Case No: CO4732/2002
Neutral Citation Number: [2003] EWHC 1337 Admin
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 13th June 2003

Before: 

THE HONOURABLE MR JUSTICE HOOPER

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Between :

	The Queen on the Application of Clift	Claimant	
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	Secretary of State for the Home Department	Defendant	

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(Transcript of the Handed Down Judgment of
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T. Owen Q.C. and K Gledhill (instructed by Pattersons) for the Claimant
J Crow and S Kovats (instructed by Treasury Solicitors) for the Defendant

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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Hooper:
1.	The claimant challenges a determination by the defendant on 25 October 2002 that the claimant was not suitable for release from prison at that time.
2.	The claimant was born in 1966.  In 1994 he was sentenced to a total of 18 years’ imprisonment for offences of attempted murder and causing grievous bodily harm with intent.  According to one report (132) he accepts now that he shot a person who in fact was “an innocent party”.  He remains a category “A” prisoner. 

3.	He became eligible for parole on 13 March 2002 and on 25 March the Parole Board recommended his release.  There were a number of reports about his progress in prison and a parole assessment report completed on 16 November 2001.   In that report, the officer, under the heading “Recommendations”, wrote: 
“I firmly believe that continued imprisonment would do little to reduce the risk of harm which I believe to be minimal at this stage.”  
4.	The Parole Board also had before it a report from Katy Farmer described as a “psychologist” and in brackets as a “forensic trainee”. The report was co-signed by the “Head of Programmes”.  That report was prepared after an interview of one hour with the claimant, after having spoken to members of the staff who have had contact with the claimant and after having read the available documentation.  Miss Farmer refers to the claimant’s 17 adjudications, four of which were for assaults and one of which dated from December 2000.  She also mentions adjudications for fighting, disobeying a lawful order and using threatening and abusive language.  While she saw very encouraging changes in recent times in his behaviour, she reached the conclusion that he was not suitable for release on parole at the time because there were still outstanding areas of risk that he needed to address.
5.	For the reasons which I shall set out below the claimant came into that category of prisoner sentenced to a determinate sentence totalling fifteen years’ imprisonment or more, for whom the decision to release is made by the Secretary of State following the decision of the Parole Board to recommend the prisoner’s release.

6.	It is submitted on behalf of the claimant that the Secretary of State’s decision not to release the claimant was irrational.  In his skeleton argument Mr Owen Q.C. submits that very good reasons must be given by the Home Secretary for rejecting the Parole Board’s recommendations.  That, in my judgment, overstates the position.  The Secretary of State must of course justify the conclusion he reached and the conclusion must be one that was reasonably open to him.  He gave as the reasons the following:

“Reasons.
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. ”
7.	Mr Owen relies on the criticisms of these reasons in the skeleton argument (on which he was content to rely).  The first two criticisms are:   
“(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.”
8.	As to both, they are obvious and well known to any decision maker in this field.  They do not need spelling out. 
9.	I turn to the other criticisms:  
“(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.”
10.	As to (i), the defendant was quite entitled to describe the improvement as quite recent- starting in 1999.  As to (ii), the claimant’s attitude in 1996 remains relevant particularly against the background of the adjudications and the psychologist’s findings as to the claimant’s present attitude towards the offence and offending.  As to (iii), there is no merit in that criticism- the weight given to the report is a matter for the decision maker.   Her findings as to present attitude based on what he said to her clearly give rise to concern.
11.	It cannot possibly be said that his conclusion is irrational.  Both the defendant’s decision and, I shall assume, that of the Parole Board are rational, in that they fall within the range of decisions open to a reasonable decision maker on the facts.  I note, however, that at the most recent annual review the Parole Board decided not to recommend the claimant’s release. 
12.	I turn to the principal ground of this application expressed in the claimant’s skeleton argument in the following way:
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. 
13.	Mr Crow, in his skeleton argument, set out the relevant legal framework. 
“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.”
14.	I add only two further points.  Long-term prisoners must be released (if not released before) on licence having served 2/3rds of the sentence. Secondly, prior to the 1998 order referred to in paragraph 6 by Mr Crow, the appropriate period under the preceding order was one of less than 7 years.
15.	It is agreed by counsel that the approach I must adopt is that laid down by Brooke LJ in Wansdsworh LBC v. Michalak [2002] EWCA Civ 271, [2002] 4 All ER 1136, paragraphs 20-22:
“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 [2001] EWCA Civ 556 at [56], [2002] 1 All ER 401 at [56], [2002] 1 WLR 1868 Mance LJ observed, in effect, that questions (iii) and (iv) above tend to merge into another.”
16.	Mr Crow, whilst reserving the right to argue the point should there be an appeal, accepted that the answer to question 1 is: “Yes”.  Legislation making provision for early release on parole falls sufficiently within the ambit of Article 5(1) to engage Article 14.  This is  notwithstanding that a failure to make such provision would not be a breach of Article 5 in the light particularly of the interpretation by the domestic courts and the ECHR of Article 5(4). 
17.	I turn to question 2:
“... 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?”
18.	Mr Owen, for the claimant, submits that the relevant comparators are those who are serving a sentence of between 4 years and less than 15 years.  I cannot agree.  Given that the claimant is serving a sentence of 18 years’ imprisonment, it could be argued that those serving less than 15 years are not relevant comparators and that the case fails on that basis alone. Nonetheless, counsel asks me to approach this case on the basis of principle and examine the lawfulness of a 15 year cut-off.  It seems to me that the relevant comparators to those serving 15 years and more are those serving sentences of a length less than, but close to, 15 years, that is those serving between about 12 years and less than 15 years.    Persons in that category have been sentenced to a substantial sentence but, given the absence of a strict mathematical model for sentencing, those, for example, who receive 15 years could have received 14 years and those who received 14 could have received 15 years.   
19.	Is there “different treatment” between those who are serving just less than 15 and those serving 15 and more?  Mr Owen, in oral argument, submitted that the difference lay in the number of decision makers-   a prisoner in the under 15 years group only has one decision maker, a person in the 15 and over group has two. 
20.	Mr Crow argued that there was no different treatment.  Both groups are, he submits, subject to the same regime.  Both are entitled to a decision on the same material and applying the same test.  For those serving under 15 years, the decision is made by the Parole Board.   For those serving 15 years or more, the decision is made by the Secretary of State under the power given to him by section 35.  There is only one decision maker, the Board for the first group and the Secretary of State for the second group.   There is no merit, he submits, in the argument in the claimant’s skeleton submissions that the Board is a “judicial body” whereas the defendant is a politician. If the only decision maker was the Secretary of State, there could be no complaint, Article 5(4) not applying.  There can, therefore, be no complaint if the Board makes some of the decisions and the defendant the others. 
21.	In reply, Mr Owen described Mr Crow’s argument that there was only one decision maker for both groups in unflattering terms.  
22.	 Although not without some doubts, I conclude that there is a difference of sufficient relevance for the purposes of this test, as developed by Brooke LJ.  It is sufficient to say that a person in the second group faces two hurdles- the Board and the Secretary of State, a person in the first group faces only one hurdle- the Board.  If, for example, the legislation drew a distinction between persons of one racial group and another rather than by reference to the length of the sentence, it would be difficult to conclude that there was no relevant difference in their treatment.  I am fortified in this view by my conclusions as to the aim of the scheme, which I consider under the fourth question. 
23.	I turn to the third question:
“Were the chosen comparators in an analogous situation to the complainant’s situation?”
24.	Mr Crow in his skeleton argument submitted:
“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.” 
25.	Mr Crow agreed during the course of argument that, given the number of different routes by which a defendant could be sentenced to a total of 15 years’ imprisonment, it does not follow that a person has been convicted “of more serious offences” than, say, a person sentenced to 14 years’ imprisonment. 
26.	Given the manner in which I have described the chosen comparators and given what I have already said in paragraph 18, the answer to this question, it seems to me,  must be “Yes”. 
27.	I turn to the 4th question:
“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?”
28.	To determine whether the difference in treatment has an objective and reasonable justification, one first asks the question: “Does the difference in treatment have a legitimate aim?”.  Mr Owen submitted that it does not.  Mr Owen seeks to rely on the law and practice relating to the release of those serving indeterminate sentences of life imprisonment to support this submission.  In his words:
“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."
29.	However, as Mr Owen pointed out, absent any regime for early release, “lifers” would all stay in prison for life.  In the case of a determinate sentence, whether longer than commensurate or not, the sentencing judge has set the period to reflect punishment, deterrence and protection and the prisoner will be released at no later than 2/3rds through the sentence (see The Queen (Giles) v. Parole Board and another [2002] EWCA Civ 951, [2003] 2 WLR 196).  Any inconsistency between the two regimes is rationally explicable.   
30.	Mr Crow submitted that Parliament had decided that the Secretary of State should have the decision to release those subject to a sentence of 15 years’ imprisonment or more and that was not only a lawful aim (see Giles) but a legitimate one. Perhaps because of his approach to question 2, he did not elaborate further on the aim and no evidence was submitted by the defendant.   That has made my task harder.
31.	Mr Owen argued that it is for the Secretary of State to submit evidence to describe the aim of the differential treatment and, in the absence of evidence, the defendant must fail.   In my judgment this is one of those rare cases where the aim is so clear that no evidence is required. 
32.	The aim, which reflects the policy of successive Home Secretaries, has been to reserve to the Home Secretary, who is answerable to Parliament and to the electorate, the power to control the release of those serving long determinate sentences and indeterminate sentences of imprisonment.  The lawfulness of the power in respect of indeterminate sentences has been successfully challenged under articles 5(4) and 6.  At the expiry of the “minimum term” or “tariff period”, “lifers” have the right to have the lawfulness of their continued detention determined in accordance with Article 5(4).  See R (Anderson) v. SSHD [2002] UKHL 46 [2002] 3 WLR 180, particularly at paras. 15, 44-45, 57, section 28 of the Crime (Sentences) Act 1997 and clause 260 of the Criminal Justice Bill (duty to release certain life prisoners).   That challenge is not open to the claimant serving a determinate sentence (see Giles and the authorities there cited).  In so far as Article 6 is concerned, the House of Lords in Anderson, decided that setting the minimum term is a judicial function.  In the case of determinate sentences, the minimum term is set by statute and is dependent on  the length of the sentence passed by the judge.
33.	If, as I find, that is the aim, is it legitimate?  In Michalak, a case which concerned the right given to a spouse or certain close relatives to “succeed” to a secure tenancy, Brooke LJ said in paragraph 41:
“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.”
34.	Mr Crow relied on this passage.  Parliament has reserved to the Secretary of State under section 35 the power to decide if and when certain long term prisoners should be released earlier than they otherwise would be, notwithstanding a positive recommendation in favour of the prisoner from the Board, and this court, he submits,  should show due deference to that decision.
35.	But why has Parliament done that?  It seems again to me to be clear, without the benefit of evidence, that prisoners falling into this category are likely to pose particular problems for public safety and order.  These problems are such that Parliament has decided that the Secretary of State should be given the power, in effect, to review and reconsider a positive recommendation from the Parole Board.  I accept that the power could, of course, be given to some other person or body.  However, given that the Secretary of State must apply the same test as the Parole Board to the same, or same kind of, material as was (or could have been)  available to the Parole Board, given that his decision is open to challenge by way of judicial review (or his failure to make a decision expeditiously) and giving appropriate deference to the view of Parliament,  it seems to me that the aim is legitimate.
36.	Indeed the facts of this case demonstrate that procedures to enable decision of the Parole Board to be reviewed may be desirable for prisoners whose offences justify a very long term of imprisonment.  Not only did the Secretary of State reach a different conclusion, but so also  did the second Parole Board, taking “a different view on similar behaviour” (Claimant’s skeleton argument, paragraph 4(ix)). 
37.	If I am right, then did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?  Is the method chosen to implement this aim, namely a cut-off period at 15 years, rational and proportionate?  I turn again to another passage in Michalak, upon which Mr Crow relied in oral argument:
“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.”
38.	In my judgment, the only sensible way of achieving the aim is to choose a period of years, even though the result may, in certain cases, be arbitrary.   Any other test would not have the required measure of legal certainty.  There could be an argument for making the cut-off lower, but that would not assist the claimant. 
39.	In my judgment any discrimination there may be against those whose sentence is in the region of 15 years or more is justified. I answer the fourth question: “Yes”.  
40.	In those circumstances, this application fails. 
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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.