England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE McCOMBE

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 October 2004

Lord Justice Kennedy:

1. This is an appeal from a decision of McCombe J, sitting in the Administrative Court, who on 29^th January 2004 ordered that each of the claimants' applications be allowed and quashed the refusal of the Secretary of State to refer each of their cases to the Parole Board under section 32(2) of the Criminal Justice Act 1991. Put in simple terms the broad main issue which arises in each of these cases is whether in order to comply with the requirements of Article 14 of the European Convention on Human Rights the Secretary of State is obliged to refer to the Parole Board prisoners serving long term sentences who are liable to deportation. In the case of Hindawi there is also an issue as to the adequacy of the reasons given by the Secretary of State in his letter of 2^nd April 2003 refusing early release. McCombe J did not give permission to appeal on that issue, but we heard submissions in relation to it, and grant the necessary extension of permission to appeal.

Individual Cases.

2. It will be clear from what I have already said that for present purposes it is unnecessary to say much about the offending. It is sufficient to say that Hindawi was sentenced on 24^th October 1986 to 45 years imprisonment for attempting to place a bomb on a El Al Israeli aircraft, and possession of a firearm and ammunition. It appeared that he had been recruited by agents of the Syrian government. When he applied for early release in 2002 those acting on his behalf made enquiries as to the present stance of the Syrian government in relation to actions of the kind which Hindawi had been recruited to perform, and the results of those enquiries were made known to the Secretary of State, but were not addressed in the letter of 2^nd April 2003. That is a matter to which I will return later in this judgment. On 13^th November 2000 it was ordered that Hindawi be deported to Jordan at the conclusion of his sentence.
3. Headley was convicted of conspiracy to import class A drugs, namely cocaine, and on 31^st July 2000 at Sheffield Crown Court he was sentenced to seven years imprisonment. In his case a deportation order was made on 13^th December 2002 requiring his return to Jamaica. His case was referred to the Parole Board in error, and on 15^th January 2003 the Parole Board advised against his early release on licence. Nevertheless he was in due course released, pursuant to a decision of the Secretary of State, but we were told by Mr T.Owen QC, who appeared for both respondents before us, that Headley has now been returned to custody.

Relevant Statutory Provisions.

4. There is no dispute as to the content of the relevant early release provisions in the Criminal Justice Act 1991, nor is there any dispute as to the history and present effect of the scheme which they implement. It is therefore unnecessary to set out the wording of the sections in this judgment. I can simply summarise their effect.

(1) A long term prisoner is a person serving a sentence of imprisonment of four years or more (section 33(5))

(2) After a long term prisoner has served one half of his sentence the Secretary of State may, if recommended to do so by the Parole Board, release him on licence (section 35(1)). Those, like Hindawi, who were serving prisoners at the time of the 1991 Act remain eligible for consideration for Parole after serving one third of their sentence (paragraph 8(6)(a) of schedule 12). Headley was sentenced after the implementation of the 1991 Act.

(3) If the prisoner is not liable to removal from the United Kingdom and has been sentenced to less than 15 years imprisonment the Secretary of State must act upon a Parole Board recommendation for release (section 50(2) and Parole Board (Transfer of Functions) Order 1998).

(4) A long term prisoner who is liable to removal from the United Kingdom (and both respondents fall into that category) can be released by the Secretary of State after serving half (or in the case of Hindawi one third) of his sentence without a favourable recommendation from the Parole Board (section 46(1). It has not been the practice of the Secretary of State to seek the advice of the Parole Board in relation to such prisoners, but –

(5) The Secretary of State can require the Parole Board to advise him on any matter which he refers to it, which is connected with the early release or recall of prisoners (section 32(2)).

(6) Prior to the 1991 Act early release procedures did not distinguish between prisoners liable to removal from the United Kingdom and others. The distinction was introduced after consideration of the Report of the Review Committee on the Parole system in England and Wales chaired by Lord Carlisle which reported in November 1988.

(7) Life sentence prisoners, whether serving mandatory or discretionary life sentences, and whether liable to removal from the United Kingdom or not, cannot be released by the Secretary of State until their release has been directed or recommended by the Parole Board (section 28 and 29 of the Crime (Sentences) Act 1997).

The Application of the Statutory Scheme.

5. Both respondents say that their treatment under the scheme should be contrasted with the treatment of a prisoner serving a similar sentence but not liable to removal from the United Kingdom. If Hindawi were in that position his case would have to be referred to the Parole Board after he served one third of his sentence, and if the Parole Board recommended release the Secretary of State would have to decide whether or not to follow the recommendation. It would be persuasive, and if he decided not to follow it his reasons could be tested by judicial review. As things stand at present the Parole Board is not involved, and the Secretary of State simply makes his decision in the light of any representations made to him, and in accordance with the criteria which he has published. His decision can however be subjected to judicial review, as in this case.
6. If Headley were not liable to removal from the United Kingdom his case would have to be referred to the Parole Board after he served one half of his sentence, and if the Board recommended release he would have to be released by the Secretary of State. Mr Owen does not in these proceedings seek to put Headley in that position. To do so he would have to overcome the clear words of the statute, which require the Secretary of State to decide on the early release of those liable to removal from the United Kingdom. But Mr Owen submits that the Secretary of State should be required in Headley's case, as in Hindawi's case, to seek the advice of the Parole Board so as to minimise the difference in treatment between long term prisoners liable to removal from the United Kingdom and others. That difference, which is in reality the involvement of the Parole Board in the one class of case and not in the other, is, Mr Owen submits, and the judge accepted, a contravention of Article 14 of the Convention in respect of which the High Court can grant relief.

The Convention.

7. However, as Mr Pannick QC for the Secretary of State points out, Article 14 of the Convention only comes into operation to secure the enjoyment of other rights and freedoms set forth in the Convention. It provides –

"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 opinions, national or other origin, association with a national minority, property, birth or other status."

Assuming, without accepting, that the different treatment of prisoners liable to removal from the United Kingdom amounts to discrimination on a ground such as national origin or other status, Mr Pannick raises the question of which right or freedom set forth in the Convention needs to be secured. The only potentially relevant right, as Mr Owen accepts, is the right to liberty in Article 5 which, so far as material, reads –

"(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."

Mr Pannick submits that when the respondents applied for early release they were in each case lawfully detained after conviction by a competent court. That satisfied the requirements of Article 5, and they could not simply by making their applications for early release resurrect the right to liberty enshrined in Article 5 so as to render it something the enjoyment of which needed to be secured by Article 14. Mr Pannick submits that there is clear authority in the House of Lords and in this court to that effect, whereas Mr Owen contends that the authorities relied upon are not directly in point. They leave room for the argument that when a prisoner seeks liberty, which is the right enshrined in Article 5, he is entitled to have his claim to enjoyment of that right secured by the application of the anti-discrimination requirement of Article 14, even though he has no current right to invoke Article 5 because his detention is lawful. That begs the question of whether Article 14 is wide enough to secure claims to rights as well as the enjoyment of the rights themselves.

The Four issues relevant to Article 14.

8. In Wandsworth LBC v Michalak [2003] 1WLR 617 Brooke LJ said at paragraph 20 that when a court is asked to consider an Article 14 issue it should approach its task in a structured way, and he provided a structure which was adopted by McCombe J in this case. It is a helpful structure, which counsel have used when making their submissions to us, and it involves asking four questions –

"(1) On these facts was the right enshrined in Article 5 sufficiently engaged to enable the respondents to rely on Article 14? Do the facts come within the ambit of Article 5?

(2) Was there a material difference in treatment between the respondents and their chosen comparators, assuming that they are appropriate comparators?

(3) If so, did the difference amount to discrimination within Article 14?

(4) If so, did that discrimination have an objective and reasonable justification? Did it pursue a legitimate aim and bear a reasonable relationship of proportionality to the aims sought to be achieved?"

My formulation of the questions differs slightly from that used by the judge, and before us both counsel confined their oral submissions to the first and fourth questions, the issues of ambit and justification. They relied upon their written submissions in relation to the other questions. As everyone accepted, the structured approach is helpful but some of the issues do tend to overlap, and if any of the first three questions are answered in the negative or the fourth question is answered in the affirmative then, in relation to Article 14, the appeal of the Secretary of State must succeed. I turn therefore to the first question.

The Ambit of Article 5.

9. In relation to this issue our attention was invited to a number of domestic and European authorities, and to trace the way in which the learning has developed I propose to consider them in chronological order.
10. Webster v UK application 12118/86 was an application to the Commission by an American citizen detained in England, and eventually deported to France. He complained that there was discrimination against foreign nationals, who did not challenge orders for deportation but sought parole. That was disputed by the Secretary of State, and the complaint was found to be unsubstantiated, but the Commission did consider the jurisdictional issue. It noted that having been sentenced to serve 5 years imprisonment the applicant could have been expected to serve that sentence, but the Commission went on to say that –

"If a prisoner pre-release scheme were operated in a discriminatory manner, an issue could arise under Article 5 of the Convention, read in conjunction with Article 14."

On behalf of the UK government no submission seems to have addressed to that issue, and, as Mr Pannick points out, the decision was taken on other grounds, so it has limited persuasive force.

11. Similar observations are made about the next decision of the European Commission in Grice v UK application 22564/93. The applicant was a serving prisoner suffering from AIDS, who complained that aids sufferers were being discriminated against because unlike those suffering other medical conditions they were not released early on compassionate grounds. The Commission found no evidence of different treatment, but did say that where procedures relating to the release of prisoners appear to operate in a discriminatory manner -

"The Commission has held that this may raise issues under Article 5 in conjunction with Article 14".

The reference was to the decision in Webster.

12. That brings me to Petrovic v Austria [1998] 33 EHRR 307, a decision on which Mr Owen places considerable reliance. The applicant was a father seeking parental leave allowance which under domestic law was only available to mothers. That was said to violate Article 14 taken together with Article 8 (respect for private and family life), and the European Court did, at paragraphs 22 to 29 of its judgment, address that jurisdictional issue. It noted that Article 14 has no independent existence, and that Article 8 was not directly engaged because it did not impose any obligation on states to provide parental leave allowance. The judgment then continues-

"27. Nonetheless, this allowance paid by the state is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.

28. The Court has said on many occasions that Article 14 comes into play whenever 'the subject-matter of the disadvantage ... constitutes one of the modalities of the exercise of the right guaranteed' … or the measures complained of are 'linked to the exercise of a right guaranteed' …

29. By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that Article 14 -taken together with Article 8 - is applicable. "

Mr Owen submits that by granting parole States are able to demonstrate their respect for the right to liberty, and therefore the Parole scheme falls within the scope of Article 5. The argument is attractive, but it has to withstand the impact of later decisions.

13. In R v Governor of Brockhill Prison ex parte Evans (No 2) [2001] 2 AC 19 the House of Lords was considering a claim for damages for false imprisonment arising out of a miscalculation of a release date, which was only shown to be a miscalculation in the light of a later judicial decision. The governor's defence of justification was rejected on common law grounds, but the applicant had also relied on Article 5 and as to that Lord Hope said at 38B that for the detention to be lawful it must be lawful under domestic law, comply with the general requirements of the Convention, and not be open to criticism on the ground that it is arbitrary. Similar observations were made by Lord Hobhouse at page 46 to 47. In my judgment those observations do not really advance the argument in the present case.
14. R (Giles) v Parole Board [2004] 1 AC 1 is one of two authorities at the heart of Mr Pannick's submissions in relation to the ambit of Article 5. The appellant had been sentenced to an extended determinate term of imprisonment, and claimed to be entitled under Article 5 to an oral hearing before the Parole Board on the expiration of the punitive part of his sentence. Article 5(1)(a) permits lawful detention after conviction by a competent court, and at paragraph 25 Lord Hope said this means -

"(1) that it must be lawful under domestic law, (2) that it must conform to the general requirements of the Convention as to the quality of the law in question - its accessibility and the precision with which it is formulated and (3) that it must not be arbitrary because, for example, it was resorted to in bad faith or was not proportionate."

He referred to Evans (No 2) in support of that proposition, and continued -

"Detention in accordance with a lawful sentence of imprisonment imposed by a judge on the prisoner for an offence of which he has been convicted satisfied these requirements."

Lord Hope then turned to Article 5(4), the right to test the lawfulness of continued detention, and at paragraph 26 he said -

"Its purpose is to ensure that a system is in place for the lawfulness of the detention to be decided speedily by a court and for release of the detainee to be ordered if it is not lawful. The general rule, as I have said, is that detention in accordance with a determinate sentence imposed by a court is regarded as justified under Article 5(1)(a) without the need for further reviews of the detention to be carried out under Article 5(4). The question which (counsel) has raised is whether that rule, which undoubtedly applies to determinate sentences imposed under subsection (2)(a) can be applied also to determinate sentences imposed under section (2)(b). It was agreed that the answer to it is to be found in the jurisprudence of the European Court of Human Rights, to which I now turn."

Subsection (2)(a) authorised commensurate sentences, without any extension to protect the public.

15. Lord Hope then reviewed the European Authorities and in the course of that review he said at paragraph 41 that the judge in the Administrative Court in Giles -

"Understood the effect of the Strasbourg jurisprudence to be that the detention was lawful only if it continued to achieve the object for which it was imposed, and that no distinction was to be drawn in this respect between sentences which were determinate and indeterminate…. In my opinion however that is not the decisive factor. The critical distinction is that which the European Court has made between cases where the length of the detention is fixed by the court and those where decisions about its length are left to the executive. It is in the latter case only that new issues of lawfulness may arise in the course of the detention which were not incorporated in the original decision by the court."

Plainly the cases we are considering are not cases where the decisions about length of sentence are left to the executive.

16. At the end of his review Lord Hope said at paragraph 51 that it was plain that the basic rule continues to apply.

"Where the prisoner has been lawfully detained within the meaning of Article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which Article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which Article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not be at risk of becoming arbitrary."

17. Mr Owen is right to point out that in Giles what was claimed was the direct application of Article 5, not the ambit of Article 5, or whether issues were raised under Article 5 in conjunction with Article 14. But the appellant's challenge was in fact based on discrimination. He contended that he should enjoy the substantive procedural rights held to be necessary where discretionary life sentence prisoners have served the punitive (or tariff) term imposed by the sentencing court (see Lord Bingham at paragraph 4). If the arguments now being advanced are correct, then it could have been said on behalf of Giles that even if he could not establish a breach of Article 5 his claim was sufficiently within the ambit of that Article to justify its consideration under Article 14. I do not believe that possibility was simply overlooked by counsel and by the court. It was answered by the unanimous view of the House of Lords that the sentence that had been imposed satisfied the appellant's rights under Article 5 until the end of its term. There was for that period no residual right or freedom under that Article which the prisoner was enjoying or was entitled to enjoy and which Article 14 could be invoked to secure that he enjoyed without discrimination. Of course, if that is right then it may be necessary to reconsider what was said by the Commission in Webster and adopted in Grice. Petrovic seems to me to be distinguishable, because of the very different nature of the rights with which it was concerned. Nothing equivalent to the sentencing process could be said to have satisfied the claimant's rights under Article 8 for a period which included the time when he claimed parental leave allowance, so it was open to the court to say that by exercising their discretion to grant the allowance States demonstrate their respect for family life, and thus put the allowance within the scope of Article 8. If that were true of parole, then all of the speeches in Giles proceeded on a false premise, because although the original sentence was held to satisfy the requirements of Article 5 throughout the period of the sentence, the appellant never did lose his right to be considered for parole (see Lord Bingham at paragraph 11).
18. R (Smith) v Parole Board (No 2) [2004] 1 WLR 41 concerned a prisoner serving a determinate sentence who had been released on licence and had then been recalled by the Secretary of State for breach of his licence conditions. As required by statute his case was then referred to the Parole Board, which did not recommend his release. He challenged that decision on the basis that it had been taken without an oral hearing, which he said was required by Articles 5 and 6. For the Parole Board Mr Pannick submitted that the requirements of Article 5 were satisfied for the full length of the sentence period, including any period on parole, by the decision of the sentencing judge, and the decision in Giles was cited. That submission was accepted. At paragraph 23 I said -

"the decision to recall is not an infringement of the right to liberty in the case of a prisoner serving a determinate sentence who has been released on licence because his right to liberty for the period up to the end of his sentence was lost when he was sentenced. There being no right to liberty which has been infringed there can be no right to take proceedings to decide whether the detention is lawful. That has already been decided."

For reasons which are of no relevance in this present case the claim under Article 6 also failed.

19. Mr Owen is entitled to say, as he does, that in Smith this court was concerned with the direct application of Article 5, but if a prisoner on licence cannot put himself within the reach of Article 5 sufficiently to require an oral hearing before the Parole Board it is difficult to see how the ambit of that article can assist a prisoner in lawful custody as soon as he applies for early release. Reverting to the words of Article 14, what right or freedom within the ambit of Article 5 does the prisoner in custody enjoy which needs to be secured by Article 14? Of course, as Mr Pannick accepted, there are other articles of the Convention which are not satisfied by the sentencing process, such as Articles 3, 8 and 10, but we are not in this case concerned with those.
20. R (Douglas) v North Tyneside BC [2004] 1 All E R 709 was decided by this court after Giles and Smith, and concerned student loans for higher education. The claimant, aged 58, was a little too old to be eligible under the relevant regulations. He asserted, among other things, that the age barrier contravened Article 14 when read together with the right to education in Article 2 of the First Protocol to the Convention. Loan arrangements were found to be insufficiently related to the right to education for Article 14 to be engaged. As Mr Owen pointed out, it was recognised that there was no requirement on the state to subsidise but Article 2 could nevertheless be engaged. Petrovic was cited, and at paragraphs 54 to 55 Scott Baker LJ said -

"The bottom line is that the measures of which complaint is made have to be linked to the exercise of the right guaranteed.

The Secretary of State's argument is that the Student Support Regulations are not intended to promote the subject matter of Article 2. They are not to do with the right to education. Their purpose, as is set out in the evidence, is to encourage greater access to higher education primarily for students wishing to improve their skills and qualifications."

That was an argument which the court accepted, and in my judgment the reasoning in Douglas does not assist in the present case.

21. In R (Clift) v Secretary of State [2004] EWCA Civ 514 this court considered and upheld that part of the early release legislation which permits the Secretary of State to take an different view from the Parole Board in relation to sentences of fifteen years or more (see paragraph 4(3) above). For that purpose it was necessary to consider the ambit of Article 5. At paragraph 18 the Lord Chief Justice thought it arguable that in certain circumstances Giles and Smith could be distinguished to give a prisoner rights under Article 5(4) read together with Article 14, but in my judgment there is no room for that argument to succeed in the present case.
22. As submitted by Mr Pannick, and despite the persuasive submissions of Mr Owen, I am satisfied that in the light of Giles and Smith it is clear that the facts of these cases are outside the ambit of Article 5, and therefore neither respondent was in a position to rely on Article 14.

Material difference in treatment.

23. The conclusion which I have just expressed makes it unnecessary for me to deal with the remaining three issues which arise under Article 14 (see paragraph 8 above), but in deference to the oral and written submissions addressed to us I do propose to say something about them.
24. Mr Pannick accepted that the respondents were entitled to compare themselves with those serving similar sentences, but not liable to deportation, but he submitted that there was no material difference in their treatment.
25. In the case of Hindawi, and for anyone serving a sentence of more than 15 years, the Secretary of State was always going to be the final decision maker, and it was an advantage to Hindawi that the Secretary of State would have to consider his case without waiting for a favourable recommendation from the Parole Board. Furthermore, the Secretary of State did not have to be satisfied that a suitable release plan was in place. That was also true for Headley and although in his case the final decision for a fellow prisoner serving an equivalent sentence would be taken by the Parole Board, Headley was not disadvantaged by that because the Secretary of State adopted the same approach as he required of the Parole Board.
26. In my judgment Mr Owen is right in his submission that the exclusion of the Parole Board from the scheme as applied to those in the position of these two respondents does amount to a material difference in treatment, because the Parole Board does bring an independent body into the process, and that is significant.

Did the difference in treatment amount to discrimination?

27. Mr Pannick then submits that even if there was a material difference in treatment it did not operate to the disadvantage of those in the position of these two respondents, whose prospects of release on licence were at least as good as the prospects of release of prisoners considered by the Parole Board, and Mr Hough of the Sentence Enforcement Unit produces figures to support that submission. Mr Owen submits that the figures are irrelevant because once there is discrimination the court can infer detriment, and he also submits that in any event the figures produced are open to criticism. I do not propose to say much more about this issue in the context of this case, because it is unnecessary to do so. But I do recognise that the involvement of the Parole Board is potentially advantageous to a prisoner. The Secretary of State is likely to find a recommendation for release persuasive, coming as it does from an independent body rather than direct from those acting on behalf the prisoner. But that is not to say that in this type of case the claimant is entitled to succeed if on examination it appears that differences in treatment do not operate to his disadvantage.

Justification.

28. This is a more substantial issue. As I have already said, in paragraph 4(6) above, it was only in 1991 that prisoners liable to deportation began to have their applications for early release separately considered, and that was as a result of the reaction of the government of the day to the recommendations contained in the Carlisle Committee Report. The Committee pointed out that it was difficult to know what criteria to apply to prisoners liable to be deported, without a release plan or the prospect of supervision in this country. The Committee sought a distinctive legal framework, and it proposed, in paragraph 473 of its report, that those sentenced to more than 4 years imprisonment should be "excluded from parole eligibility", but that the Secretary of State should be empowered to release them once they reached their parole eligibility date, normally with a view to their being sent out of the country as soon as possible. That was the proposal which was implemented by the 1991 Act, so, Mr Pannick submits, it can be seen that the restriction of the remit of the Parole Board was a decision taken on advice and for sound reasons.
29. Of course the Parole Board could have been asked to retain the remit, to make use of the criteria subsequently used by the Secretary of State, and to have regard to the risk to others abroad posed by the prisoner if he were to be released, but the decision of Parliament not to involve the Parole Board was not arbitrary, and having regard to the rationale it was not appropriate for the Secretary of State habitually to by-pass the conclusion of Parliament by the use of section 32(2).
30. Mr Owen submitted that the 1991 Act went beyond the recommendations of the Carlisle Committee, which only sought a different regime. The committee may have failed to appreciate that very few prisoners are in fact deported soon after their parole eligibility date. They may seek to challenge their deportation order, and if released on licence they can, if necessary, be detained under immigration laws. Furthermore, when the Carlisle Committee reported there was no overt consideration of the risk that might be posed by released prisoners to persons abroad. That was not really considered to be material to the deliberations of the Parole Board until the decision of the Divisional Court in R v Parole Board ex parte White 16^th December 1994. So Mr Owen submits that really there is no convincing reason for the difference in treatment which the 1991 Act introduced, and that all prisoners seeking early release should be referred to the Parole Board.
31. In my judgment the discrimination did have an objective and reasonable justification, as explained in the Carlisle Committee report. It pursued a legitimate aim, namely to achieve a fair balance in the treatment of prisoners serving similar but not identical sentences, and was not disproportionate to the aim it sought to achieve. It may be that the time has now come to reconsider the question of whether any category of prisoners should not have to be referred to the Parole Board for advice when the time comes to consider their early release, but that is a matter for Parliament. Suffice to say that my conclusion in relation to the fourth issue is another reason why, in my opinion, these appeals in relation to Article 14 should succeed.

The Hindawi decision letter.

32. I return now to the letter of 2^nd April 2003 (see paragraph 2 above). In May 2002 the solicitors acting on behalf of Hindawi were diligent in preparing submissions to support his application for early release. One matter they explored was the current attitude of Syria, as compared with its attitude in 1986, and that was one of many submissions made to the Secretary of State by the solicitors in their letter of 15^th July 2002. It caused the Secretary of State to make enquiries, the results of which were conveyed to the solicitors in a letter dated 24^th January 2003, but when the decision came to be made it contained no reference to Syria. After a paragraph making the points in favour of the applicant the decision letter continued –

"The Secretary of State is concerned however that you have not developed sufficient insight or empathy towards the potential victims or their families. The Prison Probation officer reported in 2000 that you 'had divorced yourself from much personal responsibility for the impact of your actions upon not only Ms Murphy but also the potential victims on the aeroplane'. The Prison Probation officer reported at your first review that you minimised your offending and you were manipulative. The probation officer reports for your current review, that there is nothing in your attitude or circumstances that leads her to feel that anything of significance has changed.

The Secretary of State has looked for clear evidence in your reports to demonstrate that you have gained sufficient insight into the causes of your offending behaviour and developed strategies to prevent further offending and that you have shown victim empathy. In his view, the reports do not provide this reassurance.

For all these reasons the Secretary of State remains unconvinced that the risk of re-offending has been sufficiently reduced to allow early release and has therefore concluded that early release should not be approved."

I accept that it would have been better in the circumstances if something had been said about Syria, but the decision letter plainly did what it was required to do. It explained to the prisoner why his application was being refused. The reasons were personal to him, and had nothing to do with the attitude of Syria. As to what reasons should be given in a planning context Mr Pannick drew our attention to the speech of Lord Brown in South Bucks DC v Porter [2004] 1 WLR 1953 at paragraph 36. Allowing for the difference in subject matter I am satisfied that the reasons given to Hindawi met the criteria, and I would therefore allow the appeal on this ground also.

Conclusion.

33. In the light of my conclusions in relation to Article 14, and in relation to the challenge to the decision letter in the case of Hindawi, I would allow the appeals and set aside the orders made in the Administrative Court.

Lord Justice Sedley:

34. I agree that the Home Secretary's appeals succeed, but on the principal issue – referral to the Parole Board – I do so on a single and limited ground. I will explain why I find the other grounds upon which Lord Justice Kennedy founds his judgment much less easy to determine against the respondents.

Section 32(2) and the ambit of article 5

35. Section 32(2) of the Criminal Justice Act 1991 provides:

"It shall be the duty of the [Parole] Board to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners."

36. Mr Owen's case is not that the legislation and rules are incompatible with the Convention because they fail to make the Parole Board the final arbiter of early release of prisoners who are foreign nationals. Such a submission would, at least at present, encounter the decision of this court in R (Clift) v Secretary of State for the Home Department [2004] 3 All ER 338 upholding the legitimacy of the present system which makes the Home Secretary the final arbiter of early release of prisoners serving determinate sentences of 15 years or more, of whom Mr Hindawi is one. Mr Owen's case is that the Home Secretary can and therefore should act compliantly with the Convention, as required by s.6 of the Human Rights Act 1998, by always using his power under s. 32(2) to refer to the Parole Board the question of early release of determinate sentence prisoners who are liable to deportation as foreign nationals. He has in his favour the decision of the Divisional Court in R v Parole Board, ex parte White (16 December 1994) that there is nothing to stop the Parole Board considering risk to the public upon the prisoner's repatriation to another country.
37. To reach this point, nevertheless, Mr Owen has to establish, first, that this process lies within the ambit of Article 5; secondly that the present regime discriminates on grounds of national origin in denying some prisoners access to it, and thirdly that each of the two applicants has suffered or will suffer detriment by reason of the denial of access.
38. It seems to me that he fails on the first of these issues, not because it is logically impossible to bring early release during the currency of a lawful sentence within the ambit of art. 5, but because what he seeks to bring within its ambit is not, even potentially, a right to be released. It is at most an obligation upon the Home Secretary to take the advice of the Parole Board before forming his own view on early release. While I do not doubt the importance of the Parole Board's independent status and unique expertise in the assessment of risk to the public, or that the Home Secretary would be expected to follow its recommendation unless he had some very good reason for not doing so, neither of these things can generate a legal right out of advice obtained under s. 32(2).
39. This is in my judgment fatal, for this reason: that in order to engage Art 14 discrimination must relate to the enjoyment of a right. I do see real force in Mr Owen's argument that the denial of access to a right which, if obtained, would come within Art 5 must be sufficient to bring the individual within the "ambit" of Art 5 for the purposes of Art 14. Thus where Mr Pannick's submission was that no withholding of liberty during the currency of a lawful determinate sentence could come within the ambit of Art 5, Mr Owen points out that to detain a prisoner serving l5 years or less once the Parole Board has decided that he or she should be released must be a false imprisonment and so a violation of Art 5. Like Lord Justice Neuberger, I consider that R v Governor of HMP Brockhill, ex parte Evans (No.2) [2001] AC 19 supports Mr Owen's position.
40. Mr Pannick accepted in argument that if his scenario is correct, a law or rule which allowed women but not men to obtain parole would still not come within the ambit of Art 5 so as to attract the operation of Art 14. There must be something wrong with this. It is much more plausible that a person who, but for an exclusionary rule, would enjoy a right to liberty protected by art 5 can challenge the exclusionary rule if it is unjustifiably discriminatory. If so, it has to be because the rule is within the ambit of the right. I consider it perfectly legitimate to reason in this way because "ambit" is neither an autonomous nor a self-explanatory term: its meaning and content have to be drawn out of the Convention and its jurisprudence. I am fortified in my view by the remarks of Lord Woolf CJ in Clift (above) §18.
41. But absent a sought-after right, the argument loses its way. Here, for example, what the two prisoners say they have been denied is the Parole Board's advice to the Home Secretary under s.32(2). Neither in form nor in content is this a right, at least in the sense that it or its outcome can make the withholding of release a violation of Art 5. The only arguable right involved is a Hohfeldian right to have the Home Secretary take the Parole Board's advice, and I consider this too artificial and remote to come within even a reasonably generous concept of ambit. While I respectfully agree with much of Lord Justice Neuberger's reasoning, I am unable to concur with his conclusion that the subject-matter of the (undoubted) discrimination in the present two cases is, even contingently, within the ambit of an entitlement to early release.

Justification

42. Given what I agree with Lord Justice Kennedy is a material difference in treatment, and assuming that it can be said to operate necessarily or probably to a prisoner's detriment, I would have far more difficulty in finding the discrimination to be justified under Arts 5 and 14.
43. The only rationale Mr Pannick has advanced for the distinction is the recommendation of the 1988 Carlisle Report to which Lord Justice Kennedy has referred. As Mr Owen points out, the Criminal Justice Act 1991 did not adopt Lord Carlisle's recommendations in full - for example his proposal that candidates for deportation should not be eligible for parole at all. But what is more important is that the rationale of the distinctions made by the Carlisle Committee has faded to almost nothing. Under continuing pressure from Strasbourg, first discretionary lifers (Weeks v UK (1988) 10 EHRR 293; Thynne, Wilson and Gunnell v UK (1991) 13 EHRR 666), then young persons detained at Her Majesty's pleasure (Hussain and Singh v UK (1996) 22 EHRR 1), then mandatory lifers (Stafford v UK (2002) 35 EHRR 1121) have been brought within the definitive jurisdiction of the Parole Board. The only prisoners whose release is not now determined by the Parole Board are those serving determinate sentences of 15 years or more like Mr Hindawi (we are told that a petition for leave to appeal to the House of Lords in Clift is awaiting a public funding decision) and long-term prisoners like Mr Headley who, though otherwise eligible for a Parole Board decision on their early release, are foreign nationals liable to deportation.
44. While there may well remain force in the Parole Board's view, expressed to the Carlisle Committee (see §463 of the Report), that it was difficult to know what criteria they could sensibly apply where neither the implementation of the release plan nor the prisoner's supervision was to be in this country, McCombe J's conclusion on this issue seems to me difficult to fault. The only justification advanced to him had been the Carlisle Report. Of it, he said:

"It can be seen immediately that [Carlisle's] reasoning clashes with the decision in R v Parole Board, ex parte White… There it was held that the concept of 'risk' was not confined to risk to the United Kingdom public alone. Moreover, it is difficult to see how this squares with the role of the Parole Board with regard to life sentence prisoners who are liable to be removed. Evidence has not been advanced to reconcile these features with the regime proposed by the Committee and enacted by statute. In the absence of such explanation of these anomalies, it is not legitimate for the court to speculate as to the possible objective and proportionate reasons for the discrimination …"

The decision letter

45. While I consider it both discourteous and unfortunate that no reference at all was made to the changes in the Syrian regime on which part of Mr Hindawi's case relied, the reasons for refusing to release him had no connection with these and could not have been unsettled by reference to them. The only omission was to state this expressly; but the letter's silence says it almost equally clearly. This said, the omission is a departure from the high standard of decision-making that the courts have come to expect from Departments of State, and it is to be hoped that it was an aberration.

Conclusion

46. For reasons considerably more restricted than those of Lord Justice Kennedy, I agree that this appeal succeeds.

Lord Justice Neuberger:

47. The facts, the background law and the issues are clearly set out in the first eight paragraphs of Kennedy LJ's judgment. I would add the following to his summary of the early release provisions contained in the 1991 Act. A short term prisoner, ie one sentenced to a term of less than four years, is entitled to be released after serving half his sentence, such release being unconditional if his sentence was less than 12 months, and on licence if it was for more than 12 months - see s33(1)(a) and (b). Further, as soon as a long-term prisoner has served two-thirds of his sentence, he must be released on licence - see s33(2).
48. The first issue is whether either respondent is able to invoke Article 14. It is clear from the wording of Article 14, referring as it does to "the enjoyment of the rights and freedoms set forth in this Convention", that a complaint of discrimination contrary Article 14 cannot be freestanding. It must be in some way based on, or related to, another Convention right. In each appeal, the Convention right upon which the respondent seeks to rely is the right to liberty in Article 5(1).
49. However, it is common ground that the claim of neither respondent directly engages Article 5. That is inevitable in light of the decision of the House of Lords in R (Giles) -v- Parole Board [2004] 1 AC 1, and of this court in R (Smith) -v- Parole Board (No 2) [2004] 1 WLR 41. Each respondent contends that he is nonetheless entitled to invoke Article 14 because the issues to which his claim relates are "within the ambit" of Article 5.
50. It is apparent from the jurisprudence of the European Court of Human Rights ("ECtHR") that:

"Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter."

See Petrovic -v- Austria 33 EHRR 14, paragraph 22 citing Karlheinz Schmidt -v- Germany 18 EHRR 513, paragraph 22 and Van Raalte -v- Netherlands 24 EHRR 503, paragraph 33.

51. In paragraphs 28 and 29 of its judgment in Petrovic, the ECtHR stated that Article 14 was engaged when "the subject matter of the disadvantage … constitutes one of the modalities of the exercise of the right guaranteed" and that "by granting parental allowance states are able to demonstrate their respect for family life within the meaning of Article 8".
52. In Botta -v- Italy 26 EHRR 241, the ECtHR concluded that there was "no conceivable direct link" between the failure of the Italian authorities to enforce their own statutory requirements for the provision of facilities for the disabled at bathing establishments and the physically disabled applicant's right to a private life under Article 8 (see paragraph 35). In those circumstances, it is scarcely surprising that his claim under Article 14 also failed.
53. There are two decisions of this court which provide useful guidance as to whether Article 14 is engaged. In R (Carson) -v- Secretary of State [2003] 3 All ER 577 this court rejected the contention that Article 14 was engaged on the ground that the act complained of fell within the "ambit" of an Article 8 right. At paragraph 28, Laws LJ said:

"In the present case I am clear that the provision of Job Seekers' Allowance and Income Support has not been made by the United Kingdom legislature and executive out of compliance with any actual or perceived positive obligation arising under Art 8. Such positive obligations may arise where there is a 'direct and immediate link between the measures sought by an application and the latter's private and/or family life' see Botta … (para 34). Recognised instances include circumstances where the criminal law is required to offer protection for family life against particular dangers (see again Botta … (para 34). But there cannot, in my judgment, extend to include whole swathes of the state's social security system without embracing that system within the general duty vouchsafed by Art 8. That, however, would be contrary to the learning referred to in 26 above."

54. The "learning" there referred to is the jurisprudence of the ECtHR to the effect that Article 8 does not require the state to provide a home or "any positive obligation to provide financial assistance to support a person's family life …".
55. In my judgment, the essential difference between Carson and Petrovic is this. The Job Seekers' Allowance was not introduced by the UK government to meet or respect the rights of any individual to "his private and family life, his home and his correspondence", whereas the decision of the Austrian government to grant parental leave allowance was for the purpose of demonstrating the Austrian government's "respect for family life within the meaning of Article 8", to quote from paragraph 28 of the ECtHR's judgment in Petrovic.
56. I consider that that distinction serves to explain the reasoning and conclusion of this court in R (Douglas) -v- North Tyneside BC [2004] 1 All ER 709. In that case, this court rejected the contention that the age barrier for student loans for higher education did not engage Article 14 when read with Article 2 (the right to education). At paragraph 55, Scott Baker LJ cited the Secretary of State's argument, which he then accepted, in these terms:

"The Student Support Regulations are not intended to promote the subject matter of Article 2. They are not to do with the right to education. Their purpose, as is set out in the evidence, is to encourage greater access to higher education primarily for students wishing to improve their skills and qualifications."

57. In these circumstances, it appears to me that the ECtHR jurisprudence, as developed by the Court of Appeal, amounts to this. First, Article 14 gives rise to no freestanding right to an applicant to complain of discrimination. Secondly, for Article 14 to be engaged, it is unnecessary for an applicant to show that some other Convention right has been infringed. Indeed, it is not necessary for an applicant to establish that another Convention right is directly engaged (because, otherwise, cases such as Petrovic would have been otherwise decided). Thirdly, it is necessary for an applicant to establish that there is a link between the act of which he complains and the Convention right relied on (and there was none in Botta). Fourthly, in order to determine whether there is such a link, it is necessary to see whether the act complained of involves the state's implementation of a Convention right, or that the act is based on respect for a particular Convention right (hence the conclusions in Carson and Douglas).
58. As Lord Nicholls of Birkenhead said in paragraph 11 of his speech in Ghaidan -v- Godin-Mendoza [2004] 3 WLR 113 the test laid down by the ECtHR in Petrovic and developed by the Court of Appeal is "not free from difficulty". In the same paragraph, he also referred to domestic cases which showed a difference in approach, or possibly a difference in language, as to the strength or directness of the link required to another Convention right before Article 14 can be engaged.
59. The fact that Kennedy and Sedley LJJ (whose draft judgments I have seen) have different reasons for concluding that Article 14 is not engaged, whilst McCombe J concluded that it was engaged, can fairly be said to confirm the difficulty identified by Lord Nicholls. It is accordingly with real diffidence, that I have reached the conclusion that, in agreement with McCombe J, Article 14 is engaged in the present case.
60. To my mind, by granting the right to obtain, or the right to seek, early release to prisoners, the government demonstrates its respect for the right to liberty. To put it another way, granting prisoners early release constitutes one of the "modalities" by which the government enables the right to liberty under Article 5 to be exercised. I do not understand the Secretary of State to challenge the notion that at least one of the purposes of giving a prisoner the opportunity for early release is to enable him, in appropriate circumstances, to enjoy his liberty. Whether to accord early release involves balancing the interest and right of the community in the full sentence being served (because of punishment, deterrence, rehabilitation, and/or protection of society) against the right and interest of the prisoner in enjoying his freedom.
61. As I see it, the right of a long-term prisoner to be considered for early release involves a contingent right to freedom, because the right to be considered for early release will lead to the right to freedom, if:

i) the prisoner has been sentenced to more than 15 years and served more than half his sentence, and his release is recommended by the Parole Board, and the recommendation is accepted by the Secretary of State; or

ii) he has been sentenced to 15 years or less and has served more than half his sentence, and his release is recommended by the Parole Board.

62. Once a prisoner satisfies those requirements, he is entitled to be released, albeit on licence, and his detention in prison beyond the release date would, as I see it, be a breach of his rights under Article 5, which would sound in damages. That seems to me to follow from R -v- Governor of Brockhill Prison ex p Evans (No 2) [2001] 1 AC 19. It is clear that, in that case, the date on which the right to liberty was treated as having arisen was a date earlier than that on which the two year sentence imposed on the applicant expired, because she was entitled to early release after she had served half her sentence under s33(1)(b) of the 1991 Act. Any doubt about that is put to rest by the reference to s33 of the 1991 Act in the judgment of Judge LJ in the Court of Appeal at [1999] QB 1043 at 1070D-E. Further, because the sentence imposed on Ms Evans was for a term of more than 12 months, her early release must have been on licence.
63. In my judgment, the reasoning in Evans (No 2) makes it very difficult to contend that the right to early release on licence (at least once it is actually granted) does not directly engage Article 5. It seems clear that the applicant was only entitled to damages because she had the right to be released from prison on licence. It also seems clear that Article 5 was thereby engaged: see in particular per Lord Hope of Craighead at 37F-39F (Lord Browne-Wilkinson and Lord Steyn agreeing - see at 27D and 29D-E). In those circumstances, subject to being persuaded of any argument to the contrary, it appears to me that, where different categories of prisoner are given different rights so far as early release on licence is concerned, one is within the ambit of Article 5, and, therefore, Article 14 is, at least potentially, engaged.
64. The arguments against this conclusion would seem to be as follows:

i) The point that Article 5 was not engaged by a right to be released on licence was overlooked in Evans (No 2);

ii) The right to be released on licence in a case such as Evans was an automatic right conferred by s33(1)(b) of the 1991 Act, whereas the right to be released in the present case is contingent upon a recommendation by the Parole Board (in the case of Headley) or on the recommendation of the Parole Board and the agreement of the Secretary of State (in the case of Hindawi);

iii) The conclusion that the right to seek early release is within the ambit of Article 5 is not open to this court in light of the decisions in Giles and Smith (No 2).

65. The first argument, namely that the view of the majority of the House of Lords in Evans that the right to early release engages Article 5 was effectively per incuriam was not advanced on behalf of the Secretary of State in the present case, and in my view rightly so. Accordingly, I say no more about it and turn to the second argument.
66. It is true that a short-term prisoner such as the applicant in Evans was entitled to be released on licence after serving half her sentence, whereas long term prisoners, such as Headley, need the recommendation of the Parole Board (and, if sentenced to more than 15 years, like Hindawi, they also need the approval of the Secretary of State) before being released on licence. However, I do not consider that that would take long-term prisoners, at least once they have the right to apply to the Parole Board, out of the ambit of Article 5. Although the right to early release on licence for such a prisoner would be contingent on obtaining the recommendation of the Parole Board (and the agreement of the Secretary of State), the prisoner has the right to apply to the Parole Board for early release, and the right to expect the Parole Board to make a favourable recommendation (and the right to expect the Secretary of State to accept that recommendation) if satisfied that he has made out an appropriate case.
67. An unfavourable decision of the Parole Board (and indeed a rejection of a recommendation by the Secretary of State) which was wrong in law would, of course, be open to challenge by the long-term prisoner through the medium of judicial review.
68. It appears to me that the statutory right to be released from prison, albeit on licence, does engage Article 5. In those circumstances, I consider that the decision in Evans supports the view that a statutory right to seek parole does involve, albeit contingently, a right to liberty under Article 5, which, to my mind, tends to confirm that the right to seek parole is sufficiently linked with Article 5, or can fairly be said to be a manifestation of the state's respect for the right to freedom, that Article 14 is potentially engaged by its exercise.
69. In other words, although the link with an eventual Article 5 right can be said to be indirect, particularly in relation to a prisoner, such as Hindawi, serving more than 15 years (because he needs to satisfy the both Parole Board and the Secretary of State that he should be released), I do not consider that the link is too indirect. The right to liberty stands particularly high in the hierarchy of rights accorded to individuals in an open and democratic society. Accordingly the legal right to be considered for freedom, through the means of early release, while it might be said to be particularly tenuous if the approval of two entities is required, is, to my mind, sufficiently within the ambit of Article 5 for Article 14 to be engaged.
70. I turn to the third line of argument, which is how the Secretary of State primarily put his case, namely the effect of Giles and Smith (No 2).
71. The issue in Giles was whether it was a breach of a prisoner's Article 5 rights to deny him the opportunity of an oral hearing before the Parole Board in a case where his sentence was longer than it would otherwise have been because of the sentencing judge's view that there was a need to protect the public - see s2(2)(b) of the 1991 Act. In effect, the question was whether that element of the sentence was to be treated in the same way as the normal "commensurate" element (under s2(2)(a) of the 1991 Act) or in the same way as an indeterminate sentence. Lord Hope said that the question ultimately was

"whether a decision by a judge to take into account the factor mentioned in s2(2)(b) when he imposes a determinate sentence is compatible with Art 5(4) … read together with Art 5(1)(a)": see paragraph 21.

72. It does not appear to me that the answer to that question is likely to resolve the issue whether a right to early release pursuant to a recommendation of the Parole Board engages Article 5(1) let alone whether a right to seek early release by applying to the Parole Board is within the ambit of Article 5(1).
73. On analysis, I do not indeed consider that the decision or reasoning of the House of Lords in Giles does impinge on, let alone resolve, that issue. What Giles decided is that, where a prisoner is properly convicted, and given a determinate sentence, by a competent court, his right under Article 5(1) and 5(4) not to be deprived of his liberty without a judicial review is exhausted (subject to any right of appeal), because the judicial review has ipso facto taken place at the trial. In other words, the effect of the decision in Giles is that, once a prisoner is "lawfully detained … following the imposition of a determinate sentence after his conviction by a competent court" there is no right to a further review (subject to the normal appeal process of the courts): see per Lord Hope of Craighead at paragraph 51.
74. Thus, the effect of Giles is that, once a competent court has passed an otherwise unexceptionable sentence upon a prisoner, his Article 5 rights are exhausted. However, I do not consider that this means that, if the state introduces a system, under which certain prisoners, in certain circumstances, have a subsequent statutory right to seek early release, and, if it is granted, a statutory right to be released (in some cases subject to the decision of the Secretary of State), the system is wholly outside the ambit of Article 5. Although there is no Article 5 right to early release in principle, Giles does not prevent an early release system resulting in the creation of a fresh Article 5 right. To my mind, therefore, the reasoning in Giles does not affect the argument that the parole system should be instituted and exercised in a way which does not conflict with Article 14.
75. The fact that Article 5 cannot be invoked to justify a prisoner claiming the right to be granted early release where no early release system exists, does not mean that where an early release system exists, it is not within the ambit of Article 5 for the purposes of engaging Article 14. So, in Petrovic, the fact that Article 8, respect for family life, did not give rise to a right to parental allowance did not defeat a contention that the parental allowance scheme was sufficiently within the ambit of Article 8 to engage Article 14. Similarly, although respect for the family home, under Article 8, does not mean that a co-habitee must be given the right to succeed to a statutory tenancy, this does not prevent Article 14 being engaged if the legislature decides to give such rights to certain classes of co-habitee: see Ghaidan at paragraph 12. As was said by Laws LJ in paragraph 27 in Carson:

"It is also true that in establishing a system or regime to comply with a Convention obligation, a state may include within the system elements that are not strictly required by the Convention itself, as in the case of appeal rights in the context of Art 6; and where that is done, the distribution of those supererogatory rights must comply with Art 14: see Belgian Linguistic Case (No 2) (1968) 1 EHRR 252 at 283."

76. If the right to a parental allowance in Petrovic, the right to succeed to a statutory tenancy in Ghaidan or the right of appeal in the Belgian Linguistic Case had been subject to the applicant satisfying certain requirements, I do not consider that the outcome would have been any different: in each such case, Article 14 would still have been engaged. Hence, as I have said, it appears to me that the fact that, unlike a short term prisoner, a long-term prisoner does not have an automatic right to be released on licence after serving half his sentence, but needs the recommendation of the Parole Board, does not prevent Article 14 from being engaged. In the case of a long-term prisoner serving more than 15 years, it can be said that the penumbra of Article 5 are even paler, but I do not consider that, even in such a case, it can be said that one is outside the ambit of Article 5.
77. I turn to the decision of this court in Smith (No 2). In that case, the issue was whether a prisoner who was serving a determinate sentence and who had been granted early release, was entitled to require a hearing before the Parole Board under Article 5(4) when read with Article 5(1)(a), to challenge the decision to recall him. The Secretary of State had recalled him on the grounds that he had used drugs while released, and the Parole Board, which had to consider his representations challenging his recall and to advise the Secretary of State in that connection under s32(2), (3) and (4) of the 1991 Act, had rejected his written representations without a hearing.
78. The decision of the Court of Appeal in Smith (No 2), following Giles, was that the applicant's rights to a hearing under the combination of Article 5(1) and 5(4) were satisfied by the hearing and sentencing at the original trial. In those circumstances, at paragraph 23, Kennedy LJ stated that recalling a prisoner released under licence was "not an infringement of the right to liberty", because that right "for the period up to the end of his sentence was lost when he was sentenced".
79. In my view, that decision does not call into question the view that the right to early release, if granted by the legislature, is within the ambit of Article 5. The fact that recalling a prisoner who has been granted early release on licence does not infringe his Article 5 rights, does not mean that the existence of an early release system is not within the ambit of Article 5 for the purpose of determining whether Article 14 is engaged. I do not consider that Kennedy LJ's conclusion in Smith (No 2) is inconsistent with the proposition that if the statutory early release system results in a prisoner having the right to be released before the end of his sentence (either automatically as a result of the decision of the Parole Board or by virtue of the Secretary of State's decision on the advice of the Parole Board) he thereupon has a right to liberty falling within Article 5.
80. If, for example, a certain class of prisoner released on licence were prone to be recalled in certain specified circumstances, and another class of prisoner were not, then, in my view, a prisoner in the former class, who had been recalled, would, at least in principle, be able to argue that Article 14 was engaged. The fact that recalling the prisoner could not of itself give rise to an infringement of his Article 5 rights would not mean that unjustifiable discriminatory provisions governing the recalling of prisoners released on licence could not be challenged under Article 14.
81. In summary, it seems to me that the effect of the decisions in Giles and Smith (No 2) do not call into question the view that, if the legislature introduces an early release system which results in a prisoner being entitled to early release, Article 5 is thereby engaged. Indeed, I do not see how the contrary view could be consistent with the reasoning of the House of Lords in Evans (No 2), which I note does not seem to have been cited to the Court of Appeal in Smith (No 2): see at [2004] 1 WLR 421G-422E.
82. If it be the case that the right to early release engages Article 5, I consider that it follows that the right to be considered for early release is within the ambit of Article 5, and consequently, where there are discriminatory provisions between different types of prisoner in relation to the circumstances in which, or the basis upon which, they can seek early release, Article 14 is, at least in principle, capable of being invoked.
83. I draw some comfort from what Lord Woolf CJ said in paragraph 18 of his judgment in R (Clift) -v- Secretary of State [2004] EWCA Civ 514, if only to the extent that he did not appear to consider that it was by any means clear that Giles or Smith (No 2) ruled out the possibility of Article 14 being engaged in cases such as the two before us. I also draw a little support from what was said by the European Commission in Webster -v- UK, Application 12118/86 and Grice -v- UK, Application 22564/93, but I do not suggest that they carry matters much further. They are short observations in relation to applications which were held to be inadmissible, in circumstances where it seems likely that the UK government did not challenge the contention that Article 14 was engaged.
84. Given that Article 14 is engaged, it is then necessary to consider whether (a) there is a material difference in treatment; (b) whether the difference in treatment amounts to discrimination; and (c) whether the discriminatory difference in treatment can be justified. So far as the first and second of these questions are concerned, I agree with the reasoning and conclusions of Kennedy LJ.
85. As to whether there is a material difference in treatment, there can be no doubt that there is a difference in treatment, and the only question is whether it is material. In the case of Headley, the decision maker on the question of his early release would be the Secretary of State, whereas for the great majority of prisoners in his position, it would effectively be the Parole Board. Even if the Secretary of State applies the same criteria as the Parole Board, it appears to me self-evident that there would be a difference in treatment. In one case the decision is reached by a government minister, no doubt after, and normally following, advice he receives from his civil servants; in the other case, the decision is that of an independent body experienced on the topic of early release. In my judgment that constitutes not merely a material difference, but one which amounts to discrimination. As McCombe J said in paragraph 25 of his judgment, this is a view which "does not permit of great elaboration".
86. In relation to Hindawi, the Secretary of State is able to point out that, on one view, he is actually better off than most long term prisoners serving more than 15 years. They can only be granted early release if it is recommended by the Parole Board and agreed to by the Secretary of State, whereas Hindawi does not have to cross the hurdle of the recommendation by the Parole Board: he only needs the agreement of the Secretary of State. That is a beguiling argument, but it does not persuade me. As Kennedy LJ has said, the involvement of the Parole Board is of potential advantage to a prisoner, and the Secretary of State will normally find a recommendation for early release persuasive, not least because it comes from an independent and experienced body. In those circumstances, albeit with some hesitation, I have concluded that, even in the case of Hindawi, there is a material difference in treatment which is discriminatory in nature.
87. I turn then to the grounds upon which the Secretary of State seeks to justify the discrimination of which, at least in my view, the respondents are, in principle, entitled to complain. As already explained by Kennedy and Sedley LJJ in their judgments, the origin of the policy whereby the mandatory involvement of the Parole Board is excluded in the case of prisoners such as the respondents, who are liable to removal from the United Kingdom on release, is to be found in the reasoning and recommendations of the Carlisle Report. This was because it would be difficult, if not impossible, for the Parole Board to know what criteria to apply to prisoners liable to be deported, and, consequently, there would be no release plan or the prospect of supervision in this country.
88. When this legislation was first introduced, I consider that, in light of the law as it was understood to be, it would, notwithstanding the discrimination involved, have been justifiable for the reasons given in the Carlisle Report. It is true that the recommendations contained in paragraph 473 of the Report were not adopted in full, in that it suggested that long term prisoners who were liable to be deported should be "excluded from parole eligibility" altogether. However, I do not believe that the somewhat different arrangement introduced by s46 of the 1991 Act can be faulted for that. The essential point is that the Carlisle Report recommended, and the government apparently accepted, that the Parole Board was not the appropriate forum to consider early release in the case of prisoners who would then inevitably have to go abroad.
89. However, in agreement with McCombe J, I find it difficult to see how that justification can stand following the decision of the Divisional Court in R -v- Parole Board ex p White (unreported 16^th December 1994). In that case, the Divisional Court held that the concept of "risk" was not confined to risk to the United Kingdom public alone, as a result of which the Parole Board is entitled, indeed, in an appropriate case, required, to take into account the risk to the public in a country to which a released prisoner will go, once he is released. In those circumstances, the foundation for the Carlisle Report's recommendation, and the government's adoption of that recommendation (albeit with amendments), cannot stand, as I see it.
90. If White had only recently been decided, and if it had stood alone, then it might well have been arguable that the government should be given more time to change the law. However, the decision was reached many years before the present claims were brought. Furthermore, as was pointed out by McCombe J, the recommendation upon which the Secretary of State relies in this case is a little difficult to reconcile with the fact that the Parole Board is involved in considering the release of prisoners who are serving life sentences, and who are liable to be removed from this country when they are released.
91. In these circumstances, for my part, I would dismiss the Secretary of State's appeal, because I believe that each of the respondents has a justifiable complaint under Article 14.
92. However, I would allow the Secretary of State's appeal in relation to his letter of 2^nd April 2003 refusing early release of Hindawi. In that connection, I agree with the reasoning of Kennedy and Sedley LJJ.