Foley, R (on the application of) v Parole Board for England and Wales & Anor

For Article 14 purposes, long-term determinate and tariff-expired indeterminate prisoners are sufficiently analogous when their early release is assessed by the Parole Board. A more stringent release test for determinate prisoners requires objective justification. The differing tests under the Criminal Justice Act 1991 could not be justified. However, the court was bound by R (Clift) v Secretary of State [2007] 1 AC 484 to hold that the claimant could not rely on “other status” under Article 14. The claim therefore failed, although the court indicated that, absent the precedent point, it would have found a violation.

The claimant, serving an 18-year determinate sentence for arson and manslaughter, challenged the Parole Board’s refusal to recommend her release at the halfway point. She argued that the release test for determinate prisoners was more onerous than the “life and limb” test applied to tariff-expired indeterminate prisoners, contrary to Article 14 read with Article 5.

The court considered “other status”, analogy between the prisoner groups, and objective justification. The claim was dismissed because binding domestic precedent prevented reliance on “other status”.

1. The claim was dismissed. The court was bound by R (Clift) v Secretary of State [2007] 1 AC 484 to conclude that the claimant could not rely on “other status” under Article 14. The later Strasbourg decision in Clift v United Kingdom [2010] ECHR 7205/07 did not permit departure from that binding decision.

2. The early release provisions fell within the ambit of Article 5, so Article 14 could be invoked without proving a separate Article 5 breach.

3. Alternatively, long-term determinate and tariff-expired indeterminate prisoners were sufficiently analogous for Article 14 comparison. Both regimes involved risk assessment after the punitive element of the sentence. A finite determinate sentence was not a material distinction in that context.

4. The determinate release test was more stringent because it covered further offending generally, whereas the indeterminate regime focused on risk to life and limb. The court treated the reasoning in Clift v United Kingdom [2010] ECHR 7205/07 as relevant beyond the procedural issue decided there. It found no objective justification for the difference.

5. The court doubted that the causal-connection approach from Weeks v United Kingdom [1998] 10 EHRR 293 and Stafford v United Kingdom [2002] 35 EHRR 32 applied to determinate prisoners. That issue was unnecessary to the result.