Massey, R (On the Application Of) v Secretary of State for Justice

For the purposes of Art. 14 read with Art. 5, prisoners liable to removal and prisoners who must remain in the United Kingdom may be in different situations where the issue is the allocation of prison resources. Post-tariff imprisonment under an indeterminate sentence is concerned with protection of the public, but the Secretary of State may consider the protection of the United Kingdom public when deciding how to deploy limited prison capacity. A prisoner serving an indeterminate sentence is not in an analogous situation to a prisoner sentenced under a later determinate sentencing regime merely because the offences are similar. The Convention does not require historical sentences to be reopened after Parliament introduces a new sentencing regime.

The claimant was serving an indeterminate sentence for public protection. His tariff had expired, but the Parole Board had not directed release. He challenged the Tariff Expired Removal Scheme, arguing that it discriminated against prisoners who could not be removed because they remained subject to the Parole Board’s risk assessment. He also argued that he was discriminated against compared with offenders convicted after the abolition of indeterminate sentences for public protection, who could receive extended determinate sentences and automatic release.

The court determined whether the two alleged comparators were in an analogous situation for the purposes of Art. 14 read with Art. 5 or Art. 7.

1. The claim was dismissed on both grounds. Article 5 was engaged, but the first complaint did not establish discrimination. The issue was not eligibility for parole. It concerned the Secretary of State’s deployment of limited prison resources. Prisoners liable to removal could be taken out of prison without exposing the United Kingdom public to danger, whereas prisoners who could not be removed would, if released, present a danger to that public. They were therefore not in an analogous situation for this purpose.
2. The fact that the Parole Board must assess risk wherever it arises did not prevent the Secretary of State from considering the risk to the United Kingdom when allocating prison capacity. The reasoning in Brooke v Secretary of State for Justice, as approved in Francis v Secretary of State for Justice and followed in R (Serrano) v SSJ and SSHD, concerned home detention curfew and did not govern post-tariff imprisonment. Nor did the scheme discriminate on nationality or immigration status. The relevant distinction was liability to removal, which depended on the statutory immigration criteria.
3. The second complaint also failed. A prisoner serving an indeterminate sentence post-tariff was not in an analogous situation to a person convicted after 3 December 2012 and subject to an extended determinate sentence. The sentences were different in kind. The claimant’s complaint in substance challenged the continued operation of his original sentence, rather than identifying a relevant status-based difference under Art. 14.
4. The court noted that the European Court of Human Rights had treated sentence length as capable of constituting an “other status” in Clift v UK. However, the court considered itself bound by the ratio of the House of Lords decision in R (Clift) v Home Secretary. It was unnecessary to decide justification because no discrimination contrary to Art. 14 had been demonstrated.

First-instance judicial review proceedings in the Administrative Court. The judgment does not state any subsequent appellate decision.