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

Article 14 of the ECHR may apply to statutory early-release arrangements because those arrangements affect the liberty protected by Article 5. Prisoners serving an extended determinate sentence are treated differently from prisoners serving ordinary determinate or discretionary life sentences because parole eligibility generally arises after two-thirds, rather than one-half, of the custodial term.

That difference may be difficult to justify where the custodial term reflects punishment and deterrence, while dangerousness is addressed through later risk assessment. However, a first-instance court remains bound by the House of Lords decision in R (Clift) v Secretary of State for the Home Department and must dismiss the claim.

Frank Stott was serving an extended determinate sentence comprising a 21-year custodial term and a four-year extension period for serious sexual offences. Under section 246A of the Criminal Justice Act 2003, he could be referred to the Parole Board only after serving two-thirds of the appropriate custodial term.

He claimed that this treatment was discriminatory under Article 14 of the ECHR, read with Article 5, when compared with prisoners serving ordinary determinate sentences, special custodial sentences and discretionary life sentences, whose eligibility for consideration for release generally arose after one-half of the relevant term. The central issues were whether the claim fell within the ambit of Article 5, whether the comparators were in an analogous situation, whether the difference was objectively justified, and whether the court was bound by R (Clift) v Secretary of State for the Home Department.

1. Outcome. The claim was dismissed because the court was bound by the House of Lords decision in R (Clift) v Secretary of State for the Home Department, which required the Article 14 claim to fail. The court was prepared to certify the matter for a possible direct application to the Supreme Court.
2. Article 5 ambit. Article 14 is not freestanding. It applies only in relation to rights within the Convention. Statutory release provisions fall within the ambit of Article 5 because they determine the nature and extent of the State’s power to detain and engage the core value of liberty. The fact that detention remains lawful until the statutory release point does not prevent an Article 14 complaint about discriminatory early-release arrangements.
3. Discrimination framework. The five-stage framework in R(S) v Chief Constable of South Yorkshire requires consideration of Article 5 ambit, difference in treatment, a proscribed ground, analogous situations, and objective justification. The court accepted that there was different treatment and considered that prisoners serving an extended determinate sentence could be analogous to prisoners serving other custodial sentences, including discretionary life sentences and special custodial sentences.
4. Justification. The distinction between the punitive element of a sentence and detention based on future risk was material. Dangerousness could justify continued detention after the relevant punitive term, but did not rationally justify postponing parole eligibility for extended determinate sentence prisoners from one-half to two-thirds of that term. The evidence relied on public protection and confidence in sentencing, but did not explain why the punitive element should differ.
5. Binding authority. Despite those conclusions, the court could not revisit Clift at first instance. The claim therefore failed, although the court stated that, absent the binding authority, it would have declared section 246A of the Criminal Justice Act 2003 incompatible with Article 14.

Court of Appeal (Criminal Division): Permission to appeal against sentence and on the alleged discriminatory character of the extended determinate sentence was refused in [2016] EWCA Crim 172. The court stated that the challenge was in substance directed to the release provisions and should be pursued by judicial review.

High Court (Administrative Court): The judicial review claim was dismissed because the court was bound by Clift. The court indicated that it would otherwise have found section 246A incompatible with Article 14 and was prepared to certify the issue for a possible application to the Supreme Court.