Secretary of State for the Home Department v Hindawi & Anor

Article 14 is not freestanding: the alleged discrimination must fall within the ambit of another Convention right. By a majority, the Court of Appeal held that determinate-sentence prisoners lawfully detained after conviction had no residual Article 5 right engaged merely because they sought early release. Access to advice under section 32(2) of the Criminal Justice Act 1991 was not itself such a right. The Secretary of State was therefore not required by Article 14 to refer deportable prisoners to the Parole Board. The court also held unanimously that Hindawi’s refusal letter gave adequate reasons, although it should have addressed the Syrian evidence expressly.

Two long-term prisoners liable to deportation challenged the Secretary of State’s practice of deciding early release without Parole Board advice. Hindawi, serving a 45-year sentence, also challenged the adequacy of the reasons for refusing release. Headley, serving seven years, had previously been referred to the Parole Board in error.

McCombe J, sitting in the Administrative Court, allowed both applications on 29 January 2004 and quashed the refusals to refer the cases under section 32(2) of the Criminal Justice Act 1991. The appeal concerned whether differential access to the Parole Board fell within Article 5 for the purposes of Article 14, whether the difference was discriminatory and justified, and whether Hindawi’s decision letter was legally adequate.

The appeals were allowed and the orders of McCombe J were set aside. Lord Justice Kennedy and Lord Justice Sedley formed the majority on the principal Article 14 issue. Lord Justice Neuberger dissented on that issue but agreed that the appeal concerning Hindawi’s decision letter should succeed.

1. Article 14 and Article 5. Article 14 could not be invoked independently. The majority held that the respondents’ complaints fell outside the ambit of Article 5. Kennedy LJ relied particularly on R (Giles) v Parole Board [2004] 1 AC 1 and R (Smith) v Parole Board (No 2) [2004] 1 WLR 41: lawful detention under a determinate sentence imposed after conviction satisfied Article 5 during the sentence, leaving no residual Article 5 right merely because the prisoner applied for early release. Sedley LJ adopted the narrower ground that the alleged entitlement was only to advice from the Parole Board under section 32(2) of the Criminal Justice Act 1991, not a right capable of making continued detention unlawful.
2. Alternative Article 14 analysis. Kennedy LJ considered that exclusion of the Parole Board created a material difference because the Board was an independent and expert body. He nevertheless held that the difference had objective and reasonable justification in the Carlisle Committee’s reasoning, pursued a legitimate aim and was proportionate. Sedley LJ regarded the justification as much less satisfactory, while Neuberger LJ would have held that the discrimination was unjustified, particularly after R v Parole Board ex parte White had confirmed that risk to the public abroad could be considered.
3. Hindawi’s reasons. The omission of express reference to evidence about Syria was discourteous and fell below the high standard expected of a Department of State. It did not invalidate the decision, because the letter gave personal reasons concerning insight, victim empathy and risk of reoffending, and those reasons explained why early release was refused.

• Court of Appeal (Civil Division) The appeals were allowed. The orders quashing the Secretary of State’s refusals to refer the respondents’ cases to the Parole Board were set aside. The appeal concerning the adequacy of Hindawi’s reasons also succeeded.
• Administrative Court McCombe J allowed both applications on 29 January 2004 and quashed the refusals under section 32(2) of the Criminal Justice Act 1991.