R (on the application of Clift) (FC) v. Secretary of State for the Home Department (Respondents) Secretary of State for the Home Department (Respondent) v. Hindawi (FC) (Appellant) and another Secretary of State for the Home Department (Respondent) v. Hindawi and another (FC) (Appellant) (Conjoined Appeals)

Article 14 applies where a personal interest close to the core of a substantive Convention right is affected. Once domestic law establishes an early-release scheme, both access to release and consideration by an independent Parole Board fall within the ambit of article 5.

Discrimination must nevertheless rest on a listed ground or an analogous personal status. Sentence length, reflecting the seriousness of offending, was not such a status under the Strasbourg jurisprudence then established. National origin was a prohibited ground. Denying prisoners liable to removal the same Parole Board review as other long-term prisoners lacked objective justification where the Board could assess risk abroad and the decision involved no political judgment or superior ministerial expertise.

The conjoined appeals concerned three long-term determinate-sentence prisoners governed by early-release legislation which reserved decisions to the Secretary of State in defined circumstances. Sean Clift, a British national serving 18 years, challenged the rule applicable to determinate sentences of 15 years or more. Nezar Hindawi and Prince Charles Headley challenged the different regime for prisoners liable to removal from the United Kingdom.

Hooper J rejected Clift's application in [2003] EWHC 1337 (Admin). The Court of Appeal dismissed his appeal in [2004] EWCA Civ 514, [2004] 1 WLR 2223. McCombe J held in [2004] EWHC 78 (Admin) that the treatment of Hindawi and Headley lacked objective and proportionate justification. The Court of Appeal subsequently resolved their claims against them in [2004] EWCA Civ 1309, [2005] 1 WLR 1102.

The House considered whether early-release arrangements were within the ambit of article 5 for article 14 purposes; whether sentence length amounted to “other status”; and whether the differences based on sentence length or liability to removal were objectively justified.

1. Disposition. Lord Bingham delivered the leading speech. Lord Hope, Baroness Hale, Lord Carswell and Lord Brown agreed in the disposition and the material conclusions. The House unanimously dismissed Clift's appeal, allowed the appeals of Hindawi and Headley, and made the proposed declaration of incompatibility.

2. Ambit of article 5. Per Lord Bingham, the absence of a Convention obligation to create a parole scheme did not place an existing domestic scheme outside article 5. Article 14 applies where a personal interest close to the core value protected by a substantive right is affected. Liberty is the core value of article 5. Domestic law gave long-term prisoners a right to seek release before the date of mandatory release, subject to an assessment of risk. Access to that process, including a recommendation from an independent and court-like Parole Board, was therefore within the ambit of article 5. Lord Brown agreed and emphasised that a parole scheme must operate without discrimination just as the original sentencing process must.

3. Prohibited status. Per Lord Bingham, article 14 does not prohibit every distinction. “Other status” requires a personal characteristic by which people or groups are distinguishable. Although sentence classification could plausibly be regarded as an acquired characteristic, the Strasbourg authorities did not establish that a distinction based on sentence length or the seriousness of offending was protected. A domestic court should not extend Convention law beyond the evolving Strasbourg jurisprudence. Lord Hope reached the same conclusion with reluctance. Baroness Hale considered that the true reason for Clift's treatment was what he had done rather than a personal attribute. Clift's appeal therefore failed.

4. Objective justification. Per Lord Bingham, the Secretary of State bore the burden of showing objective justification at the time of the differential treatment. By 2002 the reservation of final release decisions for determinate prisoners serving at least 15 years had become indefensibly anomalous. Individual risk assessment under published criteria had no political content, and the Secretary of State possessed no superior expertise. That conclusion did not save Clift's claim because sentence length was not a protected status.

5. The distinction affecting prisoners liable to removal was based on national origin and required justification. Its historical rationales had ceased to be persuasive. Clear criteria existed, the Parole Board could assess risks arising abroad, and it already performed that task for other prisoners liable to removal. The different regime was therefore irrational and unjustified. Sections 46(1) and 50(2) of the Criminal Justice Act 1991 were declared incompatible with article 14, read with article 5 of the European Convention on Human Rights, so far as they prevented such prisoners receiving the same Parole Board review as other long-term prisoners.

1. House of Lords: In [2006] UKHL 54, the House unanimously dismissed Clift's appeal, allowed the appeals of Hindawi and Headley, and declared sections 46(1) and 50(2) of the Criminal Justice Act 1991 incompatible to the stated extent.
2. Court of Appeal: Clift's appeal was dismissed in [2004] EWCA Civ 514, [2004] 1 WLR 2223. The claims of Hindawi and Headley were resolved against them in [2004] EWCA Civ 1309, [2005] 1 WLR 1102.
3. High Court: Hooper J rejected Clift's challenge in [2003] EWHC 1337 (Admin). McCombe J held in [2004] EWHC 78 (Admin) that the different treatment of Hindawi and Headley lacked objective and proportionate justification.