|Judgments - R (on the application of Clift) (FC) v. Secretary of State for the Home Department (Respondents)
Secretary of State for the Home Department (Respondent) v. Hindawi (FC) (Appellant) and another
Secretary of State for the Home Department (Respondent) v. Hindawi and another (FC) (Appellant) (Conjoined Appeals)
20. At first instance in Mr Clift's case, counsel for the Secretary of State accepted that legislation providing for early release on parole fell sufficiently within the ambit of article 5(1) to engage article 14, although he reserved the point for argument on appeal:  EWHC 1337 (Admin), para 16, per Hooper J. No similar concession was made by the Secretary of State when the application of Messrs Hindawi and Headley came before McCombe J at first instance, but having reviewed some of the domestic and Strasbourg authorities as they then stood the judge concluded that the concession had been rightly made:  EWHC 78 (Admin), para 24.
21. When Mr Clift's case reached the Court of Appeal, it posed as the first issue, whether the case was within the ambit of article 5. It did not express a clear answer to that question, but may be taken to have concluded that the case was, or well might be, within the ambit of article 5: Lord Woolf CJ, Rix and Carnwath LJJ,  EWCA Civ 514,  1 WLR 2223, paras 14-18.
22. The members of the Court of Appeal expressed differing views on this question in the appeal of Messrs Hindawi and Headley: Kennedy, Sedley and Neuberger LJJ,  EWCA Civ 1309,  1 WLR 1102. Kennedy LJ, relying on Giles and the Court of Appeal decision, since reversed, in R (Smith) v Parole Board (No 2)  EWCA Civ 1269,  1 WLR 421 accepted the Secretary of State's submission already summarised: see paras 9-22. For reasons already given, I do not think that meets the appellants' case.
23. Sedley LJ also decided this issue against Messrs Hindawi and Headley, although on narrower grounds. He held against them (paras 38-41) not because early release during the currency of a lawful sentence could not be brought within article 5, but because what they were seeking was not a right to be released but a right that the Secretary of State should receive the advice of the Parole Board. This was so in the case of Mr Hindawi, if Mr Clift's appeal (already dismissed) had been rightly decided, as the Court of Appeal was bound to assume. But it was not so in the case of Mr Headley, who was contending that the Parole Board's recommendation should be decisive, as in the case of other long-term determinate sentence prisoners serving less than 15 years but not subject to removal. But in any event I consider the right to seek the early release recommendation of an independent, court-like, body, expert in the assessment of risk and immunised against external pressure, to be a right of sufficient value to engage, potentially, the application of article 5.
24. Neuberger LJ considered this issue at some length (paras 48-83). At para 75 he said:
For reasons already given, I agree. He expressed his conclusion in para 82:
Again, I agree. I would resolve this issue in favour of the appellants.
The second issue
25. The second agreed issue is whether the differential treatment to which all three appellants were admittedly subject was on one or other of the grounds listed in article 14 of the Convention. In the cases of Messrs Hindawi and Headley, so far as their liability for removal is concerned, there is no live issue. The Secretary of State accepts that they were treated differently from other prisoners on the ground of national origin. But there is a live issue in Mr Clift's case, where the differential treatment was the result of the length of his sentence and this differential treatment would still be applicable to Mr Hindawi even if he were not liable to be removed.
26. In the case of Mr Clift, he contends that the differential treatment of which he complains falls within article 14 because it is based on the length of his determinate sentence and this, he says, is "any ground such as other status". The Secretary of State challenges this contention.
27. As Lord Walker of Gestingthorpe pointed out in R(Carson) v Secretary of State for Work and Pensions  UKHL 37,  1 AC 173, para 52, "or other status" (in the French version "toute autre situation") is far from precise. But plainly the language is not intended to cover differential treatment on any ground whatever: if it were, the list of grounds in article 14 (reproduced, in this respect, in article 1(2) of the Twelfth Protocol, which the United Kingdom has not ratified) would be otiose. So it must impose some restriction. In Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56, the Strasbourg court explained that
See also Budak v Turkey (Application No 57345/00) (unreported) 7 September 2004, para 4. Differential treatment based on previous suspicion or, it seems, the seriousness of crimes committed do not fall within the prohibition: R(S) v Chief Constable of the South Yorkshire Police  UKHL 39,  1 WLR 2196, paras 46-52; Gerger v Turkey (Application No 24919/94), (unreported) 8 July 1999, para 69.
28. I do not think that a personal characteristic can be defined by the differential treatment of which a person complains. But here Mr Clift does not complain of the sentence passed upon him, but of being denied a definitive Parole Board recommendation. Is his classification as a prisoner serving a determinate sentence of 15 years or more (but less than life) a personal characteristic? I find it difficult to apply so elusive a test. But I would incline to regard a life sentence as an acquired personal characteristic and a lifer as having an "other status", and it is hard to see why the classification of Mr Clift, based on the length of his sentence and not the nature of his offences, should be differently regarded. I think, however, that a domestic court should hesitate to apply the Convention in a manner not, as I understand, explicitly or impliedly authorised by the Strasbourg jurisprudence, and I would accordingly, not without hesitation, resolve this question in favour of the Secretary of State and against Mr Clift.
The third issue
29. The third issue is whether the differential treatment of the respective appellants was objectively justified at the relevant time. It is common ground that the burden of showing justification lies on the Secretary of State, that what must be shown is objective justification and that the relevant time is that at which the respective appellants were differentially treated.
30. In Mr Clift's case, Hooper J found the differential treatment of those sentenced to more than 15 years to be justified (para 39). Such prisoners were liable to pose particular problems for public safety and order, Parliament had entrusted the final decision to the Secretary of State and appropriate deference should be paid to that decision (para 35). The Court of Appeal endorsed his view: dividing lines must be drawn; and the Secretary of State could reasonably say that he should remain democratically accountable for decisions on the release of those who had committed the most serious crimes or had the worst records, or both (para 26).
31. Counsel for the Secretary of State justified retention in his hands of the power of final decision on the release of prisoners serving determinate sentences of 15 years or more as a decision well within the area of discretionary judgment or the margin of appreciation enjoyed by member states. Any line could be criticised as arbitrary, but it is necessary to draw lines. Not every difference of treatment is to be stigmatised as discrimination. In the field of social strategy, even greater weight than in other fields should be given to the judgment of the national authorities. Reliance was placed on cases such as James v United Kingdom (1986) 8 EHRR 123, para 68; National and Provincial Building Society v United Kingdom (1997) 25 EHRR 127, para 88; Wilson v First County Trust Ltd (No 2)  UKHL 40,  1 AC 816, para 74; R(Carson) v Secretary of State for Work and Pensions  1 AC 173, paras 41, 91; and Stec v United Kingdom (Application Nos 65731/01 and 65900/01) (unreported) 12 April 2006, para 52. Counsel roundly disclaimed any suggestion that the Secretary of State, in making decisions on the risk presented by prisoners in this category, would bow to public pressure, but contended that this power was one reasonably reserved for the Secretary of State. It was nonetheless so because, in unwilling compliance with European Court decisions, the Secretary of State no longer exercises a similar power in the cases of discretionary lifers, automatic life sentence prisoners, HMP detainees and mandatory lifers.
32. For Mr Clift it was argued that this regime now lacks all coherence. If his crime had been judged to be even more serious than it was, and he had been sentenced to life imprisonment, the risk of releasing him would have been definitively assessed, and a decision on his release conclusively made, by the Parole Board, an expert body with the characteristics already described. There could be no rational justification for denying him such an assessment and decision because his crimes, although very serious, were not judged sufficiently grave to merit a life sentence. The Parole Board is in any event subject to the directions of the Secretary of State, and it was not said to have neglected its duty.
33. When, in October 2002, the Secretary of State rejected the Parole Board's recommendation that Mr Clift be released on parole, discretionary lifers and HMP detainees had already been brought within the definitive jurisdiction of the Parole Board, and Stafford v United Kingdom (2002) 35 EHRR 1121, requiring the same procedure for mandatory lifers, had already been decided. The differential treatment of prisoners serving 15 years or more had, in my opinion, become an anomaly. That would not, in itself, be a ground for holding it to be unjustified. Anomalies are commonplace. But by 2002 it had, in my opinion, become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task with no political content and one to which the Secretary of State could not (and did not claim to) bring any superior expertise. I would accordingly resolve this issue in favour of Mr Clift and against the Secretary of State.
34. In the cases of Messrs Hindawi and Headley, McCombe J was unable to find objective and proportionate justification for their differential treatment (para 30). He quoted from the Carlisle Committee's 1988 Report on The Parole System in England and Wales (Cm 532), but found it hard to reconcile the committee's conclusions with later developments. The Court of Appeal expressed differing views. Kennedy LJ (para 31) considered that there was objective, reasonable and proportionate justification for differential treatment of those liable to removal, as the Carlisle Committee had opined. Sedley LJ, who had already resolved the ambit issue against these appellants, found considerable difficulty in finding their differential treatment to be justified (para 42), since the rationale of the distinctions made by the Carlisle Committee had faded to almost nothing (para 43). Neuberger LJ resolved this issue against the Secretary of State (paras 87-91). The relevant legislation was justifiable when introduced, but had ceased to be so.
35. In seeking to justify the differential treatment of these appellants, the Secretary of State relied on general arguments along the lines of those summarised in paragraph 31 above, and also relied on the Carlisle Committee's view that prisoners liable to removal should be subject to a different regime. It was pointed out, for example, that prisoners liable to immediate deportation on release could not be (and in practice are not) subject to licence conditions and possible recall to prisons. For the appellants it was argued that the premises of the Carlisle Committee's thinking had been falsified by later developments, depriving the regime to which the appellants were subject of rational justification.
36. The Carlisle Committee proposed (para 473) that
This recommendation was not given full effect. In reaching it, however, the committee was influenced by two considerations. The first (para 463) was the difficulty of knowing what criteria the Parole Board could sensibly apply where there was, by definition, no release plan in this country and no prospect of normal supervision. The second (para 470) was the anomaly of assessing the risk that a person would commit further offences here if he were allowed to remain, when in fact he is going to be sent away.
37. The question is not whether these points were valid when made 18 years ago, but whether they remained valid in 2001-2003. As to the first, it is clear that Appendix D to Chapter 9 of Prison Service Order 6000 Parole Release and Recall Manual ("Criteria for the release of those long-term prisoners liable to deportation or removal from the UK"), similar in effect to the Secretary of State's "Directions to the Parole Board under the Criminal Justice Act 1991, section 32(6) ", sets out clear and readily intelligible criteria, which have no doubt been applied (without any suggestion of difficulty) in the case of indeterminate sentence prisoners and HMP detainees liable to removal. As to the second, it has been authoritatively decided (R v Parole Board, Ex p White (unreported) 16 December 1994, Divisional Court) that the risk which the Parole Board must assess is not limited to those within the United Kingdom but extends also to those elsewhere. The potential risk of a person released early on parole in any country to which he is removed is, therefore, a risk which the Parole Board is able to and does assess in the case of indeterminate sentence prisoners.
38. As in the case of Mr Clift, the Secretary of State has not criticised the Parole Board's discharge of its duties in relation to indeterminate sentence prisoners liable to removal, nor suggested that he brings any superior expertise to the task. Whatever the position in the past, the differential treatment of determinate sentence prisoners liable to removal seems to me to be, now, an indefensible anomaly, for very much the same reasons as in the case of Mr Clift. The decision in question is not a political decision, appropriate to be made by a minister. It is no longer capable of rational justification. I would accordingly resolve this issue also in favour of the appellants and against the Secretary of State.
39. For the reasons I have given, and those given by my noble and learned friends Lord Hope of Craighead, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood, I would dismiss the appeal of Mr Clift, with the ordinary consequences as to costs.
40. For the reasons I have given, and those given by my noble and learned friends Baroness Hale and Lord Brown, I would allow the appeals of Messrs Hindawi and Headley. The parties are agreed that the legislation of which these appellants complain cannot be read and given effect under section 3 of the 1998 Act in a way which is compatible with their Convention rights. I would therefore make a declaration that sections 46(1) and 50(2) of the Criminal Justice Act 1991 are incompatible with article 14 (in conjunction with article 5) of the European Convention on Human Rights to the extent that those sections prevent prisoners liable for removal from having their cases reviewed by the Parole Board in the same manner as other long term prisoners. The Secretary of State must pay the costs of these appellants, in the House and below.
LORD HOPE OF CRAIGHEAD
41. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, I would dismiss the appeal of Mr Clift, allow the appeals of Mr Hindawi and Mr Headley and make the declaration of incompatibility in the cases of Mr Hindawi and Mr Headley that he proposes. I should however like to add some comments on the second agreed issue which, as Lord Bingham has explained, arises only in Mr Clift's case.
42. The differential treatment in Mr Clift's case is the result of the length of his sentence. The question is whether his complaint falls within article 14 of the European Convention. He can only succeed in bringing himself within its protection if his sentence can be said to have conferred a "status" on him within the meaning of the article. Following the guidance given by the European Court in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56, we can take it that status means a personal characteristic by which persons or groups of persons are distinguishable from each other. How does that description fit with the situation in Mr Clift's case?
43. The protection which article 14 provides can be analysed in this way. It does not prohibit discrimination on any ground whatever. Its scope is limited to discrimination in the enjoyment of Convention rights. As the European Court put it in Kjeldsen, para 56, the article prohibits discriminatory treatment within the ambit of the rights and freedoms guaranteed. To attract this protection, the discrimination must be on some ground. This is, of course, what discrimination is all about. It is the grounds on which persons or groups of persons are treated differently that separate out treatment which is discriminatory from treatment that does not attract that criticism. The list of grounds on which discrimination in the enjoyment of Convention rights is prohibited is not exhaustive. That is made clear by the words "such as" which precedes the list. But, as Lord Steyn said in R (S) v Chief Constable of the South Yorkshire Police  1 WLR 2196, para 48, the words "or other status" which end the list show that the proscribed grounds are not unlimited.
44. The effect of the Parole Board (Transfer of Functions) Order 1998 of which Mr Clift complains is to discriminate between long-term prisoners serving determinate sentences of 15 years or more on the one hand and long-term prisoners serving determinate sentences of less than 15 years and prisoners serving life sentences on the other. It denies prisoners serving sentences of 15 years or more the right to be released from custody on the recommendation of the Parole Board. Prisoners in the other two groups have this right. Those in Mr Clift's group are discriminated against in a way that affects the enjoyment of what my noble and learned friend Lord Brown of Eaton-under-Heywood aptly describes as the core value of article 5 of the Convention, which is the right to liberty. The length of their sentence is the sole ground on which they are treated differently in this respect from prisoners in the two other groups. The difficult question is whether the length of their sentences has conferred a status, or a personal characteristic, on them within the meaning of article 14. It is, as Lord Bingham indicates, an elusive test.
45. Each of the specific grounds of discrimination listed in article 14 shares one feature in common. This is that they exist independently of the treatment of which complaint is made. In that sense they are personal to the complainant. They can be an acquired characteristic, such as the person's religion or political opinion. They can also, like a person's race or birth, be a characteristic over which he has no control. On the other hand in Gerger v Turkey (Application No 24919/94) (unreported) 8 July 1999 the court held that prisoners who were treated differently simply because of the category of the offences which they had committed were not within the protection of article 14. As the court put it in para 69 of its judgment, the distinction was not between different groups of people but between different types of offence according to the legislature's view of their gravity.
46. It could be said in Mr Clift's case that the length of his sentence did confer a status on him which can be regarded as a personal characteristic. This is because prisoners are divided by the domestic system into broadly defined categories, or groups of people, according to the nature or the length of their sentences. These categories affect the way they are then dealt with throughout the period of their sentences. As a result they are regarded as having acquired a distinctive status which attaches itself to them personally for the purposes of the regime in which they are required to serve their sentences. This is most obviously so in the case of prisoners serving life sentences and where distinctions are drawn between short-term and long-term prisoners serving determinate sentences. It is less obviously so in the case of long-term prisoners serving determinate sentences of different lengths.
47. It must be accepted, as Lord Bingham points out, that a personal characteristic cannot be defined by the differential treatment of which a person complains. It is plain too that the category of long-term prisoner into which Mr Clift's case falls would not have been recognised as a separate category had it not been for the Order which treats prisoners in his group differently from others in the enjoyment of their fundamental right to liberty. But he had already been sentenced, and he had already acquired the status which that sentence gave him before the Order was made that denied prisoners in his group the right to release on the recommendation of the Parole Board. The question which his case raises is whether the distinguishing feature or characteristic which enables persons or a group of persons to be singled out for separate treatment must have been identified as a personal characteristic before it is used for this purpose by the discriminator.
48. The function of article 14, read with article 1 of the Convention, is to secure to everyone within the jurisdiction of the High Contracting Parties the enjoyment of the rights and freedoms set out in section 1 of the Convention without discrimination on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable. This suggests that a generous meaning should be given to the words "or other status" while recognising, of course, that the proscribed grounds are not unlimited. It seems to me, on this approach, that the protection of article 14 ought not to be denied just because the distinguishing feature which enabled the discriminator to treat persons or groups of persons differently in the enjoyment of their Convention rights had not previously been recognised.
49. But the Strasbourg jurisprudence has not yet addressed this question and, as my noble and learned friend Baroness Hale of Richmond points out, it is possible to regard what he has done, rather than who or what he is, as the true reason for the difference of treatment in Mr Clift's case. As Lord Bingham said in R (Ullah) v Special Adjudicator  2 AC 323, para 20, the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time. A measure of self-restraint is needed, lest we stretch our own jurisprudence beyond that which is shared by all the States Parties to the Convention. I am persuaded, with some reluctance, that it is not open to us to resolve the second agreed issue in Mr Clift's favour.BARONESS HALE OF RICHMOND
50. I have had the advantage of reading in draft the opinions of my noble and learned friends, Lord Bingham of Cornhill and Lord Brown of Eaton-under-Heywood. For the reason they give, with which I agree, I too would allow the appeals of Mr Hindawi and Mr Headley and dismiss the appeal of Mr Clift. I wish to add a few words on issue two, the prohibited grounds of discrimination, which is in many ways the most difficult question in the case.
51. The 14th Amendment to the Constitution of the United States of America requires that 'No state shall . . . deny to any person within its jurisdiction the equal protection of the laws'. Yet many laws have to draw distinctions between different groups or classes of people. The US courts have therefore had to construct a hierarchy of grounds of distinction, from those which they will readily hold to be rationally justified to those which they will subject to the strictest of scrutiny. Modern human rights instruments, on the other hand, have tended to contain a list of grounds which are automatically suspect. Article 26 of the International Covenant on Civil and Political Rights (synthesising articles 2 and 7 of the Universal Declaration of Human Rights), for example, provides that: