Neutral Citation Number: [2013] EWHC 1950 (Admin)
Case No: CO/13858/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/07/2013

Before:

LORD JUSTICE MOSES
MR JUSTICE BURNETT 
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Between :

	The Queen on the Application of Geoffrey Massey 	Claimant	
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	Secretary of State for Justice	Defendant	

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Mr Philip Rule (instructed by Swain & Co.) for the Claimant
Mr Andrew Deakin (instructed by Treasury Solicitors) for the Defendant

Hearing date: Thursday 16th May 2013
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Judgment

Lord Justice Moses: 
1.	On 15 May 2008 the claimant was sentenced to an indeterminate sentence for public protection with a tariff period of two years and six months.  This tariff period expired on 11 September 2010 but he has still not been released.  On two occasions, in 2010 and in 2012, the Parole Board has refused to direct his release or recommend his transfer to open conditions.  Timetables have been set for him to complete the Extended Sexual Offender Treatment Programme but, he complains, the defendant has failed to provide the opportunity to satisfy that requirement.
2.	In May 2012 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) inserted the Tariff Expired Removal Scheme (TERS) into the Crime (Sentences) Act 1997 (s.32A, inserted by S.119 of LASPO).  Under that scheme a foreign national sentenced to IPP, whose tariff period has expired and who is liable to removal will, subject to limited exceptions, be removed from the United Kingdom.  The claimant complains that this is unlawful discrimination under Art. 14, read with Art. 5 of the European Convention on Human Rights, because the foreign national is not required to satisfy the Parole Board that he is no longer a risk to the public before release from imprisonment, whereas the burden to do so continues to be imposed on those who, like the claimant, cannot be removed. 
3.	LASPO abolished IPP for all persons convicted after 3 December 2012.  It introduced Extended Determinate Sentences; these are determinate sentences with an extended licence period which entitle a prisoner to automatic release.  Liability to be sentenced to an Extended Determinate Sentence depends on the date of conviction, whether it was before or after 3 December 2012 and not on the date of the offence.  Thus, one who committed the same type of offences as the claimant, sexual offences specified in Schedule 15 of the Criminal Justice Act 2003, before 3 December 2012, and was convicted before that date, would be liable to an IPP whereas another defendant convicted after 3 December 2012, of the same type of offence, even if the offences were committed on the same day, would only be liable to a determinate sentence. This, submits the claimant, is discrimination contrary to Art. 14, read with Art. 5 or Art. 7. 
4.	The claimant has raised other issues relating to the difficulties with which he has been faced in undertaking the courses necessary to satisfy the Parole Board.  All of these have been adjourned, leaving this court to decide these two different complaints of discrimination.
5.	There can be and was no dispute but that Art. 5 is engaged (see James and others v Secretary of State for Justice [2010] 1 AC 553 (e.g. [17] and [52])). Art. 5(4) provides:
“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 his detention is not lawful.”
Art. 14 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.”
6.	The claimant is a life prisoner in respect of whom a minimum term order was made within the meaning of s.32A of the Crime (Sentences) Act 1997 (see s.34(2(d)).  Accordingly, under section 32A:
(1) Where P-
(a) is a life prisoner in respect of whom a minimum term order has been made,
and
(b) is liable to removal from the United Kingdom he had been liable to removal from the United Kingdom,  the Secretary of State may remove P from prison under this section at any time after P has served the relevant part of the sentence (whether or not the Parole Board has directed P’s release under section 28)”.
7.	The claimant is not “liable to removal”.  Liability to removal is defined by section 259 of the Criminal Justice Act 2003 (see s.32A(5) of the 1997 Act).  He did not come within any of the categories identified in that section, such as being liable to deportation.  Since he is not liable to removal he must satisfy the Parole Board that it is no longer necessary for the protection of the public that he should be confined (s.28 (1A) (5) and (6) of the 1997 Act).
8.	The claimant invites the court to draw a contrast with a prisoner sentenced to IPP who is liable to removal.  The TERS system is subject to Prison Service Instruction 18/2012.  The presumption is that an indeterminate foreign national prisoner will be suitable for removal under the scheme unless they meet criteria identified in the Instruction (2.1).  Paragraph 2.3 of the Instruction sets out the criteria, which are only likely to apply in a limited number of cases (e.g. sentenced to a long tariff and a small amount of money is owed or terrorism).
9.	If an indeterminate foreign national prisoner is not in an analogous situation to the claimant then Art. 14 has no application.  The debate on this issue focussed on Brooke v Secretary of State for Justice [2009] EWHC 1396 (Admin).  It is important to recall that that case was not concerned with the period of post-tariff imprisonment.  In that case the British prisoner was complaining of unlawful discrimination because foreign nationals were eligible for removal 270 days before they had served the minimum term, whereas he was required to serve that period of 270 days in full without being eligible for home detention curfew [7].  The rationale for home detention curfew is to permit early release for less dangerous prisoners, and thus to reserve the prison estate for those guilty of more serious offences [5].  The public is not, thereby, exposed to danger.  The same objective can be achieved by removing those eligible for removal [15] and [18]. 
10.	The court concluded that serious offenders who are foreign nationals liable to summary removal are not in an analogous situation to serious offenders who are not so liable :
“The essential point, in my view, is that the position of, and statutory release arrangements for, prisoners who are liable to be removed from the United Kingdom are not analogous with those for prisoners who are not so liable to be removed.  The different regimes are in place not because of differences in nationality, but because the first class of prisoner is liable to be removed and the second is not.  The two situations are not comparable.  Release on home detention is to be seen as a relaxation of a custodial sanction.  Release for the purposes of removal is to enable a different sanction from imprisonment in this country to be brought into effect.  Such prisoners are not released into the community.”(May P [30])
11.	This was the passage expressly approved by the Court of Appeal in relation to a similar argument in Francis v Secretary of State for Justice [2012] EWCA Civ 1200 (and followed in R (Serrano) v SSJ and SSHD [2012] EWHC 3216). The purpose of home detention curfew is to resettle prisoners into the community; obviously such a regime had no application to those liable to removal (Francis[40]).
12.	But none of those cases concerned the release of prisoners post-tariff.  The cases to which I have referred concerned home detention curfew where the focus is on protection of the public in the United Kingdom.  Those released on  home detention curfew are assumed not to be dangerous.  The public in the United Kingdom may also be protected by removal of a class of prisoner liable to removal.  But detention post-tariff, while serving an IPP, is designed to prevent the release of a dangerous prisoner, whether he is a danger here or abroad.  The Parole Board must consider risk both here and abroad (R (Clift) v Home Secretary [2007] 1 AC 484 [37]).  The fact that a foreign national who intends to live abroad and is, therefore, only a risk to his foreign community is not a ground of distinction on which he or the Parole Board can rely. 
13.	In Clift the foreign nationals and national long term prisoners were in an analogous situation. The foreign nationals complained that they were not entitled to have their early release considered by the Parole Board but only by the Secretary of State.  The assessments the Parole Board was required to make as to suitability for early release involved exactly the same judgments, whether the long-term prisoner was a foreign national liable to removal or not. They were discriminated against on the grounds of their nationality and the discrimination was not objectively justified for the very reason that the Board’s assessment of safety was the same irrespective of removal [37].
14.	The instant case is not, however, concerned with eligibility for parole but with a different question: the power of the Secretary of State to focus the limited resources of the prison estate on those who are to be released into the community in the United Kingdom.  In that context, it does not seem to me that those liable to removal and those who are not can be said to be in an analogous situation. The Secretary of State has no statutory power to make final judgements on the safety of the prisoners subject to IPP.  That is for the Parole Board.  But he does have power to assess how to deploy the limited resources of the prison service. Those liable to removal are, for those purposes, not in the same situation as those who are not.  Those liable to removal may be taken out of prison, without risk to the United Kingdom public, and thus make space within the prison estate for those who cannot be removed and, if released, would present a danger to the public in the United Kingdom.  
15.	It is true that the sentencing court and the Parole Board are required to consider the danger to the public the prisoner may present, irrespective of whether the public is in the United Kingdom or elsewhere.  But non sequitur that the Secretary of State is precluded from considering only the danger to the United Kingdom, when assessing how limited space and resources in prison may best be deployed. Lord Bingham’s recognition that the Parole Board must and can assess risk wherever it arises is irrelevant in the context of the Secretary of State’s consideration of the limited resources of the prison estate. Any suggestion that TERS undermines the original purpose of an IPP, because it permits the release of prisoners who may still be dangerous into communities abroad, has nothing to do with Art. 14 and  does not assist this claimant.  
16.	For that reason alone I would dismiss this ground.  But, in any event, I am not persuaded that the TERS scheme discriminates against those who are not reliable to removal.  Deportation in many cases may be just as severe a sanction as continued imprisonment pending the Parole Board’s assessment of safety (Brooke [15]).  
17.	Nor does it seem to me that the system discloses discrimination on the grounds of nationality.  The criteria for removal in section 259 of the CJA 2003 do not turn on nationality but on liability to deportation, on notification of a refusal of leave to enter, on being an illegal entrant and on being an overstayer.  A foreign national may well not be liable to be removed.  It is true that immigration status, even though conferred by law, may constitute “other status” for the purposes of Art. 14 (Bah v UK (2012) 54 EHRR 21 [45]-[46]).  But it is not a foreign prisoner’s immigration status which is relevant.  What is relevant to the efficient use of the prison estate is the ability to remove a prisoner from a prison, without prejudice to the safety of the public in the United Kingdom.  The relevant distinction is between those prisoners serving an IPP who can be removed without consideration of their dangerousness and those who cannot. That is not a distinction dependant on nationality or immigration status but on whether they are liable to removal.   
18.	In the light of my conclusions it is unnecessary to decide whether any discrimination on a forbidden ground may be objectively and reasonably justified.  The claimant contends that the Secretary of State is not entitled to rely upon limited resources to justify discrimination falling within Art. 14 read with Art. 5, particularly in the light of the difficulty this prisoner finds in undertaking those courses without which he cannot satisfy the Parole Board that it is safe to release him.  This is a somewhat curious stance to adopt since, if TERS is successful, there will be fewer prisoners taking up limited space on the necessary courses.  But I prefer to leave a full consideration of justification to cases where discrimination contrary to Art. 14 has been demonstrated.
19.	By his second ground, the claimant argues that his confinement until he is able to persuade the Parole Board that it is safe to release him may be compared to the circumstance of a prisoner who has committed the same offences on the same day but is convicted after IPP was abolished on 3 December 2012.  Now that IPPs have been abolished, that prisoner is entitled to automatic release under an Extended Determinate Sentence simply by virtue of the chance that he has been convicted after that date.  It is suggested that when inserting section 226A into the Criminal Justice Act 2003, LASPO should have made transitional arrangements for existing IPP prisoners post-tariff.
20.	There is a preliminary difficulty with this argument.  The discrimination on which the claimant relies between those who have committed offences on the same date but are sentenced under different sentencing regimes according to the date of conviction has no application to his case whatever.  He committed his offences in 2005 and was ‘convicted’ (he pleaded guilty) in 2008.  He cannot be compared at all with one who committed similar offences years later and who was convicted at a time when a different sentencing regime had been introduced.  There are two ways to describe this difficulty.  First, the difference in treatment is attributable only to the fact that he was sentenced at a time when a sentence of IPP was available and when an Extended Determinate Sentence was not; that is not a ‘status’ within the meaning of Art. 14. 
21.	Second, the claimant and one sentenced under the new regime are not in an analogous situation.  An Extended Determinate Sentence is a different type of sentence; it is, as its name indicates, determinate.  There is no room for an analogy with one detained during a post-tariff indefinite period. It matters not how the difficulty is described; it is, in my view, insuperable.
22.	The claimant seeks to avoid this difficulty by identifying the comparable situation as between those who have committed crimes of the same type.  He underlines Lord Brown’s objection in Clift [68] to the difference in treatment between Clift, sentenced to more than 15 years, whose release was subject to the discretion of the Secretary of State who was not bound by a Parole Board decision, and those sentenced to shorter determinate terms, all life sentence prisoners and those who committed offences after 4 April 2005, (when the discretion of the Secretary of State, save in limited situations, was removed).  But, as Lord Brown acknowledged, such prisoners do not have the ‘status’ to complain.
23.	It is true that the European Court of Human Rights has now identified the length of sentence as an ‘other status’ in Clift v UK no. 7205/07 [2010] ECHR 1106 [59], [60] and [62].  The Court has veered away from the proposition that the discriminatory treatment of which the claimant complains must exist independently of the ‘other status’ on which it is based [60].  It referred to Paulik v Slovakia (no. 10699/05) where the complaint that paternity had to be judicially determined was also the status on which the father relied [58].  Thus it appears that the Court would now not adopt the principle described by Lord Bingham in R (Clift) [28] that a personal characteristic cannot be defined by the differential treatment of which a person complains.  But this court is bound by the ratio in the House of Lords.
24.	That is not, however, the ground on which I would reject this part of the application.  Even if it is assumed that it is unnecessary to distinguish between discriminatory treatment and the status which caused that treatment he must show he is in analogous position to one who is sentenced after 3 December 2012 for a similar type of offence.  Whether he is in an analogous position depends on the nature of his complaint (see e.g. Shelley v UK  no. 23800/06, p.13, a decision of the Fourth Section on admissibility, which was prepared to assume that being a prisoner was a status within Art. 14).  The foreign nationals in Clift were in an analogous situation to other long-term prisoners in the context of a complaint that they were not permitted to take advantage of the early release provisions.  Clift was in an analogous situation to other prisoners, serving both shorter determinate and indeterminate sentences in the context of his complaint that his early release was subject to the discretion of the Secretary of State.
25.	Whether the claimant is in an analogous situation to others convicted after 3 December 2012 must be judged in the context of his complaint that he is subject to an indeterminate period of imprisonment and cannot be released without satisfying the Parole Board that he is no longer a danger to the public. He maintains he is not challenging his original sentence. But however he cloaks his application, the real complaint he advances is a challenge to his original sentence, the essence of which is that he will not be released until it is safe to do so.  The reality of his argument is that he was sentenced under a different regime.  It is not coherent then to allege discrimination when compared to other offenders sentenced under a different regime.  They are not in an analogous situation precisely because they were sentenced under a different regime. The claimant cannot complain because Parliament has now abolished IPPs and introduced a different type of sentence. The United Kingdom is not obliged, under the Convention, to re-open historical sentences and re-sentence merely because it has introduced a new sentencing regime.  I would dismiss this application on both the two grounds before the court.
Mr Justice Burnett
26.	I agree.