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

Article 14 is not engaged merely because a convicted prisoner detained beyond tariff is subject to a different prison regime from unconvicted or civil prisoners. The relevant question is whether the alleged ground of difference is an “other status” and whether the persons compared are in analogous situations. A prisoner detained after conviction for public protection is fundamentally different from a person awaiting trial, who is presumed innocent, and from a civil prisoner detained for coercive or mixed punitive purposes. Even if Article 14 were engaged, differential treatment based on this peripheral distinction would not be manifestly without reasonable foundation.

The claimant was serving an indeterminate sentence imposed for a serious offence committed when he was a child. His tariff had expired many years earlier, but he remained detained because the Parole Board considered that his release would endanger the public.

He sought judicial review, alleging that the refusal to extend to him various rights and privileges available to unconvicted and civil prisoners breached Article 14 of the Convention. The central issues were whether his status engaged Article 14, whether he was in an analogous situation to those classes of prisoner, and, if so, whether the difference in treatment lacked reasonable foundation.

1. The application was dismissed. The claimant’s detention after expiry of the punitive tariff remained connected with his conviction and sentence, and his position was fundamentally different from that of unconvicted and civil prisoners.
2. Article 14 was not engaged on the facts. Applying the analysis in R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, the type of sentence was a peripheral acquired characteristic. The true ratio of Clift v Secretary of State for Home Department [2007] 1 AC 484 was that the type of sentence could not constitute an “other status” for Article 14 purposes. That included an indeterminate sentence involving possible continuing detention for public protection.
3. The claimant was not in an analogous situation to an unconvicted or civil prisoner. Unconvicted prisoners have not been convicted and retain the presumption of innocence. Civil prisoners may be detained principally to coerce compliance, or for a mixture of coercion and punishment. The claimant, by contrast, had been convicted of a very serious offence and remained liable to detention because of the risk he posed on release.
4. The general principle stated by Laws LJ in Waite v London Borough of Hammersmith and Fulham [2002] EWCA Civ 482 applied beyond the housing-benefit context. The conviction and sentence set the claimant’s position wholly apart from that of a remand prisoner.
5. Alternatively, any difference in treatment would not have been manifestly without reasonable foundation. The alleged distinction was peripheral, and some practical differences between the regimes were reasonable or necessary.

First-instance judicial review proceedings in the High Court (Administrative Court). No prior appellate decision is stated in the judgment.