24 April 2009

FOURTH SECTION
Application no. 7205/07
by Sean CLIFT
against the United Kingdom
lodged on 29 January 2007

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Sean Clift, is a British national who was born in 1966 and lives in Westcliff on Sea. He is represented before the Court by Amal Solicitors, a firm of lawyers practising in Huddersfield.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background facts
On 30 April 1994 the applicant was sentenced to 18 years’ imprisonment for serious crimes including attempted murder, which carried a maximum sentence of life imprisonment. Under the legislative regime applicable to his case he became eligible for release on parole on 13 March 2002 and entitled to release on 18 March 2005.
On 25 March 2002 the Parole Board recommended the applicant’s release on parole on the grounds that the risk to the public had been significantly reduced; that the proposed resettlement plan would secure his rehabilitation; and that the applicant would comply with the licence conditions.
Under the legislation in force at the time, the final decision in cases involving prisoners serving determinate sentences (i.e. fixed-term sentences) of more than 15 years’ imprisonment lay with the Secretary of State. On 25 October 2002 the Secretary of State rejected the recommendation of the Parole Board, concluding that the release of the applicant would present an unacceptable risk to the public.
2. The domestic proceedings
a. Proceedings before the Divisional Court
On 17 February 2003, the applicant was granted leave to bring judicial review proceedings in respect of the decision of the Secretary of State. His principal ground of challenge was that it was a breach of Article 5 of the Convention taken together with Article 14 that the Home Secretary should retain the power to determine the release on parole licence of only one group of prisoners, i.e. those who were serving determinate terms of 15 years or more.
The Parole Board subsequently reconsidered the applicant’s case and on 17 March 2003 did not recommend release.
On 9 June 2003, the Divisional Court dismissed the applicant’s judicial review claim. For the purposes of the proceedings, the Secretary of State accepted that the question of release from a determinate sentence fell within the ambit of Article 5 of the Convention for the purposes of engaging Article 14. Hooper J therefore considered whether there was a difference in treatment between analogous groups. He found that there was differential treatment between analogous groups, namely those serving sentences of 15 years or more and those serving sentences of almost 15 years, in that prisoners serving sentences of 15 years or more had to secure a recommendation from the Parole Board and approval from the Secretary of State whereas those serving almost 15 years needed only a recommendation from the Parole Board. However, he considered that the differential treatment pursued the legitimate aim of reserving to a politically and democratically accountable minister the power to control the release of those serving long determinate sentences. He further considered that the power was proportionate in light of the problems posed by such prisoners for public safety and public order. Accordingly, he found that there was no violation of Article 5 together with Article 14.
b. Court of Appeal proceedings
On 30 October 2003, the applicant was granted leave to appeal to the Court of Appeal.
The Parole Board subsequently reconsidered the applicant’s case and on 25 February 2004 once again recommended the applicant’s release. On this occasion the Secretary of State accepted the recommendation, and on 10 March 2004 Mr Clift was released on licence.
On 29 April 2004, the Court of Appeal endorsed the judgment of Hooper J and dismissed the applicant’s appeal. It found the question of release from a determinate sentence to be arguably within the ambit of Article 5 of the Convention and agreed with Hooper J that although there was differential treatment between two comparable groups, this difference in treatment was objectively justified in that it pursued a legitimate aim and was proportionate.
c. Proceedings before the House of Lords
The applicant was granted leave to appeal to the House of Lords.
On 13 December 2006, their Lordships unanimously dismissed the applicant’s appeal. They agreed that the right to seek early release, where domestic law provided for such a right, was clearly within the ambit of Article 5 of the Convention. Lord Bingham of Cornhill noted (at paragraphs 17-18) that:
“The Convention does not require member states to establish a scheme for early release of those sentenced to imprisonment. Prisoners may, consistently with the Convention, be required to serve every day of the sentence passed by the judge, or be detained until a predetermined period or proportion of the sentence has been served, if that is what domestic law provides. But this is not what the law of England and Wales provided, in respect of long-term determinate prisoners, at the times relevant to these appeals. That law provided for a time at which (subject to additional days of custody imposed for disciplinary breaches) a prisoner must, as a matter of right, be released, and an earlier time at which he might be released if it was judged safe to release him but at which he need not be released if it was not so judged.
  A number of grounds (economy and the need to relieve over-crowding in prisons) have doubtless been relied on when introducing pre-release schemes from determinate sentences such as those under consideration here. But one such consideration is recognition that neither the public interest nor the interest of the offender is well served by continuing to detain a prisoner until the end of his publicly pronounced sentence; that in some cases those interests will be best served by releasing the prisoner at the earlier, discretionary, stage; and that in those cases prisoners should regain their freedom (even if subject to restrictions) because there is judged to be no continuing interest in depriving them of it. I accordingly find that the right to seek early release, where domestic law provides for such a right, is clearly within the ambit of article 5, and differential treatment of one prisoner as compared with another, otherwise than on the merits of their respective cases, gives rise to a potential complaint under article 14.”
However, unlike the lower courts, and with some hesitation, their Lordships did not find the difference in treatment in the applicant’s case to be the result of his “status”, such as to fall within the prohibition on discrimination in Article 14 of the Convention. Lord Bingham of Cornhill said (at paragraph 28):
“I do not think that a personal characteristic can be defined by the differential treatment of which a person complains. But here Mr Clift does not complain of the sentence passed upon him, but of being denied a definitive Parole Board recommendation. 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.”
Lord Hope of Craighead made similar observations (at paragraphs 46-49):
“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.
It must be accepted, as Lord Bingham points out, 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.
The function of article 14, read with article 1 of the Convention, is to secure to everyone within the jurisdiction of the High Contracting Parties the enjoyment of the rights and freedoms set out in section 1 of the Convention without discrimination on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable. This suggests that a generous meaning should be given to the words ‘or other status’ while recognising, of course, that the proscribed grounds are not unlimited. It seems to me, on this approach, that 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.
But the Strasbourg jurisprudence has not yet addressed this question and, as my noble and learned friend Baroness Hale of Richmond points out, it is 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 ... [T]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time. A measure of self-restraint is needed, lest we stretch our own jurisprudence beyond that which is shared by all the States Parties to the Convention. I am persuaded, with some reluctance, that it is not open to us to resolve the second agreed issue in Mr Clift’s favour.”
Baroness Hale of Richmond considered (at paragraphs 62-63) that:
“it is plain ... that a different parole regime for foreigners who are liable to deportation from that applicable to citizens or others with the right to remain here, falls within the grounds proscribed by article 14 and thus ... requires objective justification. The same would surely apply to a difference in treatment based on race, sex or the colour of one’s hair. 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. The law may look odd. But not every apparent anomaly is a breach of Convention rights. This one is the result of what the Home Secretary chose to do in relation to people sentenced to shorter terms of imprisonment and what he was obliged by the terms of article 5 itself to do in relation to life imprisonment. The law has since been changed and one can well understand why. But it is not for us to declare legislation which Parliament has passed incompatible with the Convention rights unless the Convention and its case law require us so to do. For the reasons given above, in amplification of those given by my noble and learned friend, Lord Bingham of Cornhill, we are not required to do so in this case.”
Notwithstanding the conclusion of the House as to the applicability of Article 14, Lords Bingham and Brown of Eaton-under-Heywood went on to consider whether the difference in treatment was objectively justified. Lord Bingham (at paragraph 33) was of the view that:
“When, in October 2002, the Secretary of State rejected the Parole Board’s recommendation that Mr Clift be released on parole, discretionary lifers and HMP detainees had already been brought within the definitive jurisdiction of the Parole Board, and Stafford v United Kingdom (2002) 35 EHRR 1121, requiring the same procedure for mandatory lifers, had already been decided. The differential treatment of prisoners serving 15 years or more had, in my opinion, become an anomaly. That would not, in itself, be a ground for holding it to be unjustified. Anomalies are commonplace. But by 2002 it had, in my opinion, become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, 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. I would accordingly resolve this issue in favour of Mr Clift and against the Secretary of State.”
Lord Brown agreed with the conclusion of Lord Bingham.
B.  Relevant domestic law and practice
1. Release of prisoners on parole
The release of prisoners on parole is regulated by the Criminal Justice Act 1991 (“the 1991 Act”). Sections 33 and 34 create a duty to release fixed term and discretionary life prisoners once they have served a specified period of detention and provide, insofar as relevant, as follows:
“33. Duty to release short-term and long-term prisoners
33(1) As soon as a short-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State—
(a) to release him unconditionally if that sentence is for a term of less than twelve months; and
(b) to release him on licence if that sentence is for a term of twelve months or more.
(2) As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence.
...
 (5) In this Part—
‘long-term prisoner’ means a person serving a sentence of imprisonment for a term of four years or more;
‘short-term prisoner’ means a person serving a sentence of imprisonment for a term of less than four years.
34 Duty to release discretionary life prisoners
(1) A life prisoner is a discretionary life prisoner for the purposes of this Part if—
(a) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law; and
(b) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served a part of his sentence specified in the order.
...
 (3) As soon as, in the case of a discretionary life prisoner—
(a) he has served the part of his sentence specified in the order ...; and
(b) the Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.”
Section 35 provides for a discretionary power to release long-term prisoners who have served a specified period of detention and provides that:
“(1) After a long-term prisoner has served one-half of his sentence, the Secretary of State may, if recommended to do so by the Board, release him on licence.”
Section 50 provides a power for the Secretary of State to reduce the period of detention which must be served before long-term prisoners become entitled to release by converting the discretionary power set out in section 35 into a duty in relation to a specified class of prisoners. It provides that
“(1) The Secretary of State, after consultation with the Board, may by order made by statutory instrument provide that, in relation to such class of case as may be specified in the order, the provisions of this Part specified in subsections (2) to (4) below shall have effect subject to the modifications so specified.
(2) In section 35 above, in subsection (1) for the word ‘may’ there shall be substituted the word ‘shall’ ...”
The Secretary of State exercised the power provided to him under section 50 of the 1991 Act in the Parole Board (Transfer of Functions) Order 1998. In that Order, the specified period of detention before entitlement to release arose was reduced from two-thirds to one-half for long-term prisoners serving a sentence of imprisonment for a term of less than fifteen years.
2. The Criminal Justice Act 2003
The law was changed by the Criminal Justice Act 2003, which entered into force on 4 April 2005. The new provisions regarding release on parole provide, insofar as relevant, as follows:
“244 (1) As soon as a fixed-term prisoner ... has served the requisite custodial period, it is the duty of the Secretary of State to release him on licence under this section.
...
(3) In this section ‘the requisite custodial period’ means—
(a) in relation to a person serving a sentence of imprisonment for a term of twelve months or more ... one-half of his sentence ...”
COMPLAINT
The applicant complains under Article 5 together with Article 14 of the Convention that his continued detention following the recommendation of the Parole Board on 25 March 2002 that he be released on licence violated his rights under the Convention on account of the difference in treatment between prisoners serving sentences of less than 15 years or discretionary life sentences with a tariff of less than 15 years and those serving sentences of 15 years or more.
QUESTIONS TO THE PARTIES

1. Did the applicant’s status as a prisoner serving a determinate sentence of more than 15 years constitute “other status” within the meaning of Article 14 of the Convention?

2.  Was the applicant in an “analogous position” to other prisoners who benefited from different parole requirements? If so, was the difference in treatment between the applicant, as a prisoner serving a determinate sentence of 15 years or more, and prisoners serving determinate sentences of less than 15 years or discretionary life sentences with a tariff of less than 15 years objectively justified within the meaning of Article 14?

3. Has there been a violation of Article 5 read in conjunction with Article 14 in the applicant’s case?