Primrose, R (on the application of) v Secretary of State for Justice

Article 14 is engaged where an early-release decision falls within the ambit of Article 5. The court must then identify differential treatment on a protected ground and ask whether the difference can withstand scrutiny. Indirect discrimination requires evidence of a disproportionately prejudicial effect on a particular group; a theoretical possibility is insufficient. Direct differential treatment may be justified by the difference between persons who can be monitored within the statutory jurisdiction and those who cannot. Early release on home detention curfew is not a social advantage within Directive 2000/43/EC or the Race Relations Act 1976. The duty to have due regard does not require a disproportionate investigation of a marginal or theoretical racial impact.

The claimant was serving a sentence of imprisonment in England and Wales and sought release on home detention curfew to his mother’s address in Scotland. The Secretary of State’s arrangements permitted monitoring only in England and Wales. The claimant declined accommodation offered under the Clearwater scheme.

He challenged the arrangement under Article 14 of the Convention, relying on Article 5 and, alternatively, Article 8. He also alleged indirect racial discrimination under sections 1(1A), 1(1B) and 19B of the Race Relations Act 1976, and breach of the duty in section 71. The central issues were whether the scheme discriminated against persons of Scottish origin or persons resident outside England and Wales, whether any difference was justified, whether early release was a social advantage, and whether the Secretary of State had discharged the statutory duty.

Claim dismissed.

1. Article 14 applied through Article 5 because a decision concerning early release from prison fell within Article 5’s ambit. It was unnecessary to decide whether Article 8 was also engaged. The Article 14 inquiry required identification of differential treatment on a protected ground, followed by consideration of whether the difference could withstand scrutiny. The formulation should not be applied as a technical straitjacket: R (Carson) v Work and Pensions Secretary [2006] 1 AC 173.
2. The indirect-discrimination claim failed for want of evidence that the scheme had a disproportionately prejudicial effect on Scots or any other defined group. The fact that persons without an address in England and Wales might be less well placed than persons with such an address did not establish group disadvantage. In any event, the distinction was justified by the territorial limits of the statutory scheme, the need for monitoring, and the availability of Clearwater accommodation.
3. Residence outside England and Wales was assumed to be a protected status. The direct difference in treatment nevertheless withstood scrutiny because persons who could be monitored within the jurisdiction were materially different from those who could not readily be monitored outside it. Requiring cross-border legislative and administrative arrangements for a negligible or marginal problem would be disproportionate.
4. Even if Article 14 had been breached, section 6(2) of the Human Rights Act 1998 would protect the Secretary of State because the relevant conduct gave effect to primary and delegated legislation which could not be read compatibly.
5. Early release on home detention curfew was not a social advantage for the purposes of Article 3(f) of Directive 2000/43/EC, and therefore not within the corresponding provisions of the Race Relations Act 1976. Matters concerning the terms on which prisoners are held and released were outside the powers conferred on the European Union.
6. The section 71 duty did not require the Secretary of State to collect statistics or devise cross-border arrangements in response to a marginal and theoretical impact. The claim was dismissed.