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

For the purposes of Article 14 of the ECHR, a prisoner’s release process falls within the ambit of Article 5 where the arrangements materially affect the exercise of liberty, even though Article 14 has no independent life. Subjecting prisoners to decisions by two release authorities rather than one is a material difference in treatment. Prisoners serving determinate sentences of 15 years or more are in an analogous position to those serving shorter long-term sentences, so the difference requires objective and reasonable justification. A statutory dividing line based on sentence length may nevertheless be lawful where it reflects the seriousness of the offending and preserves democratic accountability. The residual power of the Secretary of State under sections 35 and 50 of the Criminal Justice Act 1991, as modified by the Parole Board (Transfer of Functions) Order 1998, was therefore compatible with Article 5 read with Article 14.

The appellant was serving an 18-year determinate sentence and became eligible for parole after half the sentence. The Parole Board recommended release, but the Secretary of State rejected that recommendation under the residual power applicable to prisoners serving 15 years or more. The appellant sought judicial review, while the Secretary of State’s decision was accepted as substantively justified.

Hooper J, in the Queen’s Bench Division, held that the claim fell within the first three stages of the Article 5 and Article 14 analysis but that the difference in treatment was objectively and reasonably justified. The appellant had subsequently been released but continued the challenge. The appeal concerned whether the statutory release arrangement was discriminatory in breach of Article 5 read with Article 14.

1. Appeal dismissed. The residual power of the Secretary of State under section 35 of the Criminal Justice Act 1991, as modified by section 50 and the Parole Board (Transfer of Functions) Order 1998, did not contravene Article 5 read with Article 14 of the ECHR.
2. The court adopted the four-question framework stated in LB Wandsworth v Michalak [2003] 1 WLR 617: whether the facts fall within the ambit of a substantive Convention right; whether there is different treatment; whether the comparators are in an analogous position; and whether the difference has objective and reasonable justification.
3. Article 14 has no independent existence, but its operation with a substantive Convention right may extend beyond the ambit of that right considered alone. The court therefore considered the release arrangements under Article 5 in conjunction with Article 14.
4. The release process was within the ambit of Article 5. The appellant and prisoners serving determinate sentences of less than 15 years received materially different treatment because the appellant’s release required the favourable decisions of both the Parole Board and the Secretary of State, whereas the Board’s decision was final for the chosen comparators.
5. The two categories were sufficiently similar to require positive justification. The distinction was justified, however, by the seriousness of the crimes or offending records generally associated with sentences of 15 years or more, and by the Secretary of State’s democratic accountability. A precise statutory cut-off could produce difficult individual results, but a period-of-years test provided a rational, proportionate and legally certain dividing line.
6. The court did not determine the broader submission that the Executive should have no role in discretionary prisoner release, because the point had not been argued below and was not pursued on appeal.

• Court of Appeal (Civil Division): Appeal from the judgment of Hooper J in the Queen’s Bench Division dated 13 June 2003. Appeal dismissed.