The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their early release had been vested in the respondent and not in the courts.
Held: It could no longer be said that there was any proper place for a political role in such decisions. The involvement of the respondent for foreign nationals only was discriminatory and unjustifiable.
Lord Bingham said: ‘In M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91, [2006] 4 All ER 929, the House had recent occasion to review the Strasbourg jurisprudence on the applicability of art 14, and attempted to distil the essence of the relevant principles. Although different members of the House used different language, and the outcome vividly illustrated the difficulty which may arise in applying the principles to a concrete case, none of these opinions was criticised as inaccurate or incomplete, and I do not think any purpose will be served by repeating those opinions or citing passages from them. Plainly, expressions such as ‘ambit’, ‘scope’ and ‘linked’ used in the Strasbourg cases are not precise and exact in their meaning. They denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed. This calls, as Lord Nicholls said in M, at para 14, for a value judgment. The court is required to consider, in respect of the Convention right relied on, what value that substantive right exists to protect.’
The House concluded: ‘i) There was agreement that the words ‘or other status’ in article 14 (in French ‘toute autre situation’) are far from precise, but that they are not intended to cover differential treatment on any ground whatever, because in that case, the list of grounds which precede them would be otiose (paras 27, 43, and 56).
ii) Reliance was placed on the passage quoted above from para 56 of Kjeldsen, and the search was for something in the nature of a ‘personal characteristic by which persons or groups of persons are distinguishable from each other’ (paras 27, 28, 42, and 56 for example).
iii) It was accepted that, as the specific grounds of discrimination listed in article 14 show, protection is extended not only to characteristics over which a person has no control, such as race or birth, but also to acquired characteristics, such as religion or political opinion (paras 28 and 45).
iv) Lord Bingham and Lord Hope both advanced the proposition that, to qualify, the personal characteristic in question must exist independently of the treatment of which complaint is made. Lord Bingham said, at para 28, that he did ‘not think that a personal characteristic can be defined by the differential treatment of which a person complains’, without giving any explanation, or authority, for this view. He did not appear to consider that Mr Clift would fall foul of this, as he was not complaining of the sentence passed on him, but of being denied a definitive Parole Board recommendation. Lord Hope agreed, at para 47, that ‘[i]t must be accepted, as Lord Bingham points out, that a personal characteristic cannot be defined by the differential treatment of which a person complains.’ Although he similarly did not spell out the foundation for his view, it may lie in his observation, at para 45, that each of the specific grounds shared a feature in common, namely that ‘they exist independently of the treatment of which complaint is made’ and ‘[i]n that sense, they are personal to the complainant.’ The remainder of para 47 is not entirely easy to understand, but might indicate that Lord Hope shared Lord Bingham’s opinion that this was not an area of difficulty for Mr Clift. It reads:
‘It is plain too that the category of long-term prisoner into which Mr Clift’s case falls would not have been recognised as a separate category had it not been for the Order which treats prisoners in his group differently from others in the enjoyment of their fundamental right to liberty. But he had already been sentenced, and he had already acquired the status which that sentence gave him before the Order was made that denied prisoners in his group the right to release on the recommendation of the Parole Board. The question which his case raises is whether the distinguishing feature or characteristic which enables persons or a group of persons to be singled out for separate treatment must have been identified as a personal characteristic before it is used for this purpose by the discriminator.’
v) There was an examination of the ambit of article 14 as demonstrated by decisions of the ECtHR and the domestic courts in various factual contexts. Baroness Hale included a particularly detailed list of authorities at para 58, which led her to make the observation that in the ‘vast majority of Strasbourg cases where violations of article 14 have been found, the real basis for the distinction was clearly one of the proscribed grounds or something very close’. Examples were given of cases in which the grounds for the discrimination were not within article 14 (see, for example, paras 27, 45, 59-61), including prisoners who were treated differently because of the legislature’s view of the gravity of their offences ( Gerger v Turkey 8 July 1999, [1999] ECHR 46, para 69, and see also Budak v Turkey (Application No 57345/00) (unreported), [2006] ECHR 1214). And there was discussion of R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196 where the House of Lords held that article 14 did not cover differential treatment on the basis that a person had previously been investigated by the police and provided fingerprints; the possession of fingerprints and DNA samples by the police in that situation was simply a matter of historical fact, not attributable to the personal characteristics of those who had provided them.’
Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2006] UKHL 54, Times 21-Dec-2006, [2007] 1 AC 484, [2007] 2 WLR 24, [2007] 2 All ER 1, 21 BHRC 704, [2007] HRLR 12, [2007] UKHRR 348
Bailii, HL
European Convention on Human Rights 5 14, Criminal Justice Act 2003
England and Wales
Citing:
Cited – Stec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
Cited – Smith v Secretary of State for Work and Pensions and Another HL 12-Jul-2006
The House considered whether under the 1992 Regulations a self-employed parent could use for his child support calculation his net earnings as declared to the Revenue, which would allow deduction of capital and other allowances properly claimed . .
Cited by:
Cited – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Black, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
See Also (HL) – Clift v The United Kingdom ECHR 30-Apr-2009
Mr Clift 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. The House of Lords . .
Cited – Young, Regina (on The Application of) v Governor of Her Majesty’s Prison Highdown and Another Admn 6-Apr-2011
The claimant complained that he had not been considered for early release on Home Detention Curfew because the policy refused to allow those convicted of knife crimes to be so considered, and: ‘the failure to include other offences in the list of . .
Cited – Mathieson v Secretary of State for Work and Pensions SC 8-Jul-2015
The claimant a boy of three in receipt of disability living allowance (‘DLA’) challenged (through his parents) the withdrawal of that benefit whilst he was in hospital for a period of more than 12 weeks. He had since died.
Held: The appeal . .
Cited – Robinson, Regina (on The Application of) v HMP Whatton and Another Admn 4-Dec-2013
Two prisoners serving sentences of imprisonment for public protection sought judicial review of arrangements meaning that they had not been given a timely opportunity to demonstrate to the Parole Board that they are safe to be released. Their . .
Cited – Kaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
See Also – Clift v The United Kingdom ECHR 13-Jul-2010
Mr Clift had been sentenced in England to a term of imprisonment of 18 years for crimes including attempted murder. The Parole Board recommended his release on licence once he had served half of his sentence. The Secretary of State rejected its . .
Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Cited – Stott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .
Lists of cited by and citing cases may be incomplete.
Prisons, Constitutional, Human Rights
Leading Case
Updated: 11 November 2021; Ref: scu.247397