Jailing dangerous prisoners indefinitely on the grounds of risk without giving them access to rehabilitation courses breaches their human rights, European judges ruled today.
The European Court of Human Rights held unanimously that the controversial sentences, which Ken Clarke as Justice Secretary announced he was scrapping last year, breached prisoners' rights to liberty and security.
More than 6,500 offenders have been sent to jail without any fixed date for their release using indeterminate sentences for the protection of the public (IPPs) since they were brought in by Labour in 2005.
Such a large number of people were sentenced to IPPs that "it soon became clear that existing resources were insufficient" and "IPP prisoners swamped the system in place for dealing with those serving indeterminate sentences", the human rights judges ruled.
The case concerned three Britons - Brett James, Nicholas Wells and Jeffrey Lee - who were given automatic IPP sentences in 2005 and claimed that a failure to ensure they had access to courses in prison harmed their ability to show they were rehabilitated and able to be released.
The judges said: "It is clear that the delays were the result of a lack of resources."
While resource implications were relevant, the inadequate resources "appeared to be the consequence of the introduction of draconian measures for indeterminate detention without the necessary planning and without realistic consideration of the impact of the measures", they added.
"Further, the length of the delays in the applicants' cases was considerable: for around two and a half years, they were simply left in local prisons where there were few, if any, offending behaviour programmes.
"The stark consequence of the failure to make available the necessary resources was that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariff periods expired.
"Further, once the applicants' tariffs had expired, their detention was justified solely on the grounds of the risk they posed to the public and the need for access to rehabilitative treatment at that stage became all the more pressing.
"In these circumstances, the court considers that following the expiry of the applicants' tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses, their detention was arbitrary and therefore unlawful within the meaning of Article 5:1 of the convention."
The ruling raises the possibility that the Government could have to pay compensation to up to 3,500 prisoners currently sentenced to IPPs who have already served their minimum tariff.
There were 6,017 prisoners serving an IPP sentence at the end of March, with 3,506 of these being held beyond their tariff expiry date, the latest figures released by the Prison Reform Trust showed.
Juliet Lyon, the trust's director, said: "This judgment should prompt the new Secretary of State to institute a review of the cases of over 3,500 people held beyond their indeterminate sentence tariff dates, use his discretion under the Legal Aid, Sentencing and Punishment of Offenders Act (2012) to change the release test and eradicate a stain on our justice system.
"It is shaming to have so many people locked up in our prisons, not for what they have done but for what they might do in the future.
"Many of these prisoners are condemned to years of uncertainty during which time they must somehow prove, from the confines of a bleak overcrowded jail, that they no longer present a risk to the public.
"The means to do this, attendance at scarce and not always reliable offending behaviour programmes, is barred to people with a mental illness, learning disability, many on medication and anyone with a low IQ score, trapping these most vulnerable people in a maze with no exit.
"To put matters right, more trust could be placed in prison governors and staff, probation and the Parole Board to determine the risk to the public presented by a few dangerous people rather than relying on the current obstacle race facing so many prisoners and their families.
"The IPP has attracted near universal criticism from judges, Parole Board members, the prisons inspectorate, the prison governors' association, staff and prisoners and families alike.
"Now Government has abolished the Kafkaesque indeterminate sentence for public protection, it's time to return to a sensible system of fairness, proportionality and just desserts."
The ruling of Europe's human rights judges does not become final for three months, pending any appeals.
A Ministry of Justice spokesman said: "We are disappointed by this judgment and are currently considering our grounds to appeal.
"Public protection will not be put at risk - the judgment does not find that indeterminate sentences are unlawful, and will not mean prisoners currently serving IPP sentences will have to be released.
"The Government has already announced that the complex IPP system will be replaced by a new regime of tough, determinate sentences.
"This will see more dangerous criminals given life sentences, and others spending longer periods in prison, with tough licence conditions on release."
Speaking during justice questions in the Commons, newly promoted Justice Secretary Chris Grayling said the Government intended to appeal.
He said: "Well of course the ECHR ruling this morning was very much about the issue of rehabilitation, something I feel very strongly about, something that needs to be clear and present within prisons as well as after prisons.
"However I'm very disappointed by the ECHR decision this morning. I have to say, it is not an area where I welcome the court seeking to make rulings, it is something we intend to appeal."