Khan, R (On the Application Of) v Secretary of State for the Justice Department

This is the judgment of the Court to which we have both contributed.

By this judicial review application, brought with my permission on 5 May 2020, Mohammed Zahir Khan (“the Claimant”) seeks to challenge the early release regime introduced by the Terrorist Offenders (Restriction of Early Release) Act 2020 (“the 2020 Act”). Formally, the Claimant challenges the decision of the Secretary of State for Justice to enforce the legislation in his case, but in substance the challenge is to the legislation itself. The relief which the Claimant seeks is a declaration that s.247A of the Criminal Justice Act 2003 (“CJA 2003”), which was inserted by the 2020 Act, is incompatible with Articles 5, 7 and 14 of the European Convention on Human Rights (“the ECHR” or “the Convention”).

The 2020 Act was introduced in direct response to two terrorist incidents on the streets of London. On 29 November 2019, five people were stabbed on London Bridge, two fatally, by Usman Khan. Immediately before the attack, Usman Khan had been attending an offender rehabilitation conference at Fishmongers Hall. Two months later, on 2 February 2020, Sudesh Amman was shot dead by police in Streatham High Road after attacking two passers-by with a knife.

On 3 February 2020, the Secretary of State for Justice made a statement to the House of Commons announcing the new legislation. He said:

“…yesterday’s appalling incident makes the case plainly for immediate action. We cannot have the situation, as we saw tragically in yesterday’s case, where an offender – a known risk to innocent members of the public – is released early by automatic process of law, without any oversight by the Parole Board.

We will be doing everything we can to protect the public, that is our primary duty. And we will therefore introduce emergency legislation to ensure an end to terrorist offenders getting released automatically, having served half their sentence with no check or review. The underlying principle has to be that offenders will no longer be released early automatically and that any release before the end of their sentence will be dependent on risk assessment by the Parole Board.

We face an unprecedented situation of severe gravity and, as such, it demands that the government responds immediately, and that this legislation will therefore also apply to serving prisoners.

Now, the earlier point at which these offenders will be considered for release will be once they have served two-thirds of their sentence and, crucially, we will introduce a requirement that no terrorist offenders will be released before the end of the full custodial term unless the Parole Board agrees.”

The 2020 Act received Royal Assent, and came into force, on 26 February 2020. It had an immediate effect on the Claimant’s release date.

We have received detailed and helpful submissions in writing and orally, by Skype, from Mr Hugh Southey QC for the Claimant and Sir James Eadie QC for the Defendant. We are grateful for their assistance.

In the Grounds, in his permission application and in his oral submissions before us, Mr Southey indicated that the claim was primarily focused on the extension of the requisite custodial period. When pressed, he said that he did not need to attack the involvement of the Parole Board in regard to his Article 14 challenge given that the potential lines of justification for the two elements of the new arrangements were different. As to Articles 5 and 7 he agreed that to make his challenge coherent he did have to attack the role of Parole Board, although, in argument, he did so only very faintly.

On 8 March 2018, at the Crown Court in Newcastle, the Claimant pleaded guilty to five counts of encouraging terrorism, contrary to s.1(2) of the Terrorism Act 2006, one count of dissemination of a terrorist publication, contrary to s.2(1) of the 2006 Act and two counts of stirring up religious hatred contrary to s.29C of the Public Order Act 1986.

Those offences related to conduct by the Claimant online in the period between 4 December 2016 and 15 March 2017. During that period, the Claimant repeatedly endorsed acts of terrorism, including murder and martyrdom, to provoke local support for ISIS. He also disseminated terrorist publications including an ISIS video calling for a terrorist attack.

On 2 May 2018, the Claimant was sentenced to a determinate sentence of four years and six months. He was provided with documentation from the Ministry of Justice that suggested his release from prison would take place on 1 March 2020. That would have been in accordance with the existing regime for automatic release at the halfway point.

S.247A was added into the CJA2003 by s.1(2) of the 2020 Act. S.247A(1) provides as follows:

This section applies to a prisoner (a “terrorist prisoner”)

It is to be noted that Part 1 of Schedule 19ZA to the CJA 2003, as inserted by the 2020 Act, does not include offences for which the maximum penalty is two years or less on conviction on indictment.

To the extent that these provisions apply to a terrorist prisoner who is already serving a fixed term sentence for a relevant offence they can be described as “retrospective”.

Subsections 3-6 imposes duties on the Secretary of State to refer cases to the Parole Board:

Subsections 7-8 relate to the duty placed on the Secretary of State to release terrorist prisoners on licence:

It is common ground that the effect of these provisions, in the Claimant’s case, is that instead of being released without reference to the Parole Board on 1 March 2020, his case will be referred to the Parole Board on 30 November 2020, at the two-thirds point of his sentence. The Parole Board will then consider whether it is satisfied that it is no longer necessary for the protection of the public that the Claimant should remain in custody.

In order to understand the arguments that follow it is convenient to set out here, in summary form, the different types of sentence available for terrorist offenders.

What follows is based substantially on the Secretary of State’s skeleton argument, which in turn is based on a helpful account provided in her witness statement by Mrs Miranda Wilkinson, Head of Counter-Terrorism and Strategic Projects at the Ministry of Justice. That account was subject to comment from Mr Southey and response from Sir James. We have taken their points into account in what follows.

There are two distinct categories of sentences: determinate and indeterminate sentences. A determinate sentence is one which provides for a fixed term. Determinate sentences are ordinarily served part in prison and part in the community. The point at which an offender is eligible for early release, and the terms of such release, depend on the type of determinate sentence he or she received. Subject to limited exceptions, the imposition of determinate sentences is governed by the twin principles that (i) custody is a sentence of last resort and (ii) any sentence of imprisonment imposed should be for a term commensurate with the seriousness of the offence and no longer. The general purposes of imposing a determinate sentence on an adult offender are: punishment; reduction of crime; reform and rehabilitation; protection of the public and the making of reparation by offenders to persons affected by their offences: s.142(1) CJA 2003; R (Whitson) v Justice Secretary [2015] AC 176, [25]. The whole of the custodial term imposed as part of a determinate sentence is imposed for the purpose of punishment and deterrence: Brown v Parole Board for Scotland [2018] AC 1.

An indeterminate sentence is one which is not imposed for a fixed length of time. It is comprised of a “tariff”, which is the minimum amount of time that an offender must remain in custody before being eligible for parole and represents the blameworthiness of any offence. Upon expiration of the tariff period, an offender who is sentenced to an indeterminate sentence will, subject to review by the Parole Board, be eligible for release on licence, albeit he or she will remain subject to licence conditions for the remainder of his or her life. He or she is therefore liable to be recalled to prison at any point.

Insofar as they are relevant to the changes introduced by the 2020 Act, the types of sentence that may be given to a terrorist offender convicted of a relevant terrorist offence are standard determinate sentences, extended determinate sentences (“EDS”) and special custodial determinate sentences for offenders of particular concern (“SOPC”).

The majority of terrorist offenders in custody are serving standard determinate sentences. Prior to the enactment of the 2020 Act, a terrorist offender who was given a standard determinate sentence was automatically released at the half-way point of his or her sentence, referred to as the “requisite custodial period” (CJA 2003, s.244(1) and (3)). The Parole Board had no role in that release decision. Since 1 April 2020, certain serious violent and sexual offenders sentenced to a standard determinate sentence of seven years or more are entitled to be released at the two-thirds point of their sentence, as a result of The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 (the “2020 Order”).

An EDS may be imposed in respect of certain serious offences where the offender is not given a life sentence but is nonetheless deemed to be “dangerous”. The EDS comprises two elements: (i) the appropriate custodial term and (ii) a licence extension,

Where the Court decides to impose a sentence of imprisonment, a SOPC must be imposed if an offender is of “particular concern”, but is not found to be “dangerous”, as defined in the CJA 2003. A SOPC must be imposed on an offender convicted of one of the main terrorism offences listed in Schedule 18A of CJA 2003, if the offender is over the age of 18 at the time of the offence and the Court does not impose a life sentence or an EDS. An SOPC is the aggregate of (i) the “appropriate custodial term” and (ii) an additional licence period of 12 months (CJA 2003, s.236A(2)). Prior to the 2020 Act, the early release arrangements for an SOPC were set out in s.244A of the CJA 2003. An SOPC prisoner could apply to the Parole Board for discretionary release once he or she had served one-half of the appropriate custodial term. The Secretary of State is under a duty to release the offender (if he or she has not been released by the Parole Board) once he or she has served the whole of the appropriate custodial term.

A terrorist offender may also be sentenced to various indeterminate life sentences. There are four discretionary life sentences available under the current legal framework. First, a mandatory life sentence for the offence of murder, under the Murder (Abolition of the Death Penalty) Act 1965, s.1. Second, a life sentence for serious offences, under s.225 of the CJA 2003. The Court must impose a life sentence under s.225 of the CJA 2003 if: (i) the offender is over 18 and has been convicted of a serious offence, as defined in s.224 of the CJA 2003; (ii) the court is of the opinion that there is significant risk to members of the public of serious harm by the commission by the offender of further specified offences; (iii) the offence of which he has been convicted carries a maximum sentence of life imprisonment; and (iv) the court considers that the seriousness of the offences, or the offence and one or more associated offences, is such to justify the imposition of a sentence of imprisonment for life.

Third, a life sentence can be imposed for a second listed offence, under s.224A of the CJA 2003. The criteria for the imposition of a life sentence under s.224A of the CJA

Fourth, a life sentence can be imposed as a matter of common law where the offence in question carries life as a maximum penalty. A life sentence should only be given if and insofar as: (i) he or she has been convicted of a very serious offence; and (ii) there are good grounds for believing that the offender may remain a serious danger to the public for a period of time that cannot presently be reliably estimated: Attorney General’s Reference (No. 32 of 1996) [1997] 1 Cr App R(S) 251, per Lord Bingham at 264. There is a minimum seriousness threshold that must be crossed for a life sentence to be imposed: R v Chapman [2000] 1 Cr App R 77, 85 per Lord Bingham CJ.

Where a person is given a life sentence, a judge must specify the minimum term (known as the tariff period) that the offender must spend in prison before being eligible for release. In some cases, the court may impose a ‘whole life order’, where the tariff period is the remainder of the prisoner’s life such that he or she is never considered for release (save in exceptional circumstances, where compassionate release may be sought pursuant to Article 3 of the Convention).

In the context of mandatory life sentences, the court will take account of the seriousness of the offence and provisions with respect to crediting periods spent in custody whilst on remand. Schedule 21 of the CJA 2003 specifies statutory ‘starting points’ for the tariff period. Mandatory life sentences are not set with reference to any notional determinate sentence.

In the context of discretionary life sentences, except where a whole life order is made, the court must take account of the seriousness of the offence or offences and the provisions with respect to crediting time spent on remand: Powers of the Criminal Courts (Sentencing) Act 2000, s.82A. Pursuant to s.82A(3)(c), the minimum custodial term shall also be set “such as the court considers appropriate taking into account… the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003”. In Attorney General’s Reference (No. 27 of 2013) [2014] 1 WLR 4209, the Court of Appeal held that the effect of s.82A is to “require the sentencing judge to identify the sentence that would have been appropriate had a life sentence not been justified and to reduce that notional sentence to take account of the fact that had a determinate sentence been passed the offender would have been entitled to early release” [33]. The application of s.82A(3)(c) will ordinarily, but not always, result in a reduction of the notional determinate sentence by half, but there may be exceptional circumstances in which more than half may be appropriate: R v Sczerba [2002] EWCA Crim 440; [2002] 2 Cr App R (S) 86, [33]; R v Jarvis [2006] EWCA Crim 1985, [19]. There is, therefore, no rule requiring that the custodial term for a discretionary life sentence is set at half of the actual or notional determinate term: R v

Since 1 April 2020, under the 2020 Order, sexual and violent offenders are not entitled to automatic release until the two-thirds point of their sentences. A court will be entitled to take this into account under s.82A(3)(c) when setting the minimum tariff period in respect of a discretionary life sentence.

Where an indeterminate sentence is imposed on an offender, his or her early release will be governed by s.28 of the Crime (Sentences) Act 1997 (“1997 Act”). The case of a life sentence prisoner to whom s.28 applies is referred to the Parole Board at the end of his minimum custodial term (i.e. the tariff) and the Parole Board has power to direct release in cases referred to it, if satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

For all indeterminate sentence prisoners, in cases where a life sentence prisoner is released from custody pursuant to s.28 of the 1997 Act, the sentence itself continues in the form of a ‘life licence’. Section 31(1) of the 1997 Act provides that “[w]here a life prisoner, other than a prisoner to whom section 31A below applies, is released on licence, the licence shall, unless previously revoked under section 32 below, remain in force until his death”.

In the context of all of the above sentences, the courts have consistently held that a sentencing judge must set a custodial sentence by reference to the seriousness of the offence. A sentence should not be adjusted to take account of early release conditions: R v Round [2010] 2 Cr App R (S) 45, [44], 49; R v Bright [2008] 2 Cr App R (S) 102, [41]. That principle is subject to the one exception in the context of discretionary indeterminate sentences identified at [30] above.

On behalf of the Claimant, Mr Southey argues that the 2020 Act creates a difference in treatment on grounds prohibited by Article 14. He says that being made subject to the 2020 Act is a form of status for the purpose of Article 14. He says the purpose of the 2020 Act was not to penalise persons convicted of terrorist offences, but instead was to protect the public from the risk posed by the early release of prisoners serving certain forms of sentence. He argues that the 2020 Act applies to a raft of different offences, the nature and gravity of which vary. He says that any exception from the scope of Article 14 should be narrowly construed.

Mr Southey maintains that it is important to concentrate not on the question whether the proposed status has an independent existence but on the situation as a whole. He says that prisoners subject to a determinate sentence to which the 2020 Act applies enjoy a status which prisoners serving a normal determinate sentence, a sentence of life imprisonment or an extended sentence, do not. He says that the distinction in status is not simply about what the Claimant did as the new provisions do not apply to all those convicted of terrorism offences. He says that the fact that the changes to the Claimant’s sentence are retrospective illustrates the extent to which his status exists independently of what he did.

In response, the Secretary of State contends that distinctions based on the nature and gravity of the crimes committed do not fall within “other status”. He says that the changes wrought by the 2020 Act only apply to individuals convicted of terrorist offences and reflect the gravity of those crimes and the specific risk posed by terrorist offenders.

Article 14 provides as follows:

To make out a claim under Article 14, the Claimant must establish four elements:

It is common ground that the matters complained of come within the ambit of Article 5. It is necessary for us therefore to consider the other three elements of Article 14.

There are two conditions which must be satisfied under the legislation for the new arrangements for early release to apply. The first refers to the type of sentence to which the prisoner must be subject; it must be a fixed term sentence (and the prisoner must still be in detention pursuant to that sentence). The second refers to the type of offence. It must be either an offence under counter-terrorism legislation or an offence which the Court has held had terrorist connections. The consequence is that the new regime applies to those convicted of certain terrorist offences and sentenced to a fixed term sentence. That is the basis of the differences in treatment to which those convicted of such sentences will be subject under the new early release arrangements. In other words, the distinguishing feature is conviction of a terrorist offence for which a fixed term sentence is imposed.

The question whether such a ground for different treatment can amount to a status for Article 14 purposes has been considered in a number of authorities both in Strasbourg and domestically. It is necessary to consider them in a little detail.

The first in time was Gerger v Turkey (Application No. 24919/94). There, the European Court of Human Rights (“ECtHR”) was concerned with a claim by a prisoner that his conviction before the Turkish National Security Court of an offence under Law no. 3713, the Turkish Prevention of Terrorism Act, meant that he was not entitled to automatic parole until he had served three quarters of his parole, whilst prisoners sentenced under the ordinary criminal law were entitled to parole after serving one half of their sentence. The parallel between the facts of Gerger and the present case are obvious.

The Court noted, at paragraph 69, that:

That distinction, between different treatment for different types of offence and different treatment for different groups of people, has been recognised and applied in a series of subsequent EtCHR decisions. For example, in Ecis v Latvia, (Application No. 12879/09) the Court pointed out that the case then before them turned on differences in treatment for men and women convicted of serious crimes, in contrast to Gerger which turned on distinctions “made not between different groups of people but different types of offence”.

In R(Clift) v Secretary of State for the Home Department [2007] 1 AC 484, the Judicial Committee of the House of Lords considered the case of a man sentenced in 1994 to a determinate sentence of 18 years. In 2002 the Secretary of State, exercising his powers under s.35 of the Criminal Justice Act 1991, rejected the recommendation of the parole board that he be released on licence. The Claimant sought judicial review on the ground that the Secretary of State’s power to reject a recommendation of the Parole Board, which could be exercised only in relation to prisoners serving determinate sentences of 15 years or more, constituted discrimination contrary to Articles 5 and 14. The Judge dismissed the claim and the Court of Appeal upheld his decision.

The Committee dismissed his appeal (although allowed the appeal of others). In the part of his speech which dealt with “other status” Lord Hope referred to Gerger. He said this:

The function of article 14, read with article 1 of the Convention, is to secure to everyone within the jurisdiction of the High Contracting Parties the enjoyment of the rights and freedoms set out in section 1 of the Convention without discrimination on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable. This suggests that a generous meaning should begiven to the words "or other status" while recognising, ofcourse, that the proscribed grounds are not unlimited. It seems to me, on this approach, that the protection of article 14 ought not to be denied just because the distinguishing feature which enabled the discriminator to treat persons or groups of persons differently in the enjoyment of their Convention rights had not previously been recognised.

But the Strasbourg jurisprudence has not yet addressed this question and… it is possible to regard what he has done, rather than who or what he is, as the true reason for the difference of treatment in Mr Clift's case….the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time. A measure of self-restraint is needed, lest we stretch our own jurisprudence beyond that which is shared by all the States Parties to the Convention. I am persuaded, with some reluctance, that it is not open to us to resolve the…issue in Mr Clift's favour (emphasis added).

The ECtHR took up the challenge when Mr Clift took his case to Strasbourg. In Clift v UK (Application No. 7205/07) the Court observed that:

The significance of the distinction between different groups of people and different types of offence was revisited domestically in R (Stott) v Secretary of State for Justice

The Divisional Court held that it was bound by existing House of Lords authority to reject the claim on the grounds that the Claimant did not have an “other status” for the purposes of Article 14. But had it not been so constrained, it would have found that

“other status” was established and would then have gone on to find that s.246A of the CJA 2003 was incompatible with Article 14. On appeal to the Supreme Court, it was held that the difference in the treatment of extended determinate sentence prisoners in relation to early release was a difference on the ground of “other status” within the scope of Article 14.

At paragraph 77, Lady Black said:

Relying on the approach in Clift v UK and Stott, the Claimant argues that Gerger provides no basis for rejecting the Claimant’s submissions that determinate prisoners subject to the 2020 Act enjoy a status in the same way prisoners serving a normal determinate sentence, a sentence of life imprisonment and an extended sentence would enjoy a status. Mr Southey argues that the difference in treatment does not flow simply from what the Claimant did “because the new provisions do not apply to all those convicted of terrorism offences.” He says the 2020 Act treats one group of determinate prisoners differently to other prisoners. In that it is similar to the Claimant in Stott where the distinction was between those serving more than 15 years and those not. He goes on to suggest that the fact that the changes to the Claimant’s status are retrospective illustrates the extent to which, as in Stott, his status “exists independently of what he did”. The purpose of the 2020 Act, he contends, is expressly to manage the unique risk said to be posed by terrorist offenders irrespective of their original offence and without individual reference to the facts of their case.

We reject those arguments. In our judgment, the principle in Gerger applies to the present case. What leads to the different treatment as regards early release flows directly from the particular offences of which the Claimant was guilty. The relevant provisions apply only to those convicted of those particular offences.

It is said that the motivation for the Government proposing this legislation and for Parliament passing it was both the gravity of the offending and the risk posed by the offenders. Mr Southey says that the decision in Gerger was premised on the intentionally punitive nature of the measures in that case, whereas the purpose of the 2020 Act was expressly not to penalise people who have committed terrorism offences but rather to protect the public from the risk posed by the early release of prisoners serving certain forms of sentence. But in our judgment, the critical question is the objective basis for the difference in treatment, and that is the nature and gravity of the offence rather than the motivation of the legislature. In that regard, this case is on all fours with Gerger.

The Claimant argues that Gerger should be distinguished from the present case. In Gerger, he says there was only one offence, whereas the 2020 Act addresses a raft of different offences across a spectrum of gravity. But, even if that is true (and there is some doubt whether Gerger did relate to only a single offence), the distinction remains one based on the different types of offence and Parliament’s view of the gravity of those offences.

The Claimant points out that some terrorism offences do not fall within the ambit of the 2020 Act. Schedule 1 to the Act, which lists terrorist offences for the purposes of

The decision of the Supreme Court in Stott turned on the fact that the differential treatment there was based on a particular type of sentence rather than a particular type of offence. In fact, as Lady Black makes clear in the passage from paragraph 77 set out above, what mattered in Mr Stott’s case was that the extended determinate sentence existed independently of what he had done. But no such distinction can be drawn where, as here, the difference in treatment is based solely on the type of offence.

It follows that there is no “other status” here on which an Article 14 claim can be based and that claim must fail. Nonetheless, in case we are wrong about that, we go on to consider the other elements of an Article 14 claim, analogous position and justification. Analogous Position

In R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, Lord Nicholls of Birkenhead considered the appropriate response to the issues of analogous position and justification. At [3] he said that the essential question for the court:

In Stott Lady Black (at [148]) and Lady Hale [213] cited this passage in support of their approach in that case of considering justification before analogous position. Mr Southey urges us to do the same here. Sir James argues to the contrary that the comparators suggested by the Claimant are so plainly not in an analogous position that such an approach is inappropriate.

The Claimant submits that there are two broad categories of prisoner who are in an ‘analogous situation’ to determinate prisoners caught by the 2020 Act. First, prisoners serving discretionary life sentences who are ordinarily required to serve one-half of their notional determinate term. Second, prisoners serving standard determinate sentences whose release arrangements are not affected by the 2020 Act.

Mr Southey argues that all three groups have the same interests in obtaining their liberty as soon as possible. He says that the 2020 Order does not affect the standard determinate sentence prisoners both because it is not retrospective and because offenders sentenced to less than 7 years imprisonment are exempt. The analogous prisoner sentenced to the same sentence term as the Claimant would already have been released under the terms of the CJA 2003. His length of sentence would also mean that the 2020 Order did not apply. He says that the discretion to impose a minimum term that is more than one-half of the notional determinate term in a discretionary life sentence does not affect the validity of discretionary life sentence prisoners as an analogous group. The possibility remains of release at the halfway point of the equivalent determinate term.

It is often difficult to draw analogies between different categories of prisoners. The sentences for each category are designed for the offenders that fall within it, in order to address the particular type of offending and the risk which that type of offender presents. In Stott, the majority of the Supreme Court concluded that prisoners serving extended determinate sentences were not in an analogous position with other prisoners. The headnote to the report includes the following useful summary of the decision:

In our judgment, the suggestion that prisoners serving discretionary life sentences are in an analogous position to those caught by the 2020 Act is hopeless. The whole of a determinate sentence is properly regarded as punishment for the offence; the period of detention of a discretionary life sentence prisoner, after expiry of the tariff, is a means of managing risk. Release for the latter is not automatic. Terrorist offenders made subject to a discretionary life sentence are already subject to a restricted release regime and to a review by the Parole Board before release. The two regimes have different elements and are designed for different sets of circumstances.

In Stott, at [124], Lady Black said:

At [155] Lady Black concluded:

Those observations reinforce us in that conclusion.

The second suggested comparator, prisoners serving standard determinate sentences unaffected by the 2020 Act, fall into two sub-categories; those serving determinate sentences for non-terrorist offences and those convicted of terrorist offences where the maximum sentence is less than two years. (The latter class of offenders are not caught by the 2020 Act because, as noted above, Schedule 19ZA to the CJA 2003, as inserted by the 2020 Act, does not include offences for which the maximum penalty is two years or less.)

In our judgment, it is impossible sensibly to regard a terrorist offender as in an analogous position to an ordinary offender. The nature of the offending is different, the need for punishment is different, the way the offenders have to be managed in custody is different, the risks they pose on release into the community are different. In our judgment, terrorist and non-terrorist offenders are not in analogous positions. In any event, for the reasons we come onto below, in our view the different treatment of those two groups is justified.

The difference between terrorist offenders who fall within the scope of the 2020 Act and those who do not is the gravity of the offence. Here, it seems to us, the analysis as to whether the two groups are analogous rapidly blurs into the question whether the difference is justified and, following the dicta of Lord Nicholls in Carson, it is helpful first to address the question of justification.

We note first that Mr Southey accepts that the involvement of the Parole Board was justified by the need to assess prisoners before release. But he argues that the extension of the custodial part of the Claimant’s sentence from one-half to two-thirds cannot be justified because there is no nexus between the individual risk posed by the offender, his prospects of being rehabilitated, and the arbitrary extension of his release point. He says that the risks that arise in the context of terrorist offenders “might provide a justification for the Parole Board considering entitlement to release”, but do not justify delaying release in all cases to which the 2020 Act applies. The risk posed by individual terrorist offenders will vary and there has been no individual assessment of whether release should be delayed. The extension of the custodial period bears no relationship to the actual risk posed by each individual offender.

Mr Southey points out that the minimum period of imprisonment has been changed in the case of prisoners to whom the 2020 Act applies but has not been changed for other terrorism prisoners such as those serving a discretionary life sentence. He says that prisoners subject to the 2020 Act suffer the disadvantage of delayed release without any compensating benefit.

Sir James contends that any relevant differential treatment is clearly justified. The 2020 Act pursued the legitimate aim of keeping terrorist prisoners in custody for a longer proportion of their sentence. The change in the law was a direct response to repeated terrorist attacks in the UK between 2017 and 2020. Reference to the Parole Board at the two-third point was justified by the very particular nature of terrorist offending and the need to ensure the public were not put at risk by the prisoner’s release. Parliament was entitled to conclude that terrorist offenders are to be distinguished from others because of the immediate and significant risk they pose, a risk that materialises in “serious, unpredictable harm to innocent and random members of the public”. Sir James refers to well-known postscript to the speech of Lord Hoffmann in Rehman [2003] 1 AC 153 at 62.

Sir James argues that the “twin features of the 2020 Act are inextricably linked”. A longer period of custody before a prisoner becomes eligible for release improves the evidence base on which the Parole Board makes its decision and increases the opportunity for rehabilitation.

In our judgment, on this element of the analysis, the Secretary of State has much the more compelling argument.

It is common ground that the test to be applied is whether the Secretary of State’s decision is “manifestly without reasonable foundation” (R (DA) v Secretary of State for Work and Pensions [2019] 1 WLR 3289.

The nature of terrorist offending was helpfully described in the statement of Mrs Wilkinson:

Faced with the real and immediate threats to public safety demonstrated by the attacks of November 2019 and February 2020, altering arrangements for the early release of terrorist prisoners was a logical and rational response. The offending in issue was especially grave, involving as it did random knife attacks on innocent bystanders causing fatal injuries. The risk such offenders posed reflected not only the likelihood of further offending of a similar nature, but also the potentially serious consequences of the risk eventuating.

In those circumstances, in our judgment, keeping terrorist prisoners in custody for a longer proportion of their sentence, and requiring Parole Board approval before early release, was an entirely legitimate response. The additional period of detention before assessment by the Parole Board increases the opportunity for treatment and rehabilitation and for gathering the material to which the Board would have regard in coming to a decision.

In our view, Parliament was justified in distinguishing serious terrorist offenders of this sort from other offenders who had received ordinary determinate sentences, given the pernicious nature of the offending, the obvious difficulties of managing such offenders in the community and the significant risk of unpredictable harm to random members of the public when they were released. Certainly, we do not regard the decision as manifestly without reasonable foundation.

Parliament was also entitled, in our view, to exclude from the new arrangements for early release those guilty of the less serious types of terrorist offending. Terrorist offences where the maximum sentence is two years or less are markedly less grave and since the gravity of the offending was the driving factor in the introduction of these new provisions, limiting the application of the 2020 Act to more serious offences was entirely justified.

As to the justification for requiring a prisoner to serve two-thirds rather than one half or some other fraction of his sentence before being eligible for release, the short point, in our judgment, is that the line has to be drawn somewhere. It was at the halfway point and Parliament has now decided it should be at the two thirds point. There can be no objection in principle to selecting a particular fraction. In Clift v UK, the ECtHR said this (at [75]):

In those circumstances, we reject the complaint under Article 14.

It is convenient to deal with Article 7 before Article 5. Article 7 might be thought to provide the more obvious framework against which to test the present challenge and so we begin with that. Before we do so, we remind ourselves that, at least nominally, Mr Southey attacks both elements of the new arrangements, the two third point and the Parole Board point, in his arguments on Articles 7 and 5.

Article 7(1) provides:

The fundamental question is what is the “penalty”? Is it the sentence imposed by the sentencing court or is it the sentence ameliorated by whatever provisions are then in force for early release?

Mr Southey bases his argument in respect of Article 7 firmly on the Grand Chamber decision in Del Rio Prada v Spain (2014) 58 EHRR 37. It is necessary to consider the facts of that case in a little detail.

Ms Del Rio Prada was sentenced to a total of 3,000 years’ imprisonment for offences linked to terrorist attacks, committed between 1982 and 1987 in eight different sets of criminal proceedings. The maximum term of imprisonment to be served for all sentences was fixed at 30 years. In February 2001, the date on which the applicant would fully discharge her sentence was set at 27 June 2017.

In April 2008, the applicant’s release date was proposed for 2 July 2008, after taking into account remissions of sentence on the basis of work she had done in detention. The applicant was granted ordinary and extraordinary remissions of sentence on six occasions between 1993 and 2004. In May 2008 the court rejected the proposed release date and requested a new date based upon a new precedent set by the Supreme Court on 28 February 2006 (the “Parot” Doctrine) which stated that sentence adjustments and remissions were not to be applied to the maximum term of imprisonment of 30 years but to each of the sentences imposed.

The applicant appealed against the decision on the basis that the judgment of the Supreme Court had resulted in an increase to the term of her imprisonment by almost nine years and was in breach of the principle of non-retroactive application of criminal law provisions. In June 2008, the date for the applicant’s final release was set

At paragraphs 91-93, when addressing the “foreseeability of criminal law” the Grand Chamber observed:

At paragraph 111 the Grand Chamber said this:

The Grand Chamber concluded that the relevant Spanish law in force at the time of her conviction was sufficiently precise to enable the applicant to foresee the scope of

Mr Southey submits that that decision of the Grand Chamber amounts to an authoritative restatement of principle. He says that the Court emphasised that the key question in determining whether there had been a breach of Article 7 when a prisoner complained about changes in an early release regime was whether the change was foreseeable at the time of sentence. He says that when considering Article 7 in this context the key issues are whether the rule that is said to have changed is sufficiently certain to be said to be part of the substantive law at the time of sentence; whether there has been a change in that law; whether that change was foreseeable and what the change relates to.

Sir James says the reliance on Del Rio Prada is misplaced given the analysis of the relevant principles in a series of cases culminating in the ECtHR decision in Abedin v UK (Application No. 54026/16). He says the ECtHR case-law has long distinguished between measures constituting a penalty and those representing the execution or enforcement of a penalty. He contends that the 2020 Act does not change the penalty imposed on the prisoner: the length of a prisoner’s sentence, imposed by the sentencing court, is not increased in any sense. There are changes to the administration of that penalty, and in particular to the early release arrangements. However, the domestic and ECtHR case-law clearly indicates that changes of this nature do not infringe Article 7.

In our judgment, Sir James is correct in his assertion that prior to Del Rio Prada, it was well established in domestic and Strasbourg jurisprudence that a change to the administration of a penalty, by an alteration to the early release provisions or the like, will not engage Article 7.

The starting point for the analysis is the ECtHR case of Hogben v. the United Kingdom (Application No. 11653/85, Commission decision of 3 March 1986, Decisions and Reports (DR) 46 p. 231). In that case, as a result of a change in the policy on release on parole, the applicant was transferred from open to closed prison, and had to serve a substantially longer time in prison than would otherwise have been the case. In answering his Article 7 complaint, the former Commission said this:

In R (Uttley) v SSHD [2004] 1WLR 2278, the appellant complained that there had been a breach of Article 7 resulting from his release at the two- thirds point of his sentence on licence. Lord Rodger held (at [38] and [43]):

Mr Uttley took his case to Strasbourg. In Uttley v United Kingdom (Application No. 36946/03) the Court referred to Hogben and ruled that the application in the case before them was manifestly inadmissible. It was held that for the purposes of Article 7 the penalty was, and was only, the sentence passed by the court. The Court concluded:

In R (Robinson) v Secretary of State for Justice [2010] 1 WLR 2380, the Court of Appeal held that provisions relating to the early or conditional release relate to the administration or execution of a determinate sentence. They were not part of the sentence. Moses LJ said, at [25], that

Robinson was an Article 6 case but Moses LJ made clear at [26] that the distinction between a penalty and the administration of the penalty applied “whether the right in issue is enshrined in Article 5 in Article 6 or in Article 7”.

Del Rio Prada was considered by the Divisional Court in Abedin. The Court held that changes to the early release date for a serving prisoner did not constitute a violation of the prisoner’s Article 5 or 7 rights. The judgment ofLaws LJ included the following at [17]:

Mr Abedin took his case to Strasbourg. In Abedin v UK (Application No. 54026/16) the ECtHR considered Del Rio Prada in some detail before it unanimously declared the application inadmissible. The judgment of the court included the following:

The critical feature of the Grand Chamber’s analysis, in our judgment, was its conclusion that application of the Parot Doctrine constituted a redefinition of the scope of the penalty imposed on Ms Del Rio Prada. That seems to us a wholly unsurprising conclusion given that prior to the introduction of that doctrine, remissions of sentence for work done in detention were expressly provided for by statute and periodically approved by the judge responsible for the execution of the sentences. In effect, the sentence of the Court had been amended and that amendment sanctioned judicially. The decision as to her release undermined that amendment. None of that is true of Mr Khan’s case.

In the present case the changes wrought by the 2020 Act were changes in the arrangements for early release; they were not changes to the sentence imposed by the sentencing judge. In the absence of a fundamental change of the sort described in Del Rio Prada, a redefinition of the penalty itself, the principle is clear; an amendment by the legislature to the arrangements for early release raise no issue under Article 7. A change to those arrangements does not amount to the imposition of a heavier penalty than that applicable at the time the offence was committed. In those circumstances we reject the claim under Article 7.

Article 5 provides that:

In considering Article 5, the Grand Chamber in Del Rio Prada concluded that it was well established that all deprivations of liberty must not only be based on one of the exceptions listed in sub paragraph (a)–(f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This requires any arrest or detention to have a legal basis in domestic law, but also relates to the quality of the law, requiring it to be compatible with the rule of law. The “quality of the law” implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness.

The standard of “lawfulness” set by the Convention requires that all law be sufficiently precise to allow the person—if need be, with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Where deprivation of liberty is concerned, it is essential that the domestic law clearly define the conditions for detention. The Court reiterated that although Article 5(1)(a) of the Convention does not guarantee, in itself, a prisoner’s right to early release, be it conditional or final, the situation may differ when the competent authorities, having no discretionary power, are obliged to apply such a measure to any individual who meets the conditions of entitlement laid down by law.

Of particular importance to its analysis was what was said in [107] of the Grand Chamber’s decision:

Mr Southey argues that the Court’s reasoning in Del Rio Prada applies with equal force here. According to the law in forceat the time of sentence, the Claimant would have been entitled to automatic early release at the halfway point of his sentence. There was no discretion in play. And he could not have foreseen that the law would be changed to prevent this automatic release.

Referring to Robinson and Abedin, Sir James submits that the contention that the 2020 Act is incompatible with Article 5 flies in the face of well-established principle. He says that Del Rio Prada has no application here. The effect of the decision of the Spanish Supreme Court in 2006 was retroactively to cancel remissions that had already been granted. He says that in those circumstances it is wholly unsurprising that the ECtHR “had concerns”. The present context, he says, is entirely different. The issue of foreseeability simply does not arise: it is well established in the case-law that there is no right to early release; it was always open to Parliament to change the early release provisions. This is not a case where the Claimant is serving any longer a period than that which was ordered by the sentencing Judge (indeed, it remains possible that he will serve only two-thirds of his sentence in custody).

In our judgment, Sir James is right in his submission that Del Rio Prada does not undermine well-established principles as to the application of Article 5. Those principles emerge from the following decisions.

In Brown v United Kingdom (Application No. 968/04) the Strasbourg court said this:

In R (Smith & West) v Parole Board [2005] 1 WLR 350 Lord Bingham said at [36]:

In R v Bright [2008] 2 Cr App R (S) 102, at [41], Sir Igor Judge P said:

In R v Round [2010] 2 Cr App R (S) 45 at [44] Hughes LJ said that:

In R (Whitson) v Secretary of State for Justice [2015] AC 176 at 38-39, Lord Neuberger, with whom Lord Kerr, Lord Carnwath and Lord Thomas agreed, held as follows:

In Abedin, Laws LJ referred to Smith & West and Brown and rejected a similar argument from Mr Southey as he ran before us. At [20] he said:

William Davies J agreed with Laws LJ and added this at [24]:

In Brown v Parole Board for Scotland [2018] AC 1 Lord Reed said (at [58]):

From those authorities it is possible to draw the following principles:

In our judgment those principles are not affected by the decision in Del Rio Prada. Del Rio Prada does not detract from the core distinction between sentence passed by the sentencing judge and the administration or execution of the sentence. Throughout the relevant period, the governing authority for the detention is the original sentence. It is entirely foreseeable (if necessary with appropriate legal advice) that during the currency of a determinate sentence, which was calculated and imposed without account being taken of the possibility of early release, the arrangements for the execution of the sentence might be changed by policy or legislation. Accordingly, the lawfulness of the sentence was not undermined or compromised by changes of the sort made by the 2020 Act.

In those circumstances, the challenge under Article 5 must also fail.

For those reasons we reject the challenges under Articles 14, 5 and 7 and this application is dismissed.