In the matter of an application by Stephen Hilland for Judicial Review (Northern Ireland)

Different sentencing regimes must be assessed as whole entities when deciding whether prisoners are in analogous situations for article 14 purposes. Determinate-sentence prisoners are not analogous to indeterminate or extended-sentence prisoners merely because different thresholds govern recall.

There is no mandatory order for addressing analogous situation and objective justification. A court may decide either question first and may consider overlapping matters holistically. A recall practice based on an unmanageable risk of harm for determinate-sentence prisoners is consistent with their statutory regime. It need not require a risk of serious harm.

A determinate-sentence prisoner was automatically released on licence. Following alleged offending and breaches of licence conditions, the Department of Justice recalled him because his risk of harm had become incapable of safe management in the community. Its practice required serious harm when considering indeterminate and extended-sentence prisoners.

The prisoner alleged discrimination contrary to article 14 of the European Convention on Human Rights, read with article 5. Colton J dismissed his judicial review claim in [2020] NIQB 26. The Court of Appeal dismissed his appeal in [2021] NICA 68.

The Supreme Court considered whether justification had to be addressed before comparability, whether the sentencing groups were analogous and whether the different recall practices were objectively justified.

1. Appeal dismissed unanimously. Lord Stephens delivered the judgment, with which Lord Lloyd-Jones, Lord Briggs, Lord Sales and Lord Burrows agreed.

2. Article 14 does not prescribe an order in which a court must address analogous situation and objective justification. The appropriate sequence depends on the case. Because the two inquiries may overlap, matters relevant to both can be considered holistically. The courts below had omitted no material consideration and had committed no error in their chosen sequence.

3. The determinate, indeterminate and extended custodial regimes under the Criminal Justice (Northern Ireland) Order 2008 had to be viewed as whole entities. Each combined distinct conditions for imposition, risk characteristics, release arrangements, licence duration and exposure to recall. Recall thresholds could not properly be isolated from those wider regimes.

4. Determinate-sentence prisoners were not in a relevantly analogous situation to indeterminate or extended-sentence prisoners. Determinate sentences ordinarily applied without a finding of serious dangerousness, ended on a fixed date and entailed automatic release after the custodial period. The other regimes were designed for offenders presenting a significant risk of serious harm and imposed materially different release and licence consequences. Importing a serious-harm threshold into determinate-sentence recall would frustrate public protection, prevention of reoffending and rehabilitation.

5. Article 28(2) of the Criminal Justice (Northern Ireland) Order 2008 conferred a broad recall discretion but prescribed no substantive test for recommendations or recall decisions. Article 28(6) instead limited the Parole Commissioners’ power to direct release after recall. The recall practice therefore had to be formulated consistently with the Order’s purposes.

6. For an automatically released determinate-sentence prisoner, the appropriate inquiry was whether post-release conduct showed a risk of harm which could not safely be managed in the community. No significant increase from a previously assessed risk was required because automatic release had involved no prior risk assessment. The contrary element in In re Foden’s Application [2013] NIQB 2 was incorrect.

7. Alternatively, the differential practice was objectively justified. Its legitimate aim was to cater appropriately for different combinations of offending and risk. The arrangements were proportionate when each sentencing package was considered as a whole, and the practice fell within the discretion afforded to the Parole Commissioners and the Department.

1. United Kingdom Supreme Court: By [2024] UKSC 4, unanimously dismissed the appeal and affirmed that the prisoner groups were not analogous. It also held that the difference in recall practice was objectively justified.
2. Court of Appeal in Northern Ireland: By [2021] NICA 68, unanimously dismissed the appeal. It upheld the findings on comparability and objective justification.
3. High Court of Justice in Northern Ireland: By [2020] NIQB 26, Colton J dismissed the judicial review claim. He held that the prisoner groups were not analogous and, alternatively, that the difference was justified.