R Akbar v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Sir Duncan Ouseley |
| Judgment Date | 29 May 2019 |
| Neutral Citation | [2019] EWHC 1725 (Admin) |
| Date | 29 May 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/5051/2018 |
[2019] EWHC 1725 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Sir Duncan Ouseley
(sitting as a Judge of the High Court)
No. CO/5051/2018
Mr D. Squires QC AND Ms A. Davies (instructed by Daniel Guedalla Solicitors) appeared on behalf of the Applicant.
Mr A. Deakin (instructed by Government Legal Department) appeared on behalf of the Respondent.
Notwithstanding the excellence of Mr Deakin's submissions, I have concluded that this case is arguable. How it will fare on full argument is a very different matter, but I am satisfied that the threshold is passed.
Very briefly, the claimant is a convicted terrorist whose life imprisonment sentence carried a tariff of seventeen and a half years, which expires on 29 September 2021. He would, if an ordinary life prisoner, be considered for transfer from Category C, where he is, to Category D in September 2018. But, by virtue of Prison Rule 7(1A), the claimant cannot be referred to the Parole Board for assessment for suitability for Category D open conditions.
This was a rule introduced in 2014 and it applies to him because he is an Italian National, so he is a foreign national prisoner. He does not contest his liability to be deported and his appeal rights, which he never exercised, are exhausted. Accordingly, Rule 7(1A) unquestionably applies to him. He contends that this discriminates against him contrary to Art.14 of the European Convention on Human Rights read with Art(s).5 and 8. He also contends that it is an irrational rule.
The first issue is as to the application of Art.14 with Art.5. It is not contested but that his position comes within the ambit of Art.8. It is not necessary to go into all the developing jurisprudence of Art.14 and “other status”, which is what the claimant relies on. I am satisfied that it is arguable that liability to deportation is a status, and liability to deportation and being appeal rights exhausted is an arguable other status as well. It may turn out not to be. It is not an innate characteristic but does not have to be. It is arguably a personal characteristic and, although its legal significance might, but not necessarily, derive from this rule, the characteristics themselves do not derive from the rule; they derive externally to the rule and affect his legal position regardless of the rule. He is to be deported when he becomes available for deportation. Accordingly, I do not accept Mr Deakin's submission that this claimant does not have another status.
It is not contended that the process whereby he is excluded from the Parole Board process involves a substantive breach of Art.5 itself. Mr Squires, for the claimant, contends however, that it comes within the ambit of Art.5 which is all that is necessary for the purposes of establishing the potential for a link to Art.14. The question is whether the situation is sufficiently related to an infringement of the core values protected by a substantive right.
Mr Deakin referred me to Queen on the application of Ryder v The Lord Chancellor [2015] EWHC 1857 (Admin) in which Davies LJ, dealing with the lack of legal aid for the purposes of representation for a parole board hearing, commented in terms which are undoubtedly supportive of Mr Deakin's submission about the ambit of Art.5. However, I am not persuaded that the force of what Davies LJ said, in the context he was dealing with, resolves beyond sensible argument, the Art.5 issue in relation to this case, with the effect which that has on the progression to open conditions and the way in which the risk assessment, or the absence of risk assessment, may affect post-tariff expiry release.
Accordingly, I have come to the view that it is arguable that the claimant is possessed of another status, as an appeal rights exhausted foreign national prisoner with a life...
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