QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the Application of Clift
|- and -
|Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
J Crow and S Kovats (instructed by Treasury Solicitors) for the Defendant
Crown Copyright ©
Mr Justice Hooper:
"I firmly believe that continued imprisonment would do little to reduce the risk of harm which I believe to be minimal at this stage."
The Secretary of State has considered all the documents prepared for your review for early release.
He notes that you have shown remorse for your offences. He also notes that reports state your behaviour in custody has improved considerably. However, this improvement has only occurred relatively recently, with a worrying pattern of assaulting other inmates during the earlier part of your sentence. Further, he notes that you received adjudication for disobeying an order during the period of your parole review.
He notes that reports on offence related work are missing, which is regrettable, and bearing this in mind had given very careful consideration to your own representations. Nevertheless, the offences of which you were convicted were of a serious nature, and the Secretary of State considers it significant that the psychologist's report prepared in respect of your parole application does not support early release. He notes that you have undertaken some offence related work but refuse to undertake some other recommended work. In the light of all the above, the Secretary of State considers that your release would represent an unacceptable risk to the safety of the public. "
"(ii) the focus has to be the risk posed in the time period between eligibility for release on parole (ie after half of the sentence) and non-parole release date (ie after two-thirds of the sentence); there is no indication in the reasoning of the Home Secretary that this has been his focus;
(iii) the risk posed by a prisoner has, in accordance with the directions of the Home Secretary to the Parole Board under s32(6) Criminal Justice Act 1991, to be weighed against the benefits to be obtained in terms of rehabilitation of an extra period of supervision; there is no evidence in the reasons that this balancing act has been carried out."
"(iv) the decision states that improvements are relatively recent: this is unreasonable because the reports from prisons as from 1999 showing that the improvement in his behaviour is sustained over a period of years;
(v) the decision states that Mr Clift has refused to do some recommended offending-behaviour work; this is not particularised, and stands in contrast to the account given in the prison reports of 1999, 2000 and 2001 which state that Mr Clift has done all course work set for him and thereby reduced his risk; the only reference to course work not done is the mention in the psychologist's report of work which Mr Clift declined to do in 1996, ie at the very early stage of his sentence and prior to the significant and sustained improvement in his behaviour noted in reports from 1999 on;
(vi) it is wholly unreasonable to place any reliance on report of the psychologist because (a) the writer is a trainee whose views deserve little weight compared to the expert Parole Board, (b) it relies on such out of date material, (c) is written without the benefit of seeing more recent accounts of course-work done, and (d) was not sufficient to dissuade the Parole Board from recommending release."
15. The submission is that it is a breach of Art 5 taken together with Art 14 that the Home Secretary should retain the power to determine the release on parole licence of only one group of prisoners, ie those who, like Mr Clift, are serving determinate terms of 15 years of more.
"3. Section 35 of the Criminal Justice Act 1991 provides:
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.
4. A long-term prisoner is, for the purposes of Part II (ss.32-51) of the 1991 Act, a person serving a sentence of imprisonment for a term of four years or more: s.33(5).
5. Section 50 of the 1991 Act provides, so far as presently material:
"(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 above, in subsection (1) for the word "may" there shall be substituted the word "shall" ….
(5) No order shall be made under this section unless a draft of the order has been laid before and approved by resolution of each House of Parliament."
6. Pursuant to s.50, Parliament approved the Parole Board (Transfer of Functions) Order 1998, SI 1998/3218 ("the 1998 Order"). The effect of the 1998 Order is that, in the case of long-term prisoners serving sentences of less than 15 years, the decision whether to release them on licence is made by the Parole Board alone.
7. Article 5 of the Convention 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:
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.
(8) Article 14 of the Convention 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."
"20. It appears to me that it will usually be convenient for a court, when invited to consider an art 14 issue, to approach its task in a structured way. For this purpose I adopt the structure suggested by Stephen Grosz, Jack Beatson QC and the late Peter Duffy QC in their book Human Rights: The 1998 Act and the European Convention (2000). If a court follows this model it should ask itself the four questions I set out below. If the answer to any of the four questions is No, then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are: (i) Do the facts fall within the ambit of one or more of the substantive convention provisions (for the relevant convention rights, see s 1(1) of the 1998 Act)? (ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparators') on the other? (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved? The third test addresses the question whether the chosen comparators were in a sufficiently analogous situation to the complainant's situation for the different treatment to be relevant to the question whether the complainant's enjoyment of his convention right has been free from art 14 discrimination.
21. The European Court of Human Rights first started to develop its art 14 jurisprudence in the Belgian Linguistics Case (No 2) (1968) 1 EHRR 252. The governing principles, however, were accepted by all the parties, and it is unnecessary to burden this judgment with further citation at this stage.
22. It is important to stress that this is only a framework, which may be particularly useful for those who come newly to the consideration of art 14 issues. There is a potential overlap between the considerations that are relevant when determining, at any rate, the last two, and possibly the last three questions. There may sometimes, therefore, be a need for caution about treating the four questions as a series of hurdles, to be surmounted in turn. In Nasser v United Bank of Kuwait  EWCA Civ 556 at ,  1 All ER 401 at ,  1 WLR 1868 Mance LJ observed, in effect, that questions (iii) and (iv) above tend to merge into another."
"... was there different treatment as respects that [Convention] right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparators') on the other?"
"Were the chosen comparators in an analogous situation to the complainant's situation?"
"The Claimant also claims to be in an analogous situation to long-term determinate sentence prisoners who are serving sentences of less than 15 years. However, the two groups are not in a relevantly similar position, because those sentenced to 15 years or more have by definition been convicted of more serious offences."
"did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?"
"If the Home Secretary retains the power to determine release in relation to the determinate sentence, but the Parole Board has the power of release in relation to the life sentence, there is a recipe for inconsistency."
"It appears to me that this is pre-eminently a field in which the courts should defer to the decisions taken by a democratically-elected Parliament, which has determined the manner in which public resources should be allocated for local authority housing on preferential terms."
"Parliament decided to continue to adopt the 1977 Act concept of 'a member of the tenant's family' when identifying who might succeed to a secure tenancy, but to introduce a measure of legal certainty, a concept prized by Strasbourg, when explaining with precision the type of close relative who should be entitled to be the first (and only) successor to a secure tenancy."
MR JUSTICE HOOPER: For the reasons which are now handed down, this application fails.
There are supplementary written submissions with which I shall now deal. First of all, on behalf of the claimant, written submissions have been made by Mr Owen QC and Mr Gledhill that I should grant permission to appeal to the Court of Appeal. I have considered those arguments carefully. They rehearse in large measure the arguments which were submitted to me during the course of the hearing. I have reached the conclusion that permission to appeal should be refused on the grounds that any appeal has no reasonable prospect of success, and there is no other good reason why permission to appeal should be granted.
Dealing with supplementary matters, I make an order that the Secretary of State is entitled to the costs of this hearing, subject, of course, given that Mr Clift is legally aided, to the proviso that any order for costs is not to be enforced without the leave of this court. I have already made an order dealing with the assessment of the claimant's costs of community legal funding.