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 this was discriminatory.
Held: The right to apply for early release falls within the ambit of Article 5. Two questions arose: whether the different treatment of S is on a
ground within the meaning of ‘other status’; and (in two parts): (a) whether EDS prisoners are in an analogous situation to either indeterminate sentence prisoners or other determinate sentence prisoners; and, if so, (b) whether there is an objective justification for the difference in treatment between the categories of prisoners.
Held: The appeal failed (Lady Hale and Lord Mance dissenting). The EDS scheme did not breach Article 14 with Article 5.
Issue 1 – Status. Held – Majority (LL Black, Hodge, Hale and Mance) Mr S had status under Article 14. Given the ECtHR decision in Clift, the Court should depart from the HL decision in the same case that different treatment of a prisoner serving a sentence of 15 years or more could not be said to be on the ground of ‘other status’.
In determining status, there was no real distinction between a prisoner serving 15 years or more and a prisoner serving an EDS. Giving generous meaning to Article 14 grounds, the difference in treatment of EDS prisoners fell within the scope of Article 14, as an ‘other status’.
Lord Carnwath said that difference of treatment of EDS prisoners was not attributable to some ‘status’ for the purposes of Article 14 and would dismiss the appeal on that basis.
Issue 2 (a) – analogous situation
LLs Black, Carnwath, Hodge held that EDS prisoners are not analogous situation to other prisoners. The sentencing regimes are whole entities, designed for particular circumstances and characteristics. The differences are such that prisoners serving sentences under different regimes are not in analogous situations. Lady Hale said that for all three categories of prisoner, the most important question from their point of view is ‘when will I get out?’ The essence of the right in question is liberty and for that purpose their situations are relevantly similar.
Lady Hale and Lord Mance (dissenting) held that EDS prisoners are in an analogous situation to other prisoners serving determinate sentences and prisoners serving discretionary life sentences.
Issue 2 (b) – objective justification
Lady Black, Lord Carnwath, Lord Hodge held that, if EDS prisoners were in an analogous situation, the difference of treatment would be objectively justified.
The aims of EDS included public protection and were legitimate. Whether the EDS scheme is proportionate requires consideration of each sentence as a whole. Within the framework of statutory provisions and sentencing guidelines, the sentencing judge imposes the sentence that best meets the characteristics of the offence and the offender. The early release provisions are part of the chosen sentencing regime and objective justification should be considered in that wider context.
The EDS is better compared to an indeterminate sentence, rather than to other types of determinate sentence. Counter-balancing the indeterminate prisoner’s earlier eligibility for parole is the lack of any guaranteed end to his incarceration, and the life licence to which he is subjected. This undermines the argument that the difference in treatment in relation to early release is disproportionate or unfair.
The EDS is a separate sentencing regime that is neither arbitrary nor unlawful.
Lady Hale and Lord Mance (dissenting) hold that that there is no justification for insisting that an EDS prisoner stay in prison for two thirds of the custodial term appropriate to the seriousness of his offending, while a discretionary life sentence prisoner, who is likely to be even more dangerous than an EDS prisoner, would be considered for release after half of what would have been an appropriate determinate sentence
Judges:
Lady Hale, President, Lord Mance, Lord Carnwath, Lord Hodge, Lady Black
Citations:
[2018] UKSC 59, UKSC 2017/0097
Links:
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2018 Jan 18 am Video, SC 2018 Jan 18 pm Video
Statutes:
Criminal Justice Act 2003 226A, European Convention on Human Rights 5 14
Jurisdiction:
England and Wales
Citing:
Appeal from – Stott, Regina (on The Application of) v The Secretary of State for Justice Admn 15-Feb-2017
The claimant committed ten rapes. He was sentenced to 21 years with four years extended sentence. He claimed it was discriminatory since he would lose a right to early release.
Held: The High Court dismissed his claim, but granted a . .
Cited – 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 – Clift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
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 . .
Cited – Kjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
Cited – Gerger v Turkey ECHR 8-Jul-1999
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Preliminary objection rejected (non-exhaustion, lack of jurisdiction); Violation of Art. 6-1 (independent and impartial tribunal); Not necessary . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Budak and Others v Turkey ECHR 10-Jan-2006
. .
Cited – Biao v Denmark (Legal Summary) ECHR 25-Mar-2014
ECHR Article 14
Discrimination
More favourable conditions for family reunion applying to persons who had held Danish citizenship for at least 28 years: no violation
Article 8
Positive . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Khamtokhu v Russia ECHR 27-Sep-2011
The applicants were sentenced to life imprisonment. They complained of discriminatory treatment, in violation of article 14 taken in conjunction with article 5, because they were treated less favourably than other categories of convicted offenders . .
Cited – Minter v United Kingdom ECHR 2017
Mr Minter was sentenced to an extended sentence for sexual offences. This meant that he was subject to an extended licence period, and thus to a requirement to notify the police of various personal details indefinitely. Mr Minter complained that the . .
Cited – Khamtokhu And Aksenchik v Russia ECHR 24-Jan-2017
. .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – Docherty, Regina v SC 14-Dec-2016
After conviction on his own admission for wounding with intent, and with a finding that he posed a threat to the public, the defendant was sentenced to imprisonment for public protection. Such sentences were abolished with effect from the day after . .
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 – 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 . .
Cited – Paulik v Slovakia ECHR 10-Oct-2006
. .
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 – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – HC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
Cited – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
Cited – Bristow, Regina (on The Application of) v Secretary of State for Justice and Another Admn 16-Oct-2013
Release date for prisoner convicted abroad and repatriated. . .
Cited – Massey, Regina (on The Application of) v Secretary of State for Justice Admn 10-Jul-2013
The claimant had been sentenced to an indeterminate sentence for public protection with a tariff period of two years and six months. The tariff expired but he was not released. The Parole Board had twice refused to direct his release or recommend . .
Cited – Burinskas, Regina v, (Attorney General’s Reference (No 27 of 2013)) CACD 4-Mar-2014
Effect upon sentencing of amendments to dangerous offender provisions . .
Cited – Maktouf and Damjanovic v Bosnia And Herzegovina ECHR 18-Jul-2013
(Grand Chamber) The effect of the change was to alter the range for the defendant Maktouf (an accomplice) from 1-15 to 5-20 years. For the defendant Damjanovich (a principal) the range was altered from 5-15 to 10-20. Maktouf was expressly sentenced . .
Cited – Whiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .
Cited – Foley, Regina (on The Application of) v Parole Board for England and Wales and Another Admn 27-Jul-2012
Challenge to finding that the claimant was not suitable for release on licence. . .
Cited – Krajisnik v United Kingdom ECHR 2012
The court considered the status of the claimant as a prisoner convicted by the International Criminal Tribunal for former Yugoslavia . .
Cited – Round and Dunn v Regina CACD 16-Dec-2009
Non-consolidation of sentence to debar home curfew
Each defendant had been sentenced to consecutive terms of imprisonment under the 1991 and 2003 Acts. One was above and one below twelve months. They complained that the result of trying to reconcile the statutory provisions was that they had . .
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 . .
Cited – Shelley v The United Kingdom ECHR 4-Jan-2008
Discrimination on grounds of prisoner status was recognised as falling within ‘other’ status in Article 14: ‘[T]he Court would observe that being a convicted prisoner may be regarded as placing the individual in a distinct legal situation, which . .
Cited – Secretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
Cited – Jarvis, Regina v CACD 4-Jul-2006
. .
Cited – Budak and Others v Turkey ECHR 10-Jan-2006
. .
Cited by:
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing, Human Rights
Leading Case
Updated: 07 February 2022; Ref: scu.630740