R (on the application of Stott) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lady Black,Lord Carnwath,Lord Hodge,Lady Hale,Lord Mance |
| Judgment Date | 28 November 2018 |
| Neutral Citation | [2018] UKSC 59 |
| Court | Supreme Court |
[2018] UKSC 59
Lady Hale, President
Lord Mance
Lord Carnwath
Lord Hodge
Lady Black
Appellant
Hugh Southey QC
Jude Bunting
(Instructed by Michael Purdon Solicitor)
Respondent
James Eadie QC
Rosemary Davidson
Jason Pobjoy
(Instructed by The Government Legal Department)
Heard on 18 January 2018
Extended determinate sentences were imposed on Frank Stott in May 2013, pursuant to section 226A of the Criminal Justice Act 2003 (“the 2003 Act”) for sexual offences. This appeal concerns the provisions of section 246A of the 2003 Act which deal with early release from prison of those serving extended determinate sentences. The effect of the provisions is that Mr Stott will not be eligible to apply for release until he has served two-thirds of his custodial term, in contrast to other categories of prisoner who can apply for release at an earlier point in their custodial term. He contends that the provisions of section 246A are discriminatory and in violation of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR” or “the Convention”) taken together with article 5 of the Convention.
The appellant was convicted at trial of 20 offences, including multiple offences of raping an eight year old child. Prior to the trial, he had pleaded guilty to other counts relating to indecent photography of a child. On 23 May 2013, he was sentenced to an extended determinate sentence (“EDS”) in respect of ten counts of rape. An EDS comprises two elements, namely an “appropriate custodial term”, and a further period for which the offender is to be subject to a licence (“the extension period”), see section 226A(5) at para 85 below. Mr Stott's appropriate custodial term has been fixed at 21 years, with an extension period of four years. He was also sentenced to various determinate sentences of imprisonment to be served concurrently. He was refused permission to appeal against his sentence, see R v Stott [2016] EWCA Crim 172.
A prisoner serving an EDS can be released before the end of his term of imprisonment. It will be necessary to look further at the statutory provisions governing release later but, in broad outline, section 246A of the 2003 Act requires, in most cases, that the EDS prisoner be released on licence as soon as he has served the “requisite custodial period” and the Parole Board has directed his release. The requisite custodial period is two-thirds of the appropriate custodial term specified by the sentencing court, so Mr Stott would have to serve 14 years before becoming eligible for parole. Other categories of prisoner are, in contrast, eligible for parole at the half-way point in their sentences. If these rules had applied to Mr Stott, he would have been eligible for parole once he had served ten and a half years. He complained that there was no justification for this difference in treatment in relation to eligibility for parole, and that it was unlawful discrimination within article 14. He brought judicial review proceedings.
In February 2017, a Divisional Court of the Queen's Bench Division dismissed his claim [2017] EWHC 214 (Admin). However, it granted a certificate pursuant to section 12 of the Administration of Justice Act 1969 to permit Mr Stott to appeal directly to the Supreme Court, should permission to appeal be granted by the Supreme Court, which in due course it was.
As the focus in this case is upon articles 5 and 14 of the ECHR, it will be convenient to set them out immediately.
Article 5 of the ECHR secures the “right to liberty and security” of person. So far as is material to the present case, it provides:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;”
“4. 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 the detention is not lawful.”
Article 14 prohibits discrimination, providing:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground 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.”
In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or “other status”. Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatment will be lacking. It is not always easy to keep the third and the fourth elements entirely separate, and it is not uncommon to see judgments concentrate upon the question of justification, rather than upon whether the people in question are in analogous situations. Lord Nicholls of Birkenhead captured the point at para 3 of R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173. He observed that once the first two elements are 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.”
In this case, it is accepted that the right to apply for early release, upon which Mr Stott relies, falls within the ambit of article 5. The debate is about the application of article 14. Two issues have been identified. The first issue (“Issue 1” or “the status issue”) is whether the different treatment of Mr Stott is on a ground within the meaning of “other status” in article 14. The second issue (“Issue 2”) requires determination only if Issue 1 is answered in the affirmative. It has two parts:
(a) Are EDS prisoners in an analogous situation to either indeterminate sentence prisoners or other determinate sentence prisoners, these being the two categories of prisoner with which Mr Stott seeks to compare his own position?
(b) If so, is there an objective justification for the difference in treatment between the categories of prisoner?
Mr Stott argues that his differential treatment was on the ground of “other status”, that he was in an analogous situation to other prisoners who were treated differently, and that there was no objective justification for the different treatment. The Secretary of State argues that Mr Stott fails on the status issue, so Issue 2 does not arise. However, if that is wrong, the Secretary of State argues that Mr Stott's sentence is not analogous to the other sentences under consideration, and that there is in any event an objective justification for treating the different categories of prisoner differently.
At the heart of the appeal are the decisions of the House of Lords and of the European Court of Human Rights (“ECtHR”) concerning Mr Clift, a prisoner who was serving a sentence of 18 years' imprisonment for very serious crimes, including attempted murder, and complained that the early release provisions in respect of his sentence gave rise to a violation of article 14. In 2006, in R (Clift), the House of Lords held that Mr Clift's classification, as a long-term prisoner serving a determinate sentence of 15 years or more, did not amount to an “other status”, and accordingly there was no infringement of article 14. In 2010, in Clift v United Kingdom (Application No 7205/07), the ECtHR took the contrary view, holding that Mr Clift did come within article 14 and that there was no objective justification for the different release provisions applied to prisoners in his category.
The decision of the House of Lords in R (Clift) dictated the Divisional Court's decision in the present case. The Divisional Court only rejected Mr Stott's argument that his differential treatment was on the ground of “other status”, because it was constrained to do so by R (Clift). Had it not been so bound, it would have found that “other status” was established, and would then have gone on to find section 246A of the 2003 Act incompatible with article 14. It now falls to this court to determine whether the decision of the House of Lords in R (Clift) should continue to be followed, in the light of the subsequent ECtHR decision in Clift v United Kingdom, and of the article 14 jurisprudence as a whole.
Before turning to look at R (Clift) and Clift v United Kingdom in some detail, the decision of the ECtHR in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711 (“ Kjeldse...
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R (on the application of Stott) v Secretary of State for Justice
...(on the application of Stott) (Appellant) and Secretary of State for Justice (Respondent) [2018] UKSC 59 before Lady Hale, President Lord Mance Lord Carnwath Lord Hodge Lady Black Supreme Court Michaelmas Term On appeal from: [2017] EWHC 214 (Admin) Appellant Hugh Southey QC Jude Bunting (I......