FOURTH SECTION

DECISION

Application no. 52884/19 James KNIGHTS against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 23 March 2021 as a Committee composed of:

Faris Vehabović, President, Tim Eicke, Pere Pastor Vilanova, judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above application lodged on 2 October 2019,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr James Knights, is a British national, who was born in 1981 and lives in Halesworth. He was represented before the Court by Mr W. Kenyon of ITN Solicitors, lawyers practising in London.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . In 2008, the applicant pleaded guilty to eighteen counts of making, possessing or distributing indecent photographs of children in 2006 and 2007. He had two previous convictions from 2004 and 2007 for nine offences, including making and distributing indecent photographs of children and offences of exposure.

4 . In his pre-sentence report the probation officer expressed concern that, taking into account his previous convictions and other factors, the risk of further offending was high. At sentencing, the applicant ’ s counsel argued that despite the applicant ’ s previous offending and the presumption of the significant risk of serious harm which arose on account of it under the Criminal Justice Act 2003 (“the 2003 Act”) (see paragraph 25 below), he did not present such a risk given the circumstances of the offences for which he had been convicted.

5 . On 26 June 2008, he was sentenced to an indeterminate sentence for the public protection (“IPP sentence”) with a minimum term of eight months. The sentencing judge concluded that there was a significant risk of the applicant committing serious harm by the commission of further offences and that, in these circumstances, he was obliged under the applicable legislation to impose an IPP sentence. The minimum term represented half the notional two-year term which he would otherwise have imposed, less four months ’ detention on remand. The applicant was also sentenced to a Sexual Offences Prevention Order (“SOPO”) for a fixed term of seven years.

6 . Pursuant to changes introduced by the Criminal Justice and Immigration Act 2008 (“the 2008 Act” – see paragraph 26 below), from 14 July 2008 it was no longer possible to impose an IPP where the notional determinate term of imprisonment was less than four years. The amendments did not affect IPP sentences already imposed.

7 . The applicant ’ s minimum term expired on 26 February 2009.

8 . Following a Parole Board hearing on 1 August 2011, the Board decided not to direct the applicant ’ s release. It noted the serious nature of the offences for which the sentence had been imposed and the applicant ’ s previous sexual offending history. It gave credit for his excellent behaviour in custody and the insights he had gained through offending behaviour work he had undertaken. However, it concluded that he continued to pose an unacceptably high risk of committing an offence that could cause serious harm, and that the level of risk could not be managed safely in the community.

9 . Following a Parole Board review on 25 April 2013, the Board decided to direct the applicant ’ s release on licence. It found that his risk of committing an offence that could cause serious harm was minimal and that it could be safely managed in the community. The applicant was released on licence on 1 July 2013.

10 . On 19 September 2013 the applicant ’ s licence was revoked for breach of the licence conditions and he was recalled to prison. The applicant did not challenge the revocation of his licence.

11 . Following a Parole Board Review on 28 January 2014, the Board again directed the applicant ’ s release. It considered that the behaviour that had triggered his recall to prison did not increase his risk of sexual offending and that the circumstances of recall were likely to have increased his understanding of what was required from him on licence and increased his offender manager ’ s knowledge of how best to work with him. His risk could therefore be safely managed in the community. He was released on licence on 12 March 2014.

12 . On 10 September 2014 a police officer attended his home unannounced and witnessed him using a smartphone, in breach of his licence conditions. Upon further questioning he described behaviour that appeared to be unlawful behaviour and offence-paralleling behaviour. The officer requested a warning for the applicant (rather than revocation of his licence) and his licence was amended to require him to undergo polygraph testing. In November 2014 he underwent a polygraph test and admitted breaches of his licence conditions. The accumulation of concerns led to his recall to prison on 2 December 2014. The applicant did not challenge the revocation of his licence.

13 . Following a Parole Board hearing on 27 November 2015, the Board decided not to direct the applicant ’ s release. It was satisfied that it was necessary for the protection of the public that he be confined. It noted that further assessments and offending behaviour work were envisaged.

14 . Following a Parole Board review on 21 March 2017, the Board again decided not to direct the applicant ’ s release. It considered that until he had completed an identified programme of treatment to address outstanding areas of risk in relation to his sexual offending, he could not be safely managed in the community.

15 . Following a Parole Board hearing on 11 March 2019, the Board decided to direct the applicant ’ s release for the third time. It considered that he had developed insight into his risk factors, the need to use internal skills to manage them and the importance of complying with rules and being open with professionals. The proposed risk management plan was robust and a number of protective factors were in place. It was therefore no longer necessary that the applicant be detained for the protection of the public. He was subsequently released on licence and remains at liberty.

(a) The Administrative Court

16 . Meanwhile, on 18 December 2013, the applicant was granted permission to seek judicial review. He argued, inter alia , that there had been a breach of Article 3 and Article 5 § 1, alone and in conjunction with Article 14, because the length of time he had spent in custody was disproportionate. He referred to the change in sentencing law and the fact that the maximum determinate sentence applicable to the offences of which he was convicted was ten years.

17 . On 11 February 2015, his claim was dismissed by the Administrative Court. The court was of the view that, taking into consideration the case-law of this Court, the length of the sentence was a matter for national authorities and could not give rise to an Article 5 § 1 complaint. In the applicant ’ s case, the causal link between the sentence and the detention had not been broken: he had been detained for public protection, he was undertaking courses to reduce the risk he posed to the public, his risk was periodically reassessed by the Parole Board and, when it was considered to be low enough, his release had been directed. The judge did not consider this Court ’ s case-law to support an argument that detention could become arbitrary simply because the law on sentencing had changed after a prisoner had been sentenced and, had he been sentenced later, he would have received a more lenient sentence than the one imposed.

18 . As to the Article 3 complaint, the judge considered it clear from Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts), that the length of a sentence would only give rise to a breach of Article 3 in very exceptional circumstances. The applicant had not established that the length of time he had served met the Article 3 threshold.

(b) The judgment of the Court of Appeal

19 . The applicant applied to the Court of Appeal for leave to appeal out of time in February 2016. Leave was refused on the papers on 5 May 2016. However, it was granted on 2 February 2017 following a renewed application for permission to appeal.

20 . The court handed down its judgment on 25 July 2017. As to Article 3, it did not accept that the concept of an IPP sentence meant that the overall period the applicant had spent in custody had to be measured against and be consistent with the gravity of the offence. It emphasised that an IPP was a precautionary sentence. Having served the minimum term, the applicant had become eligible for release on parole and had in fact been released, twice, but on both occasions had acted in breach of licence conditions intended to protect the public. It was for breach of licence conditions that he had been recalled; the justification for these recalls had not been challenged. He was in custody not because of the gravity of his original offending but because of the risk that the breach of his licence had created for the public. The court did accept that the correct measure for testing whether a sentence was grossly disproportionate under Article 3 was, without more, by reference to the gravity of the original offence.

21 . Addressing the argument that the IPP provisions had to be read subject to the maximum determinate sentence for the offence concerned in order to be proportionate, the court said:

“32. ... That submission utterly ignores the terms in which the legislation was passed and the fact that it was specifically designed to protect the public from those who were considered a risk whether or not the offence of which they had been convicted itself justified (or could justify) an indeterminate sentence: the offences of which the appellant was convicted were specified in terms by the 2003 Act as potentially triggering the provisions. It would have been a simple matter to restrict the sentence (as the 2008 Act provided) or to ensure that it was passed only in circumstances where the maximum sentence for the offence was life imprisonment.”

22 . The applicant ’ s argument that where detention pursuant to an IPP sentence exceeded the statutory maximum for an equivalent determinate sentence for the same offence it was no longer in accordance with the law was found to be “equally without merit”. The court therefore agreed with the Administrative Court that the Article 3 threshold had not been met.

23 . As to his Article 5 § 1 argument, the Court of Appeal addressed it from the perspective of Article 14, taken in conjunction with Article 5. The argument was rejected, essentially on the basis that differences of treatment as regards sentencing are inherent in changes in sentencing law. Such cases could not amount to objectionable discrimination, since that would make it impossible to change the law. It was neither irrational nor unjustified to take the point of sentence as the moment that triggered the application of a new sentencing regime.

(c) Refusal of leave to appeal to the Supreme Court

24 . The applicant applied for leave to appeal to the Supreme Court, relying on his rights under Articles 3 and 5 § 1 of the Convention. On 16 April 2019, leave was refused because the application did not raise an arguable point of law.

25 . IPP sentences were introduced with effect from 4 April 2005 by the 2003 Act. The relevant domestic law which applied at the time the applicant was sentenced is set out in the Court ’ s judgment in James, Wells and Lee v. the United Kingdom , nos. 25119/09 and 2 others, §§ 124-33, 18 September 2012. In short, an IPP sentence was mandatory where an individual was convicted of a serious offence specified by the Act and the court was of the opinion that there was significant risk to members of the public of serious harm occasioned by the commission by the convicted person of further specified offences. There was a presumption of risk where the convicted person had previous convictions for specified offences, but this could be rebutted where the court considered that it would be unreasonable to conclude that there was such a risk. The sentencing judge was required to specify the minimum period before which there was no eligibility for release on licence. This was calculated by reference to one ‑ half of the notional determinate sentence that would otherwise have been imposed .

26 . As noted above, the provisions of the 2003 Act were amended with effect from 14 July 2008 by the 2008 Act. Under the amended rules, an IPP sentence was no longer mandatory but discretionary, and risk was no longer to be presumed in the case of relevant previous convictions. Moreover, an IPP sentence could only be imposed where the notional determinate sentence would be at least four years. The changes did not affect IPP sentences already imposed.

27 . IPP sentences were abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. They were replaced by a new life sentence, the imposition of which was obligatory following conviction for a second time of one of a defined group of violent or sexual offences where both previous and current offences had been met by or would call for determinate sentences of ten years or more. A new form of extended sentence was also introduced. The provisions came into force on 3 December 2012 but were not made retrospective so IPP sentences already imposed continued to be served.

COMPLAINTS

28 . The applicant complained under Article 3 of the Convention that the IPP sentence imposed on him was grossly disproportionate by reference to the gravity of his crimes.

29 . He complained under Article 5 § 1 that his detention was not in accordance with the law, that it was arbitrary and that there had been a breach in the causal connection between his conviction and detention.

THE LAW

30 . The applicant contended that his IPP sentence was incompatible with Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

31 . He argued that imposing what was essentially a life sentence on him was grossly disproportionate by reference to the statutory maximum sentence of ten years for the offences concerned; the seriousness of past offending; and circumstances such as these, including the legislative changes made in 2008 and 2012 (see paragraphs 26 - 27 above). He maintained that the proportionality of the sentence had to be tested against the gravity of the offences for which he had been sentenced, and not against the risk of potential future harm. He pointed to the fact that he had spent 122 months in detention, but that a minimum term of only eight months had been imposed in his case. He highlighted that the SOPO made at the judge ’ s discretion in his case had been limited to seven years (see paragraph 5 above), while his licence under the mandatory IPP sentence imposed was for life. He argued that the abolition of the IPP sentence in 2012 demonstrated that it was a recognised failure, resulting in grossly disproportionate, unfair and unlawful treatment. In order to assess the proportionality of the detention, it was necessary to have regard to the law as it now stood.

32 . The Court underlines that matters of appropriate sentencing largely fall outside the scope of the Convention: it is not the Court ’ s role to decide what is the appropriate term of detention applicable to a particular offence or to pronounce on the appropriate length of detention which should be served by a person after conviction by a competent court (see Vinter and Others , cited above, §§ 104-05). In particular, the imposition of a sentence of life imprisonment on an adult offender is not in itself incompatible with Article 3 of the Convention (see Kafkaris v. Cyprus [GC], no. 21906/04, § 97, ECHR 2008).

33 . The Court has, however, been prepared to accept that a grossly disproportionate sentence could amount to ill-treatment of sufficient severity to violate Article 3 at the moment of its imposition ( Vinter and Others , cited above, § 102, endorsing § 89 of the Chamber ’ s judgment in the case). The test for gross disproportionality is a strict one and will only be met on “rare and unique occasions” (see Vinter and Others , cited above, § 102). Indeed, to date the Court has not found any sentence imposed to be in breach of Article 3 on the basis that it was grossly disproportionate (for cases where a complaint under Article 3 about the alleged disproportionality of the sentence has been rejected, see V. v. the United Kingdom [GC], no. 24888/94, §§ 93-101, ECHR 1999 ‑ IX; T. v. the United Kingdom [GC], no. 24724/94, §§ 92-100, 16 December 1999; Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR 2001 ‑ VI; and Maričák v. Slovakia (dec.), no. 26621/10, 7 June 2011).

34 . The Court does not accept in this context that the proportionality of the sentence must be assessed only in the light of the gravity of the offence for which the sentence has been imposed. It is the Court ’ s consistent case ‑ law that when assessing whether ill-treatment has attained the minimum level of severity required to fall within the scope of Article 3, regard must be had to all the circumstances of the case (see Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015; and Kafkaris , cited above, § 95). Accordingly, in the case of an alleged grossly disproportionate sentence the reason for which the particular sentence was imposed is a relevant consideration to which a court must have regard.

35 . In the present case, the applicant was convicted of a serious offence, within the meaning of the 2003 Act (see paragraph 25 above). He was sentenced to an IPP sentence on account of the risk that he was perceived to pose to the public. It is true that this risk was presumed to exist pursuant to the legislation applicable at the time the sentence was imposed because the applicant had previous relevant convictions. But a presumption of risk based on relevant previous offending is not in itself objectionable where, as in the present case, the presumption can be rebutted. In the event, that presumption was not rebutted in the applicant ’ s case: he was assessed prior to sentence as being at high risk of reoffending (see paragraph 4 above). That conclusion was subsequently endorsed by the sentencing judge (see paragraph 5 above). In these circumstances the imposition of a sentence enabling the high risk he posed to be monitored and addressed cannot be said to be grossly disproportionate.

36 . As noted above, the Court ’ s case-law makes it clear that the proportionality or otherwise of a sentence is to be assessed at the moment of its imposition. A sentence which has been proportionately imposed does not become disproportionate merely because of the length of time an applicant has, in fact, been detained pursuant to it. The Court acknowledges that the applicant ultimately spent far longer in detention than the punitive element of his sentence, in the form of the minimum term, entailed. But this is not in itself surprising given that his detention following the expiry of the minimum term was for the protection of the public and was thus intended to be wholly separate from the perceived appropriate punishment for the offences committed. The applicant was entitled to, and enjoyed, regular reviews of his detention in order for it to be determined whether the protection of the public required his continued incarceration (see paragraphs 8 - 15 above). He makes no complaint about the frequency or outcomes of these reviews. While he may be recalled to prison at any time for breach of the licence conditions, this is a consequence of the repeated nature of his serious offending and other risk factors which led to the imposition of the IPP sentence and cannot be said to be grossly disproportionate in these circumstances. The applicant ’ s arguments concerning the maximum determinate term that could have been imposed for his offences are also misconceived: the legislature had determined that in the case of the offences for which the applicant was convicted a determinate sentence or an IPP sentence could be imposed. The latter was mandatory where there was perceived to be a significant risk of serious harm, and such a risk was identified in the applicant ’ s case.

37 . In view of the foregoing considerations, no violation of Article 3 has been disclosed. The applicant ’ s complaint is accordingly manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

38 . The applicant further contended that his detention was in breach of Article 5 § 1, which provides:

“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 ...”

39 . He argued that the detention was unlawful because it exceeded the statutory maximum determinate sentence. This infringed the principles of legal certainty and legality and either rendered detention in breach of domestic law or meant that domestic law lacked the requirements of certainty, foreseeability and quality of law. Detention was moreover arbitrary in light of the subsequent legislative changes and in particular the fact that three weeks after the sentence had been imposed on him, it was no longer possible to impose such a sentence on convicted persons for whom the notional determinate sentence would be less than four years. This, he said, indicated that the justification for indeterminate detention in cases such as his was absent. Finally, he contended that the causal link between conviction and detention had been broken on account of the changes in the law and the passage of time.

40 . The Court reiterates that “lawfulness” in the context of Article 5 § 1 refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law (see James, Wells and Lee , cited above, § 190). In the present case the IPP sentence was properly imposed under the 2003 Act. The Court is therefore satisfied that detention was lawful.

41 . As the applicant has pointed out, Article 5 § 1 also requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see James, Wells and Lee , cited above, § 191). The Court has explained that in the context of Article 5 § 1 (a), a concern may arise in the case of persons who, having served the punishment element of their sentences, are in detention solely because of the risk they pose to the public if there are no special measures, instruments or institutions in place aimed at reducing the danger they present and at limiting the duration of their detention to what is strictly necessary in order to prevent them from committing further offences (see James, Wells and Lee , cited above, § 194). The applicant has not argued that he was deprived of the opportunity to address his offending behaviour and thereby reduce his risk. It is clear from his Parole Board reviews that he engaged in offending behaviour work, that he was thus able to demonstrate a reduction in risk and that he was released when it was considered that the risk he posed could be safely managed within the community (see paragraphs 8 - 15 above).

42 . The Court has also explained that a decision not to release or to re ‑ detain a prisoner based on grounds that were inconsistent with the objectives of the initial decision by the sentencing court, or on an assessment that was unreasonable in terms of those objectives, might break the causal link between the initial conviction and the later deprivation of liberty. In this way, detention that was lawful at the outset might be transformed into a deprivation of liberty that was arbitrary (see James, Wells and Lee , cited above, §§ 189 and 195). There is no evidence, however, that such concerns arise in the present case. It is apparent from the outcome of his first Parole Board review in 2011 that the decision not to release him was based on the Board ’ s conclusions as to the level of risk he continued to pose (see paragraph 8 above). Following his recall to custody in 2013, the Board reviewed his case and, having concluded that the behaviour that had triggered his recall to prison did not increase his risk of sexual offending, once again ordered his release (see paragraph 11 above). His 2015 recall to prison was based on concerns about breaches of licence conditions and unlawful behaviour paralleling the offences for which he had been convicted in 2008. Subsequent Parole Board reviews in 2015 and 2017 continued to focus on work that was being done in custody to address outstanding areas of risk in relation to his sexual offending (see paragraphs 13 - 14 above). It is, therefore, clear that the applicant ’ s continued detention and recalls to prison were based on the risk of further sexual offending that he was perceived to pose, and as such were entirely consistent with the objectives of the court when it imposed the IPP sentence. There is, moreover, no suggestion that the assessments of the Parole Board were unreasonable in terms of those objectives. The applicant relies in particular on the legislative changes which took effect three weeks after he was sentenced and which would have precluded the imposition of an IPP sentence in his case. The Court agrees with the Court of Appeal that differences of treatment as regards sentencing are inherent in changes in sentencing law (see paragraph 23 above). While in some cases the effect of such changes may be viewed as harsh, this cannot in itself render detention which otherwise meets the requirements of Article 5 § 1 arbitrary within the meaning of that Article.

43 . The Court is accordingly satisfied that there was a sufficient connection between the applicant ’ s 2008 conviction and his later periods of detention (see Weeks v. the United Kingdom , 2 March 1987, §§ 49-53, Series A no. 114; compare Stafford v. the United Kingdom [GC], no. 46295/99, § 81, ECHR 2002 ‑ IV). No violation of Article 5 § 1 is disclosed and the complaint must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 April 2021 .

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Ilse Freiwirth Faris Vehabović Deputy Registrar President