R v Secretary of State for Justice

Article 14 requires differential treatment within a Convention right’s ambit, based on a listed ground or other status, between persons in relevantly analogous situations, without objective justification. An extended determinate sentence is an acquired status for this purpose.

Sentencing regimes must be compared as complete statutory schemes. A determinate custodial term does not divide into separate punitive and preventive components at the point of eligibility for early release. The materially different duration, release and licence consequences of extended determinate and life sentences mean that their prisoners are not in analogous situations. Alternatively, delayed parole eligibility for dangerous offenders is a proportionate means of protecting the public within the complete extended-sentence regime.

Extended determinate sentences were imposed on the appellant for sexual offences under section 226A of the Criminal Justice Act 2003. Section 246A required him to serve two-thirds of his 21-year custodial term before the Parole Board could consider his release. Most ordinary determinate prisoners could be released after half their sentences, while many discretionary life prisoners could seek release after half the corresponding notional determinate term.

The appellant claimed that the difference violated article 14, read with article 5, of the European Convention on Human Rights. The Divisional Court dismissed the claim in [2017] EWHC 214 (Admin) because it was bound by R (Clift) v Secretary of State for the Home Department. It would otherwise have found the legislation incompatible. A leapfrog certificate enabled a direct appeal.

The Supreme Court had to decide whether an extended-sentence prisoner possessed “other status”, whether the proposed comparators were in analogous situations, and whether the difference in parole eligibility was objectively justified.

1. Disposition. By a majority of three to two, the appeal was dismissed. Lady Black and Lord Hodge held that extended determinate sentence prisoners were not in relevantly analogous situations to prisoners under the proposed comparator regimes. They also held that the difference was objectively justified. Lord Carnwath agreed with those conclusions. Lady Hale and Lord Mance dissented and would have made a declaration of incompatibility.

2. Other status. By a majority of four to one, comprising Lady Black, Lord Hodge, Lady Hale and Lord Mance, being subject to an extended determinate sentence constituted “other status” under article 14. The phrase should receive a generous but not unlimited meaning. Status need not be innate or inherent, and should be assessed in all the circumstances. The sentence created an identifiable legal position extending beyond the disputed release date. The court departed from the contrary determination in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 1 AC 484, taking account of Clift v United Kingdom. Lord Carnwath dissented on this issue.

3. No division of a determinate term into punitive and preventive parts. The purposes of punishment, deterrence, rehabilitation and public protection may operate throughout a determinate custodial term. Eligibility for early release does not mark the end of a distinct punitive component. A sentencing judge generally fixes the custodial term without regard to the early-release provisions. The contrary two-component analysis had wrongly driven the comparisons accepted below.

4. No relevant analogy. The comparison had to address each sentencing regime as a whole rather than isolate its parole date. An extended determinate sentence always has a defined custodial endpoint and a finite extension period. A life prisoner may remain imprisoned indefinitely and, if released, remains liable to recall for life. Release dates also vary within the comparator categories. Those obvious and relevant differences prevented the prisoners from being in analogous situations.

5. Objective justification. Alternatively, the difference was justified. An extended sentence could be imposed only where statutory conditions included a significant risk of serious public harm. Protecting the public and maintaining confidence in sentencing were legitimate aims. Parliament was entitled to require such offenders to serve two-thirds of the custodial term before parole consideration when the resulting burden was assessed within the complete sentencing package. The regime was neither arbitrary nor disproportionate.

6. Dissent. Lady Hale and Lord Mance considered the prisoners relevantly analogous in respect of liberty and parole eligibility. They concluded that the Parole Board already protected the public by assessing risk, and that no convincing reason justified making an extended-sentence prisoner wait longer than the generally more serious discretionary life prisoner.

1. United Kingdom Supreme Court: By a majority of three to two, dismissed the appeal in R v Secretary of State for Justice [2018] UKSC 59. The court departed from the lower court’s reasoning on status but upheld the dismissal because the comparator regimes were not analogous and, alternatively, the difference was justified.
2. Divisional Court of the Queen’s Bench Division: Dismissed the judicial review claim in [2017] EWHC 214 (Admin) because it was bound by R (Clift) v Secretary of State for the Home Department. It stated that, absent that authority, it would have found section 246A of the Criminal Justice Act 2003 incompatible with article 14. It granted a certificate under section 12 of the Administration of Justice Act 1969 for a possible direct appeal.