England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE HOOPER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 April 2004

The Lord Chief Justice:

Introduction

1. The role of the Secretary of State for the Home Department in determining when offenders should be released from prison on licence has been progressively reduced. His role now is confined to those serving a determinate sentence of 15 years or more. In relation to these prisoners, because of the provisions of section 35 and 50 of the Criminal Justice Act 1991 ("the 1991 Act") together with the Parole Board (Transfer of Functions) Order 1998, s. I. 1998/3218 ("the 1998 Order"), the Secretary of State still has jurisdiction. In these proceedings the question which we have to determine is whether that remaining power of the Secretary of State contravenes Article 5 read with Article 14 of the European Convention on Human Rights ("the ECHR").

The Legislation

2. The relevant statutory provisions provide:

(i) Section 35 of the 1991 Act:

"(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 [Parole Board] release him on license.

[A long-term prisoner is for the purposes of sections 32-51 of the 1991 Act a person serving a sentence of imprisonment for a term of 4 years or more. (Section 33(5) 1991 Act).]

(ii) Section 50 of the 1991 Act gives the authority for making delegated legislation. It provides:

"(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) or (3) below shall have effect subject to the modifications so specified.

(2) In section 35, in subsection (1) for the word "may" there shall be substituted the word "shall"

(3) No order shall be made under this section unless a draft of the order has been laid before and approved by the resolution of each house of Parliament. "

3. The effect of the 1998 Order was that the Secretary of State's discretion to take a different view from that of the Parole Board was limited to prisoners serving sentences of 15 years or more. In the case of those prisoners, the Secretary of State retained a discretion to release them on licence if recommended to do so by the Parole Board.
4. The relevant Articles of the European Convention of Human Rights are Articles 5 and 14. The material provisions of which are:

Article 5 of the ECHR states, so far as presently material:

"(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."

Article 14 of the ECHR states:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Facts

5. A brief summary of the facts is all that is necessary as the facts have no direct impact on the outcome of this appeal. The appellant, who was born in 1966, was sentenced to a total of 18 years imprisonment in 1994 for offences of attempted murder and causing grievous bodily harm. At the relevant times he was a category A prisoner. He became eligible for parole on 13 March 2002 and on 25 March 2002 the Parole Board recommended his release. There was significant delay before the Secretary of State announced his decision on 15 October 2002 and the appellant therefore commenced judicial review proceedings. However, on 25 October 2002 the Secretary of State rejected the recommendation of the Parole Board that the appellant be released. The Secretary of State gave reasons for his decision. It is not in dispute that those reasons provide justification for the Secretary of State's decision. The only issue is whether the Secretary of State's residual power complies with Articles 5 and 14. It is, however, interesting to note that, when the question of the appellant's release was more recently considered, the Parole Board came to a different conclusion from that reached previously and did not recommend the appellant's release. However, since the hearing in the court below before Mr Justice Hooper, in which he gave judgment on 13 June 2003, the appellant has been released following a further recommendation in favour of release which was accepted by the Home Secretary.
6. Despite his release, the appellant continues to challenge the decision of Mr Justice Hooper that the residual powers of the Secretary of State under section 35 of the 1991 Act do not contravene Articles 5 and 14.
7. The parties are agreed that the correct approach when determining whether or not there has been a breach of Article 5 read with Article 14 in this case is to follow the guidance given by Brooke LJ in LB Wandsworth v Michalak [2003] 1 WLR 617.
8. This involves adapting an approach suggested in Human Rights: the 1998 Act and the European Convention (2000) edited by Steven Grosz, Jack Beatson QC and the late Peter Duffy QC, as a framework, and asking the following four questions:

i) Do the facts fall within the ambit of one or more of the substantive Convention provisions?

ii) If so, was there different treatment as respects that right between the complainant on the one hand and the other persons put forward for comparison ("the chosen comparators") on the other?

iii) Were the chosen comparators in an analogous position to the complainant's situation?

iv) If so, did the difference in treatment have an objective and reasonable justification?

9. So far as the present appeal is concerned I agree with the parties that these four questions provide a convenient framework. I, therefore, like the parties, propose to examine each question separately. However, before doing so, it is helpful to make one or two general observations. The first is that a long-term sentence can, as Mr Owen QC contends on behalf of the appellant, be split into different segments. There is the initial period of a sentence which has to be served before an offender is eligible to be considered by the Parole Board. This is a period of half the sentence. There is then the segment of between a half and two-thirds of the sentence during which he can be released on parole, but in the case of a prisoner serving 15 years or more, only if he is first recommended for parole and the Secretary of State agrees with the recommendation of the Parole Board. There is then the period between the two-thirds and the three quarter point of the sentence during which an offender will be in any event released if he is serving a long-term sentence and during which he will remain on licence subject to recall if he breaches his licence conditions or if he comes before the courts again and is sentenced for another offence. Finally, there is the last quarter of the sentence during which the licence conditions cease to apply subject to the power of the court under S116 Powers of Criminal Courts (Sentencing Act) 2000 if he commits a further offence. The different segments which exist in the case of a long-term sentence means that there are differences between a prisoner sentenced to a long-term sentence and a prisoner sentenced to a discretionary or mandatory life sentence who remains subject to having his licence revoked for the rest of his life.
10. As the terms of Article 14 make clear, Article 14 has no independent life of its own. It obtains its virility from its relationship with another Article. In this context the appellant contends Article 5. This does not mean that Article 14's relationship with Article 5 is entirely parasitic. It is in fact symbiotic so that the ambit of Article 5 together with Article 14 can be greater than that of Article 5 by itself. As was said in the Belgium Linguistics Case No. 2 [1968] 1 EHRR 252 at p283, para 9 in reference to Article 14:

"While it is true that this guarantee has no independent existence in the sense that under the terms of Article 14 it relates solely to "rights and freedoms set forth in the Convention", a measure which in itself is in conformity with the requirements of the Article enshrining the rights of freedom in question may, however, infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature … It is as though [Article 14] formed an integral part of each of the Articles laying down rights and freedoms." (See also the judgment of the Court in Abduaziz v UK [1985] 7 EHRR 471 at p499 para 71.)

11. It is common ground that a decision in favour of the Secretary of State in relation to any one of the four questions is fatal to the appellant's case. Mr Justice Hooper found in favour of the appellant on the first three questions. However, on the fourth question be found in favour of the Secretary of State, so this was fatal to the appellant's contention. Before us the Secretary of State challenges the answers given by the judge to the first three questions but, not surprisingly, endorses the judge's conclusion on the fourth question.
12. Although the appellant's notice of appeal indicated that he was proposing to contend that it was inappropriate for the Secretary of State to have any involvement in the release process, he did not pursue this point on the appeal. Mr Owen, on behalf of the appellant, confined his argument to supporting the judge's approach when answering the first three questions and showing his answer to the fourth question was wrong.
13. I turn to the four questions.

Issue One: Is the case within the ambit of Article 5?

14. It is part of the routine test for determining whether Article 14 could apply to particular conduct to ask whether the conduct falls "within the ambit" of one of the substantive Convention rights. (See, for example, Van der Mussele v Belgium [1983] 6 EHRR 163 at para 43). Limited further assistance is also given by the European Court in Petrovic v Austria [2001] 33 EHRR 14 at para 28 where the court stated: "Article 14 comes into play whenever the subject matter of the disadvantage … constitutes one of the modalities of the exercise of a right guaranteed" or the measures complained of are "linked to the exercise of a right guaranteed".
15. In support of his argument that the conduct of the Secretary of State would not be within the ambit of Article 5, Mr Crow, on behalf of the Secretary of State, relies strongly upon the recent decision of the House of Lords in R (Giles) v Parole Board [2004] 1 A.C.1. The claimant in that case was sentenced to a longer than commensurate sentence to protect the public. As a long term prisoner, he was entitled to be considered for release by the Parole Board and, after he had served the punitive part of the sentence, he applied by way of judicial review for a declaration that, having been sentenced in part to protect the public, he was entitled to an oral hearing before the Parole Board upon the expiry of the punitive part of his sentence and at regular intervals thereafter, in order to decide whether it remained necessary to detain him in order to protect the public. This contention was rejected both by the Court of Appeal and the House of Lords. As Lord Bingham of Cornhill said:

"In the present case there was nothing arbitrary about the sentence, which was announced and explained in open court and upheld by the Court of Appeal when refusing leave to appeal against sentence … The sentence left nothing to the Executive, since the Parole Board whose duty it is to consider release at the halfway stage of the sentence is accepted to be a judicial body."

As to Article 5(4), Lord Hope of Craighead made the position clear by saying:

"The general rule is that detention in accordance with a determinate sentence imposed by a court is justified under Article 5(1)(a) without the need for further review of the detention under Article 5(4) (see para 25 p24)."

If Article 5 is not in play, Mr Crow submits Article 14 cannot be in play.

16. An even clearer message is given by R (Smith) v Parole Board [2003] EWCA Civ 1269. Smith had been sentenced to six and a half years imprisonment and subject to an extended licence under section 44 of the 1991 Act (which extends the licence under which a prisoner is released under the early release provisions from the three quarter point of the sentence to the end of the sentence). The Home Secretary exercised his powers under section 39 of the 1991 Act to recall Smith to prison after he had been released from prison after serving two thirds of his sentence. His case was then referred back to the Parole Board in the normal way. If the Parole Board recommends release, then the Secretary of State has to give effect to the recommendation; but, if not, under section 39(6) the prisoner "shall be liable to be detained in pursuance of his sentence".
17. Representations were made by his solicitors in writing but Smith challenged the decision of the Parole Board rejecting his representations. Smith then brought proceedings for judicial review complaining of the lack of an oral procedure which he contended breached Article 5. In its decision, the Court of Appeal decided that the recall of an offender 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 part way through that sentence. His right to liberty up to the end of his sentence is lost by virtue of the sentence: there being no right to liberty which had been infringed, there can be no right to take proceedings to decide whether the detention is lawful. Again Article 5 is not in play. Lord Justice Kennedy in his judgment, with which Brooke LJ agreed, said:

"In my judgment 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."

18. I recognise that the authority of Smith is supportive of the arguments Mr Crow advances. This is that the initial sentence by a court justifies what happens thereafter. However, the authorities to which I have referred can still, arguably, be distinguished if Mr Owen's other arguments are right. There could then be, so it is argued, a process governing the appellant's release that is arbitrary and discriminatory. This could create a situation where making some but not all prisoners obtain both a recommendation for release by the Parole Board and the confirmation of that recommendation by the Secretary of State before they can be released offends against Article 5(4) read together with Article 14. This situation would not have been in the contemplation of the House of Lords in R (Giles) v Parole Board and the Court of Appeal in R (Smith) v Parole Board. It may be, as Mr Owen argues, that those authorities were not intending to exclude all reliance on Article 5 because of the existence of a proper sentencing process. However, if the difference in treatment is justified, then that would still defeat any invocation of Article 5 and Article 14. Mr Owen would then be prevented from relying on the helpful approach, from the point of view of his argument, of the European Commission in Webster v United Kingdom, application 12118/86 [1987] and Grice v United Kingdom, application 22546/93 [1994]. In Webster the Commission stated that: "If a prison release scheme were operated in a discriminatory manner, an issue could arise under Article 5 of the Convention read in conjunction with Article 14", while in Grice the Commission stated that: "where … procedures relating to the release of prisoners appear to operate in a discriminatory manner, [then] … this may raise issues under Article 5 in conjunction with Article 14".

Issue Two: Was there any material difference between the treatment of the appellant and those of his chosen comparators?

19. I turn to the second question. Mr Owen contended that the comparators of the appellant were those serving determinate sentences of less than 15 years, in relation to whom the Parole Board's decision would be final. He does not suggest that those serving discretionary life sentences are comparators. His reason for this is the different nature of a life sentence and a determinate sentence. In the case of a life sentence, it has two parts. The first part is to be served by way of punishment and deterrence; the second part of the detention is because of the risk that the offender poses to the public. This division does not apply to those sentenced to a determinate sentence. Mr Crow submits that the judge was wrong to find that there was any material difference of treatment between one category of long-term prisoner and the other. He submits all long-term determinate sentence prisoners have access to discretionary conditional release after serving half their sentences. The same reports are prepared, the same criteria are applied in deciding whether to grant release and the fact that the Secretary of State is a member of the Executive and the Parole Board is a judicial body is of itself of no consequence. As to the fact that two bodies are involved in considering release in the case of those serving the longest sentences, this is of no significance as they are both considering the same material.
20. In agreement with the judge, I do not accept this argument. As the results in the case of the appellant indicate, the fact that there are two bodies, both of whom legitimately can come to a different decision, demonstrates that there can be, and was in the case of the appellant, a difference in treatment. For your release to be subject to the decision of two decision makers rather than one constitutes, in my judgment, a material difference in treatment.

Issue Three: If there was a material difference between the treatment of the appellant and his comparators, were the chosen comparators in an analogous situation?

21. The circumstances of the two categories of comparators were so similar as to call (in the mind of the rational and fair minded person) for a positive justification for the less favourable treatment.
22. Once it is established that there is a difference in treatment, then there should be some rational explanation for that difference in treatment. The more discriminatory the treatment, the greater the need for justification.
23. I turn to the last question.

Issue Four: If issues one to three are determined in favour of the appellant, was there objective and reasonable justification for the difference in treatment?

24. It was vigorously contended by Mr Owen that there was no rational basis for distinguishing between those serving a sentence up to 15 years and those serving a sentence of 15 years and over. If the comparators had been those serving discretionary life sentences, then it does seem to me that, at least arguably, Mr Owen would have had a case for saying that there was discriminatory treatment. He could reasonably argue that, in many cases, the fact that a person is sentenced to a discretionary life sentence rather than a long determinate sentence means that he is regarded by the sentencer as a particular potential risk to the public. Yet, in the case of discretionary life sentences, the Secretary of State no longer has any positive role and the decision maker is the Parole Board.
25. The fact that the Secretary of State has no effective role is, however, for the reasons explained at the outset of this judgment. It was because of the former absence of a judicial decision as to which part of the sentence was for the protection of the public and which part was for punishment and deterrence. The Secretary of State's former role was removed so that the Executive was not involved. However, in the case of sentences for 15 years and longer, it is self-evident that the Secretary of State's involvement exists because of the gravity of the crime committed by those who are sentenced for such a long period of time.
26. The history of the legislation makes clear the reason for a distinction between the treatment of those sentenced for a lesser period and those sentenced for 15 years or over. It is not difficult to argue that any cut-off point can, in the case of individual prisoners, create results which are difficult to justify so far as the relevant circumstances of each is concerned. However, dividing lines do have to be drawn and, in my view, it is perfectly reasonable for the Secretary of State to draw a line and say that in relation to those prisoners who will, in the case of those sentenced to a determinate sentence, generally have committed the most serious crimes or have the worse record (or both), he should remain democratically accountable as Secretary of State and so have a residual discretion over their release. It follows that, in my view, while there is a difference in treatment, that difference in treatment is justifiable and, therefore, there can be no contravention of Article 5 read with Article 14.
27. I would endorse the way the matter was dealt with by Mr Justice Hooper at the end of his judgment. It was "the only sensible way of achieving the aim to choose a period of years even though the result in certain cases may be arbitrary. Any other test would not have the required measure of legal certainty. There could be an argument for making the cut-off point lower but that would not assist the claimant. The result is rational and proportionate".
28. That brings me to the final point which I should mention. That is the contention that was originally raised by the appellant that the Executive should, as a matter of principle, have no role in the discretionary release of prisoners. Mr Owen on the hearing of the appeal accepted this was not a point which he could argue before us and therefore it is sufficient if I record the position. The point was not argued in the lower court either.
29. I would dismiss this appeal.

Lord Justice Rix

I agree.

Lord Justice Carnwath

I agree.