Headley, R (on the application of) & Anor v Secretary of State for the Home Department

Differential treatment in the statutory early-release arrangements for prisoners liable to removal may fall within the ambit of Article 5 and engage Article 14, even though Article 5(4) does not itself require a review of the sentence. The relevant comparison is between prisoners in analogous situations, and discrimination is not rendered irrelevant because the different decision-maker might be more favourable to the claimant. Differential treatment requires objective and reasonable justification, supported by proper evidence and argument. Where a release decision turns materially on the likelihood of reoffending after removal, the decision-maker must address that issue and give reasons on the principal arguments advanced.

These were two applications for judicial review of decisions by the Secretary of State refusing early release under sections 35 and 46 of the Criminal Justice Act 1991. The claimants were determinate-sentence prisoners subject to deportation orders. Unlike comparable prisoners not liable to removal, they were not entitled to the ordinary Parole Board recommendation procedure.

The claimants alleged discrimination contrary to Article 14 of the Convention in relation to Article 5. Mr Hindawi also challenged the adequacy of the reasons given for refusing release, particularly the failure to address evidence about changed conditions in Syria and the consequent risk of reoffending.

1. Article 14 and Article 5. The court adopted the four-question framework in Wandsworth LBC v Michalak: whether the facts fall within the ambit of a substantive Convention right, whether there is differential treatment, whether the comparators are in an analogous situation, and whether the difference is objectively and reasonably justified. The ordinary early-release arrangements fall within the ambit of Article 5. Article 5(4) is not the sole relevant provision; the conditions governing the regaining of liberty may engage Article 14.
2. Comparison and differential treatment. Prisoners liable to removal and prisoners serving sentences of similar length who are not liable to removal were in analogous situations. There was differential treatment because the former class did not receive the same prior Parole Board involvement. The asserted possibility that the Secretary of State might be more favourable than the Board did not answer the Article 14 complaint, which concerns the fact of differential treatment.
3. Justification. The Secretary of State had not established an objective and reasonable justification. The justification relied principally on the perceived difficulty of applying ordinary parole criteria where a prisoner would be removed. That reasoning conflicted with R v The Parole Board, ex p White, which treated the relevant public as not confined to the United Kingdom public, and was not reconciled with the Parole Board’s role in cases involving life prisoners liable to removal. The applications therefore succeeded on the discrimination ground.
4. Reasons in Mr Hindawi’s case. A decision need not address every submission, but it must give reasons sufficient to show the conclusion reached on the principal issues. The decision letter addressed Mr Hindawi’s personal attitude to his offending but failed to address the central submission that changed political conditions in Syria made reoffending unlikely after removal. Applying the reasoning in R v Parole Board and another ex parte Oyston, that omission independently vitiated the decision.