R (Hindawi) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD HOPE OF CRAIGHEAD,LORD CARSWELL,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD BINGHAM OF CORNHILL |
| Judgment Date | 13 December 2006 |
| Neutral Citation | [2006] UKHL 54 |
| Court | House of Lords |
| Date | 13 December 2006 |
and another (FC)
and another (FC)
[2006] UKHL 54
Appellate Committee
Lord Bingham of Cornhill
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellants:
For Clift
Tim Owen QC
Kris Gledhill
For Hindawi and Headley
Tim Owen QC
Hugh Southey
(Instructed by Amal for Clift, Birnberg Peirce for Hindawi and Irwin Mitchell for Headley)
Respondents:
David Pannick QC
Steven Kovats
Parishil Patel
(Instructed by Treasury Solicitor)
My Lords,
These three appeals, arising on somewhat differing facts, present a common question. The appellants are former or serving prisoners. The question is whether the early release provisions to which each of the appellants respectively was subject discriminated against him, unjustifiably, in breach of article 14, in conjunction with article 5, of the European Convention on Human Rights.
Sean Clift
The first-named appellant (Sean Clift) is a British national. On 30 April 1994 he was sentenced at Lincoln to 18 years' imprisonment for very serious crimes including attempted murder, which carried a maximum sentence of life imprisonment. Under the legislative regime applicable to his case he became eligible for release on parole on 13 March 2002 and entitled to release on 18 March 2005. On 25 March 2002 the Parole Board recommended his release on parole but the Secretary of State rejected that recommendation on 25 October 2002. The Parole Board reconsidered the case and on 17 March 2003 did not recommend release, but on 25 February 2004 it again did so. On this occasion the Secretary of State accepted the recommendation, and on 10 March 2004 Mr Clift was released on licence.
Had Mr Clift been sentenced to a term of less than 15 years, or had he been sentenced to life imprisonment, the Secretary of State would have been legally obliged to comply with the recommendation of the Parole Board. That is the effect of sections 33(2) and (5), 34, 35 and 50(2) of the Criminal Justice Act 1991, section 28 of the Crime (Sentences) Act 1997, section 275 of the Criminal Justice Act 2003 and paragraph 2 of the Parole Board (Transfer of Functions) Order 1998 (SI 1998/3218) ("the 1998 Order"). But paragraph 2 of the 1998 Order preserved the Secretary of State's final power of decision, following a recommendation for release by the Parole Board, in relation to prisoners serving determinate terms of 15 years or more.
The first-named appellant contends that this early release regime discriminated against him in breach of his rights under articles 5 and 14 of the European Convention, without justification, in denying him a right enjoyed by long-term prisoners serving determinate sentences of less than 15 years or life sentences prisoners: the right to be released on the recommendation of the Parole Board.
Nezar Hindawi
The second-named appellant (Nezar Hindawi) is a foreign national. On 24 October 1986 he was sentenced at the Central Criminal Court to 45 years' imprisonment for very serious terrorist offences. A deportation order was made against him on about 13 November 2000. Under the parole regime in force when he was sentenced, which continues to apply, he became eligible for release on parole on 18 April 2001, although he is not entitled (on the agreed facts) to be released until 8 June 2016. On 20 June 2001 and 2 April 2003 the Secretary of State rejected an application by Mr Hindawi for early release. He remains in prison. Because he is a long-term prisoner liable to removal from the United Kingdom, the Parole Board has no power to recommend his release, and the decision on release rests with the Secretary of State alone. If he were not liable to removal, the Parole Board would have power to recommend release although the Secretary of State would not be legally obliged to give effect to the recommendation since he is serving a sentence of more than 15 years. That is the effect of sections 33(2) and (5), 35, 46(1) and 50(2) of the 1991 Act and paragraph 2 of the 1998 Order.
Mr Hindawi contends that this early release regime discriminates against him in breach of his rights under articles 5 and 14 of the Convention, without justification, in denying him a right enjoyed by long-term prisoners not liable to removal serving determinate sentences of less than 15 years or life sentences: the right to be released on the recommendation of the Parole Board. He says, invoking section 6 of the Human Rights Act 1998, that sections 46(1) and 50(2) of the 1991 Act are incompatible with the Convention.
Prince Charles Headley
The third-named appellant (Prince Charles Headley) is a foreign national. On 31 January 2000 he was sentenced at Sheffield to seven years' imprisonment for drugs offences. A deportation order was made against him on 9 December 2003. Under the regime applicable to him he became eligible for early release on parole on 7 January 2003. His application for early release was referred to the Parole Board in error: it was refused by the Board on 15 January 2003 and by the Secretary of State on 9 May 2003. But a further application to the Secretary of State was successful, and he was released from his sentence on 23 December 2003. He was thereafter detained with a view to deportation, recalled to prison, remanded in custody and eventually sentenced for other offences. These later events are not material to his appeal. Under his seven-year sentence, as a long-term prisoner liable to removal from the United Kingdom, the decision on his early release rested with the Secretary of State alone. Had he not been liable to removal the Parole Board and not the Secretary of State would have decided on his release. That is the effect of sections 33, 35 and 46(1) and 50(2) of the 1991 Act and paragraph 2 of the 1998 Order.
Mr Headley contends that this early release regime discriminated against him in breach of his rights under articles 5 and 14 of the Convention, without justification, in denying him a right enjoyed by long-term prisoners not liable to removal serving sentences of less than 15 years or life sentences: the right to be released on the recommendation of the Parole Board. He makes the same case on incompatibility as Mr Hindawi.
The provisions referred to above have been repealed and replaced by the Criminal Justice Act 2003. But they continue to apply to offences committed before 4 April 2005 under the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 ( SI 2005/950 (C 42)), and therefore continue to apply to these appellants.
The parties very helpfully agreed that three issues arise for decision by the House. But the second question arises only in the appeal of Mr Clift, and not in the other two appeals. Depending on the answer to the second issue in Mr Clift's appeal, the answer to the third issue may, in his case, not be decisive.
Articles 5 and 14 of the European Convention
Articles 5 and 14 of the European Convention, given domestic effect by the 1998 Act and in force at all times material to these appeals, are now very familiar. So far as relevant, the articles provide:
"Article 5
Right to liberty and security
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
Prohibition of discrimination
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."
The first issue
The first issue, arising in all three appeals, is whether the appellants' applications for early release came within the ambit of article 5 of the European Convention so as to engage article 14 of the Convention. The issue is so expressed in recognition of a clear, consistent and very well-established line of Strasbourg authority. A recent summary of the relevant principles was given by a Grand Chamber of the Strasbourg court in Stec v United Kingdom (2005) 41 EHRR SE 295 in a passage directed of course to the case then before the court:
"38. The Court recalls that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions (see, amongst many authorities, Sahin v Germany [GC], (2003) 36 EHRR 765 at [85]. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall 'within the ambit' of one or more of the Convention Articles (see, among many other authorities, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 at [71]; Schmidt (Karlheinz) v Germany (1994) 18 EHRR 513 at [22]; and Petrovic v Austria (1998) 33 EHRR 307 at [22].
39. The prohibition of discrimination in Article...
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