claim not pleaded properly. It found no evidence that the system or resources were inadequate or operated improperly. Although Plaintiff B experienced regrettable delays, these did not demonstrate a systemic failure sufficient to establish breach of the public law duty. The claim was therefore dismissed.

Holding and Implications

The court DISMISSED both the Convention and common law claims at this stage but granted permission to appeal to the Supreme Court on the Convention issues.

The direct effect is that the appellants remain detained under the current legal framework, with no damages or declarations granted at this level. The court emphasized that the Supreme Court must resolve the conflict between domestic precedent and Strasbourg jurisprudence, indicating that this area of law remains unsettled. No new precedent was established by this court’s decision.