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

Changes to early-release arrangements for determinate terrorist prisoners concern the administration or execution of the sentence, rather than the penalty imposed by the sentencing court. They therefore do not ordinarily engage Article 7, nor do they make detention unlawful under Article 5. A difference in early-release treatment based solely on the type and gravity of the offence is not a difference based on “other status” for Article 14. In any event, terrorist offenders subject to the statutory regime are not in an analogous position to ordinary offenders or discretionary life prisoners. The distinction was objectively justified. Parliament was entitled to require Parole Board consideration after two-thirds of the sentence and to exclude less serious terrorist offences by reference to a seriousness threshold.

The claimant had pleaded guilty to terrorist and religious-hatred offences and received a determinate sentence of four years and six months. Under the regime in force when he was sentenced, he expected automatic release at the halfway point.

The Terrorist Offenders (Restriction of Early Release) Act 2020 inserted s.247A into the Criminal Justice Act 2003. It applied retrospectively to specified terrorist offenders serving fixed-term sentences, moved consideration for release to the two-thirds point, and required Parole Board approval before release. The claimant challenged the Secretary of State’s enforcement of the legislation, alleging incompatibility with Articles 5, 7 and 14 of the Convention.

1. Article 14. The relevant difference in treatment arose from conviction of specified terrorist offences and the imposition of a fixed-term sentence. Applying Gerger v Turkey, the distinction was between types of offence, assessed by Parliament according to their gravity, rather than between groups of people possessing an independent personal status. The reasoning in Clift v United Kingdom and R (Stott) v Secretary of State for Justice did not alter that conclusion, because those cases concerned distinctions based on sentence categories or sentence length.
2. Discretionary life prisoners were not in an analogous position. Their post-tariff detention was directed to risk management, whereas detention during a determinate sentence was punishment. Ordinary non-terrorist prisoners were likewise not analogous, given differences in the nature of the offending, punishment, custodial management and risks on release.
3. In any event, the differential treatment was justified under the “manifestly without reasonable foundation” test stated in R (DA) v Secretary of State for Work and Pensions. The terrorist offending addressed by Parliament involved a particularly serious and unpredictable risk to the public. A longer custodial period gave greater opportunity for rehabilitation and for the Parole Board to obtain relevant evidence. A bright-line two-thirds threshold was permissible, and excluding offences with a maximum penalty of two years or less was justified by their lesser gravity. The Article 14 claim therefore failed.
4. Article 7. The penalty was the sentence imposed by the sentencing court. The 2020 Act altered early-release arrangements, not the sentence itself. The exceptional reasoning in Del Rio Prada v Spain concerned a redefinition of the penalty through the retrospective withdrawal of statutory remissions and did not apply.
5. Article 5. The original determinate sentence supplied lawful authority for detention throughout the term imposed. Article 5 did not guarantee early release, and it was foreseeable that execution arrangements could be changed during the sentence. The challenges under Articles 5 and 7 were rejected and the application was dismissed.

First-instance judicial review application. No prior appellate decision is stated in the judgment.