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)

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    Article 14 of the European Convention on Human Rights adds 'association with a national minority' to this list. The list is clearly non-exhaustive so that analogous grounds may be recognised as social conditions change. The most obvious example is sexual orientation: see Salgueiro Da Silva Mouta v Portugal, (1999) 31 EHRR 1055.

    52.  But as Harris, O'Boyle and Warbrick have pointed out (in The Law of the European Convention on Human Rights, 1995, p 472) "The list of 'badges' in article 14 is long and not exclusive. The question is whether it is limited at all." The French text is even more open-ended from the English referring to 'toute autre situation' rather than 'other status'. So, was article 14 intended to be a general prohibition of discrimination in relation to the enjoyment of the Convention rights unless it could objectively be justified, with the specific grounds listed as a warning that discrimination on such grounds would be particularly difficult to justify? Or were the grounds and the reference to 'other status' intended to limit the kinds of classification which might be covered by the article?

    53.  The classic accounts of article 14 repeated time and time again in the Strasbourg case law do not specifically address this question. For example, in Rasmussen v Denmark (1984) 7 EHRR 371, paras 35 and 38, citing Van der Mussele v Belgium (1983) 6 EHRR 163, para 46, and Marckx v Belgium (1979) 2 EHRR 330, para 33, the court said this:

    "Article 14 safeguards individuals who are 'placed in analogous situations' against discriminatory differences of treatment . . . For the purposes of article 14, a difference of treatment is discriminatory if it 'has no objective and reasonable justification', that is, if it does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship of proportionality between the means employed and the aim sought to be realised'."

    54.  Many of the Strasbourg cases simply address these two issues and do not separately discuss the question of a prohibited ground. Perhaps the most striking example of this is Stubbings v United Kingdom (1996) 23 EHRR 213. There, it was argued that discrimination in the limitation periods laid down for intentional and negligent torts was contrary to article 14. The court did not address the government's argument that article 14 was concerned with discrimination based on a personal characteristic of the victim rather than the character of the acts against them. But it had little difficulty in concluding that the two groups were not in analogous situations and that, even if they were, the difference in treatment could be justified. (See also Bullock v United Kingdom (1996) 21 EHRR CD85, where the Commission held a complaint of discrimination against the owners of pit bull terriers manifestly ill founded because the distinction had an objective and reasonable justification; and Spadea and Scalabrino v Italy (1995) 21 EHRR 482, where the Commission and the Court held that discrimination between the landlords of residential and non-residential property was justified; the Commission also considered that they were not in an analogous situation. It appears that in neither case was it argued that these were not prohibited grounds.)

    55.  In view of this, it is perhaps not surprising that in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, Brooke LJ appears to have rejected an argument that article 14 only prohibited discrimination based on a personal characteristic. But he did so citing Bullock and Spadea above, where the issue was not addressed; and Chassagnou v France (1999) 29 EHRR 615, where the court expressly found, at para 95, that a discrimination between large and small landowners was 'on the ground of property'.

    56.  Although the issue is not always addressed, when it is addressed it is clear from the Strasbourg case law that not every basis of distinction between different sorts of people is included in the list of prohibited grounds and residual category of 'other status'. Thus in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, at para 56, the court stated:

    " . . . Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic ('status') by which persons or groups of persons are distinguishable from each other."

    57.  As Karen Reid explains, in A Practitioners' Guide to the European Convention on Human Rights 2nd ed (2004), pp 261-2, "It thus aims to strike down the offensive singling out of an individual or members of a particular group on their personal attributes." This is reminiscent of the approach of the Canadian Supreme Court to the equal protection section of their own Charter of Rights and Freedoms, in Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497:

    "It may be said that the purpose of section 15(1) [of the Charter] is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all person enjoy equal recognition at law as human beings or members of Canadian society, equally capable and equally deserving of concern, respect and consideration."

    58.  In the vast majority of Strasbourg cases where violations of article 14 have been found, the real basis for the distinction was clearly one of the proscribed grounds or something very close: race (eg East African Asians v United Kingdom (1973) 3 EHRR 76; Cyprus v Turkey (2001) 35 EHRR 30; Nachova v Bulgaria, 39 EHRR 793, sex (eg Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471; Schmidt v Germany (1994) 18 EHRR 513; Schuler-Zgraggen v Switzerland (1995) 21 EHRR 404; Petrovic v Austria (1998) 33 EHRR 307, religion (eg Hoffmann v Austria (1993) 17 EHRR 293; Cyprus v Turkey 35 EHRR 30, marital or birth status (eg Marckx v Belgium (1979) 2 EHRR 330; Inze v Austria (1987) 10 EHRR 394; Sahin v Germany, (2003) 15 BHRC 84; Sommerfeld v Germany, (2002) 38 EHRR 756, national origin (e.g. Gaygazuz v Austria (1996) 23 EHRR 364), foreign residence (eg Darby v Sweden (1990) 13 EHRR 774), language (eg Belgian Linguistic Case (No 2) (1968) 1 EHRR 252), or sexual orientation (eg Salgueiro Da Silva Mouta v Portugal 31 EHRR 1055; Karner v Austria (2003) 38 EHRR 528). Unusually, in Pine Valley Developments Ltd v Ireland (1991) 14 EHRR 319, the court found a violation of article 14 without reference to a prohibited ground, but the point was not argued because the government was denying that the legislation drew the distinction complained of at all.

    59.  More instructive are the cases in which the basis of the discrimination has been held to fall outside the proscribed grounds. One example is different laws in different jurisdictional regions within the territory of a member state. Thus, it was not a difference in treatment on grounds of personal status for people in Scotland to be subject to the poll tax before people in England (P v United Kingdom) (Application No 13473/87) (unreported) 11 July 1988) or for juvenile offenders in Scotland not to be entitled to the remission granted to juvenile offenders in England and Wales (Nelson v United Kingdom (Application No 11077/84) (unreported) 13 October 1986, 49 DR 170).

    60.  Another example, pertinent to this case, is differences in the treatment of different criminal offences. In Gerger v Turkey (Application No 24919/94) (unreported), 8 July 1999, the court deduced from the fact that people convicted of terrorist offences would be treated less favourably with regard to automatic parole "that the distinction is made not between different groups of people, but between different types of offence, according to the legislature's view of their gravity": para 69. In Budak v Turkey (Application No 57345/00) (unreported), 7 September 2004, the court repeated the "personal characteristic" test from Kjeldsen and held that a distinction in procedure and sentences for offences tried before the state security court from those tried before other courts was made, again, not between different groups of people but between different types of offence.

    61.  All of this is entirely consistent with the view taken by this House in R(S) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196. At para 48, Lord Steyn cited Kjeldsen and continued:

    " . . . the proscribed grounds in article 14 cannot be unlimited, otherwise the wording of article 14 referring to 'other status' beyond the well-established proscribed grounds, including things such as sex, race or colour, would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of article 14."

    In that case it was held that the possession of fingerprints and DNA samples by the police was simply a matter of historical fact rather than the personal status or characteristics of the people who had supplied them.

    62.  In this case, it is plain, and now accepted by the Secretary of State, that a different parole regime for foreigners who are liable to deportation from that applicable to citizens or others with the right to remain here, falls within the grounds proscribed by article 14 and thus (subject to the ambit issue) requires objective justification. The same would surely apply to a difference in treatment based on race, sex or the colour of one's hair. But a difference in treatment based on the seriousness of the offence would fall outside those grounds. The real reason for the distinction is not a personal characteristic of the offender but what the offender has done.

    63.  The result is that the difference of treatment between Mr Clift and people sentenced either to shorter determinate sentences or to life imprisonment is not covered by article 14 at all. The law may look odd. But not every apparent anomaly is a breach of Convention rights. This one is the result of what the Home Secretary chose to do in relation to people sentenced to shorter terms of imprisonment and what he was obliged by the terms of article 5 itself to do in relation to life imprisonment. The law has since been changed and one can well understand why. But it is not for us to declare legislation which Parliament has passed incompatible with the Convention rights unless the Convention and its case law require us so to do. For the reasons given above, in amplification of those given by my noble and learned friend, Lord Bingham of Cornhill, we are not required to do so in this case.

LORD CARSWELL

My Lords,

    64.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Bingham of Cornhill, with which I am in agreement. For the reasons which he gives I too would dismiss the appeal of Mr Clift, allow the appeals of Messrs Hindawi and Headley and make the declaration which he proposes.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    65.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. I am in complete agreement with it on all the issues raised and there are essentially only two aspects of these appeals on which I wish to add a few paragraphs of my own.

    66.  The first concerns issue one, whether the appellants' applications for early release came within the ambit of article 5 of the European Convention on Human Rights so as to engage article 14 of the Convention. As stated, I agree with all that Lord Bingham has said upon this issue. But it does seem to me worth noticing in addition the remarkable consequences which the Secretary of State's argument, if accepted, would have. As Sedley LJ observed in his judgment in the Court of Appeal in the cases of Mr Hindawi and Mr Headley [2005] 1 WLR 1102, para 40, if the Secretary of State's argument is correct "a law or rule which allowed women but not men to obtain parole would still not come within the ambit of article 5 so as to attract the operation of article 14." And, indeed, the point can be taken further still. Suppose that for a given offence the law prescribed a minimum penalty of six years imprisonment for men, three years for women. That, Mr Pannick QC readily acknowledged, would clearly constitute a direct breach of article 5 (probably without the need to invoke article 14) and be unlawful. If, however, the law prescribed the same sentence for both, but then provided that women but not men are to be released at the halfway stage, that, he must argue, is beyond the reach of the Convention. It cannot be so and it is not so because the core value protected by article 5 is liberty and, where the penal system includes a parole scheme, liberty is dependent no less upon the non-discriminatory operation of that than on a fair sentencing process in the first place.

    67.  The second point I wish to make concerns issue three, whether the differential treatment of the respective appellants was objectively justified at the relevant time, in particular in the case of Mr Clift. The position with regard to him, as your Lordships will appreciate, is in two respects moot as to the issue of objective justification. In the first place, for the reasons given by Lord Bingham in paragraphs 27 and 28 of his opinion, he cannot establish that the differential treatment to which he was subjected was on grounds of "status" so that his article 14 complaint fails this threshold test. Secondly, Mr Clift was in any event released on 10 March 2004.

    68.  For understandable reasons, Lord Bingham has considered the question of objective justification in Mr Clift's case (at para 33 of his opinion) in October 2002 and has concluded that even by then the differential treatment suffered by those serving determinate sentences of 15 years or more (compared with both those serving lesser determinate sentences and those serving every sort of indeterminate sentence) had become indefensibly anomalous (a judgment with which I respectfully agree and with which it appears that the Court of Appeal too might have agreed had Mr Clift at that stage invited comparison with discretionary life prisoners rather merely than with lesser determinate sentence prisoners—see paragraph 24 of Lord Woolf CJ's judgment). The point I wish to make, however, is that the anomalous position of those like Mr Clift (assuming he were still detained) has since the 2003 Act become yet more stark and indefensible. As Lord Bingham explains in para 9 of his opinion, the parole regime which applied in Mr Clift's case continues to apply to all those sentenced to determinate terms of 15 years or more for offences committed before 4 April 2005. Those whose offences were committed subsequently, however, are dealt with under the Criminal Justice Act 2003 and by section 244 of that Act all such prisoners (unless serving extended sentences) are automatically to be released after serving one half of their sentence (with the Secretary of State's discretion being limited to releasing them up to 135 days earlier), on licence until the end of their sentence. With regard to determinate sentence prisoners the Parole Board will continue to have a role only in the case of those serving extended sentences: their release, after serving half "the appropriate custodial term" determined by the sentencing board, is dependent upon the Parole Board's discretion. Save for his 135 day discretion (and save also in the case of those subject to removal whose offences were committed before 4 April 2005, ie those in Mr Hindawi's and Mr Headley's position) the Secretary of State is to have no control whatever over release dates. It follows that only those in Mr Clift's position, a substantial but obviously dwindling number of 15 year or longer determinate sentence prisoners sentenced for offences committed before 4 April 2005, will continue to have their release dates determined by the Secretary of State. Not only, therefore, are they now to be contrasted with lesser determinate sentence prisoners and all life sentence prisoners but they are to be contrasted too with all those whose offences were committed after 4 April 2005. Such discrimination in their cases is plainly unjustifiable (although not actually unlawful because, as stated, they do not have the "status" to complain under article 14) and it is difficult to see why the Secretary of State would wish to perpetuate it.

    69.  I add only this. Under the 2003 Act the Secretary of State has surrendered his discretion (save in respect of 135 days) with regard to all determinate sentence prisoners whose offences were committed after 4 April 2005, ie those subject to removal no less than nationals. The anomaly in the case of Mr Hindawi and Mr Headley, therefore, has similarly become yet more plainly indefensible. Given that the House is now to declare the legislation which still affects these two appellants to be incompatible with their Convention rights, the Secretary of State will surely wish to consider whether the time has not now come to leave all future decisions as to release on licence (fewer, of course, under the 2003 Act than in the past) exclusively to the Parole Board.

 
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Prepared 13 December 2006