Bristow v The Secretary of State for Justice & Anor

The Court of Appeal must apply binding House of Lords authority even where a later Strasbourg judgment appears inconsistent. Where binding authority determines an Article 14 discrimination claim, the court may decline to decide remaining comparator and justification issues that cannot affect the result, especially where the appeal is academic and has limited wider utility. Article 5 does not require a different outcome where a foreign sentence is enforced in the United Kingdom only after consensual transfer, the prisoner receives accurate release information, and the domestic law applicable at transfer is applied without a later change in execution.

The appellant had been sentenced in Thailand and was later transferred to the United Kingdom under the Repatriation of Prisoners Act 1984. He challenged the early-release arrangements, alleging discrimination contrary to Article 14 and a breach of Article 5.

The Administrative Court dismissed the judicial review claim, holding that it was bound by the House of Lords decision in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2013] EWHC 3094 (Admin). On appeal, the issues were whether the Court of Appeal could revisit the Article 14 argument and whether a further Article 5 ground based on Del Rio Prado v Spain succeeded.

1. Article 14. The appeal was dismissed. The court adopted the flexible five-stage framework in R (S) v Chief Constable of South Yorkshire Police [2004] UKHL 39. It accepted, for present purposes, that the facts engaged a Convention right and involved different treatment. However, the Article 14 argument failed at the question whether the difference was based on a proscribed ground, because R (Clift) v Secretary of State for the Home Department [2006] UKHL 54 was binding.
2. Binding precedent and academic issues. The Court of Appeal remained bound by the House of Lords decision even though the European Court of Human Rights had apparently taken a different approach in Clift v UK [2010] 51 EHRR 13. Kay v Lambeth Borough Council [2006] UKHL 10 and R (Minter) v Chief Constable of Hampshire [2013] EWCA Civ 697 confirmed that no applicable exception permitted departure. The later Supreme Court decision in R (Kaiyam and Haney) v Secretary of State for Justice [2014] UKSC 66 had not declared Clift wrong.
3. The court declined to hear substantive argument on the remaining Article 14 questions. Those issues could not affect the result, the appellant’s sentence and licence had expired, no damages claim had been pleaded, and the case had little wider application. The approach was consistent with the Court of Appeal’s earlier reasoning in R (Kaiyam and Haney) v Secretary of State for Justice [2013] EWCA Civ 1587.
4. Article 5. Del Rio Prado v Spain concerned a retrospective change in the calculation of remission which made detention longer than the prisoner could reasonably have foreseen. The present case was materially different. The appellant’s sentence arose under Thai law; early release in the United Kingdom became relevant only after consensual transfer; the applicable release date was accurately communicated; and the law in force at transfer was applied. There was therefore no relevant change, unfairness or inconsistency in the execution of the sentence. The appeal was dismissed on both Article 14 and Article 5 grounds.

1. Court of Appeal (Civil Division) dismissed the appeal on both Article 14 and Article 5 grounds: [2015] EWCA Civ 1170.
2. Administrative Court dismissed the judicial review claim, holding that the court was bound by R (Clift) v Secretary of State for the Home Department: [2013] EWHC 3094 (Admin).