The law in England and Wales recognises several different categories of custodial sentence. These include: a determinate sentence; an extended determinate sentence (EDS); a special custodial sentence (passed in relation to certain offenders of particular concern); and a discretionary life sentence. Each has its own particular specifications. The net effect is that offenders convicted of similar offences could find themselves subject to quite different custodial regimes depending on which particular sentence type was applied to them on conviction. One such difference concerns eligibility for parole. In R (Stott) v Secretary of State for Justice [2018] UKSC 59, the Supreme Court had to address whether more stringent conditions on parole eligibility for EDS prisoners, relative to other categories of prisoners, constituted discrimination in contravention of Art.14 of the European Convention on Human Rights (ECHR). It handed down its decision a few weeks ago.
The appellant in Stott was sentenced to an EDS in respect of 10 rape offences. An EDS can only be imposed on an offender where, among other things, he has been convicted of a specified violent or sexual offence, and the court considers that there is a serious risk of harm to members of the public from his further offending. The sentence consists of a determinate custodial term plus an “extension period” during which the prisoner is released under licence. The extended period is fixed in accordance with what the court considers necessary for protecting members of the public from serious harm occasioned by the risk of the offender committing further offences.
A prisoner subject to an EDS is eligible to apply for release on licence (parole) during the course of his custodial term, but only after he has served two-thirds of that term. Critically, prisoners subject to other forms of determinate custodial sentences (including the special custodial sentence which is also expressly associated with offenders who present a risk of danger to the public) can apply for parole when they have served half of their custodial term. Even prisoners serving a discretionary life sentence can apply for parole after they have served half of their specified minimum term (which is usually understood to be the term that would have been imposed had a determinate sentence been imposed on them). It is also significant that some of these other prisoners are entitled to be released on parole automatically when they have served the relevant portion of their custodial term, while an EDS prisoner can only be so released where the Parole Board is satisfied that his confinement is no longer necessary for the protection of the public.
The appellant argued that these (and other) differences in treatment constituted unlawful discrimination in the enjoyment of this right to liberty contrary to Article 14 ECHR (taken together with the Article 5 guarantee of the right to liberty). The appellant had failed in his application to the Divisional Court, and the Supreme Court dismissed his appeal against that decision by a 3 to 2 majority. In doing so, the Supreme Court provided some important clarification on the application of Art.14 ECHR to the differential treatment of categories of sentenced offenders.
Article 14 ECHR stipulates that the rights and freedoms governed by the Convention shall be secured without discrimination on any grounds such as: sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status (emphasis added). A key question for the Court in Stott was whether “other status” should be interpreted narrowly to link it closely, although not exclusively, to inherent or acquired personal characteristics (such as sex, nationality, religion or political opinion) or more broadly so that it could encompass a status associated with his own actions (such as acquisition of property) or a treatment applied by a third party (such as treatment as a particular category of prisoner).
In its previous decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, the House of Lords (as it then was) had taken the narrower approach and held that a prisoner’s classification as “a long-term prisoner serving a sentence of fifteen years or more” did not come within the scope of “other status” for the purpose of Art.14. In reaching that decision, the Court was influenced by its view that the “other status” had to exist independently of the treatment being complained about. In other words, it had to be a pre-existing condition personal to the applicant.
The European Court of Human Rights, however, was not persuaded by that argument. When the same case reached it, the European Court emphasised that “other status” must be given a wide meaning. It was not limited to characteristics which are innate or inherent to the person. It also stressed that any exception to the protection offered by Art.14 should be narrowly construed. The Court went on to hold that the applicant’s classification as a long-term prisoner did qualify as a status for the purpose of Art.14. It must be said, however, that the European jurisprudence on Art.14 is not entirely coherent in its application to the differential treatment of offenders on the basis of classifications imposed by domestic law. It would not be surprising if the Grand Chamber of the European Court of Human Rights revisits this area in the foreseeable future.
Clearly, the Supreme Court in Stott had to decide whether to depart from its own decision in Clift in favour of the broader interpretation adopted by the European Court of Human Rights. By a four to one majority on this issue, it followed the latter approach and held that categorisation as an EDS prisoner is a recognisable status for the purpose of Art.14. The fact that the status of EDS prisoner did not exist independently of the discriminatory treatment alleged by the appellant did not preclude that result.
It does not follow, however, that the difference in parole treatment between an EDS prisoner and other categories of prisoner would necessarily amount to unlawful discrimination in the enjoyment of his right to liberty in contravention of Art.14. The appellant would also have to show that he was in an analogous situation to prisoners in other categories who benefited from the more favourable parole treatment. Moreover, he would have to establish that there was no objective justification for the difference in treatment between them.
By the slimmest of majorities (3 to 2), the Court held that the appellant had failed to establish unlawful discrimination within the meaning of Art.14. Although there was some difference of emphasis among them, the broad thrust of the majority judgments was that the status of an EDS prisoner is not sufficiently analogous to the other categories of prisoner, and that there is objective justification for their difference in treatment.
Giving the leading judgment for the majority, Lady Black explained that the variations between each of the sentencing regimes are such that each must be viewed as a distinct regime, rather than as a discrete variation within a single sentencing regime. It is not appropriate, therefore, to treat the early release status of a prisoner sentenced under one regime as wholly comparable or analogous to that of a prisoner sentenced under another regime. The early release provisions in one regime must be viewed holistically in the context of the other aspects of that regime which, of course, differ from the components of the other regimes. It follows that differential treatment in respect of early release alone does not necessarily constitute discrimination within the scope of Art.14. Much will depend on whether there is objective justification for the difference in treatment, and whether the means adopted to achieve that objective are proportionate and appropriate.
The EDS regime was considered to have a legitimate aim of enhancing public protection and confidence in sentencing. Given that it was concerned with offenders who posed a danger to the public, it was appropriate to require them to serve a longer portion of their sentence before they became eligible for release on parole. The problem, however, was that even discretionary ‘lifers’ became eligible for parole earlier, although they typically would be guilty of similar offending and would present an even greater danger to the public.
The majority’s reasoning in overcoming that problem is not entirely convincing. They considered that the EDS prisoner benefited from advantages denied to the ‘lifers’; most particularly, the fact that the EDS prisoner would eventually serve his full sentence and be free of the licence requirement, while the ‘lifer’ would be subject to the licence requirement for the rest of his life. It is not entirely clear how that justifies the EDS prisoner having to serve a longer portion of his sentence in prison than the ‘lifer’ in order to address a danger to the public which is also presented by the ‘lifer’. Noting that the European Court of Human Rights allows a wide margin of discretion in matters of prisoner and penal policy, Lady Black said that the Supreme Court must afford a similar respect for the policy choices of parliament in sentencing. Looking at the EDS sentencing package as a whole, she concluded that the parole differential was justified as a proportionate means of achieving the government’s legitimate aim.
The two minority judges, Lady Hale and Lord Mance, acknowledged that the different sentence categories reflect distinct packages in which, for example, an EDS prisoner enjoys certain advantages over a life sentence prisoner. Nevertheless, they were not persuaded that that was sufficient to distinguish them from other categories of prisoner in respect of the core issue, namely eligibility for release on parole. More fundamentally, they could find no objective justification for the EDS prisoner being treated more severely than the life sentence prisoner in respect of the timing of eligibility for parole. They considered that the other burdens suffered by life sentence prisoners cannot be viewed as some sort of counter-balance to their more lenient treatment on the timing of their parole eligibility. Such burdens are inherent in the nature of a life sentence.
One other point worth adverting to concerns the division of a custodial sentence into a punishment component and a risk management (or preventative) component. This division seems firmly established in respect of life sentences in England and Wales. The specified portion that must be served before the prisoner is eligible for parole is the punishment component, while any period spent in custody beyond that point is deemed preventative. As part of his argument that the EDS prisoner was penalised more severely relative to other categories of prisoner serving a similar custodial sentence, the appellant in Stott argued that the division also applied in respect of a determinate sentence (such as the EDS). This argument was rejected by the majority who explained that the objectives of punishment (as well as deterrence, rehabilitation and protection of the public) applied for the full period of the determinate sentence. Eligibility for parole, therefore, did not signal the end of a punishment period in a determinate sentence. That was another reason why the majority did not consider the EDS prisoner analogous to a life sentence prisoner for the purpose of Art.14 ECHR.
The fact that the decision in Stott was by a 3 to 2 majority, coupled with the fact that the majority were not entirely unanimous or persuasive in their reasoning, suggests that the issue may be revisited in another case, or even in an application to the European Court of Human Rights.