QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| NEZAR HINDAWI
THE QUEEN (ON THE APPLICATION OF PRINCE CHARLES HEADLEY)
|THE 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)
Mr. P Patel (instructed by Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice McCombe:
"35(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 licence"
"46(1) In relation to a long-term prisoner who is liable to removal from the United kingdom, section 35 above shall have effect as if the words "if recommended to do so by the Board" were omitted. … "
The Claimants contend that this difference amounts to unlawful discrimination against them on the grounds of nationality within the meaning of Article 14 of the ECHR in relation to a matter falling within the ambit of Article 5, namely the right to liberty and security.
(A) Mr. Hindawi
(1) On 24 October 1986 at the Central Criminal Court Mr. Hindawi was sentenced for three offences: (1) attempting to place on an aircraft an explosive device likely to destroy or damage the same; (2) unlawfully possessing a firearm and (3) unlawfully possessing ammunition. For offence (1) he was sentenced to 45 years imprisonment and for offences (2) and (3) he was sentenced to further terms of 18 months imprisonment concurrent with each other and concurrent with the sentence for the first offence. This made a total sentence of 45 years imprisonment. It appears that Mr. Hindawi's offences were committed after he had been recruited by intelligence officers of the Syrian government. The aircraft concerned belonged to El-Al, the Israeli airline.
(2) Having been sentenced under an earlier statutory regime, Mr. Hindawi became eligible for release on parole on 18 April 2001, that is after one third of his sentence. He will not be entitled to automatic release until 8 May 2016, on the expiry of 30 years of the sentence.
(3) In July 2002 Mr. Hindawi's solicitors wrote lengthy representations to the Home Secretary arguing for Mr. Hindawi's earlier release, and included therein a report from an expert to the effect that, since the sentence was passed, Syrian policy had changed to the extent that the Syrian government no longer "supports radical, revolutionary or violent policies". The representation made was that Mr. Hindawi no longer presented a risk of further offending. On 24 January 2003 the Home Secretary stated in a letter to Mr. Hindawi's solicitors that he had been supplied with information indicating that the Syrian government does support organisations which Her Majesty's government would consider to be terrorist in nature. In February 2003, the solicitors provided further representations on the point supported by observations of the same expert.
(4) On 2 April 2003 the Home Secretary decided not to release Mr. Hindawi. His conclusions can be summarised by quoting the final paragraphs of the written decision:
"The Secretary of State had looked for clear evidence in your reports to demonstrate that you have gained sufficient insight into the causes of your offending behaviour and developed strategies to prevent further offending and that you have shown victim empathy. In his view, the reports do not provide this reassurance.
For all these reasons, the Secretary of State remains unconvinced that the risk of re-offending has been sufficiently reduced to allow early release and has therefore concluded that early release should not be approved."
Because of delays in the consideration of release, Mr. Hindawi was informed that the next review of his release would begin immediately.
(5) Mr. Hindawi further contends that the Home Secretary's decision is also flawed, quite apart from the Article 14 point, because the decision did not answer the representations made on Mr. Hindawi's behalf as to the change of circumstances in Syria. The Home Secretary responds to that by saying that all the papers and representations had been referred to, including the points based upon the experts reports, even if this particular matter had not been expressly referred to in the written decision itself.
(B) Mr. Headley
(1) On 31st July 2000 at the Crown Court at Sheffield Mr. Headley was sentenced to seven years imprisonment for an offence of conspiracy to supply controlled drugs of Class A. He has been eligible for release on parole since 10 January 2003. Under present arrangements his next review was due to commence in August 2003.
(2) In Mr. Headley's case, his position was considered by the Board which decided that he was not suitable for early release. The reference is said to have been made in error. The Home Secretary refused to release Mr. Headley by a decision dated 9 May 2003. It has not been contended on behalf of the Home Secretary that any distinction is to be made in Mr. Headley's case from that of Mr. Hindawi because of this erroneous reference to the Board and the Board's adverse decision in his case.
(1) In the case of a prisoner not liable to removal from the United Kingdom and serving a sentence of less than 15 years imprisonment, the Home Secretary is obliged to accept and act upon the recommendations of the Parole Board that the prisoner should be released: see Sections 35 and 50 of the CJA 1991 and the Parole Board (Transfer of Functions Order 1998 (S1 1998/3218). As indicated by the wording of Section 35, in the case of a prisoner not liable to be removed and serving 15 years or more, there is no obligation on the Home Secretary to accept a release recommendation of the Board. Any such decision not to accept a recommendation must however be justified and rational: see R (Clift) v Secretary of State for the Home Department  EWHC 1337 Admin (13.6.03), a decision of Hooper J, at paragraph 6 of the judgment. The different treatment of these two classes of prisoner was challenged (unsuccessfully) in Clift, for reasons to which I shall have to return. The decision is itself, I was told, the subject of an appeal brought with the permission of the Court of Appeal, which is to be heard this year, possibly in about March.
(2) In the case of prisoners serving discretionary or mandatory life sentences of imprisonment (whether liable for removal or not), the Parole Board is involved in the early release process: see Sections 28 and 29 of the Crime (Sentences) Act 1997.
(3) Although Section 35 of CJA 1991 does not require the cases of prisoners in the position of these Claimants to be referred to the Board, such cases can be reviewed by it if the Home Secretary refers them to the Board: see Section 32(2) of CJA 1991.
(4) Under CJA 1991, section 32(6), the Board is obliged to take into account directions given by the Home Secretary concerning the approach to be taken when considering the release of a prisoner and with regard to determinate sentence prisoners, he has directed (among other things) that:
"the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable".
That Article provides,:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds 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."
(1) Do the facts fall within the ambit of one or more substantive Convention provisions?
(2) If so, was there differential treatment as respects that right between the Complainant on the one hand and other persons put forward for comparison ("the chosen comparators")?
(3) Were the chosen comparators in an analogous situation to the complainant?
(4) 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 reasonable relationship of proportionality to the aim sought to be achieved?
It was pointed out that this was only a framework for those who came newly to Article 14 issues and that there is a potential overlap between the last three questions. However, this framework has been followed in argument before me and, with respect, it seems entirely appropriate to the issue arising in this case.
"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. …"
"… 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 had 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 given appropriate deference to the view of Parliament, it seems to me that the aim is legitimate."
" … An uninformed reading of the bare words of that provision might suggest that a complainant had to establish an actual breach of another article of the Convention before he could rely on article 14. Jurisprudence has however established that that is not so. As it is put in Grosz, Beaston & Duffy, "Human Rights: The 1998 Act and the European Convention" (2000), para C14-10;
"It would appear, however, that even the most tenuous link with another provision in the Convention will suffice for article 14 to enter into play."
A recent illustration is to be found in Petrovic v Austria (1998) 33 EHRR 307, a complaint about the refusal of the Austrian authorities to grant to men a parental leave allowance that was available to mothers. The court held, at p 319, para 26, that article 8 itself was not infringed since it did not impose any positive obligation on the state to provide the financial assistance in question. None the less, at p 319:
"27. … this allowance paid by the state is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.
"28. The court has said on many occasions that article 14 comes into, play whenever 'the subject matter of the disadvantage … constitutes one of the modalities of the exercise of a right guaranteed', or the measures complained of are 'linked to the exercise of a right guaranteed'.
"29. By granting parental leave allowance states are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that article 14--taken together with article 8 –is applicable"
We therefore have to apply that wide view of the ambit of article 14 in relation to the two other provisions of the Convention that are relied on in conjunction with article 14. "
Mitting J said that the sentence containing the words "the most tenuous link" did not form part of the "ratio decidendi" of the Ghaidan case and was not, therefore, binding upon him. He, therefore, adopted the formulation of the "ambit" test which I have set out above.
"Article 14 of the ECHR assures the enjoyment of Convention rights without discrimination on any ground such as "…national or social origin". At the hearing we spoke of discrimination on grounds of nationality. In so far as there may be differential treatment in this case between prisoners of British nationality and prisoners liable for deportation is this difference made on the ground of nationality? Or is it a discrimination based upon the liability of the one class of prisoner to removal, irrespective of nationality? In other words, is it possible also that the difference is not "within the ambit" of Article 5, because it is not so much concerned with the right to release (and therefore liberty), but rather with the prisoner's immigration status? "
I think that the point more accurately relates to questions (2) and (3) than to question (1), as Mr. Patel submits in his response. The response given by Mr. Owen and Mr. Southey was twofold. First, this is a discrimination on the grounds of nationality or, alternatively it is a discrimination based upon "other status" within the meaning of Article 14. In either case, it is submitted, no justification for the discrimination has been established on the evidence. Mr. Patel re-advanced his submission that the discrimination advanced was only a procedural one as to the decision making process. I need say no more than that I accept the submissions of Mr. Owen and Mr. Southey on this additional point.
"there is a strong argument of principle for saying that those who are not going to be allowed to remain in the country after release should, particularly if early release is selective, be dealt with within a distinctive legal framework which recognises the peculiarities of their situation" ….
"The whole notion of a sentence served partly in custody and partly in the community does not really fit the situation of those who are not going to be part of the community here after release. Release plans, supervision by a probation officer, a liability to be sent back to, prison in the event of misconduct, all presuppose that the offender is going to stay in the country. It is very difficult to see on what basis the Parole Board, particularly under the new criteria which will exclude punishment and deterrence, can hope to decide that one deportee should be released at a certain point in his sentence but another made to serve longer: assessing the risk that a person would commit further offences here if he were allowed to remain, when he is in fact going to be sent away, involves the performance of a somewhat unsatisfactory mental trick".
"He [i.e. the Home Secretary] notes that you have made constructive use of your time in custody and that your behaviour since your last review has been satisfactory. Reports show that you have not undertaken any offence-focussed work as none has been identified as suitable. However, it is noted, that you have displayed regret and accepted responsibility for committing the offences. Additionally it is noted that you have stated that you have severed all connections with political parties and that should you ever be approached in the future and asked to commit similar offences, you would decline to do so and would be likely to inform the authorities.
The Secretary of State is concerned however that you have not developed sufficient insight and empathy towards the potential victims and their families. The Prison Probation officer reported in 2000 that you "had divorced yourself from much personal responsibility for the impact of your actions upon not only Ms Murphy but also the potential victims on the aeroplane". The Prison Probation officer reported at your first review that you minimised your offending and you were manipulative. The probation officer reports for your current review, that there is nothing in your attitude or circumstances that leads her to feel that anything has changed."
MR JUSTICE MCCOMBE: I am grateful to counsel for sending me corrections to the draft that was supplied. For the reasons given in the judgment now handed down these applications are allowed. Yes, Mr Southey.
MR SOUTHEY: My Lord, thank you. Can I firstly, in terms of relief, what we would seek is formally quashing orders quashing the refusals to refer the matter to the Parole Board under section 32 of the 1991 Act. Also, obviously, we seek our costs and we seek an assessment for the purpose of the Legal Services Commission.
MR JUSTICE MCCOMBE: But that is all, it is only a quashing order you seek at the moment?
MR SOUTHEY: It is only a quashing order, because I think the judgment stands -- it makes it clear what is required in the circumstances. So formally I think a quashing order, I do not think a declaration, to be frank, would add anything to the quashing order with the terms of the judgment.
MR JUSTICE MCCOMBE: No. Thank you, Mr Southey. Yes, Mr Patel.
MR PATEL: My Lord, I am content with the relief that is sought.
MR JUSTICE MCCOMBE: Yes.
MR PATEL: And the request for costs, I cannot oppose that.
MR JUSTICE MCCOMBE: No.
MR PATEL: My Lord, I have not actually got formal instructions yet because we gave the judgment, in accordance with the embargo, an hour before and --
MR JUSTICE MCCOMBE: Yes.
MR PATEL: -- I was supposed to meet my client's instructing solicitor outside court.
MR JUSTICE MCCOMBE: Well, there have been a lot of problems for people getting here this morning.
MR PATEL: The combination of the weather and getting in has meant that I have not actually been able to talk to them, but I anticipate that they will instruct me to make an application for permission to appeal.
MR JUSTICE MCCOMBE: Yes.
MR PATEL: I do so on two bases essentially----
MR JUSTICE MCCOMBE: Well, I am inclined to give it to you, unless I am persuaded otherwise. Mr Southey?
MR SOUTHEY: My Lord, firstly, in the light of that indication there is one thing that, perhaps, I ought to raise, which is that in relation to Mr Hindawi, I would ask that a grant of leave to appeal is limited to perhaps the more substantive issue, the Article 14 issue. The reasons point, in my submission, is purely on its fact.
MR JUSTICE MCCOMBE: Yes, I take that point.
MR SOUTHEY: My Lord, secondly, in relation to leave to appeal what we would submit in relation to it is that the four-stage approach, if I can describe it that way, as determined by the Court of Appeal, is now fairly well established and once that approach is applied in this case the answers actually become relatively clear in our submission.
MR JUSTICE MCCOMBE: Well, with respect, I thought rather less clear than Clift, which is going to the Court of Appeal, and I am greatly affected by my provisional attitude to this application by knowing that Clift is going to the Court of Appeal and there is a hearing date set.
MR SOUTHEY: My Lord, I can see the force of that. You have heard my submissions in relation to that.
MR JUSTICE MCCOMBE: Clift was, with respect, in a sense a clearer case because there was no evidence from the Secretary of State and Hooper J could see, with respect to him, a clear rationale for the distinction, whereas here you have got countervailing considerations as to why the legislation might be in the form it is.
MR SOUTHEY: My Lord, there is one other matter, given your Lordship's indication. I know that we may have difficulties, certainly I have difficulties, with the date that is now set for Clift and I am not sure necessarily the matters need to be linked up.
MR JUSTICE MCCOMBE: Well, I think that is a matter for another court. I think it is for the Court of Appeal to decide their menu, if I may call it that.
MR SOUTHEY: Yes, thank you, my Lord, for that.
MR JUSTICE MCCOMBE: Mr Patel, what do you say about the point about the additional ground?
MR PATEL: Well, my Lord, again, I do not have instructions on that, but I would say that you ought not to limit the grant of permission. It is just a short point, if indeed we take it in our notice of appeal.
MR JUSTICE MCCOMBE: Well, I think Mr Southey is right, you should have the additional hurdle of persuading the Court of Appeal that you should have leave on that additional point in Mr Hindawi's favour.
MR PATEL: Yes.
MR JUSTICE MCCOMBE: Could you please, as the grant of leave is in a rather unusual form, perhaps you could lodge an agreed order of what we have just decided.
MR PATEL: My Lord, yes.
MR JUSTICE MCCOMBE: But I will give you limited leave to that effect. I would like to thank you both and Mr Owen for your very helpful submissions in a most interesting case.
MR SOUTHEY: Thank you, my Lord.
MR JUSTICE MCCOMBE: Will you please perhaps pass that to Mr Owen, Mr Southey?
MR SOUTHEY: I certainly will.
MR JUSTICE MCCOMBE: Yes, thank you.