Headley, R (on the application of) & Anor v Secretary of State for the Home Department

These are applications for Judicial Review by Nezar Hindawi (“Mr Hindawi”) and Prince Charles Headley (“Mr Headley”) respectively. In each the respective applicant applies for an Order quashing the decision of the Secretary of State for the Home Department (“the Home Secretary”) not to release him from custody under Section 35 of the Criminal Justice Act, 1991 (“CJA 1991”). In each case, the Claimant submits that the decision of the Home Secretary violates Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”). The violation is said to have arisen as each Claimant has been denied any independent review of his case by the Parole Board, in contrast to other prisoners serving determinate sentences of imprisonment who are not (like the Claimants) liable to removal from the United Kingdom under a deportation order.

In short, the relevant legislation (to be found in the CJA 1991 as amended) provides that prisoners (not subject to removal from the United Kingdom) after serving one half of their sentence, may be released by the Home Secretary on licence, if recommended for such release by the Parole Board (“the Board”). In the case of prisoners liable to removal the decision is one for the Home Secretary, without prior recommendation of the Board. This is the combined effect of Sections 35(1) and 46(1) of the CJA 1991, which read as follows:

“35(1) After a long-term prisoner has served one half of his sentence, the Secretary of State may, if recommended to do so by the [Parole] Board, release him on licence”

“46(1) In relation to a long-term prisoner who is liable to removal from the United kingdom, section 35 above shall have effect as if the words “if recommended to do so by the Board” were omitted. … ”

The Claimants contend that this difference amounts to unlawful discrimination against them on the grounds of nationality within the meaning of Article 14 of the ECHR in relation to a matter falling within the ambit of Article 5, namely the right to liberty and security.

The relevant factual background in each case is as follows:

Mr. Hindawi

Mr. Headley

Both Mr. Hindawi and Mr. Headley have been made subject to deportation orders and are, therefore, liable to removal from the United Kingdom for the purposes of the CJA 1991.

Before moving to the competing arguments, I should mention certain other features of the early release provisions of the CJA 1991 which are material to these cases:

It has been held by the Divisional Court in considering the construction of section 34(4)(b) of the CJA 1991 (relating to the release of a discretionary life prisoner), that the question whether a prisoner’s confinement is “no longer necessary for the protection of the public”, is not confined to the public within then United Kingdom: see R v The Parole Board, ex parte White, 16 December 1994, a decision of Butler-Sloss LJ and Latham J (as he then was). No doubt the concept of “the public” must be similarly understood in all parole contexts unless otherwise clearly indicated.

Therefore, if it were not for the special statutory position of prisoners liable to removal from the United Kingdom under Section 35 of the CJA 1991, as modified in this case by section 46, in Mr. Hindawi’s case his early release position would be considered by the Home Secretary after a review and recommendation by the Board. In Mr. Headley’s case, his position would be reviewed by the Board and, if release was recommended, the Home Secretary would be obliged to release him.

I was initially concerned that the Claimant’s arguments under the ECHR would require consideration of whether the statutory scheme which I have endeavoured to describe was incompatible with the Convention. The Claim Form and written arguments did not raise any question of a declaration of incompatibility. Mr. Owen Q.C. who appeared for the Claimants submitted that there was no necessity for such a declaration in this case, because the statutory scheme could be operated in cases such as these, in a manner compatible with the ECHR, by the Home Secretary invoking his power to refer the matter to the Parole Board. The Board would then have a duty to advise him on any question relating to early release under Section 32. He compared and contrasted this situation with the matter considered in R (Wilkinson) v Inland Revenue Commissioners [2003] EWCA Civ. 814; [2003] 3 All E.R. 719. Mr. Patel who appeared for the Home Secretary did not contend that this approach was wrong.

The argument for the Claimants is that their rights under Article 14 of the ECHR are infringed.

In Wandsworth LBC v Michalak [2003] EWCA Civ. 271; [2003] 1 WLR 617, Brooke LJ said that it would usually be convenient to approach problems arising under Article 14 by asking four questions (see paragraph 20 of the judgments, at [2003] 1 WLR 625):

These four questions were also considered by Hooper J in the Clift case (supra) concerning the distinction in treatment between prisoners (not liable to removal) serving sentences of 15 years and more and those serving less than 15 years respectively. It will be recalled that in the former class of case, the prisoner is only released if the Board so recommends and the Home Secretary accepts the recommendation. In the latter case, the prisoner is released if the Parole Board so recommends, after serving the appropriate part of the sentence.

In Clift’s case, whilst reserving the right to argue to the contrary on appeal, Counsel for the Home Secretary accepted that the answer to question 1 was: “Yes”. It was, therefore, common ground that legislation making provision for early release on parole falls sufficiently within the ambit of Article 5, even though a failure to make any provision for early release would not be a breach of Article 5. Hooper J also answered questions 2 and 3, “Yes”. However, he also answered question 4, “Yes”, namely that there was objective and reasonable justification for the differential treatment.

On the final point, the Home Secretary had submitted that Parliament had decided that he should have the decision to release those subject to a sentence of 15 years imprisonment or more and that that was not only lawful (on the authority of R(Giles) v Parole Board & anor. [2002] EWCA Civ. 951, [2003] 2 WLR 196) but also legitimate. Apparently that submission was not elaborated and no evidence on the point had been submitted by the Home Secretary to Hooper J, which he considered had made his task harder.

Hooper J concluded that the case before him was in the rare category where the aim of the differential treatment was so clear that no evidence was required to justify the discrimination. His conclusion can be seen from the following two extracts from his judgment. He identified the aim in paragraph 32:

“The aim, which reflects the policy of successive Home Secretaries, has been to reserve to the Home Secretary, who is answerable to Parliament and to the electorate, the power to control the release of those serving long determinate sentences and indeterminate sentences of imprisonment. …”

Hooper J proceeded to ask whether the aim was legitimate and recalled that in Michalak (supra) (a case concerning rights to succeed to a secure tenancy) Brooke LJ had considered that this was pre-eminently a field in which the Courts should defer to decisions taken by a democratically elected Parliament: paragraph 33. The learned judge concluded that Parliament’s decision must have been based on these considerations:

“… It seems again to me to be clear, without the benefit of evidence, that prisoners falling into this category are likely to pose particular problems for public safety and order. These problems are such that Parliament had decided that the Secretary of State should be given the power, in effect, to review and reconsider a positive recommendation from the Parole Board. I accept that the power could, of course, be given to some other person or body. However, given that the Secretary of State must apply the same test as the Parole Board to the same, or same kind of, material as was (or could have been) available to the Parole Board, given that his decision is open to challenge by way of judicial review (or his failure to make a decision expeditiously) and given appropriate deference to the view of Parliament, it seems to me that the aim is legitimate.”

Turning to the four questions, as applied to the present two cases, on this occasion the Home Secretary did not make the same concession with regard to the first question that he made in argument before Mr. Justice Hooper. On his behalf, Mr. Patel argued that any discrimination that might be found was not within the ambit of any substantive provision of the ECHR. He submitted that the only relevant provision could be Article 5(4), the terms of which I have set out above. Mr. Patel’s argument had the attraction that it was founded in part upon a decision of Mitting J in this Court on 14 October 2003: R (Erskine) v LB Lambeth & anor. [2003] EWCH 2479 (Admin).

In that case Mitting J was concerned with those provisions of the Housing Act 1985 relating to enforcement by local authorities of legislation as to fitness for habitation of residential property. A tenant of the Council was complaining about the discrimination in the relevant regime between tenants of a local housing authority and tenants of other landlords. The factual and legal framework was, therefore, very far removed from that of the present cases. It was argued that the enforcement provisions fell within the ambit of Article 8 of the ECHR. Mitting J recognised that Article 8 is not always inapplicable in housing cases: see paragraph 26 of the judgment. However, he found that the principle purpose of the legislation with which he was concerned was to prevent and promote public health and to improve the condition of low-cost housing stock. That principle purpose was not, he held, the protection or promotion of rights such as those to which Article 8 was directed.

In reaching that conclusion, Mitting J considered the meaning of the concept of facts falling “within the ambit” of a substantive ECHR provision. He reviewed the authorities and accepted a submission that the relevant legislation said to fall “within the ambit” of a Convention right it must have, as its purpose, “the furthering of a right which is in fact guaranteed by the Convention”: see paragraph 33 of the judgment. He considered that an observation of Buxton LJ in a judgment in the Court of Appeal, suggesting a wider “ambit,” overstated the Strasbourg case law on this subject: paragraph 21 of the judgment of Mitting J.

The Court of Appeal decision in question was Ghaidan v Godin-Mendoza [2003] Ch. 380. Introducing a discussion of Article 14, Buxton LJ said,

“ … An uninformed reading of the bare words of that provision might suggest that a complainant had to establish an actual breach of another article of the Convention before he could rely on article 14. Jurisprudence has however established that that is not so. As it is put in Grosz, Beaston & Duffy, “Human Rights: The 1998 Act and the European Convention” (2000), para C14-10;

“It would appear, however, that even the most tenuous link with another provision in the Convention will suffice for article 14 to enter into play.”

A recent illustration is to be found in Petrovic v Austria (1998) 33 EHRR 307, a complaint about the refusal of the Austrian authorities to grant to men a parental leave allowance that was available to mothers. The court held, at p 319, para 26, that article 8 itself was not infringed since it did not impose any positive obligation on the state to provide the financial assistance in question. None the less, at p 319:

“27.

… this allowance paid by the state is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.

“28.

The court has said on many occasions that article 14 comes into, play whenever ‘the subject matter of the disadvantage … constitutes one of the modalities of the exercise of a right guaranteed’, or the measures complained of are ‘linked to the exercise of a right guaranteed’.

“29.

By granting parental leave allowance states are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that article 14--taken together with article 8 –is applicable”

We therefore have to apply that wide view of the ambit of article 14 in relation to the two other provisions of the Convention that are relied on in conjunction with article 14. ”

Mitting J said that the sentence containing the words “the most tenuous link” did not form part of the “ratio decidendi” of the Ghaidan case and was not, therefore, binding upon him. He, therefore, adopted the formulation of the “ambit” test which I have set out above.

Mr. Patel submits that the only Convention provision that could fall within the ambit of the present facts is Article 5(4). He submits that the provisions of that part of Article 5 is satisfied once and for all by the passing of the determinate sentences by the Court. He relies upon authority from Strasbourg and upon R (Giles) v the Parole Board [2003] UKHL L13; [2003] 3 WLR 736 and Smith v the Parole Board [2003] EWCA Civ. 1269.

In Giles, the House of Lords was considering the contention that the Claimant, who was serving a “longer than commensurate sentence” passed under CJA 1991 Section 2 (2) (b) (s.80 (2) (b) of the Powers of Criminal Courts (Sentencing) Act 2003) was entitled to a regular review of his sentence once the punitive period of it (as determined by the trial judge) had passed. In Smith, the Court of Appeal was considering the revocation of the licence under which a prisoner had been released on parole. In each case, the Claimant was contending that the procedure contravened Article 5(4). The contentions were rejected. There was no contention that there had been unlawful discrimination under Article 14. Mr. Patel relied in particular upon passages in the speeches of Lord Bingham of Cornhill and Lord Hope of Craighead at paragraphs 11, 41 and 51-52 (pp. 742, 751 and 755 of the report) which he submitted were illustrations of his point. From Smith’s case reliance was placed on paragraphs 23 and 33 in the judgment of Kennedy LJ.

It is clear that the challenge in Giles was to the lawfulness of a determinate sentence, albeit one which was longer than commensurate. There could be no proper challenge under Article 5(4) where the right to liberty had been lost upon the passing of that sentence. Similarly, there could be no grounds of complaint under Article 5(4) in respect of the release of a prisoner on licence. However, that seems to me to be a far cry from a question whether the terms upon which a prisoner’s right to regain his liberty are discriminatory within the ambit of Article 5; no one is to be deprived of liberty save in the cases set out and “in accordance with a procedure prescribed by law”. The regaining of liberty has been assumed by the European Commission of Human Rights to be within the ambit of Article 5 in the case of Webster v United Kingdom (1987) Application No. 12118/86 and by the European Court, in an admissibility decision, in Walker and Vale v United Kingdom (2003) Application Nos. 54656 and 61061 of 2000. In my view, Mr. Patel’s approach, concentrating as it does on only one part of Article 5 of the ECHR to the exclusion of the rest, is far too narrow.

I posed in argument the example of a hypothetical statutory scheme where a French national on a determinate sentence was applying for release on parole where the statute expressly provided that no parole should be granted to French nationals. I asked Mr. Patel whether such a person could claim a breach of Article 14 within the ambit of Article 5. In oral argument and in response to my request for any further submission on the point in writing, Mr. Patel resorted again to his argument based upon Article 5(4) and said that therefore there would be no breach. Mr. Patel submitted that the hypothetical Frenchman would have redress under our law as to rationality and under the laws of the European union on discrimination. I doubt whether the first suggested remedy would be open as an objection to an express statutory provision. More importantly, however, I cannot see that either the framers of the Convention or the European Court of Human Rights would have considered that the Convention was impotent to deal with a situation such as this. I feel confident that Article 14 would provide the remedy. At present, I also consider that Article 14 would also be relevant if longer than commensurate sentences or recall of prisoners on licence were to be operated in a manner discriminatory on grounds such as those specified in the Article.

In my view, the concession made to Mr. Justice Hooper in Clift was rightly made and question (1) (derived from Michalak) is to be answered “Yes” in this case.

So far as question (2) is concerned it seems to me clear that there is differential treatment as respects the Claimants in this case and persons who are serving sentences of similar length but who are not liable to removal under deportation orders. I also consider that, for the purposes of question (3) their respective situations are analogous. These views do not permit of great elaboration. However, “differential treatment” can only mean “different treatment”. The Home Secretary argues that the only difference is the identity of the decision maker which is immaterial. Difference in treatment, however, there clearly is. I do not see how the Claimants and the comparators cannot be in analogous situations for the purposes of question (3).

The Home Secretary was constrained to contend that the only basis for complaint about the identity of the decision maker would be if the Home Secretary were prejudiced against the Claimant’s claims to release as compared with the Board. He submits that the fallacy of the alleged discrimination can be seen if one were to assume a situation where the Home Secretary could be shown to be more likely to direct release than the Board.

As I see it, however, Article 14 is not concerned with the qualitative assessment of the consequences of the discrimination; it is rather designed to overcome the fact of discrimination in any relevant area and to render it unlawful. The “prejudice argument” is, in my respectful opinion, besides the point.

After the conclusion of the argument, a further point arose in my own consideration of the matter, and I posed the question in a Note to Counsel dated 11 December 2003. Responses were received from Counsel on 5 and 6 January 2004. The question was:

“Article 14 of the ECHR assures the enjoyment of Convention rights without discrimination on any ground such as “…national or social origin”. At the hearing we spoke of discrimination on grounds of nationality. In so far as there may be differential treatment in this case between prisoners of British nationality and prisoners liable for deportation is this difference made on the ground of nationality? Or is it a discrimination based upon the liability of the one class of prisoner to removal, irrespective of nationality? In other words, is it possible also that the difference is not “within the ambit” of Article 5, because it is not so much concerned with the right to release (and therefore liberty), but rather with the prisoner’s immigration status? ”

I think that the point more accurately relates to questions (2) and (3) than to question (1), as Mr. Patel submits in his response. The response given by Mr. Owen and Mr. Southey was twofold. First, this is a discrimination on the grounds of nationality or, alternatively it is a discrimination based upon “other status” within the meaning of Article 14. In either case, it is submitted, no justification for the discrimination has been established on the evidence. Mr. Patel re-advanced his submission that the discrimination advanced was only a procedural one as to the decision making process. I need say no more than that I accept the submissions of Mr. Owen and Mr. Southey on this additional point.

I consider that the real area for argument might have been upon question (4). I would have expected evidence and argument directed to the question whether or not it was legitimate to reserve to the Home Secretary decisions where the outcome might turn upon questions of policy in relation to a state of affairs in foreign countries, particularly in a case such as that of Mr. Hindawi. However, that was not the evidence or the argument. The Home Secretary’s case was founded upon the submission that he was better placed than the Board to consider which prisoner liable to deportation should be released. He relied upon the reasoning behind the creation of the different statutory regimes in the first place. That reasoning was based, according to the evidence, upon the recommendations of the Carlisle Committee’s report into the Parole System in England and Wales (1988) (Cmd.532). It was stated that the Board had expressed concerns regarding the difficulty of knowing what criteria they can sensibly apply in cases where no release plan will have been formulated for the prisoner and where there will be no prospect of normal supervision while on licence. The witness statement made on the Home Secretary’s behalf quoted the following passage from the Committee’s report:

“there is a strong argument of principle for saying that those who are not going to be allowed to remain in the country after release should, particularly if early release is selective, be dealt with within a distinctive legal framework which recognises the peculiarities of their situation” ….

“The whole notion of a sentence served partly in custody and partly in the community does not really fit the situation of those who are not going to be part of the community here after release. Release plans, supervision by a probation officer, a liability to be sent back to, prison in the event of misconduct, all presuppose that the offender is going to stay in the country. It is very difficult to see on what basis the Parole Board, particularly under the new criteria which will exclude punishment and deterrence, can hope to decide that one deportee should be released at a certain point in his sentence but another made to serve longer: assessing the risk that a person would commit further offences here if he were allowed to remain, when he is in fact going to be sent away, involves the performance of a somewhat unsatisfactory mental trick”.

It can be seen immediately that this reasoning clashes with the decision in R v The Parole Board, ex p. White (see paragraph 6 above). There it was held that the concept of “risk” was not confined to risk to the United Kingdom public alone. Moreover, it is difficult to see how this squares with the role of the Parole Board with regard to life sentence prisoners who are liable to be removed. Evidence has not been advanced to reconcile these features with the regime proposed by the Committee and enacted by Statute. In the absence of such explanation of these anomalies, it is not legitimate for the Court to speculate as to possible objective and proportionate reasons for the discrimination which I find to subsist and which is sought to be justified only by reference to the passages in the Carlisle report which I have quoted and for no other reasons. I do not feel able readily to discern such justification, in the absence of evidence, in a manner similar to the approach of Mr. Justice Hooper in Clift’s case.

That is sufficient to indicate that these applications succeed. However, I must in addition deal with the additional grounds raised by Mr. Hindawi as to the adequacy of the written decision given in his case. The concluding paragraphs of the decision are set out at paragraph 3(4) above. In addition the principal reasoning of the decision is set out in the two immediately preceding passages which are in the following terms:

“He [i.e. the Home Secretary] notes that you have made constructive use of your time in custody and that your behaviour since your last review has been satisfactory. Reports show that you have not undertaken any offence-focussed work as none has been identified as suitable. However, it is noted, that you have displayed regret and accepted responsibility for committing the offences. Additionally it is noted that you have stated that you have severed all connections with political parties and that should you ever be approached in the future and asked to commit similar offences, you would decline to do so and would be likely to inform the authorities.

The Secretary of State is concerned however that you have not developed sufficient insight and empathy towards the potential victims and their families. The Prison Probation officer reported in 2000 that you “had divorced yourself from much personal responsibility for the impact of your actions upon not only Ms Murphy but also the potential victims on the aeroplane”. The Prison Probation officer reported at your first review that you minimised your offending and you were manipulative. The probation officer reports for your current review, that there is nothing in your attitude or circumstances that leads her to feel that anything has changed.”

Mr. Hindawi’s complaint is that the decision did not address the principal argument put in favour of his release, namely the changed political conditions in Syria. As can be seen from the quoted passages, the decisions really only considered Mr. Hindawi’s personal approach to his offending behaviour. It failed to deal with the point being made that, owing to prevailing conditions in Syria to which he will return on his release, there is no likelihood of re-offending in reality.

In support of this argument, Mr .Owen relies upon the decision of the Court of Appeal in R v Parole Board and another ex. parte Oyston (1^st March 2000, unreported), in particular paragraphs 28 to 32 of the judgment of Pill LJ. He submits that that case shows that the Parole Board decision does not have to refer to every material consideration or argument, however insignificant or peripheral but it must give reasons sufficient for the reader to know what conclusion has been reached on the principal issues. Mr. Owen submits that a decision which fails to address at all the arguments presented about conditions in Syria does not deal with the real issue at stake in the case. Further, he submits, the later attempt by the Home Secretary to supplement the reasons given by stating that he did consider the conditions in Syria, does not make the earlier decision less objectionable; see R v Secretary of State for the Home Department, ex. parte Lillycrop (27 November 1996, unreported).

Mr. Patel submits that the political circumstances in Syria was one consideration for the Home Secretary, he was entitled to conclude that the risk had not been sufficiently reduced to allow early release. He submits that the Home Secretary did consider the points made.

In my view, Mr. Owen is right in his submission on this point of the case also. If one reads the decision letter it does not appear that it addresses the real issue of what the risk of re-offending was, given that Mr. Hindawi was likely to be removed to Syria on release. It did not give any apparent consideration to the contention that such re-offending was unlikely because of the evidence as to the new position in Syria. That was a crucial issue that was being urged upon the Home Secretary. The decision does not deal with it at all and that is where the reasoning should appear. In my view, this decision falls foul of the reasoning in the Oyston case and on that ground also Mr. Hindawi’s application succeeds.