Michaelmas Term [2018] UKSC 59 On appeal from: [2017] EWHC 214 (Admin)

JUDGMENT
R (on the application of Stott) (Appellant) v
Secretary of State for Justice (Respondent)
before
Lady Hale, President
Lord Mance
Lord Carnwath
Lord Hodge
Lady Black
JUDGMENT GIVEN ON
28 November 2018
Heard on 18 January 2018
Appellant Respondent
Hugh Southey QC James Eadie QC
Jude Bunting Rosemary Davidson
Jason Pobjoy
(Instructed by Michael
Purdon Solicitor
)
(Instructed by The
Government Legal
Department
)
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LADY BLACK:
1. Extended determinate sentences were imposed on Frank Stott in May 2013,
pursuant to section 226A of the Criminal Justice Act 2003 (“the 2003 Act”) for
sexual offences. This appeal concerns the provisions of section 246A of the 2003
Act which deal with early release from prison of those serving extended determinate
sentences. The effect of the provisions is that Mr Stott will not be eligible to apply
for release until he has served two-thirds of his custodial term, in contrast to other
categories of prisoner who can apply for release at an earlier point in their custodial
term. He contends that the provisions of section 246A are discriminatory and in
violation of article 14 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“ECHR” or “the Convention”) taken together with article
5 of the Convention.
The facts
2. The appellant was convicted at trial of 20 offences, including multiple
offences of raping an eight year old child. Prior to the trial, he had pleaded guilty to
other counts relating to indecent photography of a child. On 23 May 2013, he was
sentenced to an extended determinate sentence (“EDS”) in respect of ten counts of
rape. An EDS comprises two elements, namely an “appropriate custodial term”, and
a further period for which the offender is to be subject to a licence (“the extension
period”), see section 226A(5) at para 85 below. Mr Stott’s appropriate custodial term
has been fixed at 21 years, with an extension period of four years. He was also
sentenced to various determinate sentences of imprisonment to be served
concurrently. He was refused permission to appeal against his sentence, see R v Stott
[2016] EWCA Crim 172.
3. A prisoner serving an EDS can be released before the end of his term of
imprisonment. It will be necessary to look further at the statutory provisions
governing release later but, in broad outline, section 246A of the 2003 Act requires,
in most cases, that the EDS prisoner be released on licence as soon as he has served
the “requisite custodial period” and the Parole Board has directed his release. The
requisite custodial period is two-thirds of the appropriate custodial term specified
by the sentencing court, so Mr Stott would have to serve 14 years before becoming
eligible for parole. Other categories of prisoner are, in contrast, eligible for parole at
the half-way point in their sentences. If these rules had applied to Mr Stott, he would
have been eligible for parole once he had served ten and a half years. He complained
that there was no justification for this difference in treatment in relation to eligibility
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for parole, and that it was unlawful discrimination within article 14. He brought
judicial review proceedings.
4. In February 2017, a Divisional Court of the Queen’s Bench Division
dismissed his claim [2017] EWHC 214 (Admin). However, it granted a certificate
pursuant to section 12 of the Administration of Justice Act 1969 to permit Mr Stott
to appeal directly to the Supreme Court, should permission to appeal be granted by
the Supreme Court, which in due course it was.
Article 5 and article 14 of the ECHR
5. As the focus in this case is upon articles 5 and 14 of the ECHR, it will be
convenient to set them out immediately.
6. Article 5 of the ECHR secures the “right to liberty and security” of person.
So far as is material to the present case, it 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;”
“4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
7. Article 14 prohibits discrimination, providing:
“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a
national minority, property, birth or other status.”
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The approach to an article 14 claim
8. In order to establish that different treatment amounts to a violation of article
14, it is necessary to establish four elements. First, the circumstances must fall
within the ambit of a Convention right. Secondly, the difference in treatment must
have been on the ground of one of the characteristics listed in article 14 or “other
status”. Thirdly, the claimant and the person who has been treated differently must
be in analogous situations. Fourthly, objective justification for the different
treatment will be lacking. It is not always easy to keep the third and the fourth
elements entirely separate, and it is not uncommon to see judgments concentrate
upon the question of justification, rather than upon whether the people in question
are in analogous situations. Lord Nicholls of Birkenhead captured the point at para
3 of R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006]
1 AC 173. He observed that once the first two elements are satisfied:
“the essential question for the court is whether the alleged
discrimination, that is, the difference in treatment of which
complaint is made, can withstand scrutiny. Sometimes the
answer to this question will be plain. There may be such an
obvious, relevant difference between the claimant and those
with whom he seeks to compare himself that their situations
cannot be regarded as analogous. Sometimes, where the
position is not so clear, a different approach is called for. Then
the court’s scrutiny may best be directed at considering whether
the differentiation has a legitimate aim and whether the means
chosen to achieve the aim is appropriate and not
disproportionate in its adverse impact.”
The issues
9. In this case, it is accepted that the right to apply for early release, upon which
Mr Stott relies, falls within the ambit of article 5. The debate is about the application
of article 14. Two issues have been identified. The first issue (“Issue 1” or “the status
issue”) is whether the different treatment of Mr Stott is on a ground within the
meaning of “other status” in article 14. The second issue (“Issue 2”) requires
determination only if Issue 1 is answered in the affirmative. It has two parts:
(a) Are EDS prisoners in an analogous situation to either indeterminate
sentence prisoners or other determinate sentence prisoners, these being the
two categories of prisoner with which Mr Stott seeks to compare his own
position?
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(b) If so, is there an objective justification for the difference in treatment
between the categories of prisoner?
10. Mr Stott argues that his differential treatment was on the ground of “other
status”, that he was in an analogous situation to other prisoners who were treated
differently, and that there was no objective justification for the different treatment.
The Secretary of State argues that Mr Stott fails on the status issue, so Issue 2 does
not arise. However, if that is wrong, the Secretary of State argues that Mr Stott’s
sentence is not analogous to the other sentences under consideration, and that there
is in any event an objective justification for treating the different categories of
prisoner differently.
The central importance of R (Clift) v Secretary of State for the Home Department
[2007] 1 AC 484 (“R (Clift)”) and Clift v United Kingdom (Application No
7205/07)
11. At the heart of the appeal are the decisions of the House of Lords and of the
European Court of Human Rights (“ECtHR”) concerning Mr Clift, a prisoner who
was serving a sentence of 18 years’ imprisonment for very serious crimes, including
attempted murder, and complained that the early release provisions in respect of his
sentence gave rise to a violation of article 14. In 2006, in R (Clift), the House of
Lords held that Mr Clift’s classification, as a long-term prisoner serving a
determinate sentence of 15 years or more, did not amount to an “other status”, and
accordingly there was no infringement of article 14. In 2010, in Clift v United
Kingdom (Application No 7205/07), the ECtHR took the contrary view, holding that
Mr Clift did come within article 14 and that there was no objective justification for
the different release provisions applied to prisoners in his category.
12. The decision of the House of Lords in R (Clift) dictated the Divisional Court’s
decision in the present case. The Divisional Court only rejected Mr Stott’s argument
that his differential treatment was on the ground of “other status”, because it was
constrained to do so by R (Clift). Had it not been so bound, it would have found that
“other status” was established, and would then have gone on to find section 246A
of the 2003 Act incompatible with article 14. It now falls to this court to determine
whether the decision of the House of Lords in R (Clift) should continue to be
followed, in the light of the subsequent ECtHR decision in Clift v United Kingdom,
and of the article 14 jurisprudence as a whole.
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Issue 1: the status issue
13. Before turning to look at R (Clift) and Clift v United Kingdom in some detail,
the decision of the ECtHR in Kjeldsen, Busk Madsen and Pedersen v Denmark
(1976) 1 EHRR 711 (“Kjeldsen”) needs to be introduced, because one paragraph
from the court’s judgment features regularly in decisions of the ECtHR, and the
domestic courts, when the question of status in article 14 is being considered.
Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711
14. Kjeldsen concerned sex education in Danish schools. The applicants were
parents who objected to sex education being compulsory in state primary schools
and complained that, whereas parents could have their children exempted from
religious instruction classes, they could not do so in relation to sex education classes.
They claimed, unsuccessfully, that this was discriminatory treatment contrary to
article 14 taken with article 2 of First Protocol (right to education). The passage
about status to which courts return repeatedly is at para 56:
“The court first points out that article 14 prohibits, within the
ambit of the rights and freedoms guaranteed, discriminatory
treatment having as its basis or reason a personal characteristic
(‘status’) by which persons or groups of persons are
distinguishable from each other.”
Regina (Clift) v Secretary of State for the Home Department (above)
15. As I have said, Mr Clift was a prisoner serving a sentence of 18 years’
imprisonment. Some way into his period of imprisonment, the Parole Board
recommended his release on parole. Had Mr Clift been serving a term of less than
15 years, or life imprisonment, the Secretary of State would have had a statutory
obligation to comply with the recommendation of the Parole Board. However, by
virtue of various statutory provisions and the Parole Board (Transfer of Functions)
Order 1998 (SI 1998/3218), the final decision in relation to prisoners serving
determinate terms of 15 years or more lay with the Secretary of State, who rejected
the recommendation. Mr Clift contended that the early release provisions
discriminated against him in breach of his rights under articles 5 and 14 of the ECHR
by denying him the right, that other long-term prisoners enjoyed, to be released if
the Parole Board recommended it.
16. Mr Clift was able to establish that his rights in relation to early release were
within the ambit of article 5. Although there is no issue about article 5 in the present
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case, a brief resumé of how the House of Lords approached it will set the article 14
issues in a proper context. As Lord Bingham of Cornhill said at para 17, the ECHR
does not require member states to establish a scheme for early release, and prisoners
may, consistently with the Convention, be required to serve the entirety of the
sentence passed, if that is what the domestic law provides. However, where the
domestic law in fact provides for a right to seek early release, that right is within the
ambit of article 5. In relation to long-term prisoners serving determinate terms, the
law of England and Wales did confer a right to seek early release, setting a time at
which a prisoner must be released as of right, and an earlier time at which he might
be released if it was judged safe to do so. Accordingly, as Lord Bingham said at para
18, differential treatment, in relation to early release, of one prisoner as compared
with another, otherwise than on the merits of their respective cases, gave rise to a
potential complaint under article 14.
17. However, the discrimination which article 14 prohibits is discrimination “on
any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other
status.” Not falling within any of the named grounds, Mr Clift could only bring
himself within the protection of article 14 if his differential treatment could be said
to be on the ground of “other status”. He argued that this requirement was satisfied
on the basis that his treatment was on the ground that he was a prisoner sentenced
to a determinate term of 15 years or more. Lord Bingham (with whom there was
general agreement, although some other members of the House added reasons of
their own) rejected this argument, but he did so “not without hesitation”, and
influenced by the fact that the Strasbourg jurisprudence had not endorsed a status of
this kind as falling within article 14. Lord Hope of Craighead too, having put the
arguments for and against Mr Clift being able to lay claim to status, was mindful of
the need for “a measure of self-restraint”, so as not to outstrip Strasbourg. What each
would have said, had they known what the ECtHR was going to decide in Clift v
United Kingdom in 2010, is unknown, although one cannot avoid the sense that the
outcome might well have been different. However, in order to give proper
consideration to what, if any, continuing influence R (Clift) should have, it is
necessary to isolate the strands of reasoning which went to make up the conclusion
of the House:
i) There was agreement that the words “or other status” in article 14 (in
French “toute autre situation”) are far from precise, but that they are not
intended to cover differential treatment on any ground whatever, because in
that case, the list of grounds which precede them would be otiose (paras 27,
43, and 56).
ii) Reliance was placed on the passage quoted above from para 56 of
Kjeldsen, and the search was for something in the nature of a “personal
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characteristic by which persons or groups of persons are distinguishable from
each other” (paras 27, 28, 42, and 56 for example).
iii) It was accepted that, as the specific grounds of discrimination listed in
article 14 show, protection is extended not only to characteristics over which
a person has no control, such as race or birth, but also to acquired
characteristics, such as religion or political opinion (paras 28 and 45).
iv) Lord Bingham and Lord Hope both advanced the proposition that, to
qualify, the personal characteristic in question must exist independently of
the treatment of which complaint is made. Lord Bingham said, at para 28,
that he did “not think that a personal characteristic can be defined by the
differential treatment of which a person complains”, without giving any
explanation, or authority, for this view. He did not appear to consider that Mr
Clift would fall foul of this, as he was not complaining of the sentence passed
on him, but of being denied a definitive Parole Board recommendation. Lord
Hope agreed, at para 47, that “[i]t must be accepted, as Lord Bingham points
out, that a personal characteristic cannot be defined by the differential
treatment of which a person complains.” Although he similarly did not spell
out the foundation for his view, it may lie in his observation, at para 45, that
each of the specific grounds shared a feature in common, namely that “they
exist independently of the treatment of which complaint is made” and “[i]n
that sense, they are personal to the complainant.” The remainder of para 47
is not entirely easy to understand, but might indicate that Lord Hope shared
Lord Bingham’s opinion that this was not an area of difficulty for Mr Clift.
It reads:
“It is plain too that the category of long-term prisoner into
which Mr Clift’s case falls would not have been recognised as
a separate category had it not been for the Order which treats
prisoners in his group differently from others in the enjoyment
of their fundamental right to liberty. But he had already been
sentenced, and he had already acquired the status which that
sentence gave him before the Order was made that denied
prisoners in his group the right to release on the
recommendation of the Parole Board. The question which his
case raises is whether the distinguishing feature or
characteristic which enables persons or a group of persons to
be singled out for separate treatment must have been identified
as a personal characteristic before it is used for this purpose by
the discriminator.”
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v) There was an examination of the ambit of article 14 as demonstrated
by decisions of the ECtHR and the domestic courts in various factual
contexts. Baroness Hale included a particularly detailed list of authorities at
para 58, which led her to make the observation that in the “vast majority of
Strasbourg cases where violations of article 14 have been found, the real basis
for the distinction was clearly one of the proscribed grounds or something
very close”. Examples were given of cases in which the grounds for the
discrimination were not within article 14 (see, for example, paras 27, 45, 59-
61), including prisoners who were treated differently because of the
legislature’s view of the gravity of their offences (Gerger v Turkey 8 July
1999, para 69, and see also Budak v Turkey (Application No 57345/00)
(unreported)). And there was discussion of R (S) v Chief Constable of the
South Yorkshire Police [2004] 1 WLR 2196 where the House of Lords held
that article 14 did not cover differential treatment on the basis that a person
had previously been investigated by the police and provided fingerprints; the
possession of fingerprints and DNA samples by the police in that situation
was simply a matter of historical fact, not attributable to the personal
characteristics of those who had provided them.
18. Having referred earlier to the rather qualified terms in which Lord Bingham
and Lord Hope expressed their conclusions, I should set out rather more fully what
they actually said. Baroness Hale also dealt with the topic, but Lord Carswell and
Lord Brown of Eaton-under-Heywood simply agreed with Lord Bingham on the
issue without adding anything.
19. Lord Bingham’s conclusions are to be found in para 28:
“28. … Is his classification as a prisoner serving a
determinate sentence of 15 years or more (but less than life) a
personal characteristic? I find it difficult to apply so elusive a
test. But I would incline to regard a life sentence as an acquired
personal characteristic and a lifer as having an ‘other status’,
and it is hard to see why the classification of Mr Clift, based on
the length of his sentence and not the nature of his offences,
should be differently regarded. I think, however, that a
domestic court should hesitate to apply the Convention in a
manner not, as I understand, explicitly or impliedly authorised
by the Strasbourg jurisprudence, and I would accordingly, not
without hesitation, resolve this question in favour of the
Secretary of State and against Mr Clift.”
20. As for Lord Hope, he also acknowledged the case for the length of Mr Clift’s
sentence conferring a status on him which can be regarded as a personal
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characteristic. From para 46 onwards, he can be seen considering the arguments,
beginning thus:
“46. It could be said in Mr Clift’s case that the length of his
sentence did confer a status on him which can be regarded as a
personal characteristic. This is because prisoners are divided by
the domestic system into broadly defined categories, or groups
of people, according to the nature or the length of their
sentences. These categories affect the way they are then dealt
with throughout the period of their sentences. As a result they
are regarded as having acquired a distinctive status which
attaches itself to them personally for the purposes of the regime
in which they are required to serve their sentences. This is most
obviously so in the case of prisoners serving life sentences and
where distinctions are drawn between short-term and long-term
prisoners serving determinate sentences. It is less obviously so
in the case of long-term prisoners serving determinate
sentences of different lengths.”
21. He thought that, given that the function of article 14 was to secure
Convention rights and freedoms without discrimination on grounds which, having
regard to the underlying values of the Convention, must be regarded as
unacceptable, “a generous meaning” should be given to “or other status” (para 48).
In his view, “the protection of article 14 ought not to be denied just because the
distinguishing feature which enabled the discriminator to treat persons or groups of
persons differently in the enjoyment of their Convention rights had not previously
been recognised”, by which he seems, I think, to have meant “previously recognised
by the ECtHR”. But, ultimately, two factors seem to have influenced his rejection
of Mr Clift’s case. The first was that he accepted that it was “possible to regard what
he has done, rather than who or what he is, as the true reason for the difference of
treatment”. The second was caution about outstripping Convention jurisprudence.
So, he said, “I am persuaded, with some reluctance, that it is not open to us to resolve
the [other status point] in Mr Clift’s favour” (para 49).
22. Baroness Hale did not express hesitation or reluctance in concluding that the
difference of treatment between Mr Clift and people sentenced to shorter
determinate sentences or to life sentences was a difference in treatment based on the
seriousness of the offences concerned, and therefore outside article 14. As she put
it, “[t]he real reason for the distinction is not a personal characteristic of the offender
but what the offender has done” (para 62).
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Clift v United Kingdom (above)
23. It is necessary to look in similar detail at the ECtHR’s reasons for concluding
that the differential treatment of Mr Clift was on the ground of “other status” for the
purposes of article 14. The court began its assessment, at para 55, by observing that
article 14 does not prohibit all differences in treatment, but only “those differences
based on an identifiable, objective or personal characteristic, or ‘status’, by which
persons or groups of persons are distinguishable from one another”, citing para 56
of Kjeldsen, Busk Madsen and Pedersen (above), Berezovskiy v Ukraine (dec)
(Application No 70908/01), 15 June 2004, and paras 61 and 70 of Carson v United
Kingdom (2010) 51 EHRR 13. But, equally, it confirmed (para 55) that the list of
specific grounds in article 14 is illustrative and not exhaustive, and recalled (para
56) that “the words ‘other status’ (and a fortiori the French ‘toute autre situation’)
have generally been given a wide meaning”.
24. Noting the Government’s argument that “other status” should be more
narrowly construed, ejusdem generis with the specific examples in article 14, it
demonstrated (paras 56 to 59) that not all the listed grounds could be said to be
“personal” in the sense of being innate characteristics or inherently linked to the
identity or personality of the individual. It commented on the inclusion of “property”
as one of the grounds, and observed that it was a ground which had been construed
broadly by the court as demonstrated by James v United Kingdom (1986) 8 EHRR
123 (difference in treatment between different categories of property owners) and
Chassagnou v France (1999) 29 EHRR 615, paras 90 and 95, (distinction between
large and small landowners).
25. It went on, at para 58, to give a list of other cases in which a violation of
article 14 had been found because of different treatment based on characteristics
which were not personal in the sense of being innate or inherent, namely: Engel v
The Netherlands (1976) 1 EHRR 647 (distinction based on military rank), Pine
Valley Developments Ltd v Ireland (1991) 14 EHRR 319 (distinction between those
who held outline planning permission and benefited from new legislation and those
who held outline planning permission but did not), Larkos v Cyprus (1999) 30
EHRR 597, para 21 (distinction between tenants of the State and tenants of private
landlords), Shelley v United Kingdom (2008) 46 EHRR SE16 (being a convicted
prisoner could be an “other status”), Sidabras and Dziautas v Lithuania (2004) 42
EHRR 104 (implicitly accepted that status as a former KGB officer fell within article
14), and Paulík v Slovakia (2006) 46 EHRR 10 (a father whose paternity had been
established by judicial determination had a status which could be compared to
putative fathers and mothers in situations where paternity was legally presumed but
not judicially determined). Accordingly, the court concluded (para 59), even if the
Government’s ejusdem generis argument was correct (upon which no
pronouncement was made either way), it would not necessarily preclude Mr Clift’s
claim.
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26. The argument that the treatment of which the applicant complains must exist
independently of the “other status” upon which it is based was advanced, but the
court rejected it, citing Paulík (2008) 46 EHRR 10 as undermining it. It said:
“60. Further, the court is not persuaded that the
Government’s argument that the treatment of which the
applicant complains must exist independently of the ‘other
status’ upon which it is based finds any clear support in its case
law. In Paulík, cited above, there was no suggestion that the
distinction relied upon had any relevance outside the
applicant’s complaint but this did not prevent the court from
finding a violation of article 14. The question whether there is
a difference of treatment based on a personal or identifiable
characteristic in any given case is a matter to be assessed taking
into consideration all of the circumstances of the case and
bearing in mind that the aim of the Convention is to guarantee
not rights that are theoretical or illusory but rights that are
practical and effective (see Artico v Italy, 13 May 1980, para
33, Series A no 37; and Cudak v Lithuania [GC], no 15869/02,
para 36, 23 March 2010). It should be recalled in this regards
that the general purpose of article 14 is to ensure that where a
state provides for rights falling within the ambit of the
Convention which go beyond the minimum guarantees set out
therein, those supplementary rights are applied fairly and
consistently to all those within its jurisdiction unless a
difference of treatment is objectively justified.”
27. The court was not impressed, either, with the Government’s argument that,
as in Gerger (above), the distinction was between different types of offence,
according to the legislature’s view of their gravity, observing that the cases in which
the approach in Gerger had been followed all concerned special court procedures or
provisions on early release for those accused or convicted of terrorism offences in
Turkey. It continued (para 61):
“Thus while Gerger made it clear that there may be
circumstances in which it is not appropriate to categorise an
impugned difference of treatment as one made between groups
of people, any exception to the protection offered by article 14
of the Convention should be narrowly construed. In the present
case the applicant does not allege a difference of treatment
based on the gravity of the offence he committed, but one based
on his position as a prisoner serving a determinate sentence of
more than 15 years. While sentence length bears some
relationship to the perceived gravity of the offence, a number
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of other factors may also be relevant, including the sentencing
judge’s assessment of the risk posed by the applicant to the
public.”
28. At para 62, the court said:
“The court has frequently emphasised the fundamental
importance of the guarantees contained in article 5 for securing
the right of individuals in a democracy to be free from arbitrary
detention at the hands of the authorities (see, for example,
Çakıcı v Turkey [GC], no 23657/94, para 104, ECHR 1999 IV).
Where an early release scheme applies differently to prisoners
depending on the length of their sentences, there is a risk that,
unless the difference in treatment is objectively justified, it will
run counter to the very purpose of article 5, namely to protect
the individual from arbitrary detention. Accordingly, there is a
need for careful scrutiny of differences of treatment in this
field.”
29. It concluded that in the light of all the considerations it had set out, Mr Clift
did enjoy “other status” for the purposes of article 14.
30. At paras 66 and 67, the court addressed the issue of whether Mr Clift was in
an analogous position to the other prisoners with whom he compared himself,
observing that what is required is that the applicant should demonstrate that, having
regard to the particular nature of the complaint, his situation was “analogous, or
relevantly similar”; it need not be identical. Mr Clift was in an analogous position
to long-term prisoners serving less than 15 years and life prisoners, as the methods
of assessing the risk posed by a prisoner eligible for early release, and the means of
addressing any risk identified, were in principle the same for all categories of
prisoner.
31. The court went on to find that the differential treatment of prisoners in Mr
Clift’s position lacked objective justification. The Government had argued that it
was justified on the basis of the risk posed by the category of prisoners in question,
and by the need to maintain public confidence in the justice system. As to the first
basis, the court accepted in principle that more stringent early release provisions
could be justified on the basis that a group of prisoners posed a higher risk, but there
had not been shown to be higher risk here. As to the second basis, it had not been
demonstrated that requiring the approval of the Secretary of State would address
concerns about risk on release, given that the assessment of the risk posed by an
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individual prisoner was a task without political content and one to which the
Secretary of State could bring no superior expertise.
32. There is much in the ECtHR’s decision which is in harmony with the
approach taken by the House of Lords in R (Clift). But it can be seen that there are
respects in which the ECtHR either went further than the House of Lords or differed
from its approach.
33. It differed in that it was not persuaded that there was any support for the
argument that the treatment of which the applicant complains must exist
independently of the other status; on the contrary, the matter had to be assessed
taking into consideration all of the circumstances of the case and bearing in mind
that the aim of the Convention was to guarantee rights which are practical and
effective.
34. It also differed from the House of Lords in rejecting the idea that Mr Clift’s
complaint was about a difference in treatment based on the gravity of his offence,
observing that a number of factors may be relevant to sentence length, as well as the
perceived gravity of the offence. It also emphasised the particular context for the
decision in Gerger and other cases in which the Gerger approach had been taken.
And it stressed that any exception to the protection offered by article 14 should be
narrowly construed, and that there needed to be careful scrutiny of differences of
treatment where an early release scheme applied differently to prisoners depending
on the length of their sentence, given that there was a risk that unless the difference
was objectively justified it would run counter to the very purpose of article 5.
35. It possibly went further than the House of Lords in relation to the nature of
the characteristics which would be recognised, in that it observed that not all the
grounds could be said to be inherently linked to the identity or personality of the
individual, highlighting the inclusion of property as a specified ground, and giving
examples of characteristics which had sufficed, but were not innate or inherent.
ECtHR decisions other than Clift v United Kingdom
36. There have been many decisions of the ECtHR in relation to article 14 and it
is unnecessary to refer to more than a few of them. The way in which that court is
presently approaching the question of “other status” can be seen from three recent
decisions, one in 2016 and two in 2017. They demonstrate, I think, that the approach
has been relatively consistent over the years, and that there has been little change to
the approach exhibited in Clift v United Kingdom.
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37. The 2016 decision is Biao v Denmark (2016) 64 EHRR 1 (“Biao”). This
concerned the Danish provisions for family reunion which treated Danish born
nationals differently from those who acquired Danish nationality later in life, a
majority of whom were of foreign ethnic origin. This was said to amount to a
violation of article 14 read with article 8. Citing earlier decisions of its own,
including Kjeldsen, Carson v United Kingdom 51 EHRR 13, and Clift v United
Kingdom, the court said:
“89. The court has established in its case law that only
differences in treatment based on an identifiable characteristic,
or ‘status’, are capable of amounting to discrimination within
the meaning of article 14. Moreover, in order for an issue to
arise under article 14 there must be a difference in the treatment
of persons in analogous, or relevantly similar, situations.
Article 14 lists specific grounds which constitute ‘status’
including, inter alia, race, national or social origin and birth.
However, the list is illustrative and not exhaustive, as is shown
by the words ‘any ground such as’ and the inclusion in the list
of the phrase ‘any other status’. The words ‘other status’ have
generally been given a wide meaning and their interpretation
has not been limited to characteristics which are personal in the
sense that they are innate or inherent.”
38. The first of the 2017 decisions is Khamtokhu and Aksenchik v Russia
(Applications Nos 60367/08 and 961/11) (“Khamtokhu”), which concerned
applicants who were sentenced to life imprisonment. They complained of
discriminatory treatment, in violation of article 14 taken in conjunction with article
5, because they were treated less favourably than other categories of convicted
offenders (women, juveniles, and men over 65) who were exempt from life
imprisonment.
39. The court said:
“61. Article 14 does not prohibit all differences in treatment,
but only those differences based on an identifiable, objective or
personal characteristic, or ‘status’, by which individuals or
groups are distinguishable from one another. It lists specific
grounds which constitute ‘status’ including, inter alia, sex, race
and property. However, the list set out in article 14 is
illustrative and not exhaustive, as is shown by the words ‘any
ground such as’ (in French ‘notamment’) and the inclusion in
the list of the phrase ‘any other status’ (in French ‘toute autre
situation’). The words ‘other status’ have generally been given
Page 16
a wide meaning, and their interpretation has not been limited to
characteristics which are personal in the sense that they are
innate or inherent (see Clift, cited above, paras 56-58; Carson
v United Kingdom [GC], no 42184/05, paras 61 and 70, ECHR
2010; and Kjeldsen, Busk Madsen and Pedersen v Denmark, 7
December 1976, para 56, Series A no 23).”
40. There was no need, in Khamtokhu to labour over the question of status, as
“sex” is explicitly mentioned in article 14 as a prohibited ground of discrimination,
and the court had accepted in an earlier case that “age” was a concept also covered
by the provision. Article 14, taken with article 5, was accordingly applicable. The
applicants were in an analogous situation to other offenders convicted of the same
or comparable offences, but their complaint failed because the government’s
sentencing provisions had a legitimate aim and were proportionate.
41. The second 2017 case is Minter v United Kingdom (2017) 65 EHRR SE6
(“Minter”). Mr Minter was sentenced to an extended sentence for sexual offences.
This meant that he was subject to an extended licence period, and thus to a
requirement to notify the police of various personal details indefinitely. Mr Minter
complained that the application of the indefinite notification period was in breach of
article 8 of the ECHR, either read alone or in conjunction with article 14. Although
the notification requirement was an interference with his article 8 rights, it was not
disproportionate, and the article 8 claim was manifestly ill-founded. However, Mr
Minter argued that, by virtue of a change in the law, if he had been sentenced later,
he would not have received an extended sentence and would not therefore have been
subject to the indefinite notification period at all. That, he submitted, amounted to
an unjustified difference in treatment based on “other status”, and to a violation of
article 14 taken with article 8.
42. The court rejected the article 14 complaint as manifestly ill-founded too. On
the facts, it considered Mr Minter’s assertion that no indefinite notification
requirement would have been imposed if he had been sentenced later to be entirely
speculative. But even had there not been that obstacle, his claim would have failed.
The court began its assessment of the issue in this way:
“66. In order for an issue to arise under article 14 there must
be a difference in the treatment of persons in analogous, or
relevantly similar, situations (see Khamtokhu and Aksenchik v
Russia (60367/08 and 961/11) 24 January 2017 at para 64). As
established in the court’s case law, only differences in
treatment based on an identifiable characteristic, or ‘status’, are
capable of amounting to discrimination within the meaning of
article 14 (see Khamtokhu and Aksenchik (60367/08 and
Page 17
961/11) 24 January 2017 at para 61). Such a difference in
treatment is discriminatory if it has no objective and reasonable
justification; in other words, if it does not pursue a legitimate
aim or if there is not a reasonable relationship of
proportionality between the means employed and the aim
sought to be realised (Khamtokhu and Aksenchik (60367/08
and 961/11) 24 January 2017 at para 64).”
43. The court was not persuaded by the applicant’s reliance on the Clift v United
Kingdom decision. In a passage which exhibits, to my mind, the tendency (also seen
elsewhere in the Strasbourg jurisprudence on article 14) for consideration of the
issue of whether a difference in treatment is on the ground of “other status” to
convert, almost seamlessly, into consideration of whether the applicant is in an
analogous situation and/or whether the difference is justified, it distinguished the
situation in Clift v United Kingdom:
“68. Furthermore, the court does not consider that Clift
(7205/07) 13 July 2010 supports the applicant’s claim. It is true
that in Clift the court accepted that the different treatment of
different categories of prisoners depending on the sentences
imposed was based on ‘other status’ within the meaning of
article 14 of the Convention. However, in the present case the
different treatment complained of did not concern the length of
the applicant’s sentence but rather the different sentencing
regime applied to him as a consequence of a new legislation.
As such, his article 14 complaint is indistinguishable from that
which was declared inadmissible as manifestly ill-founded in
Massey. Although Massey (14399/02) 8 April 2003 pre-dated
Clift (7205/07) 13 July 2010, in Zammit and Attard Cassar
(1046/12) 30 July 2015, a case which post-dated Clift by some
four-and-a-half years, the court reaffirmed that no
discrimination was disclosed by the selection of a particular
date for the commencement of a new legislative regime.”
44. Although the approach taken in the three cases can properly be described as
consistent, in my view, it is interesting to note that Biao and Minter refer to
“identifiable characteristic, or ‘status’”, whereas Khamtokhu is slightly more
expansive, speaking of “identifiable, objective or personal characteristic, or ‘status’,
by which individuals or groups are distinguishable from one another”. Biao and
Khamtokhu both stress that the list in article 14 is “illustrative and not exhaustive”,
and that the words “other status” have generally been given a wide meaning and
their interpretation has not been limited to characteristics which are personal in the
sense that they are innate or inherent.
Page 18
The domestic case law on article 14 and status
45. Article 14 has regularly been the subject of consideration in the Supreme
Court and, before that, in the House of Lords. The House of Lords’ decisions predate the ECtHR’s decision in Clift v United Kingdom, of course, but are important
in understanding how the approach to article 14 has evolved. After a review of them,
I summarise, at para 56 below, the position that the domestic case law seems to have
reached on “other status” by the time of the ECtHR’s Clift decision.
46. R (S) v Chief Constable of the South Yorkshire Police (2004, above) was the
case concerning fingerprints and DNA samples. Lord Steyn, with whom I do not
think there was significant disagreement on this point, worked on the basis that the
proscribed grounds in article 14 were not unlimited and was guided by Kjeldsen.
Perhaps foreshadowing the ejusdem generis argument advanced in Clift, in
summarising his conclusion that the requisite “status” had not been established, he
observed (para 51) that the “difference in treatment is not analogous to any of the
expressly proscribed grounds”.
47. R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29;
[2005] 1 WLR 1681 concerned widowers who claimed that, in denying them
benefits which would have been payable to widows, the Secretary of State had acted
incompatibly with their rights under article 14 read with article 1 of Protocol 1 and
article 8 of the ECHR. The decision is of interest for Lord Hoffmann’s treatment of
the question of whether article 14 was infringed. He considered whether being a
person who has started legal proceedings qualified as a status, and was not persuaded
that it did. In explaining why, at para 65, he appeared to adopt and develop Lord
Steyn’s “analogous” approach which he described as being “that article 14 required
discrimination to be by reference to some status analogous with those expressly
mentioned, such as sex, race or colour”.
48. R (Carson) v Secretary of State for Work and Pensions (above), is an oftencited House of Lords decision. Each of the two claimants complained of a violation
of their rights under article 14, read with article 1 of the First Protocol to the ECHR.
One claimant complained of discrimination on the basis of country of residence, and
the other on the basis of age. The first was entitled to a retirement pension, but,
because she was resident in South Africa, was precluded from receiving the normal
annual cost of living increase. The second received state benefits at a lower rate
because she was under 25. Their claims failed because the differential treatment of
them was rationally justified. However, they did manage to establish that they came
within the scope of “other status” in article 14. In the case of the claimant who was
resident in South Africa, this is of note because she succeeded in establishing that
this was a personal characteristic, notwithstanding that it was in principle a matter
of choice and was not immutable. This result was reached through the application
Page 19
of what Lord Walker of Gestingthorpe described as “the Kjeldsen test of looking for
a personal characteristic” (para 54).
49. In AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR
1434, Baroness Hale described Carson as unusual, commenting (para 26) that:
“In general, the list concentrates on personal characteristics
which the complainant did not choose and either cannot or
should not be expected to change. The Carson case is therefore
unusual, because it concerned discrimination on the ground of
habitual residence, which is a matter of personal choice and can
be changed.”
But the ECtHR subsequently confirmed, in Carson v the United Kingdom (2008) 48
EHRR 41, that ordinary residence should be seen as an aspect of personal status.
50. R (RJM) v Secretary of State for Work and Pensions (Equality and Human
Rights Commission intervening) [2009] AC 311 might also be considered to take a
more expansive view of “status”. It merits rather more detailed review because there
was considerable discussion of the subject.
51. The claimant’s disability premium in his income support, which he received
by reason of his incapacity for work through mental health problems, was stopped
because he had become homeless. He claimed that the premium was a possession
within article 1 of the First Protocol to the ECHR and that he had been discriminated
against contrary to article 14. One of the questions for determination was whether
homelessness fell within “other status” for the purposes of article 14. There was an
argument as to whether it was necessary to show that it was a “personal
characteristic” at all, and, if so, whether it was properly so described. It was held
that it was indeed “a personal characteristic” and within the article, even if adopted
by choice, although the claim failed because the regulation in question was justified.
52. Lord Neuberger of Abbotsbury discussed whether “other status” must
necessarily be based upon a “personal characteristic”. He said (para 36) that there
was no doubt that the House of Lords had consistently proceeded upon the
assumption that that was required, basing that approach primarily on the Kjeldsen
case. There was also, in his view, a strong case for saying that as a matter of
language, article 14 (or at least the English version of it) “appears to envisage
precisely this, given the specific grounds on which unjustifiable discrimination is
prohibited” (para 37). No case to which the court had been taken supported an
argument to the contrary. However, before ultimately adopting that approach
Page 20
himself, Lord Neuberger did acknowledge that there may be a case for another
interpretation, saying:
“39. None the less, it is fair to refer to the fact that the French
version of article 14 (which has equal status with the English
version – see article 59) ends with the words ‘ou toute autre
situation’, which may suggest a rather wider scope than ‘or
other status’. Further, while the ECtHR judgments relied on by
RJM do not establish that no consideration need be given in an
article 14 case to the issue of whether the discrimination is by
reference to a ‘status’ which can be characterised as a ‘personal
characteristic’, some of those judgments could be read as
suggesting a rather less structured approach than that which has
been adopted by this House. In particular, in an allegation of
article 14 infringement, the ECtHR may not always consider
whether the alleged discrimination is on the ground of ‘other
status’ as an entirely free-standing question: it sometimes
appears to approach the overall allegation of infringement on a
more holistic or ‘broad brush’ basis: see, for instance, the
reasoning in Kjeldsen 1 EHRR 711, para 56, and Kafkaris 12
February 2008, paras 163-165, as well as Stubbings v United
Kingdom (1996) 23 EHRR 213, paras 70-73.”
53. In deciding that homelessness could fairly be described as a “personal
characteristic”, Lord Neuberger proceeded upon the basis that a generous meaning
should be given to “or other status”, as would be expected in “enforcing antidiscrimination legislation in a democratic state” (para 42), and that “other status”
“should not be too closely limited by the grounds which are specifically prohibited
by the article” (para 43). He said (para 45) that “while reformulations are
dangerous”, he considered that the concept of “personal characteristics” “generally
requires one to concentrate on what somebody is, rather than what he is doing or
what is being done to him”, and that, on that approach, homelessness was an “other
status”. He considered (para 46) that this characterisation also fitted with Lord
Bingham’s view in Clift that the personal characteristic could not be defined by the
differential treatment of which the person complains. He considered (para 47) that
the fact that homelessness was a voluntary choice (if it was) was not of much, if any,
significance in determining whether it was a status for article 14; some of the
specified grounds in the article were matters of choice too. Nor was it telling that
homelessness was not a legal status.
54. Lord Walker’s observations about “personal characteristics” are also
instructive:
Page 21
“5. The other point on which I would comment is the
expression ‘personal characteristics’ used by the European
Court of Human Rights in Kjeldsen, Busk Madsen and
Pedersen v Denmark (1976) 1 EHRR 711, and repeated in
some later cases. ‘Personal characteristics’ is not a precise
expression and to my mind a binary approach to its meaning is
unhelpful. ‘Personal characteristics’ are more like a series of
concentric circles. The most personal characteristics are those
which are innate, largely immutable, and closely connected
with an individual’s personality: gender, sexual orientation,
pigmentation of skin, hair and eyes, congenital disabilities.
Nationality, language, religion and politics may be almost
innate (depending on a person’s family circumstances at birth)
or may be acquired (though some religions do not countenance
either apostates or converts); but all are regarded as important
to the development of an individual’s personality (they reflect,
it might be said, important values protected by articles 8, 9 and
10 of the Convention). Other acquired characteristics are
further out in the concentric circles; they are more concerned
with what people do, or with what happens to them, than with
who they are; but they may still come within article 14 (Lord
Neuberger instances military status, residence or domicile, and
past employment in the KGB). Like him, I would include
homelessness as falling within that range, whether or not it is
regarded as a matter of choice (it is often the culmination of a
series of misfortunes that overwhelm an individual so that he
or she can no longer cope). The more peripheral or debateable
any suggested personal characteristic is, the less likely it is to
come within the most sensitive area where discrimination is
particularly difficult to justify. There is an illuminating
discussion of these points (contrasting Strasbourg
jurisprudence with the American approach to the Fourteenth
Amendment) in the speech of Baroness Hale of Richmond in
AL (Serbia) v Secretary of State for the Home Department
[2008] 1 WLR 1434, paras 20-35.”
55. It looks from this passage as if Lord Walker was perhaps slightly more ready
than Lord Neuberger to accept that what someone was doing, or what was being
done to him, could be a personal characteristic, although observing that the “more
peripheral or debateable” the characteristic, the easier it would be to justify
differential treatment.
56. Reviewing these decisions, together with R (Clift), I think it can be said
(although acknowledging the danger of over-simplification) that prior to the
Page 22
decision in Clift v United Kingdom in 2010, the House of Lords had adopted the
following position on “other status”.
i) The possible grounds for discrimination under article 14 were not
unlimited but a generous meaning ought to be given to “other status”;
ii) The Kjeldsen test of looking for a “personal characteristic” by which
persons or groups of persons were distinguishable from each other was to be
applied;
iii) Personal characteristics need not be innate, and the fact that a
characteristic was a matter of personal choice did not rule it out as a possible
“other status”;
iv) There was support for the view that the personal characteristic could
not be defined by the differential treatment of which the person complained;
v) There was a hint of a requirement that to qualify the characteristic
needed to be “analogous” to those listed in article 14, but it was not consistent
(see, for example, Lord Neuberger’s comment at para 43 of R (RJM)) and it
was not really borne out by the substance of the decisions;
vi) There was some support for the idea that if the real reason for
differential treatment was what someone had done, rather than who or what
he was, that would not be a personal characteristic, but it was not universal;
vii) The more personal the characteristic in question, the more closely
connected with the individual’s personality, the more difficult it would be to
justify discrimination, with justification becoming increasingly less difficult
as the characteristic became more peripheral.
57. Following the decision of the ECtHR in Clift v United Kingdom, there has
been further consideration, in the Supreme Court, of the issue of status in article 14.
The issue of how R (Clift) should be viewed in the light of the ECtHR’s different
view has not been directly confronted, although the court made some comment on
the ECtHR decision in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66;
[2015] AC 1344. Apart from that case, of the cases singled out for mention below,
it could be said that Mathieson v Secretary of State for Work and Pensions [2015]
UKSC 47; [2015] 1 WLR 3250 is the one which deals most fully with the question
of status.
Page 23
58. In R (Kaiyam) v Secretary of State for Justice, the issue was what duty the
Secretary of State had to provide prisoners serving indeterminate sentences with
opportunities for rehabilitation in order to facilitate their release. As part of his
claim, one of the appellants, Mr Haney, invoked article 14, claiming that he had
been discriminated against by the prison authorities in that they prioritised the
movement to open prisons of prisoners whose tariff periods had already expired,
whereas his had not. The Supreme Court had to decide whether it should recognise
the difference between those whose tariff periods had and had not expired as a
difference of status for the purposes of article 14. At para 52, Lord Mance and Lord
Hughes, with whom there was unanimous agreement, noted the decision of the
House of Lords in R (Clift), and the different view taken by the ECtHR in that case.
They observed:
“53. In the light of the European court’s decision, we see
some force in the submission that the difference between preand post-tariff prisoners should now be taken to represent a
relevant difference in status.”
But they did not need to determine the question of Mr Haney’s status finally because
the difference in treatment was clearly justified.
59. Para 52 suggests that they might have felt a degree of caution about Clift v
United Kingdom (see para 26 above for the passage from para 60 of Clift v United
Kingdom to which reference is made):
“52. … The question of law is whether the Supreme Court
should recognise the difference between those whose tariff
periods had and had not expired as a difference of status for the
purposes of article 14 of the Convention. The House in R (Clift)
v Secretary of State of the Home Department [2007] 1 AC 484
was, in the absence of clear Strasbourg authority, not prepared
to accept the difference between prisoners serving determinate
sentences over 15 years and life prisoners or prisoners serving
determinate sentences of less than 15 years as a difference in
status. The European court in Clift v United Kingdom
(Application No 7205/07) given 13 July 2010 took a different
view, and expressed itself at one point (at the end of para 60)
in terms which might, literally read, eliminate any
consideration of status.”
60. Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47;
[2015] 1 WLR 3250 concerned a child with disabilities whose parents received
Page 24
disability living allowance until he had been an in-patient in a National Health
Service hospital for more than 84 days. He appealed against the suspension of the
benefit on the ground that it was in breach of his right not to be discriminated against
under article 14 read with article 1 of the First Protocol to the ECHR. One of the
arguments in the Supreme Court was as to whether, if there was discrimination in
the treatment of him, it was on the ground of “other status”. It was held that this
ground was applicable either by virtue of his status as “a severely disabled child in
need of lengthy in-patient hospital treatment” (para 23), or by virtue of his status as
“a child hospitalised free of charge … in a NHS … hospital … for a period longer
than 84 days” (para 60). At para 21, Lord Wilson said that the prohibited grounds in
article 14 extend well beyond innate characteristics, as demonstrated by R (RJM) v
Secretary of State for Work and Pensions [2009] AC 311. Looking at the approach
of the ECtHR in Clift, Lord Wilson considered it “clear that, if the alleged
discrimination falls within the scope of a Convention right, the Court of Human
Rights is reluctant to conclude that nevertheless the applicant has no relevant status”
(para 22).
61. In R (Tigere) v Secretary of State for Business, Innovation and Skills (Just for
Kids Law intervening) [2015] 1 WLR 3820, immigration status was recognised as
an “other status” within article 14, (consistently with the decision of the ECtHR in
Bah v United Kingdom (2011) 54 EHRR 773), but as the point was conceded, there
was no discussion about it in the judgments.
62. R v Docherty (Shaun) [2016] UKSC 62; [2017] 1 WLR 181 concerned a
prisoner who was sentenced on 20 December 2012 to imprisonment for public
protection for offences to which he had pleaded guilty in November 2012.
Imprisonment for public protection had been abolished prior to him being sentenced,
but not for those convicted before 3 December 2012. Amongst other things, he
claimed that the differentiation between him and a person convicted of an identical
offence on 4 December 2012 was unlawful under article 14. At para 63, Lord
Hughes dealt with the question of status and, as will be seen, returned to the idea
that it will not be possible to bring oneself within article 14 unless the proposed
status exists independently of the treatment about which complaint is made:
“The appellant submits that this discriminates objectionably
against him on grounds of ‘other status’, namely either (i) his
status as a convicted person prior to 3 December or (ii) his
status as a prisoner who is subject to an indeterminate sentence.
Assuming for the sake of argument that status as a prisoner
subject to a particular regime can in some circumstances
amount to sufficient status to bring article 14 into question
(Clift v United Kingdom (Application No 7205/07) The Times,
21 July 2005), it cannot do so if the suggested status is defined
entirely by the alleged discrimination; that was not the case in
Page 25
Clift. For that reason, the second suggested status cannot
suffice. As to the first, even if it be assumed in the appellant’s
favour that the mere date of conviction can amount to a
sufficient status, which is doubtful, the differential in treatment
is clearly justified. All changes in sentencing law have to start
somewhere. It will inevitably be possible in every case of such
a change to find a difference in treatment as between a
defendant sentenced on the day before the change is effective
and a defendant sentenced on the day after it. The difference of
treatment is inherent in the change in the law. If it were to be
objectionable discrimination, it would be impossible to change
the law. There are any number of points which may be taken as
triggering the change of regime. The point of conviction is
clearly one, and the point of sentence is another. Neither is, by
itself, irrational or unjustified.”
63. Returning to the list of propositions derived from the House of Lords’
decisions which is to be found at para 56 above, it seems to me that the subsequent
authorities in the Supreme Court could be said to have continued to proceed upon
the basis of propositions (i) to (iii), which have also continued to be reflected in the
jurisprudence of the ECtHR. Proposition (iv) lives on, in R v Docherty, but perhaps
needs to be considered further, in the light of its rejection in Clift v United Kingdom
(see further, below). The “analogous” point, which features at proposition (v), is
reminiscent of the ejiusdem generis argument advanced in Clift v United Kingdom,
but not addressed head-on by the ECtHR. That court’s answer to the argument was,
it will be recalled, to give quite wide-ranging examples of situations in which a
violation of article 14 had been found. With the continued expansion of the range of
cases in which “other status” has been found, in domestic and Strasbourg decisions,
the search for analogy with the grounds expressly set out in article 14 might be
thought to be becoming both more difficult and less profitable. However, that should
not, of course, undermine the assistance that can be gained from reference to the
listed grounds, taken with examples of “other status” derived from the case law. It
may not be helpful to pursue proposition (vi) abstract; whether it assists will depend
upon the facts of a particular case. Proposition (vii) comes into play when
considering whether differential treatment is justified, rather than in considering the
“other status” question, and need not be further considered at this stage.
Submissions in relation to status
64. Mr Southey QC and Mr Bunting for the appellant submit that the decision of
the House of Lords in Clift can no longer be considered a reliable guide to the
meaning of “other status” in article 14. The words should be given a generous
meaning, they submit. They invite attention to the range of situations which have
been held, either by the ECtHR or by the domestic courts, to be within the category.
Page 26
Legally acquired statuses have been accepted as sufficient, as demonstrated, for
example, by Larkos v Cyprus and Pine Valley Developments Ltd v Ireland, Bah v
United Kingdom (all above) and Krajisnik v United Kingdom (2012) 56 EHRR SE7
(status as a prisoner convicted by the International Criminal Tribunal for former
Yugoslavia). They also invite attention to the fact that homelessness has been held
to be covered, even if it is a matter of choice, (R (RJM) v Secretary of State for Work
and Pensions above), and to the status recognised in Mathieson v Secretary of State
Work & Pensions (above). And, of course, they rely on the ECtHR’s decision in
Clift itself.
65. It is submitted that there has been nothing in the decisions of the Supreme
Court post-dating the ECtHR’s decision in Clift (particularly R (Kaiyam) v Secretary
of State for Justice, R v Docherty, and Mathieson) which has undermined the
authority of that judgment, and the approach which is there set out should be
followed. Thus, life sentences, extended sentences and determinate sentences can
all be considered to give rise to “other status”.
66. For the Secretary of State, Sir James Eadie QC, Ms Davidson and Mr Pobjoy
recognise that the court is bound to take into account the ECtHR’s decision in Clift
and to consider whether to depart from the House of Lords’ decision in that case.
However, this should not, in their submission, lead to the conclusion that Mr Stott
can lay claim to “other status”.
67. They invite the court to consider the scope of Clift against the background of
the other cases in which the “other status” category has been considered by the
ECtHR, the House of Lords and the Supreme Court. Whilst this collection of
authority establishes that a generous meaning should be given to the words, it also
establishes that “other status” is not a catch-all category, see most recently para 61
of Khamtokhu. The central question, so the Secretary of State submits, is whether
the basis or reason for the differential treatment is a “personal characteristic by
which persons or groups of persons are distinguishable from each other”. In the
Secretary of State’s submission, article 14 protects “personal characteristics” which
are analogous to those expressly mentioned in the article, see para 65 of R (Hooper)
v Secretary of State for Work and Pensions and para 51 of R (S) v Chief Constable
of the South Yorkshire Police. And, it is said, although the concept of a personal
characteristic is not a precise one, and is not limited to something innate or inherent,
it will typically be more concerned with who a person is, than with what he or she
does, see paras 5 and 45 of RJM. Furthermore, the personal characteristic must be
independent of the treatment about which complaint is made (para 28 and 45 of Clift
in the House of Lords, and para 63 of R v Docherty).
68. It is further submitted, on behalf of the Secretary of State, that Clift is
distinguishable from the present case. The classification of Mr Clift was based upon
Page 27
the length of his sentence, not the nature or gravity of his offence. That set his case
apart from cases such as Gerger v Turkey and Budak v Turkey. Mr Stott’s case is
different, it is said, because he is not relying on the length of his sentence but on the
fact that he is subject to a particular sentencing regime in light of the gravity of his
crime and the risk he poses to the community. It is said that the importance of this
distinction was affirmed in Minter. Furthermore, unlike with Mr Clift, the treatment
of which Mr Stott complains does not exist independently of the characteristic on
which he bases his complaint of discrimination, because the release conditions about
which he complains flow from his status as a prisoner serving an extended
determinate sentence. Mr Clift had already been sentenced, and had thus already
acquired his status, before the order was made which led to the different treatment
of his group for the purposes of release.
69. Furthermore, the Secretary of State submits that “there is no authority for the
proposition that any form of sentencing regime constitutes an ‘other status’ for the
purposes of article 14” and says that the implication of such a finding would be that
every convicted prisoner would automatically fall within the scope of article 14, and
authority establishes that that is not the case.
Conclusions in relation to status
70. The different view taken by the ECtHR in Clift v United Kingdom has to be
taken into account when considering whether R (Clift) should continue to influence
the approach to article 14 status in cases such as the present. For my part, I would
now depart from the determination, in R (Clift), that different treatment on the basis
that a prisoner was serving imprisonment of 15 years or more could not be said to
be on the ground of “other status”. I am influenced by the ECtHR’s reasoned
decision to the contrary, notwithstanding that it was not a decision of the Grand
Chamber, but of a section of the court. I am also influenced by the hesitation
apparent in the speeches of the House of Lords in R (Clift), which disclose the
constraint that was felt in the absence of any recognition by the ECtHR of a status
such as that for which Mr Clift contended. Although one can only speculate as to
how the decision would have gone if the ECtHR had already led the way, it is clear
that the House could see the force of arguments advanced in Mr Clift’s favour.
71. If R (Clift) is left to one side, at least as to its result, that does not mean that
the question of how to approach “other status” is free of domestic authority. In
considering the decisions of the House of Lords which pre-date Clift v United
Kingdom, it is necessary to keep in mind the ways in which the ECtHR ultimately
differed from the House, which I have attempted to set out, commencing at para 33
above. The Supreme Court authorities can be taken to have been decided with Clift
v United Kingdom in mind.
Page 28
72. Perhaps the clearest difference between R (Clift) and Clift v United Kingdom
was in relation to whether the treatment of which the applicant complains must exist
independently of the other status. Counsel for the Secretary of State continue to rely
upon this as part of their argument, and they are correct to point out that it features
as part of Lord Hughes’ analysis in R v Docherty. The first difficulty about the
independent existence condition is the uncompromising rejection of it by the
ECtHR, which went on to say that, on the contrary, the matter had to be assessed
taking into consideration all the circumstances of the case and bearing in mind that
the aim of the Convention was to guarantee practical and effective rights. It cited
Paulík in support of its stance. The applicant in Paulík was a man who, in 1970, was
found by a court to be the father of a girl, paternity then being disproved by a DNA
test in 2004. He wanted the finding of paternity overturned, but, unlike fathers whose
paternity had been established otherwise than through a court, and mothers, he had
no means to achieve this under domestic law. He complained of various breaches of
the ECHR, including that he had been discriminated against in the enjoyment of his
article 8 and article 6 rights. There was found to be a violation of article 14 taken
with article 8. It seems there was no dispute as to the applicability of article 14 (para
51), the dispute having centred on whether the various categories of people were in
analogous situations, and whether the difference was justified. Nonetheless, in light
of the specific endorsement, in Clift v United Kingdom, of Paulík on the question of
status, it is clear that the ECtHR saw the case as an example of a characteristic which
did not exist independently of the treatment complained of and yet approved of its
categorisation as an “other status”.
73. The second difficulty with the independent existence condition is that it made
its appearance in R (Clift) unsupported by much, if anything, by way of explanation
or supportive authority. Lord Hope might have been building upon his observation,
at para 45, that the specific grounds all existed independently of the treatment of
which complaint was made. However, whilst some of the grounds named in article
14 clearly will always exist independently of the complaint, I am not at all sure that
the same can be said of all of them. “Property” might be a ground which would not
always exist independently, and I think there are probably other examples.
74. The third difficulty is that the independent existence condition is not at all
easy to grasp. Mr Clift satisfied it, because he relied upon being a prisoner serving
a determinate term of 15 years or more, and his complaint was about the fact that,
by virtue of a subsequent Order, he required the Secretary of State’s approval for his
release, rather than automatically being released if the Parole Board recommended
it. The homeless person in RJM, who complained about losing his benefits, also
satisfied it. However, it was not satisfied, according to Docherty, where the prisoner
was relying upon being a prisoner subject to an indeterminate sentence, and
complained that he had been discriminated against by virtue of the fact that he could
not have been given that sentence had he been convicted after 3 December 2012.
Even with these practical examples, it is a challenge to make general sense of the
Page 29
concept, and things do not improve when one takes into account the width of the
approach taken in Strasbourg to the ambit of article 14.
75. In all these circumstances, I would be cautious about spending too much time
on an analysis of whether the proposed status has an independent existence, as
opposed to considering the situation as a whole, as encouraged by the ECtHR in
Clift v United Kingdom. In any event, it can properly be said that the status upon
which Mr Stott relies exists independently of his complaint, which is about the
provisions concerning his early release. By way of example, his extended
determinate term of imprisonment does not only dictate the point at which he is
eligible for release on parole; it dictates the period he will spend in prison if parole
is not granted, and it brings with it also a licence extension.
76. A second respect in which the ECtHR differed from the House of Lords was
as to whether Mr Clift’s complaint was based upon the gravity of his offence; it said
not. The Secretary of State argues that Mr Stott’s case is not the same as Mr Clift’s,
as Mr Stott’s complaint is not based on length of sentence, as in Mr Clift’s case, but
on his particular sentencing regime, which is dictated by the seriousness of what he
did and the risk he poses.
77. I am not persuaded by the Secretary of State’s attempt to liken the case to
Gerger and Budak, rather than Clift v United Kingdom, and to exclude the extended
determinate term prisoner on the basis that the differential treatment in his case is
because of what he has done and the risk he poses. The ECtHR dealt with the Gerger
cases in para 61 of Clift v United Kingdom, and explained them as all being
concerned with special provisions for those accused or convicted of terrorism
offences. They also stressed that any exception to the protection offered by article
14 should be narrowly construed. True it is that an extended determinate sentence
will only be imposed where there is a particular combination of gravity of offence
and risk, but within the category of those serving extended determinate sentences,
there will be various types of offence of varying seriousness. Putting it another way,
what Mr Stott did has led to him receiving an extended determinate sentence, but,
once imposed, that extended determinate sentence exists independently of what he
did. If a life sentence is capable of constituting an “acquired personal status”, as
Lord Bingham was understandably disposed to think it was (para 28 of R (Clift)),
and a determinate term of 15 years is also (Clift v United Kingdom), it is difficult to
see why an extended determinate sentence should be viewed differently.
78. I do not think that reliance on Minter assists the Secretary of State in relation
to this issue. The complaint in Minter related to a new legislative regime being
introduced, which did not benefit the applicant. The selection of a particular date for
the commencement of a new legislative regime did not give rise to discrimination
when those who were covered by it were treated differently from those who were
Page 30
subject to the old regime. Given the conflating of the various issues of status,
analogous situation and justification, in the passage in Minter to which reference is
made, it is difficult to be sure whether, in fact, the ECtHR was rejecting the “other
status” argument or not, but in any event, the present case does not involve the
commencement of a new sentencing regime.
79. So, whilst the attributes of the sentencing regime to which Mr Stott is subject
will be of central relevance to Issue 2 in due course, for the purposes of determining
status, in my view the distinction that the Secretary of State seeks to make between
Mr Clift as a prisoner serving 15 years or more and Mr Stott as a prisoner serving
an extended determinate term is not a real one. It follows that the decision of the
ECtHR in Clift v United Kingdom is potentially influential in evaluating the present
case.
80. As to the argument that the characteristic needs to be analogous to those listed
in article 14, this is difficult to pursue too far in the light of the ECtHR’s acceptance
that a prison sentence of a particular length can be within the article. I have no
difficulty in accepting that when considering an as yet unconsidered characteristic,
a court will have in mind the nature of the grounds it was thought right to list
specifically, but the case law that the court cited in Clift v United Kingdom
demonstrates that a strict ejusdem generis interpretation would be unduly restrictive.
81. Bearing in mind that, although not open-ended, the grounds within article 14
are to be given a generous meaning, bearing in mind the warning of the ECtHR that
there is a need for careful scrutiny of differential early release schemes, lest they run
counter to the very purpose of article 5, and considering all of the case law, I would
conclude that the difference in the treatment of extended determinate sentence
prisoners in relation to early release is a difference within the scope of article 14,
being on the ground of “other status”.
Issue 2: Analogous situation and justification
82. In order to address the issues concerning the third and fourth elements of the
article 14 claim (see para 8 above), it is necessary to understand the sentencing
regime to which Mr Stott is subject, and also the other sentences with which he
invites comparison. Some of the fine detail of the sentencing regimes is irrelevant
for present purposes and has been omitted. Unless otherwise specified, in what
follows, references to statute are to the 2003 Act.
Page 31
The sentencing framework: general
83. Section 142(1) sets out the purposes of sentencing adult offenders, applicable
fairly generally except in relation to life sentences. It provides that a sentencing court
must have regard to:
“(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by
deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons
affected by their offences.”
The sentencing framework: EDS
84. The EDS was introduced by the Legal Aid Sentencing and Punishment of
Offenders Act 2012, as one of the sentences for dangerous offenders replacing the
sentence of Imprisonment for Public Protection, and is to be found in section 226A,
which was added to the 2003 Act.
85. Section 226A provides (in the version relevant to this case):
226A Extended sentence for certain violent or sexual offences:
persons 18 or over
“(1) This section applies where –
(a) a person aged 18 or over is convicted of a
specified offence (whether the offence was committed
before or after this section comes into force),
Page 32
(b) the court considers that there is a significant risk
to members of the public of serious harm occasioned by
the commission by the offender of further specified
offences,
(c) the court is not required by section 224A or
225(2) to impose a sentence of imprisonment for life,
and
(d) condition A or B is met.
(2) Condition A is that, at the time the offence was
committed, the offender had been convicted of an offence listed
in Schedule 15B.
(3) Condition B is that, if the court were to impose an
extended sentence of imprisonment, the term that it would
specify as the appropriate custodial term would be at least four
years.
(4) The court may impose an extended sentence of
imprisonment on the offender.
(5) An extended sentence of imprisonment is a sentence of
imprisonment the term of which is equal to the aggregate of –
(a) the appropriate custodial term, and
(b) a further period (the ‘extension period’) for
which the offender is to be subject to a licence.
(6) The appropriate custodial term is the term of
imprisonment that would (apart from this section) be imposed
in compliance with section 153(2).
(7) The extension period must be a period of such length as
the court considers necessary for the purpose of protecting
members of the public from serious harm occasioned by the
Page 33
commission by the offender of further specified offences,
subject to subsections (8) and (9).
(8) The extension period must not exceed –
(a) five years in the case of a specified violent
offence, and
(b) eight years in the case of a specified sexual
offence.
(9) The term of an extended sentence of imprisonment
imposed under this section in respect of an offence must not
exceed the term that, at the time the offence was committed,
was the maximum term permitted for the offence.
(10) In subsections (1)(a) and (8), references to a specified
offence, a specified violent offence and a specified sexual
offence include an offence that –
(a) was abolished before 4 April 2005, and
(b) would have constituted such an offence if
committed on the day on which the offender was
convicted of the offence.
(11) Where the offence mentioned in subsection (1)(a) was
committed before 4 April 2005 –
(a) subsection (1)(c) has effect as if the words ‘by
section 224A or 225(2)’ were omitted, and
(b) subsection (6) has effect as if the words ‘in
compliance with section 153(2)’ were omitted.
(12) [offenders aged at least 18 but under 21].”
Page 34
86. From this, it can be seen that an EDS can only be imposed if the four preconditions set out in section 226A(1) are satisfied. The offender must be 18 or over
and must have been convicted of a “specified offence” (section 226A(1)(a)); a
“specified offence” is defined by section 224 as a specified violent offence
(specified in Part 1 of Schedule 15 to the Act) or a specified sexual offence (specified
in Part 2 of that Schedule). Secondly, the court must consider that there is a
significant risk to members of the public of serious harm occasioned by the
commission by the offender of further specified offences (section 226(1)(b)).
Thirdly, a life sentence must not be required by section 224A or section 225(2)
(section 226A(1)(c)). Fourthly, either Condition A, or Condition B, must be met
(section 226A(1)(d)).
87. Condition A (section 226A(2)) is that at the time the index offence was
committed, the person had been convicted of an offence specified in Schedule 15B
(offences generally of a violent and sexual nature). Condition B (section 226A(3))
relates to the term that the court would specify as the “appropriate custodial term”
if it did impose an extended sentence. By virtue of section 226A(6), the “appropriate
custodial term” is the term of imprisonment that would, apart from section 226A, be
imposed in compliance with section 153(2). Section 153(2) governs custodial
sentences where there is discretion as to the length of sentence, setting out that, as a
general rule, the sentence must be for the shortest term commensurate with the
seriousness of the offence or combination of offences. Condition B will only apply
if the appropriate custodial term that the court would impose would be at least four
years.
88. The nature of an extended sentence appears from section 226A(5). It is a
sentence of imprisonment with a term equal to the aggregate of the appropriate
custodial term and a further period, called the “extension period”, during which the
offender is on licence. Subject to maximum periods set out in section 226A(8), the
length of the extension period has to be fixed according to what the court considers
necessary for the purpose of protecting members of the public from serious harm
occasioned by the offender committing further specified offences. However, by
section 226A(9), the term of the extended sentence (appropriate custodial term and
extension period) must not exceed the maximum term for the offence (section
226A(9)).
89. Release on licence of a prisoner serving an EDS is governed by section 246A.
In most cases, the section requires that the Secretary of State refer the case to the
Parole Board as soon as the prisoner has served the “requisite custodial period”,
which is two-thirds of the appropriate custodial term. The Parole Board can only
direct the release of the prisoner if it is satisfied that it is no longer necessary for the
protection of the public that he should be confined. If the Parole Board does not
direct the release of the prisoner, he must be released on licence at the expiry of the
appropriate custodial term.
Page 35
The sentencing framework: standard determinate sentences
90. A standard determinate custodial sentence will be for the shortest term
commensurate with the seriousness of the offence or combination of offences
(section 153(2)). There is no “extension period” as there is with an EDS. The
majority of standard determinate sentence prisoners are entitled to be released on
licence automatically, once they have served “the requisite custodial period”, which
is one half of their sentence (section 244).
91. Home Detention Curfew (sections 246 and 250(5)) is available as a means of
releasing a prisoner before the half-way point in his sentence, on a licence coupled
with a curfew condition. Whether this route is taken depends upon the Secretary of
State’s discretion, which can be exercised at any time during the 135 days ending
with the day on which the prisoner will have served the requisite custodial period.
Amongst the prisoners not eligible are EDS prisoners and those serving a sentence
imposed under section 236A, as to which see below.
92. Foreign national prisoners can also be removed from custody early for the
purposes of deportation (section 260).
Sentencing framework: special custodial sentences for certain offenders of
particular concern
93. Section 236A (as inserted by Schedule 1 to the Criminal Justice and Courts
Act 2015) provides for special custodial sentences to be passed in relation to certain
offenders of particular concern (“an SOPC sentence”). The conditions for the
imposition of such a sentence are that the offender was over 18 when the offence
was committed, that he has been convicted of an offence listed in Schedule 18A to
the 2003 Act (as also so inserted), and that the court does not impose a life sentence
or EDS. Schedule 18A lists offences under the headings “Terrorism offences”, and
“Sexual offences” (rape of a child under 13, and assault of a child under 13 by
penetration).
94. An SOPC sentence has two elements: the appropriate custodial term (“the
term that, in the opinion of the court, ensures that the sentence is appropriate”, see
section 236A(3)) and a further period of one year for which the offender is subject
to a licence. The aggregate of these two elements must not exceed the term that, at
the time the offence was committed, was the maximum term permitted for the
offence. It is worth noting that the “appropriate custodial term” for the SOPC
provisions differs from the “appropriate custodial term” for the EDS provisions. The
focus is on the overall sentence, the aggregate of the two elements, which has to be
Page 36
commensurate with the seriousness of the offence. In contrast, an EDS comprises a
custodial term commensurate with the offence plus a specified licence period, and
can truly be described as an “extended” term.
95. Release arrangements for an SOPC prisoner are to be found in section 244A
(as also so inserted). The Secretary of State must refer his case to the Parole Board
as soon as he has served one half of the appropriate custodial term, and must release
him on licence if the Board directs, which it can only do if satisfied that it is not
necessary for the protection of the public for the prisoner to be confined. If the Board
does not direct release, the prisoner will have to serve the appropriate custodial term
before he is released on licence.
Sentencing framework: indeterminate sentences
96. A life sentence must be imposed for murder (Murder (Abolition of the Death
Penalty) Act 1965); this is referred to as a “mandatory life sentence”. There are also
three other situations in which a life sentence (referred to as a “discretionary life
sentence”) may be imposed, namely (a) life sentences for serious offences (section
225) (b) life sentences for second listed offences (section 224A) and (c) life
sentences where the offence carries life as a maximum penalty. It is well understood
that, generally, life sentences are sentences of last resort, see for example R v
Burinskas (Attorney General’s Reference (No 27 of 2013)) (Practice Note) [2014]
EWCA Crim 334; [2014] 1 WLR 4209, para 18.
97. A life sentence must be imposed under section 225, on an offender over 18,
if certain conditions are satisfied:
i) The offender has been convicted of a serious offence committed after
3 December 2012; a “serious offence” is defined in section 224 as an offence
specified in Schedule 15 to the 2003 Act (certain violent and sexual offences)
which is punishable with life imprisonment.
ii) The court is of the opinion that there is a significant risk to members
of the public of serious harm occasioned by the commission by the offender
of further specified offences.
iii) The court considers that the seriousness of the offence, or of the
offence and one or more offences associated with it, is such as to justify the
imposition of a life sentence; section 143 deals with factors to be considered
in gauging seriousness, including the offender’s culpability and the harm, or
potential harm, caused by the offence.
Page 37
98. In Burinskas, the Court of Appeal explained how the judge should approach
the sentencing of offenders who may be considered dangerous, where a sentence
under section 225 or one of the allied provisions of the 2003 Act might be required.
In relation to section 225, it spelled out (para 22) that consideration of iii) above
requires consideration of the seriousness of the offence itself on its own or taken
with other offences associated with it, the offender’s previous convictions, the level
of danger he poses to the public and whether there is a reliable estimate of the length
of time that he will remain a danger, and the available alternative sentences.
99. Life sentences for second listed offences are dealt with in section 224A. The
(cumulative) criteria for imposing a life sentence under that section are:
i) The offender is over 18 and has been convicted of an offence,
committed after 3 December 2012, which is listed in Part 1 of Schedule 15B
to the 2003 Act; Part 1 includes certain offences of serious violence and of
terrorism, certain offences relating to weapons, and certain serious sexual
offences.
ii) Apart from the section, the court would impose a sentence of
imprisonment of ten years or more, disregarding any extension period under
section 226A.
iii) The “previous offence condition” is met, that is, at the time the offence
was committed, the offender had already been convicted of an offence listed
in Schedule 15B and been sentenced to a relevant life sentence or a relevant
sentence of imprisonment (the sentences which are relevant being, in essence,
sentences of significant length).
100. If the criteria are met, the court is obliged to pass a life sentence unless it is
of the opinion that there are particular circumstances, which relate to the offence, to
the previous offence, or to the offender, and which would make it unjust to do so in
all the circumstances. It is to be noted that, as the Court of Appeal observed at para
8 of Burinskas, there is no requirement under section 224A for the offender to have
been found to be dangerous within the meaning of the 2003 Act, although it is likely
that in most cases he will be.
101. A life sentence may also be imposed where the offence has a maximum
penalty of life imprisonment. Two criteria for the imposition of such a life sentence
were identified in Attorney General’s Reference (No 32 of 1996) [1997] 1 Cr App
R(S) 261, 264, namely that the offender has been convicted of a very serious offence,
Page 38
and there are good grounds for believing that he may remain a serious danger to the
public for a period which cannot be reliably estimated at the date of the sentence.
102. In the case of a mandatory life sentence, unless the seriousness of the offence
or offences leads the court to disapply the early release provisions, section 269
requires the judge to determine the minimum custodial term that the offender must
serve before he is eligible to apply for release. In setting the minimum custodial
term, the court must take account of the seriousness of the offence, and of the effect
of the provisions for credit for periods of remand in custody, or on certain types of
bail, which would have applied “if it had sentenced him to a term of imprisonment”.
In assessing the seriousness of the offence, regard is to be had to the principles set
out in Schedule 21 of the 2003 Act, which set statutory starting points for offences
of murder and specify a range of aggravating and mitigating features, and also to
any guidelines which are not incompatible with Schedule 21.
103. In the case of discretionary life sentences, section 82A of the Powers of
Criminal Courts (Sentencing) Act 2000 (as inserted by section 60 of the Criminal
Justice and Court Services Act 2000 and amended by the 2003 Act) requires the
court to address the question of early release. There is again provision for the court
to disapply the early release provisions in light of the seriousness of the offence or
offences. Otherwise, the court is required to specify the part of the sentence which
has to be served before the early release provisions apply. The part of the sentence
specified shall be “such as the court considers appropriate” taking into account the
seriousness of the offence or offences, provisions for crediting certain periods on
remand, and (section 82A(3)(c)) “the early release provisions as compared with
section 244(1) of the Criminal Justice Act 2003”. The Court of Appeal explained, in
Burinskas, how section 82A works:
“33. The effect of section 82A is to require the sentencing
judge to identify the sentence that would have been appropriate
had a life sentence not been justified and to reduce that notional
sentence to take account of the fact that had a determinate
sentence been passed the offender would have been entitled to
early release.”
104. Normally, section 82A(3)(c) will result in the specified part of the sentence
being equivalent to one half of the determinate sentence that would have been
imposed had a life sentence not been justified. This is not, however, an invariable
rule. As the Court of Appeal said in R v Szczerba [2002] 2 Cr App R(S) 86, whether
the specified part is half or two-thirds of the notional determinate term, or
somewhere between the two, is essentially a matter for the sentencing judge’s
discretion. It gave examples, at para 33, of the sort of exceptional circumstances in
which more than half may be appropriate.
Page 39
105. Section 28 of the Crime (Sentences) Act 1997 governs the release of life
prisoners where the court has made a determination of the minimum term that is to
be served, whether under section 82A or section 269 of the 2003 Act. Once he has
served the minimum term, the prisoner may require the Secretary of State to refer
his case to the Parole Board, and the Parole Board directs release if satisfied that it
is no longer necessary for the protection of the public that the prisoner should be
confined.
The sentencing framework: recall of prisoners
106. There are detailed provisions, commencing at section 244 of the 2003 Act,
governing the release of prisoners on licence and the revocation of such a licence.
For present purposes, it is sufficient to record the following:
i) A determinate sentence prisoner who has been released early on
licence (see para 90 above) will be liable, until the end of the determinate
sentence, to be recalled to prison to serve the remainder of the sentence. Some
prisoners (those the Secretary of State is satisfied will not present a risk of
serious harm to members of the public if released) will be eligible for
automatic release again within a short, stipulated period, and the Secretary of
State has a discretion to release them sooner than that or the Parole Board can
so direct.
ii) An EDS prisoner who is recalled during the period of his licence, and
other recalled determinate sentence prisoners who are not suitable for
automatic release, may be released again by the Secretary of State, if the
Secretary of State is satisfied that it is not necessary for the protection of the
public that the prisoner should remain in prison. If the prisoner makes
representations within 28 days of recall, or if not released by the Secretary of
State within that period, he must be referred to the Parole Board which can
direct immediate release.
iii) Where a life sentence prisoner is released, it will be on a licence which,
by virtue of section 31 of the Crime (Sentences) Act 1997, will remain in
force until his death. He can be recalled to prison by the Secretary of State,
whereupon his case will be referred to the Parole Board, which can direct his
release. Otherwise, he continues to be detained pursuant to his sentence.
Page 40
Sentencing: the relevance of the early release provisions
107. When determining the custodial sentence in a particular case, the judge is not
to take account of the early release provisions, see for example para 44 of R v Round
[2009] EWCA Crim 2667; [2010] 2 Cr App R(S) 45. However, the early release
provisions are taken into account, in sentencing, in fulfilling the requirement of
section 82A(3) of the Powers of Criminal Courts (Sentencing) Act 2000, above,
when fixing the minimum term to be served.
The Divisional Court’s reasoning
108. The focus in the Divisional Court was particularly on the comparison
between the EDS being served by Mr Stott, and a life sentence, but the court was
conscious that there could also, legitimately, be a comparison between the EDS and
other forms of determinate sentence (para 6). It contrasted the early release
provisions applicable to an EDS, requiring the prisoner to serve two-thirds of the
custodial term before becoming eligible for release, with the provisions for SOPC
sentences (eligibility after half of the custodial term), and for life sentences
excepting mandatory life sentences for murder (eligibility once the minimum term
has been served which, save in exceptional circumstances, will be equivalent to halfway through the notional determinate sentence). This led to the conclusion (para 30)
that, “putting mandatory life sentences to one side, save exceptionally, in every other
case save for those sentenced to EDS, the custodial term to be served is one half of
the nominate determinate term.” Thus, the EDS prisoner is “treated differently in
relation to release on licence as compared with almost all other prisoners serving a
custodial sentence” (para 34).
109. The Divisional Court was, of course, constrained by R (Clift) to find against
Mr Stott on the issue of status, although Sir Brian Leveson, President of the Queen’s
Bench Division made clear his view that it was high time that that decision be
revisited. We do, however, have the benefit of the Divisional Court’s views as to
whether Mr Stott was in an analogous position to other relevant prisoners and
whether there was justification for the different treatment of EDS prisoners.
110. The Secretary of State argued in the Divisional Court, as in this court, that an
EDS prisoner cannot properly be compared to a life prisoner, because each
sentencing regime has different features (para 43). This argument did not find favour
with the Divisional Court, which considered the two prisoners to be in analogous
situations. It considered it essential to have regard to “the principle of sentencing
practice” that both an EDS and a life sentence “involve a period identified for
punishment and deterrence and, potentially, further detention (albeit, in the case of
an EDS, for a finite time) based on risk to the public” (para 44). It continued:
Page 41
“Both must accept the period for punishment and then address
the issue of risk; what is at issue is the question of eligibility
for consideration for release not merely the mechanism
whereby issues of release are decided.”
111. In the light of this, at para 45, attention was invited to the following
comparison between a determinate sentence and an EDS:
“Take the case of a crime which, applying the relevant
guideline, justifies a sentence of 12 years’ imprisonment. For
an offender in respect of whom there is no concern that he is a
risk to the public, that will be the determinate term: as the law
stands, he will serve six years and then be entitled to be released
on licence (from which he can be recalled to prison for breach
up to the end of the 12-year term). For another offender,
deserving the same sentence but who, perhaps by reason of his
mental condition, constitutes a risk to the public, the court
might take the view that he requires an extended period on
licence. If he was sentenced to an EDS with a custodial term of
12 years (ie the same as the first offender, their crimes being of
equal gravity) with a two-year extension (for the purposes of
extending supervision over him), he would only be eligible for
consideration of parole after eight years. The gravity of their
crimes is identical and their positions (in so far as punishment
and deterrence is concerned) seem, to me at least, to be
analogous.”
112. The court reinforced this view by reference to an offender given an SOPC,
who may have committed precisely the same offences as those committed by an
offender sentenced to an EDS, and yet be eligible for release after one half of the
determinate term.
113. As for justification (paras 47 to 50), the government had explained that it
wished to introduce a tougher determinate sentence, designed to enhance public
protection and to maintain public confidence in the sentencing framework, and
relied upon the fact that an offender eligible for an EDS had committed a serious
offence and had been found to be dangerous. The court was not persuaded that this
explanation for the difference in treatment of prisoners addressed what was, in the
court’s view, “the crucial issue of the distinction between the punitive element of
any sentence and that part of the sentence designed to cater for risk”. The fact that
the offender had committed a serious offence did not, in the court’s view, provide
any rational basis for altering the extent of the punitive element of a sentence, which
was, in its view, the result of deferring eligibility for release in the case of an EDS
Page 42
prisoner; other prisoners would also have committed very serious offences, but be
eligible at an earlier stage. As for dangerousness, that did not justify the different
release provisions because “that is to confuse punishment and deterrence with risk”.
This point is explained at para 49 as follows:
“Dangerousness under Part 12 of the 2003 Act [the sentencing
provisions] is assessed by reference to future risk, and it is only
at the point of potential release that the risk will be assessed
(based, of course, on the history of the offender, progress in
custody and resettlement plans). If relevant risk to the public
remains, the offender will remain in prison. If not, it will be
appropriate to release him. There is no rational justification for
setting a later and arbitrary point for parole eligibility (at which
risk is to be assessed) for EDS prisoners, as opposed to life
sentence prisoners, or prisoners serving a sentence pursuant to
section 244A of the 2003 Act.”
114. The requirement that some prisoners apply for parole, whereas others are
automatically released at a certain point in their sentence, was justified as it was for
the purpose of protecting the public from risk but, in the court’s view, “the difference
in the term to be served for punishment and deterrence is not”. Had it not been for
the status issue, the court would accordingly have found the provisions incompatible
with article 14.
The appellant’s submissions in relation to Issue 2
115. The argument advanced on behalf of Mr Stott is a simple one, namely:
although they are in an analogous situation, different classes of prisoner are treated
differently with regard to eligibility for release, and there is no valid justification for
this. If he had been given a determinate sentence, Mr Stott would have been entitled
to release at the half-way point in his sentence, that is after ten and a half years, and,
had he been given a life sentence, he would probably also have been eligible for
release after ten and a half years. So, Mr Southey suggests, in relation to eligibility
for release, Mr Stott would have been in a better position had he been given a life
sentence, even though life sentences are reserved for the most serious cases, for
offenders who are the highest risk or have the most serious criminal records.
116. Mr Southey invites us, in considering whether the prisoners under
consideration are in analogous positions, to put weight upon the decision in Clift v
United Kingdom. He also invites us to recognise that people can be in an analogous
position even if their situation is not identical, and to concentrate on the similarities
between EDS prisoners and other prisoners. In terms of similarities, he emphasises
Page 43
that both EDS prisoners and indeterminate sentence prisoners depend, for their early
release, on risk assessment by the Parole Board. Like the Divisional Court, he relies
upon what he says is the sentencing principle that the period preceding eligibility
for parole is “the punitive and deterrent element of a sentence passed”, whereas any
further time spent in custody is “seen as pertaining to the risk to the public posed by
the offender” (see, for example, R (Foley) v Parole Board for England and Wales
[2012] EWHC 2184 (Admin)). In his submission, this is the same for each group of
prisoners, and the Secretary of State’s argument is wrong because it ignores that
sentencing principle. Furthermore, he points out that determinate sentence prisoners,
EDS prisoners, and those serving an indeterminate sentence all “share the same
interest, namely in being released from custody”.
117. On justification, Mr Southey reminds us that it is the differential treatment
that must be justified, not the EDS itself, and in his submission, it has not been.
Considerations of relative risk cannot provide the required justification, he says. It
can be assumed that the highest risk offenders, and the offenders who have
committed the most serious offences, are serving a life sentence, and lower risk
prisoners should not be treated less favourably in relation to early release. Risk is
addressed through the Parole Board process, an EDS prisoner only being released if
the Parole Board is satisfied that continued detention is not necessary for the
protection of the public. There is no basis, submits Mr Southey, for concluding that
the risk that an EDS prisoner poses at the half-way point in his sentence will
necessarily be such as to require continued detention, and denying him the
opportunity even to apply for release until two-thirds of the way through his
sentence, when the prisoner serving an indeterminate term can apply at half-time.
The effect of this is to impose a greater penalty without reason. Further, he says that
there is no basis to distinguish between the EDS prisoner and the regular determinate
sentence prisoner as both are equally culpable, and the punitive component of their
sentence should be the same; differential risk is addressed by the involvement of the
Parole Board in the case of the EDS prisoner.
The Secretary of State’s submissions in relation to Issue 2
118. The Secretary of State’s case is that an EDS is not analogous either to other
types of determinate sentence or to indeterminate sentences. It is submitted that it is
in a class by itself, designed to address a particular combination of offending and
risk. Although accepting that a life sentence can be viewed as comprising a period
of detention justified by punishment and deterrent followed by detention justified
solely by public protection, Sir James Eadie does not accept that a similar analysis
applies to a determinate sentence. His submission is that the whole of a determinate
sentence (and the whole of the custodial term of an EDS) is imposed for the purpose
of punishment and deterrence.
Page 44
119. Further, Sir James submits that there is, in any event, no absolute rule that a
prisoner is eligible for release at the half-way point of his sentence. Some prisoners
have a right to release on licence at the half-way stage, but in some cases, the
prisoner is entitled to apply for release sooner, and in some cases release requires
the Parole Board’s direction. In the case of life sentences, a prisoner may not always
be eligible to apply to the Parole Board at what would be the half-way point in a
determinate sentence, because the minimum term of a life sentence can be fixed at
more than half of the notional determinate sentence (see Szczerba above).
Accordingly, in the Secretary of State’s submission, each type of sentence has
release arrangements which have been tailored to meet the requirements of that
particular sentence, justified by reference to the particular characteristics of the
offenders on whom the sentence is imposed. The particular arrangements for EDS
prisoners flow from the characteristics of that group of prisoners, in contrast to those
serving ordinary determinate terms or indeterminate sentences.
120. The Secretary of State draws a distinction between the present case and Clift
v United Kingdom and Foley. Those cases were about relevantly similar release
processes being applied differently, he says, whereas the complaint here is, in
contrast, about the operation of different types of sentence, and whether the factors
which justify the imposition of a particular sentence also justify the particular release
arrangements that form part of the administration of the sentence. More assistance
can be obtained from R (Bristow) v Secretary of State [2013] EWHC 3094 (Admin)
(later affirmed in the Court of Appeal [2015] EWCA Civ 1170) and R (Massey) v
Secretary of State for Justice [2013] EWHC 1950 (Admin).
121. Sir James emphasises the wide margin of appreciation afforded to states with
respect to prisoner and penal policy, although acknowledging that this court will
exercise close scrutiny in relation to measures that result in detention. Here, the
policy choices made by Parliament, with respect to the release arrangements for an
EDS prisoner, are well within its discretion when striking a balance between the
interests of public protection and the interests of the individual prisoner. Unlike in
Clift v United Kingdom, the differences in treatment are all justified by the risk that
EDS prisoners pose in comparison to other prisoners, and the early release
provisions achieve the legitimate aim of protecting the public.
Discussion
122. I need to start with a consideration of the fundamental difference between the
parties in relation to whether a determinate sentence can be said to comprise two
separate components, a period for punishment and deterrence, and a further period
based on the risk posed by the offender to the public, particularly as this featured
significantly in the decision of the Divisional Court.
Page 45
123. The Secretary of State accepts that it has long been established that life
sentences incorporate two such periods, but does not accept that that is so with
regard to determinate sentences, relying on a number of decisions of the domestic
courts and the ECtHR, which it is said call the “two component” analysis into
question. It will be seen that the observations to which our attention has been invited
have tended to be made in the context of determining an issue as to whether article
5(4) of the ECHR requires a review, during the course of a particular sentence, of
the lawfulness of detention.
124. In my view, the Secretary of State is correct to differentiate between
determinate and indeterminate sentences in this connection. The ECtHR does make
a distinction, treating the post-tariff phase of an indeterminate sentences as directed
at managing risk, whereas the whole of a determinate sentence is viewed as
punishment. In R (Black) v Secretary of State for Justice [2009] 1 AC 949, Lord
Brown (in the majority) remarked on the distinction, commenting (para 67) that,
throughout its case law, the Strasbourg court “has consistently appeared to treat
determinate sentences quite differently, time and again contrasting them with the
indeterminate cases”, with article 5(4) being engaged in the determination of the
length of post-tariff detention in life sentence cases, but not in decisions regarding
early or conditional release from a determinate term of imprisonment (para 83). So,
in Mansell v United Kingdom (Application No 32072/96, 2 July 1997), Ganusauskas
v Lithuania (Application No 47922/99, 7 September 1999), and Brown v United
Kingdom (Application No 968/04, 26 October 2004), the ECtHR held article 5
challenges to determinate sentences to be manifestly ill-founded, the sentences
being justified throughout the prison term as punishment for the offence.
125. A brief look at Mansell will illustrate the approach in the Strasbourg cases.
The applicant had been sentenced to a longer custodial sentence than would have
been commensurate with the seriousness of the offence, because the court
considered it necessary to protect the public from serious harm (section 2 of the
Criminal Justice Act 1991). He argued that his sentence consisted of a “punitive
part” and a “preventive part”, and that he should have been entitled to a proper
review of the lawfulness of his continued detention, with an oral hearing, as soon as
he had served the period that he would have served under the normal punitive
sentence. The ECtHR observed that, in contrast to indeterminate sentences, there
was no question of the sentence being imposed because of factors that were
susceptible to change with the passage of time, such as dangerousness or mental
instability. The whole of the fixed term was “a sentence which was imposed as
punishment for the offences committed”. The necessary judicial control was
therefore incorporated in the original conviction and sentence.
126. In R (Whiston) v Secretary of State for Justice [2015] AC 176, which
concerned a determinate sentence prisoner released on Home Detention Curfew,
then recalled to prison, Lord Neuberger, with whom three of the court of five agreed,
Page 46
also reviewed the Strasbourg case law. His observation at para 25, made in
connection with Ganusauskas and Brown, might perhaps lend a modicum of further
support to the Secretary of State’s argument against the two component analysis. He
said that:
“in each case, the court rejected the article 5.4 complaint on the
ground that the article did not apply at all in circumstances
where the recall to prison occurred during the period of a
determinate sentence imposed for the purposes of punishment.
I would add that the reference to punishment cannot have been
intended to mean solely for punishment: determinate prison
sentences are imposed for a mixture of reasons, each of which
should, at least normally, be treated as applicable to the whole
of the sentence period.” (Emphasis added)
127. It appears from para 53 that Lady Hale, who wished to “sound a note of
caution about some of the reasoning” by which Lord Neuberger had reached his
conclusion in the appeal, might not have been entirely in agreement with what he
said on this particular point, but she did comment upon the fact that the sentencing
judge imposes the sentence which is thought to be correct, without regard to the right
to early release, and followed that with the observation that the “whole of the
sentence is intended as punishment”.
128. Brown v Parole Board for Scotland [2017] UKSC 69; [2018] AC 1 might
also be taken as providing some support for the Secretary of State’s position on
punishment/risk, particularly what is said at para 60, which I set out below. The case
was concerned with an extended sentence imposed under section 210A of the
Criminal Procedure (Scotland) Act 1995 (as inserted by section 86 of the (inserted
by Crime and Disorder Act 1998)), but there are similarities between such a sentence
and an EDS. The sentence comprised a custodial term of seven years followed by
an extension period of three years on licence. The prisoner was released on licence
after serving two-thirds of the custodial term, but then recalled. He complained of a
breach of article 5, on the basis that he had not been provided with appropriate
rehabilitation courses, during the period of his recall, to enable him to achieve his
release, by demonstrating to the Parole Board that he no longer posed a risk to the
public. Although the court took the opportunity to modify the article 5 jurisprudence
by departing from R (Kaiyam) v Secretary of State for Justice (above), his action
failed because he had, in fact, been provided with a range of appropriate
rehabilitative measures. Lord Reed gave a judgment with which the remaining
members of the court were all in agreement, and, although the issue for the court
was different, some passages have some relevance to the present case.
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129. At para 49, Lord Reed noted that, in fixing the custodial term of the extended
sentence, as in fixing an ordinary sentence of imprisonment, the court “will take
account of all matters relevant to sentencing and have regard to all the accepted
objectives of a custodial sentence, including punishment, deterrence, public
protection and rehabilitation”. The same can be said of the present case, as these
objectives form part of the sentencing process in England and Wales as well,
featuring in section 142(1) of the 2003 Act as “purposes of sentencing” (above).
Section 142(1) is in very general terms, applying to “any court dealing with an
offender in respect of his offences”, making no difference between periods of the
sentence which will be spent in custody and periods which the offender can expect
to spend on licence. No doubt this is unsurprising, given that the sentencing judge
is not to have regard to the early release provisions when fixing the appropriate
sentence.
130. At para 50, Lord Reed made an observation about release on licence, which
must also be relevant to release on licence in England and Wales, and does perhaps
underline that a licence may not only be there to protect the public, although plainly
that can be significant part of its purpose and, of course, the extension period in an
EDS is indeed expressly for that purpose (section 226A(7) of the 2003 Act). He said:
“Release on licence is intended to ensure that the process of
transition from custody to freedom is supervised, so as to
maximise the chances of the ex-prisoner’s successful
reintegration into the community and minimise the chances of
his relapse into criminal activity.”
131. It is of note that Lord Reed drew a clear distinction between the custodial
term of the extended sentence, including any period spent on licence during it, and
the extension period. In the following passage from para 60, he proceeded upon the
basis that the custodial term addressed the punitive aspect of the sentence, in contrast
to the extension, which was for the protection of the public:
“60. … the purpose of detention during the extension period is
materially different from that of a determinate sentence. In terms
of section 210A(2)(b) of the 1995 Act, the extension period is
‘of such length as the court considers necessary for the purpose
mentioned in subsection (1)(b)’, namely ‘protecting the public
from serious harm from the offender’. … The punitive aspect of
the sentence has already been dealt with by the custodial term,
which is ‘the term of imprisonment … which the court would
have passed on the offender otherwise than by virtue of this
section’: section 210A(2)(a). Where a prisoner serving an
extended sentence is detained during the extension period, other
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than by virtue of an order made under section 16 or another
sentence, his continued detention is therefore justified solely by
the need to protect the public from serious harm.”
132. The Secretary of State relies also upon a body of case law concerning article
7 of the ECHR (no heavier penalty to be imposed than the one that was applicable
at the time the criminal offence was committed). It is pointed out that post-sentence
changes to early release provisions are not treated as altering the penalty for the
offence, see for example R v Docherty (above) at para 65, and the cases there cited.
It is argued that this is not consistent with Mr Stott’s case. If the punitive element of
a determinate sentence ends upon early release, or eligibility to apply for release,
then a change in the release provisions would potentially impermissibly increase the
penalty imposed for the offence.
133. Having reviewed the authorities, it seems to me fairly clear that the
Strasbourg jurisprudence is against the two component analysis, so far as
determinate sentences are concerned. Viewing the whole term as punitive would
would also be consistent with the generally applicable purposes of sentencing set
out in section 142(1) of the 2003 Act, and with the embargo on the sentencing judge
having regard to the early release provisions when deciding what period of
imprisonment to impose, save in particular defined circumstances.
134. If the two component analysis is inappropriate, there must be force in the
Secretary of State’s submission that, when looking to compare that part of an EDS
which is imposed for punishment and deterrence, with the equivalent part of another
sentence, it requires a comparison between the appropriate custodial term of the EDS
and:
i) in the case of a standard determinate sentence and an SOPC, the whole
term of imprisonment;
ii) in the case of an indeterminate sentence, the minimum term.
135. Having said that, I can entirely accept that, as a matter of practice, the
domestic criminal courts do see determinative sentences as having distinct punitive
and risk-based elements, see the Divisional Court in the present case for example.
And, even if the Secretary of State is correct that a sentence should not actually be
analysed in this way, it remains the stark fact that some prisoners have to serve a
greater proportion of their overall sentence before becoming eligible for release on
licence than others. The category in relation to which this is perhaps most
challenging to explain, is where release requires the Parole Board to be satisfied on
Page 49
the question of risk. Some prisoners, notably for present purposes, the EDS prisoner,
have to serve a greater proportion of their sentence than others, before they can try
to persuade the Parole Board on that issue. Whatever the correct answer to the two
component debate, this differential wait for the chance to approach the Parole Board
demands attention. Accordingly, there might not be much value in pursuing the two
component debate further.
136. It is important to put the differential wait argument into proper context
however. Whilst the assertion that the requirement for an EDS prisoner to serve twothirds of his sentence before becoming eligible for parole is out of step with
comparable prisoners has an initial attraction, it is less compelling if the rest of the
prisoners are not, in fact, in step with each other. The argument proceeds on the basis
that other prisoners are eligible for release/parole at the half-way point in their
sentence, but on closer examination, it can be seen that this is by no means universal.
Standard determinate sentence prisoners are entitled to (automatic) release at the
half-way point. Most life sentence prisoners (excepting those where a whole life
term has been imposed) are eligible to apply for release once they have served their
minimum term, and in most cases this minimum term will be the equivalent to half
of the notional determinate term, but that is not universal even for discretionary life
sentences (see Szczerba above), and in the case of mandatory life sentences, the
period is not fixed by reference to a notional determinate term. Accordingly there
are other prisoners who serve longer than half of their sentences before they have a
chance of release on licence. Conversely, there are some prisoners who serve less
than half. Home Detention Curfew can enable determinate sentence prisoners to
achieve their release before the half-way point, and an SOPC prisoner is eligible to
apply for release from the half-way point of his appropriate custodial term, and not
the half-way point in his overall sentence (which will be the aggregate of the
custodial term plus the licence tacked on to it).
137. I turn then, rather more directly, to the twin questions of whether an EDS
prisoner is in an analogous position to other prisoners serving either determinate or
indeterminate sentences (“Issue 2A”), and whether the differences in treatment that
there undoubtedly are between EDS prisoners and other prisoners are justified
(“Issue 2B”). As is apparent from the authorities concerning article 14, it is not at
all easy to separate these two questions into watertight compartments, but I will at
least begin with Issue 2A.
138. In determining whether groups are in a relevantly analogous situation for
article 14, regard has to be had to the particular nature of the complaint that is being
made, see for example para 66 of Clift v United Kingdom.
139. Mr Stott relies upon Clift v United Kingdom, on the basis that it involved a
similar complaint to his own. However, the Secretary of State submits that it does
Page 50
not assist here, because it concerned a complaint about similar release provisions
being operated differently whereas Mr Stott’s complaint is about the operation of
different types of sentence.
140. Clift v United Kingdom can properly be described, I think, as concerning a
complaint about similar release provisions being operated differently. The prisoners
under consideration there, all required a recommendation from the Parole Board
before they could achieve early release. But for those, like Mr Clift, who were
serving determinate terms of 15 years or more, the final decision on early release
lay with the Secretary of State, whereas for the other prisoners the Parole Board’s
recommendation was enough. The ECtHR considered the prisoners to be “relevantly
similar”. The key was that, in each case, it was all about determining whether the
prisoner posed too much of a risk to be released. So, at para 67, the court observed
that a refusal of early release was “not intended to constitute further punishment but
to reflect the assessment of those qualified to conduct it that the prisoner in question
poses an unacceptable risk upon release”. As “the methods of assessing risk and the
means of addressing any risk identified are in principle the same for all categories
of prisoners”, it considered that there was no distinction to be drawn between the
prisoners, who were in analogous positions.
141. I do not see the present case as entirely on all fours with Clift v United
Kingdom. R (Foley) v Parole Board for England and Wales (above), upon which
Mr Southey also relies, is possibly a step closer to the present case than Clift, because
it concerned the substance of the release arrangements, rather than simply the
mechanism of release ie who made the final decision. The claimant had been given
a determinate sentence of 18 years. She was eligible for release at the half-way point
in the sentence if the Parole Board recommended it, and for automatic release at the
two-thirds point. The test that the Parole Board had to apply in her case was more
onerous than the test that would have been applicable had she been given a life
sentence. She therefore argued that there was a violation of article 14. Her claim
failed because R (Clift) meant that she could not establish that the different treatment
was on the ground of other status, but the court went on to set out what it would
have decided had there not been that obstacle. Although acknowledging that there
were differences between the sentences, Treacy J (with whom Thomas LJ agreed,
adding a few words) accepted, at para 71, that the situation of the claimant was
analogous to an indeterminate sentence prisoner, saying:
“Whilst it is obvious that an offender serving a determinate
sentence has the benefit of having a finite limit on the reach of
the law in relation to that sentence, I do not think that
constitutes a material difference. Both types of sentence now in
reality are divided into a punitive element which may be
followed by a period of risk based detention. So, in my view,
the identified differences between a determinate and an
Page 51
indeterminate sentence do not prevent their treatment as
analogous.”
142. The court’s conclusion was that there was no objective justification for the
difference. Treacy J considered the reasoning in Clift v United Kingdom pertinent,
because it was also about “the imposition of different early release requirements”.
Release during Ms Foley’s sentence and during an indeterminate sentence both
involved a risk assessment exercise, and consideration of risk by the same body, but
significantly different tests were applied. Treacy J’s analysis proceeded upon the
basis that the punitive element of a determinate sentence lasted up to the half-way
point, leading him to conclude that there was no good reason why “those who ex
hypothesi are to be regarded as less dangerous because they have received a
determinate rather than an indeterminate sentence, should be subject to greater
punishment … [or] … why both types of offender should not become eligible for
release subject to questions of risk at the same point in their sentence” (see paras 69
and 76).
143. The Secretary of State would distinguish Foley because of the significant part
played in the court’s approach by the two component (punitive/risk) analysis. Sir
James invites us to set more store by R (Massey) v Secretary of State for Justice
[2013] EWHC 1950 (Admin) because, although Massey involved an IPP prisoner
seeking to compare himself with the later EDS regime, the complaint in both that
case and this one was in essence that prisoners with different characteristics, serving
different sentences, have different release provisions. The situation was not found
to be analogous in Massey, and the following reasoning found at para 25 of the
judgment of Moses LJ is equally applicable here, it is submitted:
“however he cloaks his application, the real complaint he
advances is a challenge to his original sentence. … The reality
of his argument is that he was sentenced under a different
regime. It is not coherent then to allege discrimination when
compared to other offenders sentenced under a different
regime. They are not in an analogous situation precisely
because they were sentenced under a different regime …”
144. Like the reasoning of the Divisional Court in the present case, the view of the
Divisional Court in Foley cannot be dismissed lightly, given the enormous
experience that the judges involved in those two decisions have in criminal work,
but, for the reasons I gave earlier, I would question the two-component analysis
upon which the courts proceeded. Massey should also be treated with a little caution,
given that it concerned a complaint derived from a change in the sentencing
legislation, and differential treatment caused purely by the commencement of a new
legislative regime does not constitute discrimination, see, for example, Minter v
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United Kingdom (above). At the least, however, Massey serves as an introduction to
my consideration of whether Mr Stott’s complaint is also, in fact, about the
sentencing regime to which he has been consigned rather than, discretely, about the
early release provisions that are part of it.
145. It seems to me important to recognise the complexity and detail of the
provisions governing the various sentences that can be imposed. It was, in part, for
that reason that I set these out as fully as I did earlier. From that review of the
statutory provisions concerning EDS, standard determinate sentences, SOPC, and
indeterminate sentences, it can be seen that, far from there being a basic sentencing
regime, with discrete variations for particular sentences, each sentence has its own
detailed set of rules, dictating when it can be imposed and how it operates in practice,
the early release provisions being part and parcel of the rules. Some sentences can
only be imposed if there is a significant risk of the offender causing serious harm to
members of the public by committing further offences, for example. Some sentences
can only be imposed where the offender has already committed offences of a
particular type. For some, there is automatic early release on licence, but, for others,
release on licence is dependent on the Parole Board. Those serving indeterminate
terms remain on licence (and liable to be recalled to prison) for the rest of their lives,
whereas other offenders will be on licence for a finite period only. All of this fine
detail tends to support the Secretary of State’s argument that each sentence is
tailored to a particular category of offender, addressing a particular combination of
offending and risk. Subject of course to sentencing guidance, the judge selects the
sentence which matches the attributes of the case before him, and fixes the term of
any period of imprisonment, extended licence etc. I can therefore see the force in
the argument that the release provisions about which Mr Stott complains should not
be looked at on their own, but as a feature of the regime under which he has been
sentenced, the same regime that is sufficiently distinct to justify taking the view that
his complaint is on the ground of “other status”. There might be said, therefore, to
be a building case for holding that he is not in an analogous situation to others
sentenced under different regimes.
146. Weight is added to this when some of the detail of the EDS regime is
compared specifically with other sentences. Of the determinate sentences, only an
EDS requires a finding of significant risk to members of the public of serious harm.
The Secretary of State points out that, in contrast to EDS prisoners, not all
discretionary life sentence prisoners have been found to be dangerous, such a finding
not being required for the imposition of life sentences under section 224A. That
submission, whilst literally correct, is significantly weakened when one considers
the nature of the listed offences which are a pre-requisite to the imposition of such
a life sentence. As we have seen, Mr Southey’s submission that life sentences are
“reserved for offenders who are the highest risk or have the most serious criminal
records”, for “the most serious cases”, reflects the view that Treacy J took of relative
dangerousness in Foley.
Page 53
147. There are important differences between an EDS and a discretionary life
sentence, however. There are respects in which a discretionary life sentence must
undoubtedly be viewed as having more serious consequences for the offender,
notwithstanding that he may have an earlier opportunity to approach the Parole
Board. An EDS involves imprisonment for a specified period which will necessarily
come to an end, whether or not the prisoner’s release is directed by the Parole Board,
but a prisoner serving a discretionary life sentence may remain in detention for the
rest of his life. If he is released, he remains on licence (and liable to recall) for life,
whereas the EDS prisoner is on licence for a finite period only.
148. Recognising that there are valid arguments both ways in relation to Issue 2A,
it seems appropriate to act on the wise suggestion of Lord Nicholls, in R (Carson) v
Secretary of State for Work and Pensions (above), that sometimes, lacking an
obvious answer to the question whether the claimant is in an analogous situation, it
may be best to turn to a consideration of whether the differential treatment has a
legitimate aim, and whether the method chosen to achieve the aim is appropriate and
not disproportionate in its adverse impact (Issue 2B), although I will in fact return
to Issue 2A again thereafter.
149. Behind the detailed argument focusing on the particular features of particular
sentences, both sides have a simple argument to advance in relation to justification.
Mr Southey proceeds upon the basis that life sentences are given to the prisoners
who are the highest risk or have committed the most serious offences. Those serving
a determinate sentence, including an EDS, are therefore lower risk/less serious
offenders, and there cannot be any justification for treating them less favourably in
relation to early release than life prisoners. Relative risk cannot justify this, he says,
because neither category of prisoner will be released before the Parole Board directs
it, having considered the question of risk, and both categories will be on licence
upon early release. Although Mr Southey also complains that there is no basis for
distinguishing between those serving an EDS and those serving a determinate term,
I find the comparison less persuasive than is the comparison with indeterminate
sentence prisoners, given the conditions for the imposition of an EDS, which
differentiate EDS prisoners from standard determinate term prisoners. The
comparison may have had more force, had the two-component punitive/risk analysis
been unassailable. In that event, it could have been questioned how it was justified
to require the EDS prisoner to serve a longer punishment period (as opposed to a
longer period of detention dependent upon risk) than a standard determinate term
prisoner. However, I have explained my reservations about the two component
analysis earlier.
150. The Secretary of State’s fundamental answer is that there are different
categories of sentence, tailored to the particular characteristics of the offenders, and
striking a balance between the interests of public protection and the interests of the
individual prisoner. All EDS prisoners are dangerous, and the legitimate aim is to
Page 54
protect the public by ensuring that they serve a greater proportion of their custodial
term than other categories of prisoner, which may include prisoners who are not
dangerous. This is comprehensible when the position of an EDS prisoner is
compared with a standard determinate term prisoner, in relation to whom there is no
equivalent requirement to find specifically that there is a significant risk of serious
harm to the public through further specified offences. It works less easily in relation
to indeterminate sentences. True it is that there is not a universal requirement for a
finding of dangerousness, before the imposition of an indeterminate sentence, but,
as I implied earlier, it is not a great leap from the conditions that have to be satisfied
before the sentence can be passed to the conclusion that by far the majority of
indeterminate sentence prisoners will pose a risk to the public. Nevertheless, it is
correctly pointed out on behalf of the Secretary of State that, in contrast to the release
provisions in relation to an EDS, the release provisions in relation to indeterminate
sentences must cater for prisoners who are not dangerous, and might be suitable for
release sooner. Moreover, Sir James invites us to consider each sentence as a whole,
when considering justification, because it is artificial to compare release provisions
only. Of crucial importance is the fact that the indeterminate sentence prisoner may
never be released at all, whereas the EDS prisoner will be released at the end of his
custodial term, even if he fails to satisfy the Parole Board on the question of risk,
and also the difference in the duration of the licence in each case.
151. It may be apparent, by now, that I find the arguments in relation to Issue 2
finely balanced. Concentrating upon justification, for the present, it is necessary to
decide whether the different treatment of EDS prisoners has a legitimate aim, and
whether the method selected for achieving the aim is appropriate, and not
disproportionate in its adverse impact.
152. I do not have much difficulty in accepting that, in general terms, the aim of
the EDS provisions is legitimate. Ms Foulds, an official from the Ministry of Justice
who describes herself as “the policy lead on adult custodial sentencing policy”, says
in her witness statement of September 2016 that the government introduced a
“tougher, extended determinate sentence” as a “measure designed to enhance public
protection and maintain public confidence in the sentencing framework”. The
ECtHR in Clift v United Kingdom was not impressed with the public confidence
argument, but accepted (para 74) that more stringent early release provisions “may
be justified where it can be demonstrated that those to whom they apply pose a
higher risk to the public upon release”. Given that it cannot be passed unless a risk
condition is satisfied, an EDS is clearly aimed at offenders of this sort.
153. The questions that are more difficult are whether the longer wait before the
prisoner is eligible to apply to the Parole Board is an appropriate means of achieving
this aim and whether it is disproportionate in its impact. The starting point for a
determination of these questions is that the ECtHR would allow a Contracting State
a margin of appreciation in assessing whether, and to what extent, differences in
Page 55
otherwise similar situations justify different treatment, and would allow a wide
margin when it comes to questions of prisoner and penal policy, although closely
scrutinising the situation where the complaint is in the ambit of article 5. This court
must equally respect the policy choices of parliament in relation to sentencing.
154. In the end, the answer depends significantly, I think, upon whether one
concentrates entirely upon the early release provisions in the EDS and other
sentences, or looks up from the detail to consider the various sentencing regimes as
complete regimes. Ultimately, I am persuaded that the proper way to look at the
issue is by considering each sentence as a whole, as the Secretary of State invites us
to do. The sentencing judge imposes the sentence that complies with the statutory
conditions prescribed by parliament, and the sentencing guidelines, and, within that
framework, best meets the characteristics of the offence and the offender. The early
release provisions have to be seen as part of the chosen sentencing regime, and the
question of whether there is an objective justification for the differential treatment
of prisoners in relation to earlier release, considered in that wider context.
155. For reasons that I have set out above, there is a readier comparison between
the EDS and an indeterminate sentence, than between a simple determinate term and
an EDS. But the EDS and the indeterminate sentence are by no means a complete
match, leaving aside the difference in parole eligibility. Counter-balancing the
indeterminate prisoner’s earlier eligibility for parole is the lack of any guaranteed
end to his incarceration, and the life licence to which he is subjected. This
fundamentally undermines the argument that the difference in treatment between the
two prisoners in relation to early release is disproportionate, or putting it more
plainly, unfair. I would accept that, on the contrary, bearing in mind the EDS
sentencing package as a whole, the early release provisions are justified as a
proportionate means of achieving the government’s legitimate aim. Thus, although
I would accept that Mr Stott has been treated differently on the grounds of “other
status” within article 14, there being an objective justification for the difference in
treatment of EDS prisoners, his claim must fail. It is not in fact necessary in those
circumstances to give a definitive answer as to whether EDS prisoners can be said
to be in an analogous situation to other prisoners. However, there is a significant
overlap between the considerations that are relevant to Issue 2A and to Issue 2B,
and having looked at those matters again in the context of Issue 2B, and considered
the complete picture, with the benefit also of what Lord Hodge has to say on the
subject in his judgment, I have come to the view that EDS prisoners cannot be said
to be in an analogous situation to other prisoners. Most influential in this conclusion
is that, as I see it, rather than focusing entirely upon the early release provisions, the
various sentencing regimes have to be viewed as whole entities, each with its own
particular, different, mix of ingredients, designed for a particular set of
circumstances.
Page 56
156. For these reasons, which are, of course, different from those of the Divisional
Court, I would dismiss the appeal.
LORD CARNWATH:
157. I agree that the appeal should be dismissed. I gratefully adopt Lady Black’s
exposition of the legal and factual background.
Status
158. The first question under article 14 of the Convention is whether the alleged
difference of treatment is attributable to a relevant “status”. As to that, the Divisional
Court was bound by House of Lords authority to hold that it is not: R (Clift) v
Secretary of State for the Home Department [2007] 1 AC 484; [2006] UKHL 54. As
Lady Black explains, that issue now falls to be reconsidered by this court, in the
light of the contradictory decision of the Fourth Section of the ECtHR in Clift v
United Kingdom (Application No 7205/07), 13 July 2010.
159. Sir James Eadie QC for the Secretary of State argues that the decision in Clift
does not justify departing from the principles governing the definition of “status” in
this context, as established by a long line of Strasbourg case law, starting with the
often-cited decision in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1
EHRR 711, para 56, stating that:
“Article 14 prohibits, within the ambit of the rights and
freedoms guaranteed, discriminatory treatment having as its
basis or reason a personal characteristic (‘status’) by which
persons or groups of persons are distinguishable from each
other.”
160. He relies also on Lord Neuberger’s pithy summary of the effect of subsequent
case law in R (RJM) v Secretary of State for Work and Pensions [2009] AC 311 para
45:
“I consider that the concept of ‘personal characteristic’ (not
surprisingly, like the concept of status) generally requires one
to concentrate on what somebody is, rather than what he is
doing or what is being done to him. Such a characterisation
approach appears not only consistent with the natural meaning
Page 57
of the expression, but also with the approach of the ECtHR and
of this House to this issue.” (Emphasis added)
Lord Neuberger cited Gerger v Turkey (Application No 24919/94) (unreported) 8
July 1999, in which the ECtHR had held that article 14 had no application to a law
under which people committing terrorist offences were treated less favourably than
other prisoners with regard to automatic parole. Sir James Eadie also points to the
potentially far-reaching effects of the widening of the scope of “status” in other areas
of the law, for example immigration: cf R (HC) v Secretary of State for Work and
Pensions (AIRE Centre intervening) [2017] 3 WLR 1486, para 31, where this court
held that differences in immigration status did not give rise to issues under article
14.
161. In respectful disagreement with the other members of the court, I consider
that these submissions are broadly correct. To explain why, and at the risk of some
repetition, it is necessary to look again at the treatment of this issue in Clift both here
and in Strasbourg.
Clift in the House of Lords and Strasbourg
The background
162. I start by considering the background to the decisions in Clift including the
facts and the applicable legislation. The latter is set out most fully in the judgment
of the ECtHR (paras 23ff).
163. Mr Clift had been sentenced in 1994 to 18 years’ imprisonment for serious
crimes including attempted murder, which carried a maximum sentence of life
imprisonment. In March 2002 the Parole Board recommended his release on parole
taking account of reduced risk and the scope for addressing it by other means. Under
the legislation then in force, for prisoners serving determinate sentences of more
than 15 years, release in line with a Parole Board recommendation remained in the
discretion of the Secretary of State; for prisoners serving shorter sentences (and for
prisoners serving indeterminate sentences) release was mandatory. In October 2002
the Secretary of State rejected the recommendation of the Parole Board in Mr Clift’s
case on the grounds that his release would present an unacceptable risk to the public.
164. The distinction between automatic and discretionary release, depending on
whether the sentence was more or less than 15 years, arose not directly from the
primary legislation itself, but from a statutory order made under it by the Secretary
of State. Section 35 of the Criminal Justice Act 1991 provided a discretionary power
Page 58
to release long-term prisoners before the two-thirds point of their sentence, if
recommended by the Parole Board. Section 50 gave power to reduce the effective
period of detention by converting the discretionary power under section 35 into a
duty in relation to specified classes of prisoners. The Secretary of State exercised
that power by the Parole Board (Transfer of Functions) Order 1998 (SI 1998/3218),
which applied to prisoners serving a sentence of imprisonment for a term of less
than 15 years. For those serving sentences of 15 years or more, the order left in place
the discretion to order early release between the service of half and two-thirds of the
sentence.
165. In the House of Lords Lord Bingham (para 33) described the discretion so
given to the Secretary for State as “an indefensible anomaly”. That was because,
following the decision of the ECtHR in Stafford v United Kingdom (2002) 35 EHRR
1121, it had become clear that assessment of the risk presented by any individual
prisoner was “a task with no political content and one to which the Secretary of State
could not (and did not claim to) bring any superior expertise”. A defence of
justification would not therefore have been sustainable. (That view was in due
course adopted in terms by the ECtHR: para 77).
166. However, justification would only become relevant under article 14, if his
treatment amounted to discrimination on the grounds of “other status”. I turn to the
consideration of that issue, first in the House of Lords and then in the ECtHR.
“Status” – The House of Lords
167. Lord Bingham (with whom all his colleagues agreed) started from the
premise that the word “status” in this context could be equated with “personal
characteristic” (following Kjeldsen above). He did not think that a personal
characteristic could be “defined by the differential treatment of which a person
complains”. However, Mr Clift was not complaining “of the sentence passed upon
him, but of being denied a definitive Parole Board recommendation”. Having
described the “personal characteristic” criterion as “elusive”, he continued:
“But I would incline to regard a life sentence as an acquired
personal characteristic and a lifer as having an ‘other status’,
and it is hard to see why the classification of Mr Clift, based on
the length of his sentence and not the nature of his offences,
should be differently regarded.”
Page 59
However, while clearly sympathetic to the claim, he was unwilling to uphold it in
the absence of support, explicit or implicit, from the Strasbourg jurisprudence (para
28).
168. Lord Hope spoke to similar effect, agreeing that a personal characteristic
cannot be defined by the differential treatment of which a person complains:
“It is plain too that the category of long-term prisoner into
which Mr Clift’s case falls would not have been recognised as
a separate category had it not been for the Order which treats
prisoners in his group differently from others in the enjoyment
of their fundamental right to liberty. But he had already been
sentenced, and he had already acquired the status which that
sentence gave him before the Order was made that denied
prisoners in his group the right to release on the
recommendation of the Parole Board. The question which his
case raises is whether the distinguishing feature or
characteristic which enables persons or a group of persons to
be singled out for separate treatment must have been identified
as a personal characteristic before it is used for this purpose by
the discriminator.” (para 47)
Like Lord Bingham he was sympathetic to the claim, but unwilling to uphold it, the
issue not yet having been addressed by the Strasbourg jurisprudence. He noted also
Lady Hale’s observation that it was possible to regard “what he has done, rather than
who or what he is, as the true reason for the difference of treatment in Mr Clift’s
case” (paras 48-49).
169. Lady Hale expressed agreement with Lord Bingham’s reasons, but (as I read
her judgment) with a rather different emphasis. In the course of a detailed review of
the Strasbourg authorities on the grounds of discrimination covered by article 14,
she referred (para 60) to the example “pertinent to this case” of “differences in the
treatment of different criminal offences”, exemplified by Gerger v Turkey (above):
“… the court deduced from the fact that people convicted of
terrorist offences would be treated less favourably with regard
to automatic parole ‘that the distinction is made not between
different groups of people, but between different types of
offence, according to the legislature’s view of their gravity’:
para 69.”
Page 60
Similarly, in Budak v Turkey (Application No 57345/00) (unreported), 7 September
2004, the court had repeated the “personal characteristic” test from Kjeldsen, and
had held that a distinction in procedure and sentences for offences tried before the
state security court from those tried before other courts was made, again, “not
between different groups of people but between different types of offence”.
170. In conclusion on this aspect, having noted the Secretary of State’s acceptance
that a different parole regime for foreigners liable to deportation, as compared to
those with the right to remain here, fell within the proscribed grounds, she said:
“But a difference in treatment based on the seriousness of the
offence would fall outside those grounds. The real reason for
the distinction is not a personal characteristic of the offender
but what the offender has done.
The result is that the difference of treatment between Mr Clift
and people sentenced either to shorter determinate sentences or
to life imprisonment is not covered by article 14 at all …”
(paras 62-63).
She acknowledged that the law might “look odd”, but it was not for the court “to
declare legislation which Parliament has passed incompatible with the Convention
rights unless the Convention and its case law require us so to do” (para 63).
“Status” – the ECtHR
171. The Fourth Section conducted a detailed review of the previous ECtHR
authorities on the meaning of “other status” (in French “toute autre situation”). Its
conclusions are set out in paras 55-63 of the decision. It accepted that many of the
cases related to “personal” characteristics, “in the sense that they are “innate
characteristics or inherently linked to the identity or the personality of the
individual”. However, there were others where that approach could not be applied.
It gave (para 58) six examples which I list below with the court’s comments:
i) Engel v The Netherlands (No 1) (1976) 1 EHRR 647:
“the court held that a distinction based on military rank could
run counter to article 14, the complaint in that case concerning
a difference in treatment as regards provisional arrest between
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officers on the one hand and non-commissioned officers and
ordinary servicemen on the other.”
ii) Pine Valley Developments Ltd v Ireland (1991) 14 EHRR 319:
“the court found a violation where there was a difference in
treatment between the applicants and other holders of planning
permissions in the same category as theirs. Although the court
did not specifically address the question of the relevant ‘status’
in that case, it would appear that the distinction of which the
applicants complained was between holders of outline planning
permission who benefited from new legislation and holders of
outline planning permission who did not (in that case, by virtue
of the fact that the applicants’ planning complaint had already
been determined by the court and that the outline planning
permission had been found to be invalid – see para 26 of the
judgment).”
iii) Larkos v Cyprus (1999) 30 EHRR 597:
“the court found a violation of article 14 as a result of a
distinction between tenants of the state on the one hand and
tenants of private landlords on the other, the parties did not
dispute that article 14 applied and the court saw no reason to
hold otherwise.”
iv) Shelley v United Kingdom (2008) 46 EHRR SE16:
“the court considered that being a convicted prisoner could fall
within the notion of ‘other status’ in article 14.”
v) Sidabras and Dziautas v Lithuania (Application Nos 55480/00 and
59330/00), ECHR (2004) 42 EHRR 104 VIII:
“the court did not specifically address the question of ‘other
status’ but in finding a violation of article 14 and article 8
implicitly accepted that status as a former KGB officer fell
within article 14.”
Page 62
vi) Paulík v Slovakia (2006) 46 EHRR 10:
“the court accepted that the applicant, a father whose paternity
had been established by judicial determination, had a resulting
‘status’ which could be compared to putative fathers and
mothers in situations where paternity was legally presumed but
not judicially determined.”
172. The court went on (paras 60-61) to address two particular points made by the
House of Lords, and adopted in the UK Government’s argument: first, that the
treatment of which the applicant complains must exist independently of the “other
status” upon which it is based; and, secondly, reliance on Gerger to support the
argument that no separate “status” arises where the distinction is made, not between
different groups of people, but “between different types of offence, according to the
legislature’s view of their gravity”.
173. For the former argument the court found no clear support in its case law. It
said:
“In Paulík, cited above, there was no suggestion that the
distinction relied upon had any relevance outside the
applicant’s complaint but this did not prevent the court from
finding a violation of article 14. The question whether there is
a difference of treatment based on a personal or identifiable
characteristic in any given case is a matter to be assessed taking
into consideration all of the circumstances of the case and
bearing in mind that the aim of the Convention is to guarantee
not rights that are theoretical or illusory but rights that are
practical and effective. … It should be recalled in this regards
that the general purpose of article 14 is to ensure that where a
state provides for rights falling within the ambit of the
Convention which go beyond the minimum guarantees set out
therein, those supplementary rights are applied fairly and
consistently to all those within its jurisdiction unless a
difference of treatment is objectively justified.” (para 60)
174. Of the argument based on Gerger it said:
“The court observes that the approach adopted in Gerger has
been followed in a number of cases, but all concerned special
court procedures or provisions on early release for those
Page 63
accused or convicted of terrorism offences in Turkey. … Thus
while Gerger made it clear that there may be circumstances in
which it is not appropriate to categorise an impugned difference
of treatment as one made between groups of people, any
exception to the protection offered by article 14 of the
Convention should be narrowly construed. In the present case
the applicant does not allege a difference of treatment based on
the gravity of the offence he committed, but one based on his
position as a prisoner serving a determinate sentence of more
than 15 years. While sentence length bears some relationship
to the perceived gravity of the offence, a number of other
factors may also be relevant, including the sentencing judge’s
assessment of the risk posed by the applicant to the public.”
(para 61)
Discussion
175. With respect to the Fourth Section, I do not find its reasoning in Clift
convincing. It is difficult to extract any principle from the disparate list of cases in
its para 58. They have very little in common, other than the fact that in none of them,
it seems, was the issue of status a matter for detailed consideration because it was
not contested. Equally unconvincing is the reliance on Paulík to counter the view
that the treatment complained of must be distinct from the status. That proposition
is no more than the ordinary reading of the words of article 14 itself. Paulík was an
unusual case on very special facts. The claim succeeded under article 8 in any event,
and no issue was taken about status in the consideration of article 14. I note that both
Lady Hale and Lord Mance share my doubts as to the weight placed on this decision
by the court in Clift.
176. Finally the Fourth Section’s discussion of Gerger is hard to follow. It is
accepted that there “may be” cases where it is not appropriate to treat an impugned
difference as “one made between groups of people”. But there is no indication as to
why Gerger itself fell into that category of cases, or by reference to what criterion.
Further, while it is of course true that sentence length may reflect factors other than
the perceived gravity, it is not clear why such factors (which are likely to be special
to the circumstances of the particular offender and his case) strengthen the reasons
for treating the difference as one between “groups”.
177. It is true that in Clift in the House of Lords, Lord Bingham was willing in
principle to regard the imposition of a particular form of sentence as conferring an
acquired “status” for these purposes. However, as is apparent from a comparison
with Lady Hale’s speech, his approach does not appear to take full account of
decisions like Gerger. That in turn formed the basis of the more limited approach
Page 64
subsequently taken by the House in R (RJM). Lord Neuberger (para 46), while
noting that Lord Bingham would have been “inclined to regard a life sentence as an
acquired personal characteristic and a lifer as having an ‘other status’”, observed
that this was “in the absence of decisions such as Gerger …”. I am conscious that in
Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250 the
authority of the approach of the Fourth Section in Clift v United Kingdom was
accepted without question by this court. However, the factual context was very
different. The key to the decision can be found in the rhetorical question posed by
Lord Wilson at the conclusion of his discussion of “status”:
“Disability is a prohibited ground: Burnip v Birmingham City
Council [2013] PTSR 117. Why should discrimination (if such
it be) between disabled persons with different needs engage
article 14 any less than discrimination between a disabled
person and an able-bodied person? …” (para 23)
178. I am grateful for Lady Black’s comprehensive review of the authorities on
this issue. It shows that the courts both here and in Strasbourg have been struggling
with difficulty over a long period to find a rational criterion for defining and limiting
the scope of “status” in article 14. It is true, as she says (para 44), that in more recent
cases the Strasbourg court has moved beyond simple reference to a “personal
characteristic”, to more expansive phrases such as “identifiable, objective or
personal characteristic”. However, the decision in Minter v United Kingdom (2017)
65 EHRR SE6, noted by her at paras 41-43, suggests a tendency to restrict the scope
of the decision in Clift itself, at least in the context of different sentencing regimes.
I note Lady Hale’s suggestion that sentencing criteria “concentrate upon the
dangerousness of the offender, itself a personal characteristic”. That may be so, but
I find it hard to accept that “dangerousness”, whether a personal characteristic or
not, is a status deserving of special protection under article 14.
179. In conclusion on this issue, short of confirmation by the Grand Chamber, I
would not for myself regard the decision of the Fourth Section in Clift (or the other
more recent decisions reviewed by Lady Black) as requiring us to depart from the
more restrictive approach to the concept of “status” reflected in the actual decision
of the House in Clift, and confirmed in R (RJM). I would need considerable
persuasion that the authors of the Convention intended mere conviction of a criminal
offence, or subjection to a particular custodial regime, to entitle the recipient to
specially protected status under human rights law. More generally, it is important
that article 14 is kept within its proper role within the Convention, and outside the
core protected areas is not allowed to develop into a means of bypassing the
carefully defined limits applicable to the individual rights.
Page 65
Analogy and justification
180. I can deal with these issues shortly, because I agree with the reasons given
by Lady Black and Lord Hodge for dismissing the appeal. In particular I agree that
the EDS regime must be looked at as a whole and cannot be treated as analogous to
regimes which have different purposes and different characteristics. It is wrong to
isolate the particular feature of the provisions for release on parole, and to compare
it with other release provisions without regard to their context. In this respect the
case is clearly distinguishable from Clift where there was a direct analogy between
the sentence as applied respectively to those serving more and less than 15 years. As
Lord Hope pointed out, the difference was not part of the original sentence as
prescribed by Parliament, but was imposed subsequently by Ministerial order.
181. I am also fortified in this conclusion by the consideration that, even if Mr
Stott’s sentencing regime gives him a relevant “status” for the purposes of article
14, it is on the outer edge of the “concentric circles” described by Lord Walker in
the passage cited by Lady Black (para 54). Consistency in sentencing policy is an
important objective, but it does not impinge on the core values which article 14 is
designed to protect. Short of irrationality or (in Strasbourg terms) manifest
unreasonableness, the courts should not allow themselves to be drawn into detailed
consideration of the lines drawn by the legislature between the treatment of different
categories of offender.
LORD HODGE:
182. I am very grateful to Lady Black for setting out the facts, the legal
background and the legal issues so comprehensively and clearly. I can therefore state
my views briefly. I agree with her that the appeal should be dismissed. But I would
dismiss the appeal on the basis that the extended determinate sentence (“EDS”),
which has been imposed on Mr Stott, is not sufficiently analogous to the sentences,
which he puts forward as comparators, to bring him within article 14 of the European
Convention on Human Rights (“the ECHR”) and require the Government to justify
his treatment. If, contrary to my view, it is necessary to proceed to consider
justification, I would hold that the difference in treatment of a prisoner detained
under an EDS is justified principally because of the differing natures of the regimes
for imprisonment.
183. It is not disputed that Mr Stott’s complaint is within the ambit of article 5 of
the ECHR so that article 14 can be invoked if there has been unjustified
discrimination in relation to a rule adopted by the United Kingdom concerning the
early release of convicted prisoners. The questions on the applicability of article 14
relate to (i) status, (ii) analogy, and (iii) justification.
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Status
184. I agree with Lady Black that Mr Stott as a prisoner sentenced to an EDS has
the required status to invoke article 14 of the ECHR. That article speaks of the
ECHR rights being secured without discrimination “on any ground such as” and
then lists specific grounds, including “or other status”. As Lady Black has shown in
paras 13-35 of her judgment, there has been a difference of view between the House
of Lords and the European Court of Human Rights (“ECtHR”) as to the meaning of
the phrase “other status” in article 14, which was manifested in the speeches in the
House of Lords in R (Clift) v Secretary of State for the Home Department [2007] 1
AC 484 (“Clift (HL)”) and in the judgment of the 4th Section of the ECtHR in Clift
v United Kingdom (Application No 7205/07, 13 July 2010) (“Clift (ECtHR)”).
Questions are likely to arise as to the boundaries of “any other status” absent further
guidance by the Grand Chamber of the ECtHR and I would not seek to make any
general statement as to those boundaries. But I am satisfied that Mr Stott has the
requisite status for the following four reasons.
185. First, the opening words of the relevant phrase, “on any ground such as”, are
clearly indicative of a broad approach to status. Secondly, there is ample authority
in the ECtHR, the House of Lords and the Supreme Court to support the view that
the words “any other status” should not be interpreted narrowly. Thus, in Clift (HL)
para 48, Lord Hope of Craighead stated that “a generous meaning” should be given
to the words “or other status” while recognising that “the proscribed grounds are not
unlimited”. Similarly, in R (RJM) v Secretary of State for Work and Pensions [2009]
AC 311 (“RJM”), Lord Neuberger of Abbotsbury at para 42 spoke of “a liberal
approach” to the grounds on which discrimination was prohibited. In Clift (ECtHR),
paras 55 and 56, the ECtHR spoke of the listed examples of status as being
“illustrative and not exhaustive” and suggested that a wide meaning be given to the
words “other status”. In Biao v Denmark (2016) 64 EHRR 1, the ECtHR again spoke
of giving those words “a wide meaning” and in Khamtokhu and Aksenchik v Russia
(Application Nos 60367/08 and 961/11) the Grand Chamber repeated that view at
para 61. It appears, as Lord Neuberger stated in RJM (para 39) that the ECtHR
interprets article 14 on a “holistic or broad-brush basis”. Thirdly, the Supreme Court
in Mathieson v Secretary of State for Health [2015] UKSC 47; [2015] 1 WLR 3250,
para 22, has accepted the judgment in Clift (ECtHR). While, like Lord Carnwath, I
would welcome further guidance from the Grand Chamber, I am persuaded that the
weight of authority currently supports the view that Mr Stott has the required status
under article 14 because he has been sentenced to a particular sentence of
imprisonment, namely an EDS.
Page 67
Analogy
186. Where I find myself in respectful disagreement with the experienced judges
of the Divisional Court is that I am persuaded by Sir James Eadie QC that it is wrong
to focus solely on the arrangements for early release and to disregard the existence
of distinctive and separate sentencing regimes. Lady Black has helpfully set out the
different types of sentence which a judge in England and Wales can impose in paras
84-105 of her judgment. I agree with her analysis in paras 123-134 of her judgment
that a determinate sentence cannot be divided into a part relating to punishment and
deterrence on the one hand and the avoidance of risk on the other. The idea that the
punitive and deterrent part of a determinate sentence ends at the point of entitlement
to, or at least eligibility for consideration for, early release is central to Mr Southey’s
case and the reasoning of the Divisional Court. In my view that idea is not correct.
187. Section 142(1) of the 2003 Act sets out five purposes of sentencing. They are
(i) the punishment of offenders, (ii) the reduction of crime (including its reduction
by deterrence), (iii) the reform and rehabilitation of offenders, (iv) the protection of
the public, and (v) the making of reparation by offenders to persons affected by their
offences. Purpose (v) is not relevant to a sentence of imprisonment but purposes (i)
to (iv) inclusive may co-exist throughout the term of a determinate prison sentence:
R (Whiston) v Secretary of State for Justice [2015] AC 176, para 25, per Lord
Neuberger.
188. In fixing the appropriate sentence of imprisonment of a convicted person, the
judge does not take account of the statutory provisions for early release. In R v Round
[2010] 2 Crim App R(S) 45, para 44, Hughes LJ described this requirement to
disregard early release in fixing a sentence of imprisonment was “a matter of
principle of some importance”. The Court of Appeal in R v Burinskas (Attorney
General’s Reference (No 27 of 2013)) (Practice Note) [2014] 1 WLR 4209, paras
38-39 endorsed his statement. This disregard is unsurprising as the purposes of the
early release regimes include matters such as economy and the relief of overcrowding in prisons, as well as the public interest in re-integrating a prisoner into
society with the benefit of supervision. As a result, each of the four purposes of
imprisonment in section 142(1) of the 2003 Act may be relevant justifications of the
prisoner’s continued detention throughout the custodial sentence which the judge
has imposed. It follows that a determinate sentence of imprisonment is not to be
divided by reference to its relevant early release provisions into a period for
punishment, deterrence and rehabilitation on the one hand and a period when the
only purpose is the protection of the public. There is no “punitive part” and
“preventive part” in a determinate sentence of imprisonment. As Lady Black has
shown (paras 124-125 of her judgment), judgments of the ECtHR, which address
the requirement allowing the detained person access to judicial determination of the
lawfulness of his detention in article 5(4) of the ECHR, have repeatedly recognised
this characteristic of the determinate sentence. I therefore find myself in respectful
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disagreement with the Divisional Court in R (Foley) v Parole Board for England
and Wales [2012] EWHC 2184 (Admin) in so far as it reasoned (para 68-69) that
the reality was that the punitive element of a determinate sentence ended at the half
way point. The reality is that that element continues and would justify the detention
of a prisoner if he were recalled to prison after early release.
189. Mr Southey in his submission on behalf of Mr Stott asserts: “[t]he point at
which prisoners become eligible for release is the point which represents the expiry
of the punitive and deterrent element of their sentences. For determinate sentence
prisoners, the half way point represents the punitive element.” (appellant’s case para
4.5.2). The Divisional Court appears to have accepted this submission in paras 44-
45 and 48 of its judgment. I respectfully disagree in relation to determinate sentences
for the reasons set out in the preceding two paragraphs. Similarly, in relation to
SOPC sentences, which Lady Black discusses at paras 93-95 of her judgment,
punishment and deterrence remain relevant grounds of detention throughout the
“appropriate custodial term”.
190. An EDS, which is a form of determinate sentence, similarly does not have
two component parts in its custodial term. An EDS is very similar to the extended
sentence in Scots law which this court discussed in Brown v Parole Board for
Scotland [2017] UKSC 69; [2018] AC 1. In Lord Reed’s judgment, with which the
other Justices agreed, punishment and deterrence were relevant purposes throughout
the custodial term (paras 49 and 60). The provisions for early release and the period
on licence (if any) before the expiry of the custodial term serve the purpose of
assisting a prisoner to resume his life in the community with the assistance of
supervision (para 50). The early release provisions when applied to a determinate
sentence in English law or to an EDS serve a similar purpose. The period on licence
after the expiry of the custodial term of an extended sentence, on the other hand, is
to protect the public from serious harm (paras 53 and 60).
191. It is only in the sentencing framework relating to indeterminate sentences,
which Lady Black discusses in paras 96 to 105 of her judgment, that the sentencing
judge in fixing the minimum term is required to take account of the early release
provisions and to split the sentence into a part which is for punishment and
deterrence and another part in which retention in custody is justified only if the
prisoner remains a risk to the public. Such considerations are also not relevant to
mandatory life sentences.
192. In relation to the date of early release there is also a less consistent picture
than the appellant suggests. Lady Black has discussed this in paras 136 and 145 of
her judgment. As she states, there are prisoners serving discretionary life sentences
who are not eligible to apply for release because their minimum term imposed under
section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000
Page 69
Act”) exceeds one half of the notional determinate term (R v Szczerba [2002] 2 Cr
App R(S) 86). Further, the minimum term for prisoners on mandatory life sentences
is not fixed by reference to early release provisions applicable to a notional
determinate term (section 269 of and Schedule 21 to the 2003 Act). On the other
hand, SOPC prisoners under section 236A of the 2003 Act are eligible to apply for
release once they have served one half of the appropriate custodial term, which is
less than their overall sentence, and the overall sentence is the sentence that is
commensurate with the seriousness of the offence (section 236A(3)). Other
prisoners on determinate sentences can achieve release before they have served one
half of their sentence at the discretion of the Secretary of State by being placed on a
curfew at a specified location (sections 246 and 250(5)).
193. When assessing whether Mr Stott is in an analogous situation to other
prisoners it is important to have regard to the reality that in England and Wales there
are separate sentencing regimes which have different characteristics. It is
appropriate to take a holistic approach to each sentencing regime in deciding
whether or not one regime is analogous to another. Not all prisoners serving a
discretionary life sentence will be more dangerous than a prisoner serving an EDS.
There are prisoners who are serving a life sentence under section 224A of the 2003
Act, which does not require a finding that the offender was dangerous, although it
is likely that in most cases he will be: Burinskas at para 8. A prisoner serving an
EDS is not eligible for release at the direction of the Parole Board at one half of his
custodial term while a prisoner serving a discretionary life sentence is generally so
eligible when the court exercises its discretion under section 82A of the 2000 Act.
But that is far from the whole picture. As the Court of Appeal recognised in
Burinskas (para 36), a life prisoner might have to wait for many years after his
minimum term has expired before the Parole Board consider it safe to release him.
By contrast, a prisoner serving an EDS is entitled to be released at the end of the
custodial period without any further assessment of risk (section 246A(7)). Similarly,
a person who has been given a life sentence remains on licence and subject to recall
to prison for the rest of his life. By contrast, the licence provisions imposed on a
person serving an EDS end on the expiry of the specified extension period (section
226A(5) and (8)).
194. Sir James Eadie also drew support for his submission that different
sentencing regimes were not analogous from two judgments of the Divisional Court
and one of the ECtHR. In R (Massey) v Secretary of State for Justice [2013] EWHC
1950 (Admin) a prisoner serving a sentence of imprisonment for public protection
(“an IPP”) complained that he had been discriminated against compared with a
prisoner who was sentenced to an EDS after the new sentences introduced by the
Legal Aid, Sentencing and Punishment of Offenders Act 2012 because he was
subject to an indeterminate period of imprisonment while the EDS prisoner was not.
Moses LJ rejected this claim, stating (at para 25) that the claimant and the EDS
prisoner were “not in an analogous situation precisely because they were sentenced
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under a different regime.” In R (Bristow) v Secretary of State for Justice [2013]
EWHC 3094 (Admin) the Divisional Court held that a claimant was not in an
analogous situation to prisoners under a previous legislative regime and (para 16)
that prisoners who were subject to discretionary release were not in an analogous
situation to prisoners under an automatic release scheme. In Minter v United
Kingdom (2017) 65 EHRR SE 6 in which an applicant complained of being
subjected to an indefinite notification requirement, the ECtHR held that there was
no discrimination as the applicant had been subjected to a different sentencing
regime which was the consequence of new legislation (para 68). There is some force
in Mr Southey’s response that the cases were concerned with changes in sentencing
policy which were effected by legislation. This weakens their utility to Sir James
Eadie to some extent. But the cases, and R (Massey) in particular, provide some
support for his submission that one should have regard to the characteristics of each
regime as a whole and not just to its provisions for early release when judging
whether a claimant is in an analogous situation to someone sentenced under a
different regime.
195. In summary, I am not persuaded that a prisoner serving an EDS is in an
analogous situation to prisoners under different regimes of imprisonment in relation
to his eligibility for early release. This is, first, because there is no split between the
punitive/deterrent part and the risk-related part of a custodial term in a determinate
sentence (including an EDS) at the point at which a prisoner becomes eligible for
early release. This contrasts with the position of prisoners serving discretionary life
sentences. The supposed existence of this split played a fundamental part in Mr
Southey’s argument and appears to have influenced the judgment of the Divisional
Court, giving rise to a focus only on whether a prisoner remained dangerous after a
spell in prison. It is, secondly, because there is no principle that a prisoner is entitled
to be released or is eligible at the discretion of the Parole Board to be released once
he has served one half of his custodial term. The position is, as I have stated, more
complex. Thirdly, it is because a prisoner sentenced to an EDS is sentenced under a
statutory regime which, when viewed in the round, has materially different
characteristics from other determinate sentences and from life sentences, both
discretionary and mandatory. In my view, the obvious and relevant differences
between the sentencing regimes are sufficient to prevent prisoners serving sentences
under these different sentencing regimes from being in an analogous situation.
Justification
196. Having reached this conclusion on issue 2A, it is not strictly necessary to
consider the issue of justification. But as the ECtHR frequently wraps the issues of
analogous situation and justification together, it is appropriate that I state my view
briefly.
Page 71
197. The Secretary of State has explained, through the witness statement of Ms
Alison Foulds, that Parliament introduced the EDS as a part of a suite of new
sentencing regimes to replace the previous sentence of the IPP, which was an
indeterminate sentence for dangerous offenders and which had been shown to have
unsatisfactory characteristics. Ms Foulds explained that offenders eligible for an
EDS have committed serious offences, which merit a custodial sentence of at least
four years, and been found to be dangerous and would in the past have been eligible
for an IPP but not necessarily a life sentence. She stated:
“In replacing the indeterminate IPP sentence, the Government
committed to introducing a tougher, extended determinate
sentence requiring the offender to serve at least two-thirds of
the custodial term rather than one half. This was a measure
designed to enhance public protection and maintain public
confidence in the sentencing framework.”
198. When the court considers the justification of different treatment under article
14 of the ECHR it gives a wide margin of appreciation to the democratic legislature
in its determination of criminal sentencing policy but exercises close scrutiny where
the allegation is that detention is arbitrary or unlawful: Clift (ECtHR) para 73.
199. As I have stated, the early release provisions relating to a sentence do not
determine what is the appropriate part of a sentence for the punitive and deterrent
purposes set out in section 142. They are the result of other considerations such as
economy and the prevention of overcrowding in prisons (see para 188 above). In
repealing the provisions which established the IPP and in creating a particular
regime for the imprisonment of persons convicted of serious offences and who are
also dangerous Parliament is entitled to have regard both to public protection and to
the maintenance of public confidence in criminal sentencing. The preservation of
public confidence is a legitimate aim, at least in the context in which the custodial
term which is appropriate for the offence has not expired: Clift (ECtHR) para 74.
200. The three considerations, which have persuaded me that an EDS prisoner is
not in an analogous situation (para 195 above), are relevant to the question of the
appropriate means of achieving those aims and need not be repeated. In my view
one must look at the early release provisions in the context of the individual
sentencing regimes which may have positive and negative features as far as the
prisoner is concerned. The EDS prisoner, convicted of a serious offence and who is
dangerous at the time of sentencing, has a longer wait before he is eligible for
consideration for parole than many other offenders who are subject to different
regimes of imprisonment, but he also has the benefit of a defined custodial term and
a defined period during which he is subject to licence thereafter, in contrast to
prisoners who have received life sentences. Those are the components of the
Page 72
particular sentencing regime which cannot be described as arbitrary. Sir James Eadie
in his submissions has not provided any separate justification for the requirement of
an EDS that the prisoner serve two-thirds of his sentence before he is eligible to be
considered for parole rather than some other proportion, beyond saying that the
offender has committed a serious offence and is dangerous at the time of sentencing.
But, in my view, he does not require to do so because the EDS is a separate
sentencing regime which is neither arbitrary nor unlawful.
201. I therefore conclude in relation to issue 2B that the difference in treatment of
EDS prisoners resulting from the potentially more onerous early release provisions
of section 246A is justified. Accordingly, there has been no breach of article 14
taken with article 5 of the ECHR.
202. In so concluding, I do not overlook the observation of Lord Brown of Eatonunder-Heywood in Clift (HL) at para 66:
“where the penal system includes a parole scheme, liberty is
dependent no less upon the non-discriminatory operation of
that than on a fair sentencing process in the first place.”
The interest of a prisoner in obtaining early release should not be underestimated. In
this case, however, access to the parole scheme depends on the terms of the
particular sentencing regime and differential access to that scheme as between
discrete sentencing regimes is not per se discriminatory.
203. I am also aware that there is a real potential for a sense of unfairness about
differential eligibility for early release where two people are jointly convicted of the
same offence and one receives a determinate sentence while the other, because he is
dangerous, receives an EDS. The grievance this would generate was a matter of
concern to the judges of the Divisional Court who referred to it in paras 45 and 50
of their judgment. That is clearly not the situation in Mr Stott’s case. It will not be
the situation in many cases and it is not a sufficient basis for calling into question
the justification for the early release provisions of the EDS generally. Article 14 of
the ECHR does not in my view provide an answer to this problem; not every
anomaly in sentencing is a breach of ECHR rights. I am left wondering whether in
future the common law might be developed by creating an exception to the principle
in R v Round where it was necessary to achieve comparative justice in such a case
of joint offenders. But as parties have not had any opportunity to discuss this matter,
I will say no more about it.
Page 73
Conclusion
204. I would dismiss the appeal.
LADY HALE:
205. I am most grateful to Lady Black for having discussed the authorities in such
depth. It has enabled me to stand back and look at the basics. The claim is that the
early release provisions relating to prisoners serving an extended determinate
sentence (EDS) unjustifiably discriminate against such prisoners in the enjoyment
of their right to liberty, contrary to article 14 of the European Convention on Human
Rights read with article 5. The basic fact about any sentence of imprisonment is that
it takes away the prisoner’s liberty: that is the right protected by article 5. The first
thing that the prisoner (and indeed anyone else) wants to know is “how long for”?
So let us take three prisoners who have committed the same, very serious, offence:
one receives an ordinary determinate sentence of, say, 21 years; another qualifies
for an EDS and receives an EDS of, say 21 years, with an extended licence period
of four years on top of that; and another qualifies for and receives a discretionary
life sentence, with a minimum custodial period of ten and a half years. The first
prisoner will automatically be released on licence after ten and a half years; the
second prisoner will only be considered for release on licence after 14 years; the
third prisoner will be considered for release on licence after ten and half years. Is
this most basic disparity in the treatment of these three prisoners compatible with
the convention rights of the less favourably treated one?
206. The English version of article 14 reads:
“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The equally authentic French text reads:
“La jouissance des droits et libertés reconnus dans la présente
Convention doit être assurée, sans distinction aucune, fondée
notamment sur le sexe, la race, la couleur, la langue, la religion,
les opinions politiques ou toutes autres opinions, l’origine
nationale ou sociale, l’appartenance à une minorité nationale,
la fortune, la naissance ou toute autre situation.”
Page 74
Thus, for the English “without discrimination”, the French reads “sans distinction
aucune”, but the European Court of Human Rights has said that outlawing any
distinction could lead to absurd results, and the French text should be read in the
light of the more restrictive text of the English version (Belgian Linguistic case (No
2) (1968) 1 EHRR 252, para 10). On the other hand, for “other status”, the French
reads “toute autre situation”, which has led the court to take an expansive view of
what counts as an “other status” (see Carson v United Kingdom (2010) 51 EHRR
13, para 70).
207. In article 14 cases it is customary in this country to ask four questions: (1)
does the treatment complained of fall within the ambit of one of the Convention
rights; (2) is that treatment on the ground of some “status”; (3) is the situation of the
claimant analogous to that of some other person who has been treated differently;
and (4) is the difference justified, in the sense that it is a proportionate means of
achieving a legitimate aim?
208. Question (1) stems from the subsidiary nature of article 14. Unlike article 1
of the 12th Protocol to the Convention (to which the United Kingdom is not a party),
it does not prohibit discrimination in the enjoyment of “any right set forth by law”
but only in the enjoyment of the Convention rights. But of course there does not
have to be a breach of one of those rights – otherwise the article would add nothing.
The rights have to be enjoyed equally. So the facts have to fall within the ambit of
one of the rights or relate to one of the ways in which one of the rights is secured
within the member state. In this case it is common ground that a sentence of
imprisonment falls within the ambit of article 5, which regulates the circumstances
in which a person may be deprived of his liberty. Equally it is common ground that
there is no breach of article 5, because article 5(1)(a) permits “the lawful detention
of a person after conviction by a competent court”.
209. Question (2) directs attention to the ground on which one person has been
treated differently from another in the enjoyment of a Convention right. It is clearly
intended to add something to the requirement of discrimination or a difference in
treatment: otherwise article 14 would simple have said that “the enjoyment of the
Convention rights shall be secured without (unjustified) discrimination (between
persons in an analogous situation)”. “Status” has usually been said to refer to a
“personal characteristic” of the person concerned (beginning with Kjeldsen, Busk
Madsen and Pedersen v Denmark (1976) 1 EHRR 711, but see also, for example,
Maktouf and Damjanovic v Bosnia and Herzegovina (2013) 58 EHRR 11, para 83,
and Magee v United Kingdom (2000) 31 EHRR 35, para 50, where differences in
treatment between different courts or different parts of the United Kingdom were
held not to be contrary to article 14 as they were not based upon personal
characteristics). But it is not limited to innate qualities such as sex, race, colour, birth
status or sexual orientation. It includes acquired qualities such as religion, political
opinion, marital or nonmarital status, or habitual residence. But in Clift v United
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Kingdom (Application No 7205/07, judgment of 13 July 2010, inexplicably only
reported in The Times, 21 July 2010), the court pointed out that not all the listed
qualities are a personal characteristic, giving property as an example. Not only that,
the court has not given an ejusdem generis interpretation to “other status” and has
adopted a very broad approach: applying article 14, for example, to different
categories of property owners (James v United Kingdom (1986) 8 EHRR 123, para
74), large and small landowners (Chassagnou v France (1999) 29 EHRR 615, para
95), and non-commissioned officers and ordinary soldiers (Engle v The Netherlands
(No 1) (1969) 1 EHRR 647).
210. In Clift v United Kingdom, the court also declared itself “not persuaded that
the Government’s argument that the treatment of which the applicant complains
must exist independently of the ‘other status’ upon which it is based finds any clear
support in its case law” (para 60). Paulík v Slovakia (2006) 46 EHRR 10 was cited
as an illustration: a man who had been adjudged father of a child in legal proceedings
complained that there was no way of correcting the record when DNA tests proved
that he was not the father, whereas fathers whose paternity had been established on
other grounds, and mothers, did have such a possibility (Paulík, para 48). With
respect, this is not a good illustration, for two reasons. First, the applicability of
article 14 was not disputed and so there is no discussion of “other status” in the
judgment. Second, and more important, while it may well be the case that there was
no other difference in treatment between the applicant and the others with whom he
compared himself, his status, as a man who had been adjudged father in legal
proceedings, was obviously different from the status of those fathers who had not,
and even more different from the status of mothers. In other words, his status was
not defined by the difference in treatment complained of. That, it seems to me is the
true principle: the “status” must not be defined solely by the difference in treatment
complained of, for otherwise the words “on any ground such as …” would add
nothing to the article.
211. There is a useful analogy here with the United Nations Convention relating
to the Status of Refugees (1951) (Cmd 9171): to be recognised as a refugee, a person
has to have a well-founded fear of persecution on one of the Convention grounds –
race, religion, nationality, membership of a particular social group or political
opinion. In Fornah v Secretary of State for the Home Department [2006] UKHL 46;
[2007] 1 AC 412, the House of Lords affirmed the principle (also endorsed by the
UN High Commissioner for Refugees) that a “particular social group” must exist
independently of the persecution to which the group is subject: by this was meant
that the group was not defined solely by the persecution it feared.
212. That said, I have no difficulty in accepting that “The question whether there
is a difference of treatment based on a personal or identifiable characteristic in any
given case is a matter to be assessed taking into consideration all of the
circumstances of the case and bearing in mind that the aim of the Convention is to
Page 76
guarantee not rights that are theoretical or illusory but rights that are practical and
effective” (Clift v United Kingdom, para 60). Prisoners subject to an EDS can be
identified as a distinct group, just as prisoners subject to an ordinary determinate
sentence and prisoners subject to a life sentence, can be identified as a distinct group.
They are defined by much more than the particular early release regime to which
they are subjected. Indeed, the argument that this particular type of sentence is a
distinct “package”, so persuasively put forward on behalf of the Secretary of State
as a justification for the difference, confirms that fact. This is much clearer than the
difference in Clift, which was simply between different lengths of determinate
sentence. If further support for that conclusion were required, it could lie in the
different criteria for the imposition of each type of sentence, which concentrate upon
the dangerousness of the offender, itself a personal characteristic.
213. Questions (3) and (4) are logically distinct but are often discussed together in
the cases. As Lord Nicholls put it in R (Carson) v Secretary of State for Work and
Pensions [2005] UKHL 17; [2006] 1 AC 173, para 3:
“… the essential question for the court is whether the alleged
discrimination, that is, the difference in treatment of which
complaint is made, can withstand scrutiny. Sometimes the
answer to this question will be plain. There may be such an
obvious, relevant difference between the claimant and those
with whom he seeks to compare himself that their situations
cannot be regarded as analogous. Sometimes, where the
position is not so clear, a different approach is called for. Then
the court’s scrutiny may best be directed at considering
whether the differentiation has a legitimate aim and whether
the means chosen to achieve the aim is appropriate and not
disproportionate in its adverse impact.”
214. There is no such “obvious, relevant difference” here. The three groups in
question are all prisoners serving sentences of imprisonment. From their point of
view, the most important question in their lives is “when will I get out?” Allied to
that may be two subsidiary questions, “who will decide when I get out – will it be
automatic or will I have to go before the Parole Board?” and “if I am let out, what
will be the consequences of that?” Each group of prisoners under discussion here is
subject to a different package of answers to those questions. But we must beware of
treating the “package” which means that each of these groups has a different status
as meaning that their situations are not analogous for the purpose of needing a
justification for the difference in their treatment. To take an obvious example,
women have a different status from men for the purpose of article 14. But the
obvious physical differences between men and women do not mean that their
situations are not relevantly similar, for the purpose, for example, of their right to
liberty or to respect for their family lives. We have to look to the essence of the right
Page 77
in question to ask whether men and women prisoners are in a relevantly similar
situation. The essence of the right in question here is liberty. It would obviously be
discriminatory to make one sex serve longer sentences for the same crime simply
because of their gender (as opposed to other factors which might justify a difference
in treatment).
215. The real question in this case has always been whether the difference in
treatment can be justified as a proportionate means of achieving a legitimate aim.
The background is important here. The EDS was introduced in its current form when
the indefinite sentence for public protection (IPP) was abolished. It was considered
necessary to replace IPP with a sentence, reserved for those who posed a particular
risk to the public, which was demonstrably tougher than an ordinary determinate
sentence. As Alison Foulds, policy lead on adult custodial sentencing policy in the
Ministry of Justice, explained in her witness statement:
“This was a measure designed to enhance public protection and
maintain public confidence in the sentencing framework.
Offenders eligible for an EDS have committed serious offences
and been found to be dangerous, and would previously have
been eligible for an indefinite sentence, an IPP, but not
necessarily a life sentence. The longer period to be served in
prison under the EDS is justified on these grounds, and
distinguishes the sentence from a standard determinate
sentence, and a special determinate sentence for offenders of
particular concern, which provide for automatic release at the
half way point, or discretionary release from the half way point,
as appropriate.”
216. Protecting the public is undoubtedly a legitimate aim. Furthermore, the
criteria for imposing an EDS include that there is “a significant risk to members of
the public of serious harm occasioned by the commission by the offender of further
specified offences” (Criminal Justice Act 2003, section 226A(1)(b)). The public will
be better protected if he is required to serve more of his sentence in prison and can
only be released during the rest of his custodial term if the Parole Board determines
that this will be safe. The criterion for imposing the sentence would therefore appear
to justify the difference in treatment between an EDS prisoner and a prisoner serving
a standard determinate term, even though their actual offences may be
commensurate.
217. The same could be said of offenders serving a special custodial sentence for
“certain offenders of particular concern” (Criminal Justice Act 2003, section 236A).
Here the criterion is not the dangerousness of the particular offender, but the
dangerousness of the offence which he has committed: if he is convicted of an
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offence listed in Schedule 18A, and the court does not impose a life sentence or an
EDS, the court must impose a special sentence which consists of the “appropriate
custodial term” plus an extra year for which he is subject to a licence (section
236A(1), (2)). These prisoners may be let out at half time, but only if the Parole
Board decides that this will be safe. These prisoners have not been held to be
dangerous in themselves in the same way that prisoners sentenced to an EDS have
been held to be dangerous. Nevertheless, this comparison is getting closer to the
bone, given the intrinsically dangerous nature of the offences listed in Schedule 18A
(most of which have a terrorist connection).
218. The comparison with a discretionary life sentence is more difficult to
understand. It is well-established that, in the absence of exceptional circumstances,
the specified period which the prisoner must serve before he can be considered for
release on licence should be fixed at half of the notional determinate sentence which
he would have received for the offence had he not been subject to a life sentence
because of his dangerousness: see R v Szczerba [2002] 2 Cr App R(S) 86. Given that
a discretionary life sentence prisoner is even more dangerous than an EDS prisoner,
how can it be justified that the former can be considered for release on licence after
serving half of what would have been an appropriate determinate sentence, whereas
the latter must wait until he has served two thirds of the appropriate determinate
sentence? The public’s need for protection is likely to be greater in the case of the
“lifer” than in the case of the EDS prisoner. But in any event, neither can be released
on licence until the Parole Board has determined that it will be safe to do so. The
public is equally well protected in each case.
219. It is, of course, the case that there are ways in which the EDS prisoner is
better off than the “lifer”. He must be released on licence at the end of his appropriate
custodial term, even if the Parole Board has not determined that this would be safe,
whereas the “lifer” must only be released if this is adjudged safe. Once released on
licence, he can only be returned to prison during the period of his extended sentence,
whereas the “lifer” will remain on licence, and thus subject to return to prison, for
the whole of his natural life. This is the essence of the “package” element which was
pressed on us as a justification for the difference in their early release regimes. The
package should not be “salami sliced” into its component parts for the purpose of
deciding whether each difference in treatment can be justified.
220. In the end, however, it is easy to see how the additional disadvantages (from
the prisoner’s point of view) of a discretionary life sentence are justified by the
considerations which led the court to impose the sentence in the first place. It is hard
to see how, alone of all four types of prisoner considered here, it is thought necessary
to insist that an EDS prisoner stays in prison for more than half the custodial term
appropriate to the seriousness of his offending. One would have thought that, if
anything, a discretionary life prisoner would be even less likely to be fit for release
at the half way point. But the speed of rehabilitation is notoriously difficult to predict
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at the outset. That is why the decision is left to the Parole Board when the time
comes to consider release. And the protection which the Parole Board offers to the
public is the reason why it is not necessary, for that purpose, to insist that EDS
prisoners spend a larger proportion of the appropriate term in prison.
221. That conclusion is to my mind strengthened by the fact that, had he not been
bound by the decision of the House of Lords in R (Clift) v Secretary of State for the
Home Department [2007] 1 AC 484, it would also have been the conclusion of Sir
Brian Leveson, President of the Queen’s Bench Division, who has unrivalled
experience in penal matters and would have recognised a justification if there was
one.
222. I would therefore allow this appeal and make a declaration of incompatibility.
It would then be for Parliament to decide how, if at all, that incompatibility is to be
rectified.
LORD MANCE:
Introduction
223. I have had the advantage of reading in draft the judgments prepared by Lady
Black and Lord Carnwath. They reach different conclusions on the issue whether a
prisoner on whom an extended determinate sentence (“EDS”) has been passed under
section 226A of the Criminal Justice Act 2003 (“the 2003 Act”) acquires a status on
which he may rely for the purposes of a complaint about alleged discrimination
under article 14 of the European Convention on Human Rights (“ECHR”).
224. An EDS consists of the appropriate custodial terms, specified in Mr Stott’s
case as 21 years, and a further extension period, specified in his case as four years,
during which he was to be subject to a licence. The discrimination alleged is that,
under section 246A of the 2003 Act, as introduced by section 125 of the Legal Aid
Sentencing and Punishment of Offenders Act 2012 and amended by section 4 of the
Criminal Justice and Courts Act 2015, a prisoner subject to an EDS of ten years or
more must serve a “requisite custodial term” of normally two-thirds of his specified
appropriate custodial term, before being eligible for consideration by the Parole
Board for release on licence. Serving an EDS of less than ten years, imposed prior
to 13 April 2015, and not in respect of an offence listed in Parts 1 to 3 of Schedule
15B to the Criminal Justice Act 2003, are automatically released once they have
served two-thirds of the requisite custodial period (section 246A(2) of the 2003 Act).
Under his EDS, Mr Stott would thus have to serve 14 years, before being eligible
for referral to the Parole Board for consideration.
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225. The comparisons which Mr Stott seeks to draw are with prisoners sentenced
to both determinate and indeterminate sentences. The former (determinate sentence
prisoners) are, as Lady Black explains (para 90), entitled to be released on licence
automatically, once they have served a “requisite custodial sentence”, which is in
their case one-half of their sentence.
226. It is worth noting, in parenthesis, that under the régime of extended sentences
which was introduced by section 227 of the 2003 Act, was in force until 3 December
2003 and was the precursor of the régime presently in issue, a prisoner was also
entitled to automatic release on licence once he had served half of the requisite
custodial sentence. Further, under the special custodial sentence regime introduced
by Schedule 1 to the Criminal Justice and Courts Act 2015 as amended by section
236A of the 2003 Act, whereby a court could impose the appropriate custodial
sentence plus a further period on licence of one year, a prisoner was entitled to have
his suitability for release on licence considered by the Parole Board after serving
half such sentence. The special custodial regime was available for inter alia an
offender who had raped a child under 13, which it happens was also offending for
which Mr Stott was sentenced.
227. In respect of prisoners serving indeterminate sentences, the judge will
determine a minimum custodial sentence which the offender must serve before being
eligible to apply for early release, although the court may disapply this provision if
the seriousness of the offending justifies this course. In the case of a mandatory life
sentence, the minimum custodial sentence must take account of various factors, none
expressly linked with any notional determinate term. In the case of a discretionary
life sentence, the court must, under section 82A of the Powers of Criminal Courts
(Sentencing) Act 2000, identify what sentence would have been appropriate had a
determinate sentence been imposed and take account of the fact that the offender
would then have been entitled to early release: see Lady Black, para 103. In practice,
this normally leads to a “tariff” period of half the notional determinate period
although, in exceptional circumstances requiring the giving of proper reasons, the
sentencing judge may as a matter of discretion fix the tariff at half or two-thirds or
somewhere in between: R v Szczerba [2002] 2 Cr App R(S) 86; R v Jarvis [2006]
EWCA Crim 1985; R v Rossi [2015] 1 Cr App R(S) 15.
Status
228. The first question in these circumstances is whether Mr Stott can claim to
have an “other status” for the purposes of invoking article 14 of the ECHR. I agree
with Lady Black that he can. I accept that the requirement of an “other status” cannot
simply be ignored, or subsumed in the question whether any discrimination is
unjustified. This is for at least three reasons. First, the language of article 14 states
that there must be discrimination on a ground “such as” those specified, the last
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being “other status”. There would be no point in this language, if the only question
was whether there was discrimination.
229. Secondly, the ECtHR has expressly accepted as much in Clift v United
Kingdom (Application No 7205/07), paras 55 to 56, while at the same time stating,
at para 61, that “any exception to the protection offered by article 14 … should be
narrowly construed”. While it may be odd to speak of a criterion for the application
of article 14 as an exception, the general idea is clear enough: (a) the concept of
“status” should be construed broadly, but (b) not every difference in treatment is on
the ground of status.
230. Thus, a difference in treatment regarding automatic parole between
terrorism-related and other offences was held not to be on the ground of status in
Gerger v Turkey (Application No 24919/94). It was a difference based on the
differing gravity of the offence, rather than on any status. For the same reason, a
mere difference in the sentence imposed cannot of itself amount to a difference in
status. This also explains the difference in treatment by Lord Hughes of the two
arguments raised in favour of the existence of a status in R v Docherty (Shaun)
[2016] UKSC 62; [2017] 1 WLR 181, para 63. As to the second argument, the mere
imposition of an indeterminate sentence under the appropriate sentencing regime
could not give the offender a different status. As to the first, however, Lord Hughes
left open the possibility that the offender had a different status because he had been
convicted prior to 3 December 2012, when the appropriate sentencing regime
provided for an indeterminate sentence, rather than after 3 December 2012, when
indeterminate sentences for public protection were abolished. He held instead that
any discrimination on the ground of status was justified.
231. That a mere difference in treatment does not by itself constitute a difference
in status is a proposition which is difficult to fault in the light of Gerger and what I
have already said. But problems have arisen from attempts to extend the application
of such a proposition to cases beyond its scope. This is, I think, the root of the third
difficulty expressed by Lady Black in the first sentence of para 74 of her judgment.
There is no reason why a person may not be identified as having a particular status
when the or an aim is to discriminate against him in some respect on the ground of
that status. Thus, in Clift the categorisation of Mr Clift as a prisoner serving a
sentence of more than 15 years’ imprisonment (a bright-line distinction clearly
associated in the legislature’s mind with a significantly higher level of risk) was with
a view to the discriminatory treatment about which Mr Clift complained, since it
meant that he would receive less favourable treatment (a) as regards early release,
than life prisoners presenting on their face an even greater risk, and also (b) as
regards prisoners serving sentences of less than 15 years, since his release would be
subject to approval by the Secretary of State who could contribute nothing relevant
to any evaluation of continuing risk. It is to my mind unsurprising that such
categorisation was in these circumstances regarded as giving Mr Clift a relevant
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status. It was common ground in Clift that being a prisoner was a status, and it was
a short step from that in the circumstances to accepting that being a particular type
of prisoner, namely one serving a determinate sentence of 15 years of more and
viewed accordingly as presenting a particular risk (which was however addressed in
a discriminatory fashion), could also be identified as a status.
232. Similarly, it is difficult to see any real problem about attributing a relevant
status to the complainant in Paulík v Slovakia (2006) 46 EHRR 10. He had the status
of a father whose paternity had been established by judicial determination, in
contrast with the different status of a parent whose paternity was legally presumed
without judicial determination. The discrimination between these two statuses was
that in the latter case paternity could subsequently be disproved by a DNA test,
whereas in the former case no such procedure existed under domestic law.
233. The ECtHR in para 60 of its judgment in Clift rejected “the Government’s
argument that the treatment of which the applicant complains must exist
independently of the ‘other status’ upon which it is based”. It reasoned that in Paulík
“there was no suggestion that the distinction relied upon had any relevance outside
the applicant’s complaint”. One might question if that could really have been so: it
seems, self-evidently, one thing to have to prove paternity in court and thereafter,
whenever the need arose, to have to identify a valid and enforceable court decision
establishing paternity, and another matter to be able simply to rely on a factual
presumption. Leaving that thought on one side, however, Clift suggests that a
difference in the basis of established paternity represented a sufficient difference in
status, even though the only continuing effect of the distinction consisted in the
discriminatory possibility in the one case and impossibility in the other of
subsequent disproof of paternity by a DNA test.
234. The same point can be tested by supposing a person who was discriminated
against on the ground of some previously held, but now abandoned, religious belief
or political or other opinion. That would surely be discrimination on an illegitimate
ground within the language of article 14. It is likewise notable that article 14
expressly identifies “national or social origin” and “birth” as a prohibited ground of
discrimination.
235. Thirdly, article 14 addresses discrimination, whether deliberate or
unconscious, having a “systematic” nature in the sense that it occurs on the ground
of a characteristic or characteristics in some sense attributed to the victim, whether
innately or as a matter of choice or against their will: see the discussion in Clift at
paras 56 to 59; and see also Lady Black’s judgment at para 56(i) to (iii) and 63.
Article 14 is not targeted at achieving complete equality of treatment. A firm which
haphazardly treated different customers with different standards of attention because
its different employees were not consistently trained to perform to the same
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standards could not be said to be discriminating on the ground of any status
possessed by any of its customers. A person who refused to serve a customer within
ordinary hours (or to stay open late out of hours, when normally he would have been
prepared to do so) because he had a headache could not be said to be discriminating
on the ground of any status possessed by the or any customer. There would be no
question of him having to justify his conduct by reference to the severity of his
headache.
236. In the present case, I conclude without hesitation that Mr Stott possesses a
relevant status, independent of the difference in treatment about which he is
complaining. He is subject to an EDS, which is a sentence distinct from and has
characteristics differing from those of any ordinary determinate or indeterminate
sentence. The difference of treatment about which he complains consists in one
consequence of his being given an EDS, namely that he was and is subject to a
different regime as regards eligibility for consideration for parole.
237. Mr Southey QC representing Mr Stott felt, rightly, obliged to concede that
the claim must fail before the Administrative Court on the issue of status, because
of the decision of the House of Lords in R (Clift) v Secretary of State for the Home
Department [2006] UKHL 54; [2007] 1 AC 484. It follows from what I have already
said that, in my opinion, the Supreme Court should now depart from that decision,
and follow the clear guidance given by the ECtHR in Clift v United Kingdom. I
should add that, in reaching this conclusion, I have benefitted substantially from
Lady Black’s comprehensive analysis of the authorities on status. Save to the limited
extent that appears from what I have said above, I have no comment on and see no
reason to disagree with that analysis.
Analogous position and justification
238. The decisive questions are therefore whether an offender like Mr Stott
serving an EDS is in an analogous position to an offender serving a determinate or
indeterminate sentence, and, if so, whether the difference in treatment of an EDS
offender as regards parole is objectively justified. In this connection, I have come
ultimately to a different conclusion to Lady Black and Lord Carnwath.
239. First, the ECtHR in Clift had no difficulty in treating prisoners serving more
and less than 15 years’ imprisonment and life prisoners as all being in an analogous
position, “insofar as the assessment of the risk posed by a prisoner eligible for early
release is concerned”: para 67. On this basis, the question is whether the differences
in their treatment as regards release on licence are justified. Like Lady Black, I do
not consider that this question is avoided by the argument, advanced by the Secretary
of State, that the whole of all such sentences should be seen as imposed as
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punishment for the offences committed, rather than as having two components, a
punitive part followed by a preventive part. However such sentences may in other
contexts be analysed, it remains the case that the differences between them regarding
early release have significant advantages or disadvantages for the relevant prisoners,
which once identified call for examination and justification.
240. Second, as regards justification, the ECtHR accepted in Clift that more
stringent early release provisions could be justified where a particular group of
prisoners could be demonstrated to pose a higher risk to the public upon release:
para 74. On that basis, it accepted in principle that the application of more stringent
early release provisions might “have to be dependent on a bright-line cut-off point”
and considered “that such a bright-line distinction will not of itself fall foul of the
Convention”; accordingly, the fact that different early release provisions applied to
those serving determinate sentences of 15 years or more, compared to those serving
less than 15 years, did not of itself suggest unlawful discrimination: para 76.
241. The reason the ECtHR regarded the difference in Clift between treatment of,
on the one hand, prisoners serving more than 15 years’ imprisonment and, on the
other hand, prisoners serving less than 15 years’ imprisonment or serving
indeterminate sentences as unjustifiable was the requirement for the Secretary of
State to consent to implementation of any Parole Board recommendation for release
in the case of the former: paras 77 to 78. The ECtHR said in this connection that:
“The differential treatment of prisoners serving 15 years or
more, whose release continued to be dependent on the decision
of the Secretary of State, had become an indefensible anomaly,
as the assessment of the risk presented by any individual
prisoner, in the application of publicly promulgated criteria,
was a task which was at the relevant time recognised to have
no political content and one to which the Secretary of State
could not, and did not claim to, bring any superior expertise
…”
242. The ECtHR also held the difference in treatment in Clift between prisoners
serving in excess of 15 years’ imprisonment and life prisoners to be unjustified for
a further reason. Life prisoners apparently presented a greater risk than a prisoner
on whom a determinate sentence had been passed. Yet there was in their case no
requirement that the Secretary of State consent to their release. Once release was
recommended by the Parole Board, it was the Secretary of State’s duty to direct their
release on licence.
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243. By the same token, in the present case, a more stringent release regime for
prisoners sentenced to an EDS could be regarded as justified, when compared with
that applicable to prisoners sentenced to an ordinary determinate sentence. Any
ordinary determinate sentence and the “appropriate” custodial term to be served
under an EDS fall to be determined on the principle set out in section 153(2) of the
Criminal Justice Act 2003, that they:
“must be for the shortest term (not exceeding the permitted
maximum) that in the opinion of the court is commensurate
with the seriousness of the offence, or the combination of the
offence and one or more offences associated with it.”
One pre-condition to the imposition of an EDS is, however, that “the court considers
that there is a significant risk to members of the public of serious harm occasioned
by the commission by the offender of further specified offences”: section
226A(1)(b) of the 2003 Act. Another (at the relevant time) was that the court was
“not required by section 224A or 225(2) to impose a sentence of imprisonment for
life”: section 226A(1)(c).
244. Applying similar reasoning to that of the ECtHR in Clift, Parliament could
be taken to have considered that this risk was in the case of an EDS prisoner
sufficiently significant (a) to require release on licence during the currency of the
appropriate custodial term to depend on a Parole Board recommendation, (b) to
require two-thirds of such term to have run, before the Parole Board considered
whether to make such a recommendation and (c) to require an extended period on
licence after expiry of the appropriate custodial term. In contrast, release on licence
is, in the case of an ordinary determinate prisoner, automatic once he has served the
“requisite custodial period” consisting of half their nominal sentence: section 244.
The Administrative Court in Sir Brian Leveson, President of the Queen’s Bench
Division’s full and helpful judgment, was not persuaded that there was any
justification for a distinction which necessarily assumes that EDS prisoners remain
as a class a significant risk until the two-thirds point, depriving them of even the
chance of demonstrating their safety for release on licence until that point, whereas
all ordinary determinate prisoners are assumed to be safe for automatic release at the
half way stage. I see the force of the Administrative Court’s view, but in the light of
the ECtHR’s approach in Clift and my conclusions regarding the comparison with
indeterminate prisoners in the ensuing paragraphs, I do not base my judgment on it.
245. It is, on any view, even more difficult to understand the logic of an apparently
more stringent regime for EDS prisoners, when compared with discretionary life
prisoners, in circumstances where the offending was, by definition, not of such a
seriousness as to attract a life sentence. The tariff period for a discretionary life
prisoner is, barring exceptional circumstances, set at half the notional determinate
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period. Once that tariff period has expired, the life prisoner has a right to require the
Secretary of State to refer his case to the Parole Board, and to be released on licence
if the Parole Board is satisfied that such release is, in short, safe: Crime (Sentences)
Act 1997, section 28(5).
246. A prisoner serving an EDS, therefore, is likely to be in a significantly worse
position, as regards consideration by the Parole Board and release on licence, than a
discretionary life prisoner, although the latter is likely to have committed a more
serious, or no less serious, offence. It is true that in other respects a life prisoner is
treated more severely: if the Parole Board is not satisfied as to the safety of his
release, he may remain in prison indefinitely and, if he is released, he remains on
licence and may be recalled throughout his life. But this is inherent in the nature of
a discretionary life sentence, and, if anything, suggests that one would expect a
more, rather than less, severe regime of review for release on licence to apply to life
prisoners. It is also the case that some life prisoners may be less dangerous and safer
at an earlier stage for release than some prisoners serving an EDS. But that is not
the general position. None of these factors explains why life prisoners are in the
great generality of cases likely to be eligible for consideration of their safety for
release on licence by the Parole Board at a considerably earlier point than prisoners
serving an EDS can hope for. Eligibility for consideration for release is merely the
gateway to consideration by the Parole Board of safety for release on licence. It does
not prejudge that question. No real explanation or justification has been given for a
difference in treatment, which has important practical consequences for the
prisoners affected and must seem a palpable anomaly.
247. The position regarding mandatory life prisoners is less easy to compare with
that of prisoners serving an EDS. As Lady Black explains in para 102, the sentencing
judge determines, in the light of the seriousness of the offence and other
circumstances, a minimum custodial period after the expiry of which the prisoner
has a right to require the Secretary of State to refer him to the Parole Board and a
right to be released on licence if the Parole Board so recommends. But there appears
to be no general or normal rule as to the length of this period, as there is in the case
of discretionary life sentences: see R v Szczerba, cited above.
248. In the event, I conclude that prisoners serving an EDS are in a significantly
worse position as regards eligibility for consideration by the Parole Board and
release on licence, when compared with discretionary life prisoners, that no
convincing explanation or justification for this difference has been shown and that
section 246A(8)(a) of the Criminal Justice Act 2003 is for this reason incompatible
with article 14 read with article 5 of the ECHR, in so far as it requires two-thirds of
the relevant custodial period to have expired before any such eligibility arises. Since
preparing this judgment on the issues of analogous situation and justification, I have
also had the advantage of reading what Lady Hale says in her paras 213 to 222, with
which I find myself in agreement on these issues. It follows that, in my opinion, the
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appeal succeeds, and Mr Stott is entitled to succeed to a corresponding declaration
of incompatibility.