Article 14, Prisoners and the Supreme Court: Third Time Lucky?: R (Stott) v Secretary of State for Justice: [2018] UKSC 59; [2018] 3 WLR 1831

DOI10.1177/0022018319830160
Date01 February 2019
Published date01 February 2019
Case Note
Article 14, Prisoners
and the Supreme Court:
Third Time Lucky?
R (Stott) v Secretary of State for Justice: [2018] UKSC 59;
[2018] 3 WLR 1831
The Appellant was convicted of numerous sexual offences for which he received an extended determi-
nate sentence (EDS) under s. 226A of the Criminal Justice Act 2003 totalling 25 years comprising of a
custodial term of 21 years and an extended licence period of 4 years. By virtue of s. 246A a prisoner
serving an EDS is eligible for release on parole after serving two-thirds of the custodial term. In the case
of the Appellant, this meant that he was eligible to be released on parole after serving 14 years
imprisonment. The Appellant sought to judicially review the early release provision contained within
s. 246A on the basis that it gave rise to discrimination and violation of his right to liberty contrary to
Articles 5 and 14 of the European Convention on Human Rights (ECHR). The discrimination, it was
submitted, arose from the fact that: (1) prisoners serving a fixed-term determinate sentence were
automatically released after serving half of their sentence and (2) prisoners serving a life sentence
became eligible for release on parole after serving their minimum term which was normally fixed at
half of the determinate sentence they would have received had they not received the life sentence (see Rv
Szczerba [2002] EWCA Crim 440; [2002] 2 Cr App R (S) 387). For example, if the Appellant had
received a fixed-term determinate sentence, he would have been released after serving 10½ years (half of
the determinate sentence of 21 years) and if he had received a life sentence, he would have been eligible
for release after 10½ years (again, half of the determinate sentence of 21 years); therefore, in either case,
this was better than being eligible for release after 14 years under s. 246A. The argument was a simple
one: ‘ ...although they are in an analogous situation, different classes of prisoner are treated differently
with regard to eligibility for release, and there is no valid justification for this’ (at [115]).
At first instance, the Divisional Court (Sir Brian Leveson P & William Davis J) held that they were
bound by the judgment of the House of Lords in R (Clift) v Secretary of State for the Home Department
[2006] UKHL 54; [2007] 1 AC 484; therefore, they had to reject the claim on the basis that the Appellant
did not have an ‘other status’ for the purposes of Article 14 (at [34]). The binding nature of Clift was not
challenged by the Appellant, rather he relied upon the contrary view subsequently taken by the European
Court of Human Rights in Clift v United Kingdom (App. 7205/07) [2010] ECHR 1106) (at [8]).
The Divisional Court concluded that were it not for the decision in Clift they would have found that
‘other status’ was established an d that s. 246A was incompatible with Ar ticle 14. As a result, the
Divisional Court issued a certificate pursuant to s. 12 of the Administration of Justice Act 1969 permit-
ting the Appellant to appeal directly to the Supreme Court for permission to appeal. It had already been
accepted by the parties that Article 5 applied. The Supreme Court (Lady Hale, Lord Reed & Lady Black)
granted permission to appeal.
Held (1), by a majority of four to one (Lord Carnwath dissenting), that the Appellant had the
requisite status for the purposes of Article 14 and that in light of the decision in Clift v United Kingdom,
the Supreme Court should depart from the decision of the House of Lords in R (Clift) v Secretary of State
for the Home Department.
The Journal of Criminal Law
2019, Vol. 83(1) 10–13
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0022018319830160
journals.sagepub.com/home/clj

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