Stott, R (On the Application Of) v The Secretary of State for Justice

It is well recognised that “the general principle that early release, licence and their various ramifications should be left out of account on sentencing is … a matter of principle of some importance”: see R v Round [2009] 2 Cr App R (S) 292; [2009] EWCA Crim 2667 at [44] per Hughes LJ, reaffirmed in R v Burkinskas [2014] 1 WLR 4209; [2014] EWCA Crim 334 at [38]-[39]. One exception relates to the identification of the minimum term when passing any indeterminate sentence (when the normal period of one half of the appropriate determinate term to reflect the need for punishment and deterrence can be varied for good reason: see R v Szczerba [2002] 2 Cr App R (S) 387; [2002] EWCA Crim 440 per Rose LJ at [32]-[33] and the example of R v Hayward [2000] 2 Cr App R (S) 418). Another is those cases which were at the margin of different automatic release provisions when the court could adjust an otherwise unobjectionable sentence to avoid the disproportionality of moving the offender into long term prisoner status: see R v Cozens [1996] 2 Cr App R (S) 321 and R v Harrison [1998] 2 Cr App R (S) 174.

That is not to say that, in the context of the imposition of custodial sentences, different eligibility criteria for parole, release or even home detention curfew are either desirable or in the public interest and, on occasion, a different view has been taken about the attention that should be paid to these features: see, for example, Practice Statement (Crime: Sentencing) [1992] 1 WLR 948 and the guidance issued by the Sentencing Guidelines Council at para. 2.1.9 ‘New Sentences: Criminal Justice Act 2003’. The reason is that sentencing requires clarity for all those concerned with the criminal justice system (including members of the public) and, additionally, fairness as between different offenders. That is also why s. 125(1)(a) of the Coroners and Justice Act 2009 ensures consistency of approach to sentencing by mandating judges to follow guidelines set down by the Sentencing Council (using the word ‘must’), save only where the court is satisfied that it would be contrary to the interests of justice to do so.

If different determinate sentences have parole eligibility dates at different stages of the sentence or different dates when release on licence is mandatory, unfairness as between offenders (and, in particular, co-defendants whose sentences have been carefully calibrated by the sentencing judge to reflect differences in culpability) may become unavoidable. The same is also argued in relation to aspects of the release regime for those serving indeterminate sentences.

This claim concerns one such alleged unfairness. On behalf of Frank Stott, now serving an extended determinate sentence (“EDS”) comprising a custodial term of 21 years and an extension of 4 years for sexual offences, Hugh Southey Q.C. argues that by comparison with a life sentence, he suffers unlawful discrimination within the meaning of Article 14 of the European Convention on Human Rights (“ECHR”). This contention is based on the fact that, although he is entitled to automatic release at the end of the custodial term (i.e. after 21 years), he is only eligible to be considered for parole when he has served two-thirds of that custodial term, that is to say, after 14 years. This is to be contrasted with the minimum term to be served as part of a life sentence which, as I have explained, is normally half the appropriate determinate sentence.

The difference in treatment is underlined by the fact that, if this offender had received what would be considered the more punitive sentence of discretionary life imprisonment for the same offences, the judge would have, or at least should have, approached the calculation of the minimum term for punishment and deterrence and halved it. On the basis that the appropriate determinate sentence would have remained 21 years, the minimum term which would then have elapsed before he would be entitled to be considered for parole was only 10½ years. Mr Southey recognises that he may not have been granted parole either then or, if he remained a danger to the public, ever and, furthermore, that if released on parole, he would then be subject to a life licence. On the other hand, the effect of the EDS is that he must be released after 21 years (however much of a risk it is then considered he poses) with his licence expiring 25 years after sentence. What is argued, however, is that the approach to the minimum term for punishment and deterrence should be the same in both cases, so that he should be entitled to be considered for parole after a half, rather than two thirds, of the determinate term.

I should say that, although the comparison relied on principally was that between the sentence being served by Mr Stott and a life sentence, in the course of argument, Mr Southey acknowledged that there could be legitimate comparison between his sentence and other forms of determinate sentence. In due course, I shall review all of the relevant custodial sentences in order to consider the other sentences to which it is appropriate to compare the sentence being served by this offender.

For the Secretary of State, Rosemary Davidson submits that this court is bound by the decision of the House of Lords in R (Clift) v Home Secretary of State for the Home Department [2007] 1 AC 484; [2006] UKHL 54, which held that the treatment of a prisoner serving a long-term determinate sentence in excess of 15 years, in contrast to a prisoner serving a life sentence or a long-term prisoner serving less than 15 years, does not fall within Article 14 of the ECHR because the term of imprisonment could not amount to “other status” within Article 14.

Mr Southey does not challenge the proposition that Clift is binding, or the inevitable consequence that, in this court, the claim must fail. He points, however, to the fact that subsequent to that decision, an appeal was successfully mounted to the European Court of Human Rights (“the ECtHR”) (see Clift v United Kingdom 7205/07, 13 July 2010). That court determined that Article 14 was engaged and that, in the circumstances of that case, first, the positions of long term prisoners serving more than 15 years (whose parole then depended ultimately on the Secretary of State) and life prisoners (where the decision was that of the Parole Board) could be considered analogous and, second, that the difference in treatment was without objective justification. As a result, Mr Southey argues that the Supreme Court should now have the opportunity of revisiting the decision of the House of Lords, albeit that the point arises in different circumstances, the particular breach there identified now having been rectified.

Frank Stott is now 48 years of age. On 3 May 2013, following a trial in the Crown Court at Newcastle upon Tyne, he was convicted of eleven counts of rape of a child under 13, contrary to section 5(1) of the Sexual Offences Act 2003. His victim, ‘X’ was aged 8 years throughout. Eight of those offences related to vaginal penetration; two involved anal penetration; and there was one offence of oral penetration. There were two counts of assault on a child under 13 by penetration, contrary to section 6(1) of the Sexual Offences Act 2003 (also involving X); and one count of causing her to engage in sexual activity, contrary to section 8(1) of the 2003 Act. In addition, there were six counts of sexual activity with a child under 16, contrary to section 9(1) of the 2003 Act: his victim was ‘Y’, who was then aged between 13 and 16. He had also previously admitted four counts of making an indecent photograph of a child and one count of possession of an indecent photograph of a child.

On 23 May 2013, in respect of each of the ten counts of rape relating to vaginal and anal penetration, the applicant was sentenced by the Recorder of Newcastle to an EDS, under section 226A of the Criminal Justice Act 2003 as amended (“the 2003 Act”), comprising a custodial term of 21 years’ imprisonment and an extended licence period of four years. For assault by penetration, he was sentenced to concurrent terms of 12 years’ imprisonment; for oral penetration to seven years’ and for causing X to engage in sexual activity to five years’. In relation to the offences against Y, he was sentenced to terms of five years’ imprisonment, with lesser terms in relation to the photograph offences. All the sentences were ordered to be served concurrently.

Permission was sought for leave to appeal against sentence, both in relation to the length of the sentence, and in relation to the discriminatory nature of an extended determinate term. It was refused on both grounds: see R v Stott [2016] EWCA Crim 172. As to the first, the court referred to his manipulative conduct and the lifelong effects on his victims before concluding that the case “cried out for an extended sentence”, and that the contention that the term was excessive was “simply unarguable” (see [16] and [20]).

Turning to the allegation of discrimination under Article 14, although characterised as a challenge to the principle of an extended sentence under s. 226A of the 2003 Act, it was, in reality, a challenge to the release provisions under s. 246A of the same Act. It was these provisions that required a person in this offender’s position to serve not less than two-thirds of the custodial term before being considered for parole. The court went on to make the point that sentencing judges are directed not to have regard to early release when considering sentence, and observed that the appropriate mechanism to pursue this challenge was by way of judicial review: see [23].

The normal determinate custodial sentence will be for a fixed period and will not be subject to any extended or additional licence period. Mr Stott is an adult, so I shall deal only with the custodial sentence which is applicable to those aged 21, namely imprisonment. By virtue of s. 152(2) of the 2003 Act, a discretionary custodial sentence may be imposed only if the offence is “so serious” that a fine or a community sentence would be insufficient. A court imposing such a sentence is mandated to impose “the shortest term … commensurate with the seriousness of the offence”, save where the sentence is fixed by law, or where there is specific provision for a minimum determinate term such as the minimum term required by s. 51A(2) of the Firearms Act 1968: see s. 153(2) of the 2003 Act.

A duty is imposed on the Secretary of State by s. 244 of the 2003 Act to release on licence any “fixed term prisoner” (to use the statutory language) once he has served “the requisite custodial period” which is defined as one half of the sentence. There are exceptions to the duty imposed by s. 244, one of which relates to a prisoner serving an extended determinate sentence of the kind being served by this offender.

In Chapter 12 of the 2003 Act as originally enacted, new forms of custodial sentence were introduced under the heading “Dangerous Offenders”; these were imprisonment for public protection and an extended sentence for certain violent or sexual offences. Imprisonment for public protection needs little further discussion, save only for observing that the court was required to impose an indeterminate term in circumstances in which the relevant offender satisfied the criteria of dangerousness there defined. The result was that it could lead to indeterminate sentences with comparatively short minimum periods to serve (reflecting punishment and deterrence for the offence). This was later amended by ss. 13-18 of the Criminal Justice and Immigration Act 2008, so that the sentence could only be imposed when the determinate term would have been four years’ imprisonment or more. Thus the minimum term, fixed at a half, had then to be at least two years. Because of real difficulties (not least surrounding proof of eligibility for parole leading to offenders remaining in custody many years after being eligible for parole), the sentence was abolished in December 2012, although it remains in place for those who received such sentences, and is thus of continuing significance in terms of the prison population.

The provision of an extended sentence and its applicability was set out in s. 227 of the 2003 Act (as originally drafted). The eligibility criteria or circumstances in which such a sentence could be imposed were amended by the Criminal Justice and Immigration Act 2008. As I shall describe, the extended sentence as originally enacted and then amended was abolished by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (“the 2012 Act”). Its abolition took effect in December 2012 to coincide with the abolition of imprisonment for public protection. Thus, any defendant sentenced after 3 December 2012 could not be made the subject of an extended sentence pursuant to s. 227 of the 2003 Act but, because there were many prisoners serving extended sentences at that time, the 2012 Act had to provide for release on licence for such prisoners in what now appears at s. 247 of the 2003 Act. In short, the Secretary of State became under a duty to release such prisoners (i.e. those sentenced prior to 3 December 2012) once they had served one half of the custodial term, which was the release provision as it applied during the currency of the sentence under s. 226 of the 2003 Act.

Frank Stott was sentenced in May 2013. He was sentenced by reference to provisions introduced by the 2012 Act which appear in s. 226A of the 2003 Act to an EDS. The version of s. 226A that was in force at the time that this sentenced was imposed provides:

“226A Extended sentence for certain violent or sexual offences: persons 18 or over

(1)

This section applies where—

(a)

a person aged 18 or over is convicted of a specified offence (whether the offence was committed before or after this section comes into force),

(b)

the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences,

(c)

the court is not required by section 224A or 225(2) to impose a sentence of imprisonment for life, and

(d)

condition A or B is met.

(2)

Condition A is that, at the time the offence was committed, the offender had been convicted of an offence listed in Schedule 15B.

(3)

Condition B is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least 4 years.

(4)

The court may impose an extended sentence of imprisonment on the offender.

(5)

An extended sentence of imprisonment is a sentence of imprisonment the term of which is equal to the aggregate of—

(a)

the appropriate custodial term, and

(b)

a further period (the ‘extension period’) for which the offender is to be subject to a licence.

(6)

The appropriate custodial term is the term of imprisonment that would (apart from this section) be imposed in compliance with section 153(2).

(7)

The extension period must be a period of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences, subject to subsections (8) and (9).

(8)

The extension period must not exceed—

(a)

5 years in the case of a specified violent offence, and

(b)

8 years in the case of a specified sexual offence.

(9)

The term of an extended sentence of imprisonment imposed under this section in respect of an offence must not exceed the term that, at the time the offence was committed, was the maximum term permitted for the offence.

(10)

In subsections (1)(a) and (8), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that—

(a)

was abolished before 4 April 2005, and

(b)

would have constituted such an offence if committed on the day on which the offender was convicted of the offence.

(11)

Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005—

(a)

subsection (1)(c) has effect as if the words ‘by section 224A or 225(2)’ were omitted, and

(b)

subsection (6) has effect as if the words ‘in compliance with section 153(2)’ were omitted …”

In summary, s. 226A, subsection (1) to (3) of the 2003 Act provide that an EDS may be imposed on a person aged 18 or over, if:

The effect of the sentence is described by s. 226A(5) which makes it clear that an EDS comprises two elements. The first is the appropriate custodial term; this phrase is defined by s. 226A(6) as the length of the determinate sentence of imprisonment that would have been imposed, but for the extended sentence. The second element is an extension period during which the person is subject to a longer licence than would otherwise have been the case.

The foregoing provisions of s. 226A of the 2003 Act do not involve any significant departure from the provisions of s. 227 of the 2003 Act (at least insofar as this case is concerned). However, there is a substantial difference in the provisions for release on licence. For the old style extended sentence, release on licence was at the half way point of the custodial term, but s. 246A of the 2003 Act provides different (and more penal) provisions for release on licence in relation to prisoners serving an EDS. As amended by s. 4 of the Criminal Justice and Courts Act 2015 (“the 2015 Act”), the version that has been in force as of 13 April 2015 provides:

“246A Release on licence of prisoners serving extended sentence under section 226A or 226B

(1)

This section applies to a prisoner (‘P’) who is serving an extended sentence imposed under section 226A or 226B.

(2)

It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the requisite custodial period for the purposes of this section if—

(a)

the sentence was imposed before the coming into force of section 4 of the Criminal Justice and Courts Act 2015,

(b)

the appropriate custodial term is less than 10 years, and

(c)

the sentence was not imposed in respect of an offence listed in Parts 1 to 3 of Schedule 15B or in respect of offences that include one or more offences listed in those Parts of that Schedule.

(3)

In any other case, it is the duty of the Secretary of State to release P on licence in accordance with subsections (4) to (7).

(4)

The Secretary of State must refer P's case to the Board—

(a)

as soon as P has served the requisite custodial period, and

(b)

where there has been a previous reference of P's case to the Board under this subsection and the Board did not direct P's release, not later than the second anniversary of the disposal of that reference.

(5)

It is the duty of the Secretary of State to release P on licence under this section as soon as—

(a)

P has served the requisite custodial period, and

(b)

the Board has directed P's release under this section.

(6)

The Board must not give a direction under subsection (5) unless—

(a)

the Secretary of State has referred P's case to the Board, and

(b)

the Board is satisfied that it is no longer necessary for the protection of the public that P should be confined.

(7)

It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the appropriate custodial term, unless P has previously been released on licence under this section and recalled under section 254 (provision for the release of such persons being made by section 255C).

(8)

For the purposes of this section—

‘appropriate custodial term’ means the term determined as such by the court under section 226A or 226B (as appropriate);

‘the requisite custodial period’ means—

(a)

in relation to a person serving one sentence, two-thirds of the appropriate custodial term, and

(b)

in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2).”

Thus, s. 246A(1) and (2) provide that, for an EDS imposed prior to 13 April 2015, release is automatic once the prisoner has served two-thirds of the appropriate custodial term, so long as the custodial term was less than 10 years and had not been imposed for an offence listed in parts 1-3 of Schedule 15B to the 2003 Act. In (most) other cases (and where the sentence is passed after 13 April 2015), the Secretary of State must refer the prisoner to the Parole Board once he has served the requisite custodial period, which is two thirds of the appropriate custodial term, pursuant to section 246A(6). If the Parole Board do not direct release prior to the expiry of the appropriate custodial term (i.e. the full determinate sentence imposed), then, subsection (7) requires that the Secretary of State must release the prisoner at that point. In this case, the sentence was very much longer than 10 years, so release would not be automatic.

The essential point is that release on licence from an EDS only can come after the prisoner has served two thirds of the custodial term. This is to be distinguished from the release on licence provisions for all other determinate sentences of whatever length. In particular, it is also to be distinguished from the release on licence provisions which apply to a form of custodial sentence introduced by s. 6 and para. 1 of Part 1, Schedule 1 of the 2015 Act, namely a special custodial sentence for offenders of particular concern. This provision inserts s. 236A into the 2003 Act and is available in relation to those convicted of various terrorist offences, of rape or assault by penetration of a child under 13, or of conspiracy or attempt to commit such offences. If that sentence is imposed, it consists of the appropriate custodial term, i.e. the custodial term appropriate to the offence, and a further licence period of one year. In relation to release on licence, the duty of the Secretary of State is to refer the offender’s case to the Parole Board as soon as he has completed one half of the custodial term, and to release the offender on licence as soon as the Parole Board recommends release (see s. 244A of the 2003 Act, inserted by para. 6 of Part 1, Schedule 1 of the 2015 Act). It is to be noted that rape of a child under 13 constituted the principal offences committed by this offender in this case. I repeat that, although the identified determinate term remains that appropriate for punishment and deterrence, under an EDS, the Secretary of State refers the offender’s case to the Parole Board only after two thirds of the custodial term has been served.

I pass on to the imposition of life sentences which, excluding the mandatory sentence for murder, can be imposed in two situations. The first situation, set out in s. 224A of the 2003 Act, follows conviction for a second listed offence and may be imposed if specified criteria are met, unless the court considers that there are particular circumstances that would make it unjust in all the circumstances. Listed offences are set out in Schedule 15B of the 2003 Act (as amended), and the criteria include the requirement that the sentence would otherwise be one of ten years’ imprisonment or more (disregarding any extension), in circumstances when the previous sentence was similarly one of ten years’ imprisonment or more (or a life sentence with a minimum term of five years or more).

The second situation in which a life sentence is available is set out in s. 225 of the 2003 Act, and must be imposed following conviction for a serious offence which carries a maximum sentence of life imprisonment. The criteria are that the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, and is also of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission of further specified offences.

Life sentences imposed in these circumstances are made up of two elements. The first is the minimum term that must be served before the offender becomes eligible for release; the second, which follows release pursuant to a decision of the Parole Board when satisfied that imprisonment is no longer necessary for the protection of the public, is the life licence that remains in force for the duration of the offender’s natural life. These provisions are set out in s. 28 of the Crime (Sentences) Act 1997 which, so far as is relevant, provides:

“28 Duty to release certain life prisoners

…

(6)

The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless—

(a)

the Secretary of State has referred the prisoner's case to the Board; and

(b)

the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

(7)

A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time—

(a)

after he has served the relevant part of his sentence; and

(b)

where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and

(c)

where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that sentence;

and in this subsection ‘previous reference’ means a reference under subsection (6) above or section 32(4) below.”

Absent exceptional circumstances, the minimum term will be the half-way point of the notional determinate sentence. A judge sentencing a defendant to a sentence of life imprisonment (other than when imposing the sentence of life imprisonment fixed by law for murder) will consider what the sentence would have been had he not been required by the effect of s. 224A of the 2003 Act, or by the fact that the defendant met the dangerousness criteria in s. 225 of the 2003 Act to impose a sentence of life imprisonment. That will be the notional determinate sentence which then will be halved to provide the minimum term. Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (as amended) gives statutory force to that process by requiring the judge to take into account the release on licence provisions in Section 244 of the 2003 Act.

As I have already observed, there can be departure from this practice: R v Szczerba (supra). However, it requires exceptional circumstances for such a departure to be justified and proper reasons must be provided (see also R v Jarvis [2006] EWCA Crim 1985). One example when the court found exceptionality is to be found in R v Rossi [2015] 1 Cr App R (S) 15, where the appellant was sentenced to life imprisonment with a minimum term based on two thirds of the appropriate determinate sentence. That offender had committed an armed robbery and had discharged a sawn-off shotgun during the robbery. He did so less than 18 months after his release from an earlier life sentence imposed for having a firearm with intent. Moreover, he had served yet a further life sentence prior to that for offences of attempted murder and armed robbery with firearms.

It follows that, save for an offender serving an EDS, all fixed term prisoners will be released on licence once they have served one half of their sentences. Those prisoners will include people serving very long sentences. The structure of Part 12, Chapter 5 of the 2003 Act, as it has applied since 2008 and to the present day, does not require the imposition of a particular sentence even if the offender is found to be dangerous: see, for example, the analysis of Lord Judge CJ in A-G’s Reference (No.55 of 2008) [2009] 2 Cr App R (S) 22 page 142; [2008] EWCA Crim 2790. That decision was made by reference to the provisions as they were in 2008. In relation to EDS, the principle holds good. Indeed, with the introduction of the special custodial sentence for offenders of particular concern, it could be viewed as having been strengthened.

Furthermore, with very few exceptions, all those sentenced to life imprisonment, under Section 224A or Section 225 of the 2003 Act, will be the subject of a minimum term based on one half of the notional determinate term. At the conclusion of the minimum term, the offender will have an entitlement to have his case considered by the Parole Board with a view to release on licence. I add only that those sentenced to life imprisonment for murder face the determination of a minimum term in accordance with Schedule 21 of the 2003 Act where a different mechanism for determination of the term is prescribed.

Thus, putting mandatory life sentences to one side, save exceptionally, in every other case save for those sentenced to EDS, the custodial term to be served is one half of the nominate determinate term. It is in these circumstances that Mr Southey argues that offenders sentenced to an EDS are discriminated against when compared with all others sentenced to imprisonment, whether for a fixed term or, on a discretionary basis, for life.

It is right to start with the ECHR and, in particular, with Article 14 which is in these terms:

“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.”

Before analysing the grounds upon which discrimination is forbidden, it must be underlined that the terms of the Article provide no freestanding right, but require that there should no discrimination in relation to the substantive rights set out in the various Articles of the Convention. In this case, the right in question is said to be that set out in Article 5:

“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 convictionby 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. …”

The proper approach to the inter-relationship between Article 14, any free standing right and the issue of violation is not contentious and summarised in R(S) v Chief Constable of South Yorkshire [2004] 1 WLR 2196; [2004] UKHL 39, as comprising five questions as a framework for considering discrimination (per Lord Steyn at [42]) in these terms:

“(1)

Do the matters complained of come within the ambit of a right protected by the Convention?

(2)

Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison?

(3)

If so, was the difference in treatment on one or more of the proscribed grounds under article 14?

(4)

Were those others in an analogous situation?

(5)

Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?”

Thus, the critical issues for this court to consider are whether this offender’s position comes within the ambit of Article 14, whether he was in an analogous position to other relevant offenders, and whether the differential treatment was justified. There is no dispute about difference in treatment (question 2) because, self-evidently, any offender serving an EDS is treated differently in relation to release on licence as compared with almost all other prisoners serving a custodial sentence. The issue of “other status” can only be determined in the Secretary of State’s favour, though the subsequent decision of the ECtHR in the case of Clift means that this court must consider the prospect of the Claimant being able to reverse the decision in Clift in this jurisdiction.

On behalf of the Secretary of State, Miss Davidson argues that, until the nominal determinate term of imprisonment authorised by the sentence lawfully imposed on this offender has expired, no claim by reference to Article 5 can possible arise. Until then the detention necessarily is lawful. She relies inter alia on a passage of the speech of Lord Bingham in Clift, with which the other members of the House agreed, where he said (at [15] and following):

“15.

It was argued by the Secretary of State that each of the appellants was lawfully detained after conviction by a competent court. Article 5(1)(a) was therefore satisfied. The sentences imposed by the court were not themselves criticised as discriminatory, and could have been challenged had they been so. Those sentences provided lawful authority for detention of the appellants until such time as, under domestic law, they became entitled to release: R (Giles) v Parole Board[2003] UKHL 42, [2004] 1 AC 1. At that point continued detention would become unlawful (R v Governor of Brockhill Prison, Ex p Evans (No 2)[2001] 2 AC 19), but not before. Article 5(4) had no part to play in implementing the sentence before release. It followed that discriminatory implementation of the sentence, however extreme and unjustifiable, was not within the ambit of article 5.

16.

This argument is in my judgment a mixture of the true and the false. I would agree that the sentences passed on the respective appellants satisfied article 5(1)(a) and provided lawful authority for the detention of the appellants until such time as, under domestic law, their detention became unlawful. Giles established that a prisoner sentenced to a determinate term of years cannot seek to be released at any earlier time than that for which domestic law provides. During the currency of a lawful sentence, article 5(4) has no part to play. But the Secretary of State's argument founders, in my opinion, on a failure to recognise both the importance, in our system, of the statutory rules providing for early release and the close relationship between those rules and the core value which article 5 exists to protect.

17.

The Convention does not require member states to establish a scheme for early release of those sentenced to imprisonment. Prisoners may, consistently with the Convention, be required to serve every day of the sentence passed by the judge, or be detained until a predetermined period or proportion of the sentence has been served, if that is what domestic law provides. But this is not what the law of England and Wales provided, in respect of long-term determinate prisoners, at the times relevant to these appeals. That law provided for a time at which (subject to additional days of custody imposed for disciplinary breaches) a prisoner must, as a matter of right, be released, and an earlier time at which he might be released if it was judged safe to release him but at which he need not be released if it was not so judged.

18.

A number of grounds (economy and the need to relieve over-crowding in prisons) have doubtless been relied on when introducing pre-release schemes from determinate sentences such as those under consideration here. But one such consideration is recognition that neither the public interest nor the interest of the offender is well served by continuing to detain a prisoner until the end of his publicly pronounced sentence; that in some cases those interests will be best served by releasing the prisoner at the earlier, discretionary, stage; and that in those cases prisoners should regain their freedom (even if subject to restrictions) because there is judged to be no continuing interest in depriving them of it. I accordingly find that the right to seek early release, where domestic law provides for such a right, is clearly within the ambit of article 5, and differential treatment of one prisoner as compared with another, otherwise than on the merits of their respective cases, gives rise to a potential complaint under article 14.”

Mr Southey relies on precisely the same passage to support his submission that this claim comes within the ambit of Article 5. He notes that this court in Foley v Parole Board and another [2012] EWHC 2184 Admin accepted that it is not necessary for a freestanding violation of Article 5 to be established, if early release provisions notionally engage Article 5, and there are apparently discriminatory provisions in relation to such release. If the relevant provision concerns the core values which Article 5 exists to protect, it is argued that it must fall within the ambit of Article 5 so as to give rise to a potential claim based on Article 14 discrimination. Mr Southey further relies on what was said by Lord Brown in Clift on the same topic (at [66]):

“Suppose that for a given offence the law prescribed a minimum penalty of six years’ imprisonment for men, three years for women. That, Mr Pannick QC readily acknowledged, would clearly constitute a direct breach of article 5 (probably without the need to invoke article 14) and be unlawful. If, however, the law prescribed the same sentence for both, but then provided that women but not men are to be released at the halfway stage, that, he must argue, is beyond the reach of the Convention. It cannot be so and it is not so because the core value protected by article 5 is liberty and, where the penal system includes a parole scheme, liberty is dependent no less upon the non-discriminatory operation of that than on a fair sentencing process in the first place.”

Miss Davidson also referred to the observation of Davis LJ in Ryder v The Lord Chancellor [2015] EWHC 1857 (Admin) to the effect that he was “not inclined” to accept the “core value” argument. That observation, however, was in relation to the facts of that case (which concerned the lack of availability of legal aid for pre-tariff review hearings before the Parole Board). In my judgment, that situation is far removed from this and, to that extent, the comment takes the matter no further.

Lawful detention reflects not merely the outer limits prescribed by the sentence of the court, but the statutory structure that deals with the way in which such sentence will operate. In the circumstances, that structure, in the form of the release provisions which govern the nature and extent of the State’s powers of detention, is, indeed, within the ambit of Article 5. Lord Brown’s analysis points to the core value of liberty which is protected by Article 5, which is the non-discriminatory operation of a fair sentencing process such that this offender should not be subject to a deprivation of liberty which is different to that experienced by others. If Miss Davidson was correct, he would have no legitimate complaint until he had served two thirds of his sentence. But at that point he no longer would be able to claim discrimination as he now alleges it because he then would be eligible for release on licence, subject to the views of the Parole Board.

Before concluding this analysis, it is worth noting that, in her detailed grounds of defence, the Secretary of State conceded that the claim came within the ambit of Article 5. Although it is not suggested that she is not entitled to withdraw the concession, it is not without significance. Ryder does not justify a different conclusion: in my view, the concession was properly made.

The second question (set out in [33] above) being agreed in the affirmative, I move to the issue of whether the differential treatment was on one or other of the grounds listed in Article 14 or, more particularly, whether it constitutes “other status” within the meaning of this Article. In Clift, Lord Bingham dealt with this issue in this way (at [28]):

“I do not think that a personal characteristic can be defined by the differential treatment of which a person complains. … Is [Mr Clift’s] classification as a prisoner serving a determinate sentence of 15 years or more (but less than life) a personal characteristic? I find it difficult to apply so elusive a test. But I would incline to regard a life sentence as an acquired personal characteristic and a lifer as having an ‘other status’, and it is hard to see why the classification of Mr Clift, based on the length of his sentence and not the nature of his offences, should be differently regarded. I think, however, that a domestic court should hesitate to apply the Convention in a manner not, as I understand, explicitly or impliedly authorised by the Strasbourg jurisprudence, and I would accordingly, not without hesitation, resolve this question in favour of the Secretary of State and against Mr Clift.”

That conclusion could hardly be said to be a ringing endorsement of the case advanced by the Secretary of State, and was clearly expressed as subject to express or implied authority to the contrary from the ECtHR. The relevant authorisation for the proposition (if that be the correct word) comes from the appeal mounted to the ECtHR in the same case. In Clift v United Kingdom (supra), the result of the analysis (at [63]) was clear that the applicant did enjoy “other status” for the purposes of Article 14. Thus, Lord Bingham’s hesitation was entirely justified, and a principal reason for the way in which he resolved that issue has been undermined.

The outcome of Clift in the ECtHR has twice been cited in cases before the Supreme Court, but in neither was it necessary or appropriate to decide the case on the question of status: see R (Haney) v Secretary of State for Justice [2015] AC 1344 at 1374E/H and R v Doherty [2017] 1 WLR 191; [2016] UKSC 62 at [63]. In this case, however, although it is conceded that this court is bound by the decision of the House of Lords, I consider that the time has come (assuming the other criteria are satisfied) for the issue to be resolved.

Miss Davidson argues that an offender sentenced to an EDS cannot properly be compared to those serving life sentences. Thus, she points to the fact that at the end of his determinate term, an offender sentenced to an EDS will be entitled to release on licence whatever his risk profile might reveal, whereas a life sentence prisoner has no such entitlement and will not be released until the Parole Board considers it safe to do so. She also referred to Black v Secretary of State for Justice [2009] 1 AC 909 which concerned the distinction between the parole provisions for long term determinate prisoners in relation to sentences imposed prior to 2003 and life sentence prisoners, decisions relating to the former resting with the Secretary of State and the latter with the Parole Board. That challenge, however, was based on Article 5(4) of the ECHR, it being held that to apply that provision to the process of early release for determinate prisoners would have been to extend its ambit.

This case goes beyond Article 5(4) into Article 14 and the argument which Miss Davidson advances ignores the principle of sentencing practice, to which I have previously referred, that both sentences involve a period identified for punishment and deterrence and, potentially, further detention (albeit in the case of an EDS for a finite time) based on risk to the public. Both must accept the period for punishment and then address the issue of risk; what is at issue is the question of eligibility for consideration for release not merely the mechanism whereby issues of release are decided.

The position is underlined by a consideration of determinate sentences alone. Take the case of a crime which, applying the relevant guideline, justifies a sentence of 12 years’ imprisonment. For an offender in respect of whom there is no concern that he is a risk to the public, that will be the determinate term: as the law stands, he will serve six years and then be entitled to be released on licence (from which he can be recalled to prison for breach up to the end of the 12-year term). For another offender, deserving the same sentence but who, perhaps by reason of his mental condition, constitutes a risk to the public, the court might take the view that he requires an extended period on licence. If he was sentenced to an EDS with a custodial term of 12 years (i.e. the same as the first offender, their crimes being of equal gravity) with a two-year extension (for the purposes of extending supervision over him), he would only be eligible for consideration of parole after 8 years. The gravity of their crimes is identical and their positions (in so far as punishment and deterrence is concerned) seem, to me at least, to be analogous. I will return to the differences in treatment when considering objective justification. She also relies on the fact that the risk assessment process for EDS is the same as for life sentences. However, this says nothing about whether the sentences are analogous. Even if it does, rather than distinguishing the sentences, it tends to suggest that they are analogous.

Quite apart from these examples, an EDS in this case is clearly analogous to the sentence for which provision is made in the newly inserted s. 236A of the 2003 Act. An offender given a special custodial sentence for offenders of particular concern may well have committed precisely the same offences as that committed by this offender, and yet will be eligible for release after one half of the determinate term: see s. 244A and [22] above.

The Secretary of State relies on evidence from Alison Foulds from the sentencing policy unit in the Ministry of Justice for objective justification of the differential treatment. She explains that EDS was introduced as a replacement for the indeterminate sentence of imprisonment for public protection. In replacing that discredited indeterminate sentence, the government wished to introduce a tougher determinate sentence requiring at least two thirds of the sentence to be served. It was designed to enhance public protection and to maintain public confidence in the sentencing framework. The justification for the sentence was that an offender eligible for an EDS had committed serious offences and had been found to be dangerous.

Neither the evidence nor the explanation addresses the crucial issue of the distinction between the punitive element of any sentence and that part of the sentence designed to cater for risk. The fact that those eligible for EDS have committed serious offences does not provide any rational basis to alter the extent of the punitive element of a sentence. The offender, who is made the subject of a sentence under Section 244A of the 2003 Act, will have committed a very serious offence as will many offenders who are subject to determinate terms (for whom the dangerousness provisions will not be triggered because of the length of the determinate sentence). All are eligible for release (in the case of s. 244A, subject to the view of the Parole Board) at the expiry of one half of the custodial term. Similarly, the calculation of the minimum term to be served by those sentenced to discretionary life sentences will usually be one half of the determinate term that would otherwise have been appropriate. Those offenders will be released at the half way point of the custodial term. Furthermore, the sentence which EDS was intended to replace, imprisonment for public protection, itself involved the setting of a minimum term based on half the notional determinate term.

As for the argument that the dangerousness of the offender sentenced to EDS itself constitutes justification for the different release provision, that is to confuse punishment and deterrence with risk. Dangerousness under Part 12 of the 2003 Act is assessed by reference to future risk, and it is only at the point of potential release that the risk will be assessed (based, of course, on the history of the offender, progress in custody and resettlement plans). If relevant risk to the public remains, the offender will remain in prison. If not, it will be appropriate to release him. There is no rational justification for setting a later and arbitrary point for parole eligibility (at which risk is to be assessed) for EDS prisoners, as opposed to life sentence prisoners, or prisoners serving a sentence pursuant to Section 244A of the 2003 Act.

The difference in treatment consequent upon risk between those sentenced to determinate sentences and those sentenced to EDS under s. 226A, under s. 244A in each case of the 2003 Act, or to discretionary life sentences (whereby the first is entitled to automatic release but the others, at the conclusion of the term fixed for punishment, have to apply for parole) is entirely justified for the purpose of protecting the public. To my mind, however, the difference in the term to be served for punishment and deterrence is not. Furthermore, it will legitimately generate a real grievance in relation to offenders sentenced at the same time for joint offences where the term for punishment and deterrence is markedly different for reasons only associated with risk.

It is for Parliament to determine sentencing policy by the legislation which it passes. The only extent to which the court can interfere with that policy is also prescribed by statute. Thus, s. 4 of the Human Rights Act 1998 requires the court to determine whether a provision of primary legislation is compatible with a right granted by the ECHR and, if satisfied that it is not, to make a declaration accordingly. In that event, there would be no question of the courts usurping the will of Parliament but, rather, undertaking the exercise mandated by Parliament.

In the light of the decision of the House of Lords in Clift, this claim must fail but, for my part, I would otherwise have been prepared to conclude that s. 246A of the 2003 Act (limiting the eligibility for parole to a point two thirds of the way through the nominated determinate term) was incompatible with Article 14 of the ECHR. The issue not having required determination in either Foley or Haney, subject to any contrary argument, I would be prepared to grant a certificate pursuant to s. 12 of the Administration of Justice Act 1969 (as amended) to permit an application to be pursued directly to the Supreme Court for leave to appeal.

I agree.