R Geoffrey Massey v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses:,Mr Justice Burnett |
| Judgment Date | 10 July 2013 |
| Neutral Citation | [2013] EWHC 1950 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13858/2012 |
| Date | 10 July 2013 |
[2013] EWHC 1950 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Mr Justice Burnett
Case No: CO/13858/2012
Mr Philip Rule (instructed by Swain & Co.) for the Claimant
Mr Andrew Deakin (instructed by Treasury Solicitors) for the Defendant
Hearing date: Thursday 16 th May 2013
Approved Judgment
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.
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.
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.
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.
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."
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)".
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).
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).
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].
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])
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]).
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