Clift, R (on the application of) v Secretary of State for the Home Department

Where different parole-release procedures apply to prisoners serving determinate sentences above and below a statutory threshold, the difference may engage Article 14 if the prisoners are relevantly comparable. The court should consider ambit, different treatment, analogous situation, and objective and reasonable justification, including legitimate aim and proportionality. A clear legislative aim may be established without evidence where it is apparent from the statutory scheme. A period-based threshold may be justified despite producing arbitrary results in individual cases, because a fixed rule provides legal certainty. The Secretary of State’s decision must remain reasonably open to him on the material before him; detailed reasons need not separately spell out matters obvious to a decision-maker in the field.

The claimant, serving an 18-year determinate sentence, challenged the Secretary of State’s refusal to release him on parole after the Parole Board had recommended release. Prisoners serving determinate sentences of 15 years or more remained subject to the Secretary of State’s decision under the Criminal Justice Act 1991, whereas prisoners serving shorter long-term sentences were released by the Parole Board alone under the Parole Board (Transfer of Functions) Order 1998.

The claimant alleged irrationality and discrimination contrary to Articles 5 and 14 of the Convention. The central issue was whether the distinction between prisoners serving 15 years or more and those serving sentences just below 15 years was unlawfully discriminatory.

1. The application was dismissed. The Secretary of State’s refusal was rational. His reasons addressed the claimant’s recent improvement, earlier assaults and adjudications, incomplete offending-behaviour work, the psychologist’s concerns, the seriousness of the offences and public safety. The weight given to the reports was for the decision-maker, and the conclusion fell within the range reasonably open to him.
2. The court adopted the structured approach in Wansdsworh LBC v Michalak: whether the facts fell within the ambit of a Convention right, whether there was different treatment, whether the comparators were in an analogous situation, and whether the difference had objective and reasonable justification. The questions may overlap, particularly the questions of analogy and proportionality.
3. Provision for early release on parole fell within the ambit of Article 5 sufficiently to engage Article 14, although the absence of such provision would not itself breach Article 5. Prisoners serving just below 15 years were appropriate comparators because sentencing outcomes lacked mathematical precision and sentences of 14 and 15 years could reflect similar circumstances.
4. There was relevant different treatment. Prisoners serving 15 years or more faced two decision-making stages, involving the Parole Board and the Secretary of State, whereas prisoners serving shorter sentences faced only the Parole Board. The groups were in an analogous situation.
5. The distinction pursued a legitimate aim: reserving to a politically accountable Secretary of State a power to review release decisions concerning prisoners serving long determinate sentences, who were considered likely to present particular public-safety and public-order concerns. The Secretary of State applied the same test to the same or similar material, remained subject to judicial review, and Parliament’s decision attracted appropriate deference.
6. A fixed 15-year threshold was a rational and proportionate means of implementing that aim. Although borderline cases could produce arbitrary outcomes, a period-based rule supplied the necessary legal certainty. Any discrimination was therefore justified.

Permission to appeal was refused. The Secretary of State was awarded costs, not to be enforced without the court’s leave because the claimant was legally aided.

First-instance judicial review. The judgment records the Parole Board’s recommendation and later review, but no prior appellate decision.