QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of Graham PRIMROSE)
|- and -
|The Secretary of State for Justice
Clive SHELDON (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 23 May 2008
Crown Copyright ©
The Hon. Mr Justice Burnett:
"No HDC in Scotland"
The Claimant chose to remain in an open prison rather than be released on HDC to a Clearwater accommodation in England and Wales. He was twice asked if he would like to apply for such accommodation and indicated in writing that he would not. Such a facility was available in Northumberland.
"Mr Primrose's HDC eligibility date is the 13 November 2007 and his conditional release date is 26 March 2008.
I regret to inform you that it is not possible for Mr Primrose to be released on HDC in Scotland. Although a form of HDC was introduced in Scotland on 3 July 2006, there are no cross-border arrangements in place between Scotland and England to enable prisoners to be released into the other sentencing jurisdiction on HDC.
Where a prisoner does not have a suitable curfew address, it may be possible for him/her to be provided with accommodation in England and Wales, through initiatives such as Clear Springs The Accommodation and Support Services for Bail & HDC. I suggest that Mr Primrose speaks with his personal officer in the prison as they may be able to assist in trying to find a suitable address."
(a) A claim under the Human Rights Act 1998 and Article 14 of the European Convention of Human Rights ('the ECHR') for violation of the Claimant's right not to be discriminated against. He submits that the Claimant has been less favourably treated than other prisoners because he is Scottish or because he is ordinarily resident in Scotland. He accepts that, unlike the discrimination on grounds of residence, there is no direct discrimination on grounds of race but relies upon indirect discrimination;
(b) A claim for indirect discrimination under sections 1(1A), 1(1B) and 19B(1) of the Race Relations Act 1976 on the basis that HDC is a 'social advantage';
(c) A claim that the Secretary of State is in breach of his general duty under section 71 of the Race Relations Act 1976 to have 'due regard' to eliminate unlawful racial discrimination.
Thus the essence of the argument is that the HDC scheme operates unlawfully because the Secretary of State has not introduced legislation (primary or secondary) and made arrangements with the Scottish Executive under devolution arrangements to enable cross-border operation of the scheme.
"currently cross-border arrangements have not been made to enable the monitoring of prisoners released from an English prison to an address in Scotland."
There is, however, an HDC system in Scotland introduced in 2006 but it applies only to prisoners serving sentences in Scottish prisons and who wished to be released to an address in Scotland. I was told that the mechanisms to enable a prisoner serving a sentence in England or Wales to transfer to a prison in Scotland are slow. Whether the Claimant might have transferred is a moot point. But if a prisoner does transfer then the problem identified in this case would not arise because he could be released in Scotland on HDC from a Scottish prison. The Defendant has explained that the 'problem' is simply not one that has arisen before, to the knowledge of the Department.
" Subject to subsection (2) below, subsection (3) below applies where a short-term prisoner is serving a sentence of imprisonment for a term of three months or more.
(3) After the prisoner has served the requisite period for the term of his sentence, the Secretary of State may, subject to section 37A below, release him on licence.
(4) In this section "the requisite period" means
(a) for a term of three months or more but less than four months, a period of 30 days;(b) for a term of four months or more but less that eighteen months, a period equal to one-quarter of the term;(c) for a term of eighteen months or more, a period that is 135 days less than one-half of the term.
(1) A person shall not be released under section 34A (3) above unless the licence includes a condition ("the curfew condition") which
Requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified (which may be an approved probation hostel); and includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified.
(2) The curfew condition may specify different places or different periods for different days, but shall not specify periods which amount to less than 9 hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force).
(3) The curfew condition shall remain in force until the date when the released person would (but for his release) have served one-half of his sentence.
(4) The curfew condition shall include provision for making a person responsible for monitoring the released person's whereabouts during the periods for the time being specified in the condition; and a person who is made so responsible shall be of a description specified in an order made by the Secretary of State.
(5) The power conferred by subsection (4) above
(a) shall be exercisable by statutory instrument ; and
(b) shall include power to make different provision for different cases or classes of case or for different areas.
(6) Nothing in this section shall be taken to require the Secretary of State to ensure that arrangements are made for the electronic monitoring of released persons' whereabouts in any particular part of England and Wales;
Those Affected by the Issue Identified in this Claim
Discrimination under Article 14 ECHR
"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"
Article 14 does not provide an independent right but only comes into play when considered in connection with other substantive rights protected by the ECHR. It is not necessary to establish a breach of a substantive right to rely upon Article 14, but it is necessary to show that the action complained of was within the ambit of one of the other articles. The principles were summarised by the Grand Chamber of the Strasbourg Court in Stec v United Kingdom  41 EHRR SE 295 at paragraphs -. Applying those principles and the decision of the House of Lords in R(Clift & Others) v Secretary of State for the Home Department  1 AC 484 there is no doubt that a decision concerning early release from prison falls within the ambit of Article 5 ECHR. That was common ground between the parties. Mr Southey submitted that a decision on early release was also within the ambit of Article 8. Mr Sheldon, who appeared on behalf of the Secretary of State, disputed that proposition, but since Article 14 applies through Article 5 it is not necessary for me to decide the issue.
"For my part, in company with all your Lordships, I prefer to keep formulation of the relevant issues in these cases as simple and non-technical as possible. Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in Article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact."
"Indirect Discrimination in Convention Law
17. Finally, although detailed discussion is not required in this case, I agree with Mr Sales that caution is necessary in applying the concept of indirect discrimination to the somewhat loosely-defined categories used by Article 14 of the Convention. The case-law is as yet relatively limited: see Thlimmenos v. Greece (2001) 31 EHRR 15, at ; Jordan v. UK (2001) 37 EHRR 52, at ; Pretty v. UK (2002) 35 EHRR 23, at -; and Hoogendijk v. Netherlands (2005) 40 EHRR SE22, at 206-207.
18. In so far as one can distil a test from the cases, the question seems to be whether the effects on the particular group are "disproportionately prejudicial" (see e.g. Jordan para )."
"The court has also accepted that a general policy or measure that has disproportionately prejudicial affects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group and that discrimination potentially contrary to the convention may result from a de facto situation (Zarb Adami v. Malta, NO.17209/02,paragraph 76). "
"the Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties' submission. According to its established case law proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar un-rebutted presumptions of fact"
"residence applied as a criterion for the differential treatment for citizens is in my judgment is a ground within the scope of Article 14. Like domicile and nationality, it is an aspect of personal status." (see paragraph 57)
In the light of that conclusion, I shall proceed on the same basis.
The Human Rights Act 1998 ["the 1998 Act"]
"6. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if
a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
The Claims Under the Race Relations Act 1976 ["the 1976 Act"]
Section 1(1A) provides that:
"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if (a) on racial grounds he treats that other less favourably than he treats or would treat other person;"
The material parts of Section 1(1B)
" Section 1(1B) of the 1976 Act provides, among other things, that:
"The provisions mentioned in subsection (1A) are-
(c) section 19B, so far as relating to-
(iv) any form of social advantage"
Section 19B in these terms:
(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.
[(1A)(2) In this section "public authority" -(a) includes any person certain of whose functions are functions of a public nature; but(b) does not include any person mentioned in subsection (3).
Section 78 provides:
"social protection" and "social advantage" have the same meaning as in Article 3 of Council Directive 2000/43/EC'
1.Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
(a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;(c) employment and working conditions, including dismissals and pay;(d) membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations;(e) social protection, including social security and healthcare;(f) social advantages;(g) education;(h) access to and supply of goods and services which are available to the public, including housing.
2. This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned."
"it is settled law that this concept embraces all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers with the Community (Martinez Sala, paragraph 25)."
See paragraph 20 of the opinion of the Advocate General.
"Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need-
(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good relations between persons of different racial groups."