England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mrs Justice Elisabeth Laing D.B.E.
CO/8292/2012; CO/3484/2014

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/07/2017

Sir Brian Leveson P :

1. The sentence of imprisonment for public protection ("IPP") was introduced into the law by s. 225 of the Criminal Justice Act 2003 ("the 2003 Act"). It provided for the mandatory imposition of an indeterminate sentence upon offenders who presented a significant risk to the public of causing serious harm from further serious offending and could follow conviction for a number of specified offences which carried a maximum punishment of imprisonment for ten years or more. The judge was required to specify the minimum period before which there was no eligibility for parole: this was calculated by reference to one-half of the conventional (but hypothetical) determinate sentence that would otherwise have been imposed. Parole, however, fell to be considered by the Parole Board which had to be satisfied that it was no longer necessary for the protection of the public that the offender be detained.
2. A statutory presumption of dangerousness and restrictive exceptions to the imposition of an IPP meant that offenders qualified for the sentence having committed crimes which would have justified a conventional determinate sentence measured in weeks or months as well as years. As a result, some offenders became eligible for parole very quickly whereupon their cases required consideration by the Parole Board. The result was well-documented problems for the National Offender Management Service and the Parole Board which were both overwhelmed by the large number of prisoners requiring assessments, sentence plans and access to courses to enable them to demonstrate their safety for release.
3. In an attempt to address concerns that offenders were being detained for months and years following parole eligibility either because they could not access courses or because of delays at the Parole Board, the criteria for the imposition of the sentence were amended by s. 13 of the Criminal Justice and Immigration Act 2008 ("the 2008 Act"). The effect of the amendments were, first, to remove the mandatory requirement to impose IPP and to give judges the power to impose it when certain criteria were met; secondly, to remove the presumption of dangerousness in s. 229; and, thirdly, to restrict the imposition of IPP to those offenders who had relevant previous convictions or where the offending warranted a determinate sentence of at least 4 years. On 8 May 2008, the Act was granted Royal Assent and the relevant provisions were brought into force on 14 July 2008: see article 2(1) and Schedule 1, paragraph 4 of (Commencement No 2 and Transitional and Savings Provisions) Order 2008 (SI 2008/1586), which was published on 17 June 2008.
4. Problems remained with the operation of the sentence and, by s. 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"), the sentence of IPP was abolished being replaced by a new life sentence the imposition of which was obligatory (unless unjust) following conviction for a second time of one of a defined group of violent or sexual offences where both previous and current offences have been met by or would call for, determinate sentences of 10 years or more: see Schedule 15B of the 2003 Act as inserted by Schedule 18 of LASPO. There is also a new form of extended sentence: see s. 226A of the 2003 Act inserted by s. 124 of LASPO. These provisions came into force on 3 December 2012 but were not made retrospective so that existing IPP sentences remained to be served by those upon whom they had been imposed notwithstanding that the sentence had been abolished.
5. This appeal concerns an IPP passed on the appellant on 26 June 2008, that is to say less than three weeks before the statutory provisions introduced by the 2008 Act came into force. It is common ground that had he been sentenced after 14 July 2008, having regard to the offences for which he was before the court, the law would have changed to his benefit and he would not have been eligible for an IPP.
6. Although the determinate term of his IPP was 8 months, the appellant was unable to demonstrate that he did not pose a risk to the public not least because of delays in accessing courses which might enable him to do so. On 3 August 2012, he commenced proceedings for judicial review. Initially, he was refused leave both in the Administrative Court and the Court of Appeal but, on 1 July 2013, before an oral hearing against that refusal could be heard, he was granted parole. On 19 September 2013, he was recalled to prison for failing to disclose the true nature of further offending. On 18 December 2013, his renewed application to the Court of Appeal was heard and he was granted limited permission by Vos LJ (as he then was); the case thereafter remitted to the Administrative Court. On 12 March 2014, he was released a second time to approved premises but, on 2 December 2014, again recalled for breach of his licence.
7. On 13-14 November 2014, the application for judicial review came to be heard by Laing J. The claims which Vos LJ had permitted to be argued, based on breaches of the European Convention on Human Rights ("ECHR") and the common law, were heard with claims by Terence O'Brien. So far as this appellant was concerned, the application was rejected: see [2015] EWHC 136 (Admin). Limited leave to appeal was subsequently granted by Hamblen LJ on grounds that Laing J was wrong to dismiss the claim on two grounds. The first was that, as a consequence of its duration and/or in the light of material legislative change, the Secretary of State was in breach of articles 3 and 5(1) of the ECHR. The second was that it was discriminatory (and thus in breach in breach of article 14 of ECHR, within the ambit of articles 3 and 5(1) or, unstated by Hamblen LJ, 7) by reference to those who had committed identical offences but were sentenced after 14 July 2008 (i.e. when the revisions to the 2003 Act brought about by the 2008 Act came into force). Although reference is made to article 7 in the grounds of appeal, it is only in the context of the article 14 claim but in any event was not within the limited permission originally granted by Vos LJ.
8. Hamblen LJ also directed that an appeal against sentence which the appellant had mounted to the Court of Appeal (Criminal Division) following a reference by the Criminal Cases Review Commission should be heard by the same constitution. The judges comprising this constitution have, therefore, heard both appeals but, whilst it was useful for the same constitution to be aware of the arguments in both appeals, the challenges are quite different. One, depending on principles of criminal law, was concerned with sentence. The other was concerned with detention and whether (and, if so, when) that detention failed to comply with the ECHR. In the circumstances, we have separated the two issues and provided a judgment in relation to each appeal. The decision in the criminal appeal is at [2017] EWCA 1052 (Crim).

The Facts

9. On 17 July 2007, the appellant (who was then one month short of 26 years of age having been born on 20 August 1981) was arrested and computers from his home and place of employment were seized. They were found to contain 705 indecent images involving young girls between the ages of 6 and 14 years. Following police investigation, on 30 May 2008, he appeared at the Crown Court at Ipswich where he pleaded guilty to three counts of distributing indecent images of children, fourteen counts of making indecent photographs of children and possession of indecent images of children. The case was adjourned for a pre-sentence report.
10. On 26 June 2008, the appellant appeared before His Honour Judge Goodin for sentence. He had two previous convictions for nine offences including (in 2004) making and distributing indecent photographs of children and also for offences of exposure (involving openly masturbating) in front of two 14 year old girls. On 21 September 2007 he was sentenced for those offences, and it was while subject to that sentence that the index offences were detected during which time he also accessed the internet in breach of bail conditions. This led to his remand into custody.
11. In his pre-sentence report, the probation officer expressed concern that, taking account of his convictions and other factors, the risk of reconviction was high. She said that there had been a clear escalation from viewing and distributing indecent images, to enticing young girls to send images, and into approaching young girls whilst masturbating and asking them to perform oral sex. The targeting had continued with internet use while on bail: he was registered under the Multi Agency Public Protection arrangements and assessed as posing a high risk of harm.
12. In the circumstances, the judge concluded that there was a significant risk of the appellant causing serious harm by the commission of further specified offences: his sexual behaviour was not in control. The offences admitted were specified offences within s. 224 of the 2003 Act (albeit that each had a statutory maximum of 10 years' imprisonment) and his previous convictions gave rise to the statutory assumption of dangerousness set out in s. 229. Because the appellant was out of control, he imposed concurrent indeterminate sentences of IPP with a tariff (or minimum term) of eight months. In other words, had it not been for his satisfying the statutory criteria for an IPP, the appellant would have received a determinate term of 2 years' imprisonment less time spent on remand in custody. In addition, he was made the subject of a Sexual Offences Prevention Order for a term of 7 years.
13. What happened following the imposition of the sentence is set out in detail by Laing J in her judgment at [6]-[24] which I gratefully adopt. In short summary, on 30 July 2008 a sentence objective was set for the appellant which required him to complete a core sex offenders treatment programme ("SOTP"), followed by further SOTPs in the community after his release. In August/September 2008 initial paperwork was sent to the public protection casework section ("PPCS"), for which the Secretary of State is responsible.
14. On 26 February 2009 the appellant's tariff expired but he had not then completed the SOTP. A first review by the Parole Board was originally scheduled for this date and was delayed (by agreement) to allow him to do so. In October 2009, the course having been completed in July 2009, his case was put forward for intensive case management consideration. This review noted that neither the structured assessment of risk and need ("SARN"), nor the post-programme review report from the SOTP were available. The next hearing was deferred until February 2010.
15. The SARN was completed on 10 December 2009. It concluded that the appellant presented a "very high risk of sexual re-offending", and recommended an extended SOTP (which could not be completed in the community). At the time, the appellant was detained in HMP Wayland, which had closed its sex offender wing and associated programmes. As a result, that month, he was transferred to HMP Bure although its programmes department was not set up until March 2010 and it was not fully staffed until April.
16. On 4 January 2010, the SARN was received by PPCS from HMP Wayland; it was provided to the Parole Board on 2 March 2010 when the hearing was deferred until 12 July 2010: given the conclusion that had been reached, this was not, perhaps, surprising. In any event, the hearing was further deferred when it transpired that the analysis of the psychologist instructed by the appellant and the prison psychologist were significantly different. Further delay arose from the difficulty of finding a date on which both psychologists could attend. The appellant began the extended SOTP in June 2011.
17. On 1 August 2011, some 30 months after the expiry of his tariff, the appellant's case was reviewed for the first time. The Board concluded that he represented "a high risk of serious harm to children and a medium risk to a known adult". It was asserted that he "continued to pose an unacceptably high risk of committing an offence which could cause serious harm and … the level of this risk is such that it could not be managed in the community". He was therefore unsuitable for either release or a move to open conditions. The following month, the appellant received notice that the review period set by the Secretary of State was 18 months (to allow for the extended SOTP a post-programme SARN and an assessment period thereafter).
18. Meanwhile, on 28 July 2011, the appellant was granted leave to appeal his sentence out of time but, on 5 October 2011 the Court of Appeal (Criminal Division) dismissed the appeal: see [2011] EWCA Crim 2533. In concluding that the judge was entitled to decide that the presumption of dangerousness should not be disapplied, the court (at [30]) made plain that its "central concern" was his moving to more serious contact offences that gave rise to a significant risk of serious harm, with the offences of downloading and distributing images offences looked at in the context of his other activities.
19. Thus, the appellant continued to serve his sentence. The extended SOTP was completed in November 2011 and, six months later, a claim for judicial review was intimated, being issued in August 2012. In that month, the appellant started a course ("Better Lives Booster") which he completed in November 2012 during which month an oral hearing before the Parole Board was directed. The SARN was completed in January 2013 and, by letter dated 2 May, the Board directed his release to approved premises. This was effected on 1 July 2013.
20. On 19 September 2013, for breach of his licence by failing to disclose the true nature of further offending to his offender manager, the appellant was recalled to prison. On 28 January 2014, a further Parole Board directed his release, again to approved premises. That release was effected on 12 March 2014 with the result that the hearing before Laing J was held after the appellant had been released and while he was on licence.
21. To bring the story up to date, on 28 November 2014, the appellant admitted further breaches of his licence (not involving the commission of offences, but including having unsupervised contact with children) as a result of which, on December 2014, he was again recalled. Directions were issued by the Parole Board but a further hearing arranged for May 2015 was deferred because of late provision of reports. On 26 November 2015, the Board declined to direct release and accepted the recommendation of the prison psychologist that he should undertake a further programme. As a result, the appellant remains in custody.

The Judicial Review

22. In a detailed and carefully reasoned judgment of 11 February 2015, Laing J dismissed the appellant's claim. She summarised the principles relevant to Article 5(1) from the Strasbourg jurisprudence (in terms which are not challenged and which we gratefully adopt) in this way (at [67]):

1. The purpose of article 5 is to protect people from arbitrary interferences with their liberty (Saadi v United Kingdom (2008) 47 EHRR 427 at paragraph 63: Saadi was a decision of the Grand Chamber).

2. Detention pursuant to a sentence after conviction will breach article 5(1)(a) if it is not lawful in domestic terms (ibid, paragraph 67).

3. Detention pursuant to a sentence after conviction will breach article 5(1)(a) even if it is lawful in domestic terms, if the detention nonetheless is, or becomes, arbitrary (ibid, paragraph 67).

4. Detention under article 5(1)(a) will be arbitrary if there is deception or bad faith by the authorities; or if the order to detain and the detention itself do not conform with the purpose of the restrictions permitted by article 5(1)(a); or if there is no relationship between the ground of permitted detention relied on and the place and conditions of detention (ibid, paragraph 69).

5. Detention pursuant to a sentence after conviction will breach article 5(1)(a) even if it is lawful in domestic terms if there is no longer a causal connection between the sentence and the detention (ibid, paragraph 71; James v United Kingdom, paragraph 189).

6. There is no objection in principle to preventive detention, or to detention for public protection (M v Germany (2010) 51 EHRR 41).

7. Unless there is a breach of the principles set out in paragraphs 69 and 71 of Saadi, the decision to impose a sentence and the length of sentence are matters for the national court (Saadi, paragraph 71; James, paragraph 204).

23. The judge referred to the differences of approach between the domestic and the European Court of Human Rights ("ECtHR"). Thus, in R(James) v Secretary of State for Justice [2010] UKHL 22, [2010] 1 AC 553, the three appellants had received sentences of IPP but were unable to take the necessary courses for, respectively, 5, 21 and 25 months after their tariffs had expired. The Secretary of State had accepted breaches of his public law duties in failing to provide courses but the House of Lords held that to break the causal link between sentence and length of detention and thus constitute a breach of article 5, a failure would have to last years, rather than months: see the analysis by Lord Brown at [48]-[51]. In subsequent proceedings in the ECtHR, however, it was held that one of the purposes of IPP was rehabilitation and that "a real opportunity for rehabilitation is a necessary element of any part of detention which is to be justified solely by reference to public protection": see James v UK (2013) 56 EHRR 12 at [209]. Thus, the applicants should have been given reasonable opportunities to take courses to reduce their risk (ibid at [218]).
24. Having reviewed these decisions, Laing J went on to consider the later (and binding) decision in R(Haney) v Secretary of State for Justice [2014] UKSC 66; [2015] AC 1344 (sub nom R v (Kaiyam) v Secretary of State for Justice) which recognised that one of the purposes of IPP was rehabilitation but refused to hold that detention during periods when courses were not provided constituted a breach of article 5(1). Rather, in those circumstances, there was a breach of article 5(4) the remedy for which was modest damages. The test required an examination of the circumstances and a consideration of the period as a whole with allowances for the fact that some periods of waiting (especially for intensive courses) was inevitable.
25. As to the merits in this case, although there were periods during his detention when the appellant was not provided with courses, the judge accepted the proposition (in relation to some of the delay) that he could have requested transfer to a different prison. Of more significance, she accepted that planning for his sentence had started early and that he had made good progress, the completion of SOTPs being only a small part of his overall progress. The judge was not satisfied on the balance of probabilities that he would have been released if courses were provided earlier than they were [81-82]. Applying these principles, Laing J found that the causal link between the sentence and the detention had not been broken.
26. Laing J further held that the amendment to the sentencing regime in July 2008 was irrelevant to article 5(1). Nor could this amendment engage Article 14. She said (at [86]):

"I am inclined to think that 'being a person who was sentenced to an IPP before 14 July 2008' is not an 'other status' for the purposes of article 14 (by analogy with R (Clift) v Secretary of State for the Home Department [2006] UKHL 484; [2006] 1 AC 484. The Supreme Court in Haney (at paragraphs 52 and 53) acknowledges a conflict between that approach and that of the ECtHR in Clift v United Kingdom Application No 7205/07, does not resolve it. But whether or not being such a person is such a status, such a person is not in a materially analogous situation to that of a person who was sentenced to an IPP after that date. If, contrary to my view, he is, then any difference in treatment is justified, for the very good reason that the statute changing the law about IPP came into force on that date." [86]

27. In relation to the claim made under article 3, the judge concluded that Vinter v United Kingdom (2016) 63 EHRR 1 made clear that the length of a sentence will only give rise to a breach in very exceptional circumstances. Laing J determined that the appellant had failed to show that his detention crossed that threshold.

Article 3

28. As to the facts, Mr Philip Rule for the appellant started by submitting that for offences which justified a determinate term of 2 years less time spent on remand (i.e. leading to a specified minimum term of 8 months which took remand into account), he had served a period of detention in excess of 8 years. Further, he had done so notwithstanding that the sentence had been abolished three weeks after it was imposed and the maximum for any single offence would have been 10 years (reflecting 5 years to serve) from which, in any event, he would have been entitled to a discount for his guilty plea. He argued that, following Vinter v United Kingdom, the test for a sentence becoming grossly disproportionate under article 3 was by reference to "the gravity of the crime". Thus, Laing J erred in addressing proportionality in terms of possible future conduct instead of looking at the gravity of the past offence. Even if this were legitimate, the present circumstances could not justify the egregious length of detention considering the circumstances.
29. On behalf of the Secretary of State, Simon Murray submitted that Vinter v United Kingdom required that "very exceptional circumstances" exist before the length of a sentence could breach Article 3 and that the threshold for degrading treatment was high (see Costello-Roberts v United Kingdom (1993) 19 EHRR 112 and R v Lichniak [2003] 1 AC 903 per Lord Bingham at [16]). He also noted, first, that at the time of the hearing, the appellant had been released on parole and so was not, at that time, detained (which would not disclose any element of inhuman or degrading treatment: see V v United Kingdom (1999) 30 EHRR 121 per the Commission at [118]). Secondly, no authority had been cited for the proposition that length of sentence alone was sufficient to justify a breach of article 3 (without also leading to a violation of article 5 which is discussed below).
30. In my judgment, Mr Rule has not approached this issue from the correct direction. First, I would not accept that the concept of IPP (which was a lawful sentence at the time that it was imposed) means that the overall period the appellant has spent in custody must be measured against and be consistent with the gravity of the offence. IPP was a precautionary sentence. Having served the minimum tariff, the appellant became eligible for release on parole provided that he did not create a risk to the public. Twice, he has been released and, after each occasion, he has acted in breach of licence conditions intended to protect the public. It is for breach of licence conditions that he has been recalled: the justification for these recalls has not, as far as we have been told, been challenged. He is in custody not because of the gravity of his original offending but because of the risk that breach of his licence created for the public.
31. Furthermore, neither would I accept that the correct measure for testing whether a sentence is grossly disproportionate under Article 3 is, without more, by reference to the gravity of the original offence. Vinter v UK does not support this approach. Besides emphasising that a sentence would only become grossly disproportionate in rare and unique circumstances (at [102]), the Grand Chamber (which was dealing with the very different circumstances of the compatibility of a full life tariff which did not permit of parole) enunciated its position in these terms at [108]:

"First, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. No issue arises under art.3 if a life sentence is de jure and de facto reducible.

In this respect, the Court would emphasise that no art.3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because states have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender's continued detention where necessary for the protection of the public. Indeed, preventing a criminal from re-offending is one of the "essential functions" of a prison sentence. This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the state's positive obligation to protect the public; states may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous."

32. Mr Rule also advanced an argument that the IPP provisions had to be read subject to the maximum sentence for the offence which fell to be dealt with and that the 2003 Act being a penal statute should be read narrowly and "with some strictness" (see R v Waya [2013] 1 AC 294 at [8] dealing with confiscation). He relies on what Parliament believed it was doing in passing this legislation and that, were it to be otherwise, the vital yardstick of proportionality would be lost. That submission utterly ignores the terms in which the legislation was passed and the fact that it was specifically designed to protect the public from those who were considered a risk whether or not the offence of which they had been convicted itself justified (or could justify) an indeterminate sentence: the offences of which the appellant was convicted were specified in terms by the 2003 Act as potentially triggering the provisions. It would have been a simple matter to restrict the sentence (as the 2008 Act provided) or to ensure that it was passed only in circumstances where the maximum sentence for the offence was life imprisonment.
33. Mr Rule effectively articulates the same argument by submitting that where detention pursuant to a sentence of IPP exceeded the statutory maximum for an equivalent determinate sentence for the same offence, it was no longer in accordance with the law. That argument is equally without merit and that it should now emerge, for what appears to be the first time, 14 years after this controversial legislation was passed and over 4 years since it was abolished underlines the true extent to which it is wrong.
34. Suffice to say, in relation to article 3, Laing J exercised her discretion and judgment in concluding that the appellant's circumstances did not meet the threshold that this provision identifies. Not only was this a conclusion she was entitled to reach, but it is one with which I agree.

Article 5(1)

35. Turning to article 5(1), in addition to the argument that by detention exceeding the statutory maximum for the equivalent determinate offence, it was no longer in accordance with the law, Mr Rule made two submissions. First, he argued that the causal link between the detention and the offending had been broken, either by the passage of time or by subsequent changes to the law. Second, he submitted that the IPP system had failed to deliver proper opportunities for the rehabilitation of the appellant. As to the subsequent change in the law, I shall deal with that argument in the context of the further challenge based on article 14.
36. As to the first, Mr Rule submits that there has been a breakdown of the IPP system to deliver the objective of rehabilitation in the case of the appellant. The requirement that he needed an extended SOTP was identified in December 2009, yet it was 18 months before it was provided at a prison in which he was located. Further delays are compounded by his present detention waiting an HSP course which is also in serious state of under-provision. In addition, there were delays in the tariff expiry review in part from failures in sentencing planning and two failures to provide reports.
37. Mr Rule relies on R (Kaiyam) v Secretary of State for Justice [2015] AC 1344 as establishing the requirement of a reasonable opportunity to undertake rehabilitative courses and refers to [69] which records the definition by the Secretary of State of what (in the case of Massey) was regarded as a reasonable opportunity to build on partial progress made. That fact-specific finding is of no value in the different circumstances of this case. To be fair, however, Mr Rule does not challenge the finding that the delays in the provision of an extended SOTP amounted to a breach of article 5 in any aspect. He refers to the combination of this feature, and the parole hearings delay as compounded by the present delay in the provision of an HSP course and therefore argues that there is a systemic fault which impacts on the potential re-release of the appellant.
38. Laing J dealt with this argument by reference to the decision of the Grand Chamber in Saadi v UK (supra) which enunciates a general principle that detention will be arbitrary where there has been an element of bad faith or deception or where there is no genuine conformity with the purpose of the restrictions permitted by article 5(1) (see [69]) but otherwise, the ECtHR goes on (at [71]):

"… as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities."

39. On the facts, Laing J found that the causal link between sentence and detention was not broken (see [72] and [77]). First, the appellant met the statutory test for dangerousness and had been determined to pose a risk of harm to the public. Second, far from allowing him to languish in custody, taking no steps to assist him to address the issues that would and ultimately did concern the Parole Board, he had been on courses, had twice demonstrated that he should be released and, on both occasions after release, had breached the terms of the licence designed to minimise the risk to the public such that he was recalled. On the first occasion, he was released quite quickly; on the second, the Parole Board determined that he had to undertake further training and courses. It is not possible simply to add up the time spent in custody and relate it to the nature of the index offending: that entirely ignores the part of the sentence designed to protect the public and the requirement that he learn to live within the terms of his licence thereby providing reassurance that he is not such a risk.
40. As for the courses, recognising the decision in R (Haney) v Secretary of State for Justice [2014] UKSC 66, [2015] AC 1344 that one of the purposes of IPP was rehabilitation (so that failure to provide courses was breach of an implicit duty provided by article 5 sounding in modest damages), Laing J noted that the requirement should not be judged by "standards of perfection which would be unreasonable, bearing in mind the number of prisoners … and … the limits on courses facilities and resources in the prison system" (see Haney at [42]) so that the overall period should be considered as a whole with allowance for waiting and delays inevitable in the system. The question should be whether the prisoner was offered a reasonable opportunity to reform himself and to show that he longer presented an unacceptable risk to the public (ibid [48]). Laing J went on (at [77]):

"In assessing the reasonableness of an opportunity for rehabilitation, the court must take into account all the circumstances; the prisoner's history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use made of opportunities for rehabilitation."

41. I entirely agree with this approach to the issue and with the recognition by the judge that there were periods of delay but, equally, I endorse her view that planning for sentence appears to have started early and progress (not simply measured by courses) made. She was also right to conclude that earlier provision of courses would not necessarily have made a difference: after release following courses, the appellant breached the terms of his licence and was recalled not as a punishment for breach but because of concern as to the risk that he posed to the public. Otherwise, he would have been released again. Far from persuading me that the judge was wrong to reach the conclusion that she did, again, I am entirely satisfied that she was right to do so.

Article 14

42. Mr Rule challenges the appellant's continued detention based on the fact that the sentence of IPP is no longer available as a matter of law such that, in some way, the change of law impacts on the legality of the original (or, at least, continued) detention. This argument is otherwise articulated on the grounds that article 14 prohibits discrimination and that, contrary to R (Clift) v Secretary of State for the Home Department [2006] UKHL 484 [2006] 1 AC 484, and consequent upon the decision of the ECtHR in Clift v United Kingdom [2010] ECHR 1106 (appln. 720/07), being a person sentenced to IPP prior to 14 July 2008 is 'other status' within the meaning of article 14.
43. As to the proper approach to the concept of 'other status' in article 14, I can do no better than refer to the decision of the Divisional Court in R (Stott) v Secretary of State for Justice [2017] EWHC (Admin) 214 in which Clift is analysed both domestically and in the ECtHR along with the subsequent decisions in Haney (supra) and R v Docherty [2017] 1 WLR 191, [2016] UKSC 62. Unless and until the Supreme Court revisit the House of Lords decision in Clift, it remains binding.
44. Laing J concluded that, in the light of Clift in the House of Lords, article 14 was not triggered but she observed that, in any event, any difference in treatment was justified "for the very good reason that the statute changing the law about IPP came into force on that date". Subsequent to her decision, entirely consistently with it, Docherty was decided, dealing specifically with the issue of discrimination arising from the change of the law relating to IPPs (albeit the total abolition of the sentence by LASPO in 2012). In his judgment (with which all members of the Court agreed), Lord Hughes dealt with the issue in these terms (at [63]):

" The suggested discrimination is said to arise as between a defendant in the position of the appellant, and a defendant who committed an identical offence on a similar date, but who was convicted on 4 December 2012. It is certainly true that the effect of the Commencement Order is that IPP is available to be imposed in the case of the appellant but not in the case of that comparator. The appellant submits that this discriminates objectionably against him on grounds of "other status", namely either (i) his status as a convicted person prior to 3 December or (ii) his status as a prisoner who is subject to an indeterminate sentence. Assuming for the sake of argument that status as a prisoner subject to a particular regime can in some circumstances amount to sufficient status to bring article 14 into question (Clift v UK [2010] ECHR 1106), it cannot do so if the suggested status is defined entirely by the alleged discrimination; that was not the case in Clift. For that reason, the second suggested status cannot suffice. As to the first, even if it be assumed in the appellant's favour that the mere date of conviction can amount to a sufficient status, which is doubtful, the differential in treatment is clearly justified. All changes in sentencing law have to start somewhere. It will inevitably be possible in every case of such a change to find a difference in treatment as between a defendant sentenced on the day before the change is effective and a defendant sentenced on the day after it. The difference of treatment is inherent in the change in the law. If it were to be objectionable discrimination, it would be impossible to change the law. There are any number of points which may be taken as triggering the change of regime. The point of conviction is clearly one, and the point of sentence is another. Neither is, by itself, irrational or unjustified."

45. Mr Rule sought to distinguish the case on the ground LASPO enacted a different regime whereas the 2008 Act simply removed IPP in comparable circumstances and did not raise the question of alternative sentences to achieve a comparative effect. That is a distinction without a difference. In 2008, Parliament changed the eligibility criteria for the sentence prospectively but it had no retrospective effect in relation to sentences passed prior to the implementation of the change. LASPO removed the sentence (putting into place alternative forms of sentence where future risk was established): it also had no retrospective effect in relation to sentences passed prior to the implementation of the change of law. This argument should have been abandoned after Docherty was decided.

Conclusion

46. In my judgment, Laing J was correct in her views on each aspect of this case. I would dismiss the appeal.

Thirlwall LJ :

47. I agree.

Gilbart J :

48. I also agree.