R (Stott) v Secretary of State for Justice

Michaelmas Term

[2018] UKSC 59

On appeal from: [2017] EWHC 214 (Admin)

R (on the application of Stott) (Appellant) v Secretary of State for Justice (Respondent)

before

Lady Hale, President

JUDGMENT GIVEN ON

28 November 2018

Heard on 18 January 2018

Appellant

Respondent

Jude Bunting

Rosemary Davidson

Jason Pobjoy

Purdon Solicitor)

Government Legal

Department)

LADY BLACK:

1.         Extended determinate sentences were imposed on Frank Stott in May 2013,

pursuant to section 226A of the Criminal Justice Act 2003 (“the 2003 Act”) for

sexual offences. This appeal concerns the provisions of section 246A of the 2003 Act which deal with early release from prison of those serving extended determinate sentences. The effect of the provisions is that Mr Stott will not be eligible to apply for release until he has served two-thirds of his custodial term, in contrast to other categories of prisoner who can apply for release at an earlier point in their custodial term. He contends that the provisions of section 246A are discriminatory and in violation of article 14 of the Convention for the Protection of Human Rights and

Fundamental Freedoms (“ECHR” or “the Convention”) taken together with article

5 of the Convention.

The facts

2. The appellant was convicted at trial of 20 offences, including multiple offences of raping an eight year old child. Prior to the trial, he had pleaded guilty to other counts relating to indecent photography of a child. On 23 May 2013, he was

sentenced to an extended determinate sentence (“EDS”) in respect of ten counts of rape. An EDS comprises two elements, namely an “appropriate custodial term”, and

a further period for which the offender is to be subject to a licence (“the extension

period”), see section 226A(5) at para 85 below. Mr Stott’s appropriate custodial term

has been fixed at 21 years, with an extension period of four years. He was also sentenced to various determinate sentences of imprisonment to be served concurrently. He was refused permission to appeal against his sentence, see R v Stott [2016] EWCA Crim 172.

3. A prisoner serving an EDS can be released before the end of his term of imprisonment. It will be necessary to look further at the statutory provisions governing release later but, in broad outline, section 246A of the 2003 Act requires, in most cases, that the EDS prisoner be released on licence as soon as he has served

the “requisite custodial period” and the Parole Board has directed his release. The

requisite custodial period is two-thirds of the appropriate custodial term specified by the sentencing court, so Mr Stott would have to serve 14 years before becoming eligible for parole. Other categories of prisoner are, in contrast, eligible for parole at the half-way point in their sentences. If these rules had applied to Mr Stott, he would have been eligible for parole once he had served ten and a half years. He complained that there was no justification for this difference in treatment in relation to eligibility for parole, and that it was unlawful discrimination within article 14. He brought judicial review proceedings.

4. In February 2017, a Divisional Court of the Queen’s Bench Division dismissed his claim [2017] EWHC 214 (Admin). However, it granted a certificate pursuant to section 12 of the Administration of Justice Act 1969 to permit Mr Stott to appeal directly to the Supreme Court, should permission to appeal be granted by the Supreme Court, which in due course it was.

Article 5 and article 14 of the ECHR

5. As the focus in this case is upon articles 5 and 14 of the ECHR, it will be convenient to set them out immediately.

6. Article 5 of the ECHR secures the “right to liberty and security” of person. So far as is material to the present case, it provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)	the lawful detention of a person after conviction

by a competent court;”

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court

and his release ordered if the detention is not lawful.”

7.         Article 14 prohibits discrimination, providing:

“The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground 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.”

The approach to an article 14 claim

8. In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must

have been on the ground of one of the characteristics listed in article 14 or “other status”. Thirdly, the claimant and the person who has been treated differently must

be in analogous situations. Fourthly, objective justification for the different treatment will be lacking. It is not always easy to keep the third and the fourth elements entirely separate, and it is not uncommon to see judgments concentrate upon the question of justification, rather than upon whether the people in question are in analogous situations. Lord Nicholls of Birkenhead captured the point at para 3 of R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173. He observed that once the first two elements are satisfied:

“the essential question for the court is whether the alleged

discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then

the court’s scrutiny may best be directed at considering whether

the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not

disproportionate in its adverse impact.”

The issues

9. In this case, it is accepted that the right to apply for early release, upon which Mr Stott relies, falls within the ambit of article 5. The debate is about the application

of article 14. Two issues have been identified. The first issue (“Issue 1” or “the status

issue”) is whether the different treatment of Mr Stott is on a ground within the

meaning of “other status” in article 14. The second issue (“Issue 2”) requires

determination only if Issue 1 is answered in the affirmative. It has two parts:

(a) Are EDS prisoners in an analogous situation to either indeterminate sentence prisoners or other determinate sentence prisoners, these being the two categories of prisoner with which Mr Stott seeks to compare his own position?

(b) If so, is there an objective justification for the difference in treatment between the categories of prisoner?

1. Mr Stott argues that his differential treatment was on the ground of “other

status”, that he was in an analogous situation to other prisoners who were treated

differently, and that there was no objective justification for the different treatment. The Secretary of State argues that Mr Stott fails on the status issue, so Issue 2 does

not arise. However, if that is wrong, the Secretary of State argues that Mr Stott’s

sentence is not analogous to the other sentences under consideration, and that there is in any event an objective justification for treating the different categories of prisoner differently.

The central importance of R (Clift) v Secretary of State for the Home Department

[2007] 1 AC 484 (“R (Clift)”) and Clift v United Kingdom (Application No

7205/07)

11. At the heart of the appeal are the decisions of the House of Lords and of the European Court of Human Rights (“ECtHR”) concerning Mr Clift, a prisoner who was serving a sentence of 18 years’ imprisonment for very serious crimes, including

attempted murder, and complained that the early release provisions in respect of his sentence gave rise to a violation of article 14. In 2006, in R (Clift), the House of

Lords held that Mr Clift’s classification, as a long-term prisoner serving a

determinate sentence of 15 years or more, did not amount to an “other status”, and

accordingly there was no infringement of article 14. In 2010, in Clift v United Kingdom (Application No 7205/07), the ECtHR took the contrary view, holding that Mr Clift did come within article 14 and that there was no objective justification for the different release provisions applied to prisoners in his category.

12. The decision of the House of Lords in R (Clift) dictated the Divisional Court’s decision in the present case. The Divisional Court only rejected Mr Stott’s argument

that his differential treatment was on the ground of “other status”, because it was

constrained to do so by R (Clift). Had it not been so bound, it would have found that

“other status” was established, and would then have gone on to find section 246A

of the 2003 Act incompatible with article 14. It now falls to this court to determine whether the decision of the House of Lords in R (Clift) should continue to be followed, in the light of the subsequent ECtHR decision in Clift v United Kingdom, and of the article 14 jurisprudence as a whole.

Issue 1: the status issue

13. Before turning to look at R (Clift) and Clift v United Kingdom in some detail, the decision of the ECtHR in Kjeldsen, Busk Madsen and Pedersen v Denmark

(1976) 1 EHRR 711 (“Kjeldsen”) needs to be introduced, because one paragraph from the court’s judgment features regularly in decisions of the ECtHR, and the

domestic courts, when the question of status in article 14 is being considered.

Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711

14. Kjeldsen concerned sex education in Danish schools. The applicants were parents who objected to sex education being compulsory in state primary schools and complained that, whereas parents could have their children exempted from religious instruction classes, they could not do so in relation to sex education classes. They claimed, unsuccessfully, that this was discriminatory treatment contrary to article 14 taken with article 2 of First Protocol (right to education). The passage about status to which courts return repeatedly is at para 56:

“The court first points out that 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.”

Regina (Clift) v Secretary of State for the Home Department (above)

1. As I have said, Mr Clift was a prisoner serving a sentence of 18 years’

imprisonment. Some way into his period of imprisonment, the Parole Board recommended his release on parole. Had Mr Clift been serving a term of less than 15 years, or life imprisonment, the Secretary of State would have had a statutory obligation to comply with the recommendation of the Parole Board. However, by virtue of various statutory provisions and the Parole Board (Transfer of Functions) Order 1998 (SI 1998/3218), the final decision in relation to prisoners serving determinate terms of 15 years or more lay with the Secretary of State, who rejected the recommendation. Mr Clift contended that the early release provisions discriminated against him in breach of his rights under articles 5 and 14 of the ECHR by denying him the right, that other long-term prisoners enjoyed, to be released if the Parole Board recommended it.

16. Mr Clift was able to establish that his rights in relation to early release were within the ambit of article 5. Although there is no issue about article 5 in the present case, a brief resumé of how the House of Lords approached it will set the article 14 issues in a proper context. As Lord Bingham of Cornhill said at para 17, the ECHR does not require member states to establish a scheme for early release, and prisoners may, consistently with the Convention, be required to serve the entirety of the sentence passed, if that is what the domestic law provides. However, where the domestic law in fact provides for a right to seek early release, that right is within the ambit of article 5. In relation to long-term prisoners serving determinate terms, the law of England and Wales did confer a right to seek early release, setting a time at which a prisoner must be released as of right, and an earlier time at which he might be released if it was judged safe to do so. Accordingly, as Lord Bingham said at para 18, differential treatment, in relation to early release, of one prisoner as compared with another, otherwise than on the merits of their respective cases, gave rise to a potential complaint under article 14.

1. However, the discrimination which article 14 prohibits is discrimination “on

any ground 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.” Not falling within any of the named grounds, Mr Clift could only bring

himself within the protection of article 14 if his differential treatment could be said

to be on the ground of “other status”. He argued that this requirement was satisfied

on the basis that his treatment was on the ground that he was a prisoner sentenced to a determinate term of 15 years or more. Lord Bingham (with whom there was general agreement, although some other members of the House added reasons of

their own) rejected this argument, but he did so “not without hesitation”, and

influenced by the fact that the Strasbourg jurisprudence had not endorsed a status of this kind as falling within article 14. Lord Hope of Craighead too, having put the arguments for and against Mr Clift being able to lay claim to status, was mindful of

the need for “a measure of self-restraint”, so as not to outstrip Strasbourg. What each

would have said, had they known what the ECtHR was going to decide in Clift v United Kingdom in 2010, is unknown, although one cannot avoid the sense that the outcome might well have been different. However, in order to give proper consideration to what, if any, continuing influence R (Clift) should have, it is necessary to isolate the strands of reasoning which went to make up the conclusion of the House:

i)          There was agreement that the words “or other status” in article 14 (in

French “toute autre situation”) are far from precise, but that they are not

intended to cover differential treatment on any ground whatever, because in that case, the list of grounds which precede them would be otiose (paras 27, 43, and 56).

ii) Reliance was placed on the passage quoted above from para 56 of

Kjeldsen, and the search was for something in the nature of a “personal

characteristic by which persons or groups of persons are distinguishable from

each other” (paras 27, 28, 42, and 56 for example).

iii) It was accepted that, as the specific grounds of discrimination listed in article 14 show, protection is extended not only to characteristics over which a person has no control, such as race or birth, but also to acquired characteristics, such as religion or political opinion (paras 28 and 45).

iv) Lord Bingham and Lord Hope both advanced the proposition that, to qualify, the personal characteristic in question must exist independently of the treatment of which complaint is made. Lord Bingham said, at para 28,

that he did “not think that a personal characteristic can be defined by the

differential treatment of which a person complains”, without giving any

explanation, or authority, for this view. He did not appear to consider that Mr Clift would fall foul of this, as he was not complaining of the sentence passed on him, but of being denied a definitive Parole Board recommendation. Lord

Hope agreed, at para 47, that “[i]t must be accepted, as Lord Bingham points

out, that a personal characteristic cannot be defined by the differential

treatment of which a person complains.” Although he similarly did not spell

out the foundation for his view, it may lie in his observation, at para 45, that

each of the specific grounds shared a feature in common, namely that “they

exist independently of the treatment of which complaint is made” and “[i]n

that sense, they are personal to the complainant.” The remainder of para 47

is not entirely easy to understand, but might indicate that Lord Hope shared

Lord Bingham’s opinion that this was not an area of difficulty for Mr Clift.

It reads:

“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.”

v) There was an examination of the ambit of article 14 as demonstrated by decisions of the ECtHR and the domestic courts in various factual contexts. Baroness Hale included a particularly detailed list of authorities at

para 58, which led her to make the observation that 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”. Examples were given of cases in which the grounds for the

discrimination were not within article 14 (see, for example, paras 27, 45, 59- 61), including prisoners who were treated differently because of the

legislature’s view of the gravity of their offences (Gerger v Turkey 8 July

1999, para 69, and see also Budak v Turkey (Application No 57345/00) (unreported)). And there was discussion of R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196 where the House of Lords held that article 14 did not cover differential treatment on the basis that a person had previously been investigated by the police and provided fingerprints; the possession of fingerprints and DNA samples by the police in that situation was simply a matter of historical fact, not attributable to the personal characteristics of those who had provided them.

18. Having referred earlier to the rather qualified terms in which Lord Bingham and Lord Hope expressed their conclusions, I should set out rather more fully what they actually said. Baroness Hale also dealt with the topic, but Lord Carswell and Lord Brown of Eaton-under-Heywood simply agreed with Lord Bingham on the issue without adding anything.

1. Lord Bingham’s conclusions are to be found in para 28:

   “28. … 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.”

1. As for Lord Hope, he also acknowledged the case for the length of Mr Clift’s

sentence conferring a status on him which can be regarded as a personal characteristic. From para 46 onwards, he can be seen considering the arguments, beginning thus:

“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.”

21. He thought that, given that the function of article 14 was to secure Convention rights and freedoms without discrimination on grounds which, having regard to the underlying values of the Convention, must be regarded as

unacceptable, “a generous meaning” should be given to “or other status” (para 48).

In his view, “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”, by which he seems, I think, to have meant “previously recognised

by the ECtHR”. But, ultimately, two factors seem to have influenced his rejection

of Mr Clift’s case. The first was that he accepted that it was “possible to regard what

he has done, rather than who or what he is, as the true reason for the difference of

treatment”. The second was caution about outstripping Convention jurisprudence.

So, he said, “I am persuaded, with some reluctance, that it is not open to us to resolve

the [other status point] in Mr Clift’s favour” (para 49).

22. Baroness Hale did not express hesitation or reluctance in concluding that the difference of treatment between Mr Clift and people sentenced to shorter determinate sentences or to life sentences was a difference in treatment based on the seriousness of the offences concerned, and therefore outside article 14. As she put

it, “[t]he real reason for the distinction is not a personal characteristic of the offender

but what the offender has done” (para 62).
Clift v United Kingdom (above)

23.       It is necessary to look in similar detail at the ECtHR’s reasons for concluding

that the differential treatment of Mr Clift was on the ground of “other status” for the

purposes of article 14. The court began its assessment, at para 55, by observing that

article 14 does not prohibit all differences in treatment, but only “those differences based on an identifiable, objective or personal characteristic, or ‘status’, by which

persons or groups of persons are distinguishable from one another”, citing para 56

of Kjeldsen, Busk Madsen and Pedersen (above), Berezovskiy v Ukraine (dec) (Application No 70908/01), 15 June 2004, and paras 61 and 70 of Carson v United Kingdom (2010) 51 EHRR 13. But, equally, it confirmed (para 55) that the list of specific grounds in article 14 is illustrative and not exhaustive, and recalled (para

56) that “the words ‘other status’ (and a fortiori the French ‘toute autre situation’)

have generally been given a wide meaning”.

1. Noting the Government’s argument that “other status” should be more

narrowly construed, ejusdem generis with the specific examples in article 14, it demonstrated (paras 56 to 59) that not all the listed grounds could be said to be

“personal” in the sense of being innate characteristics or inherently linked to the

identity or personality of the individual. It commented on the inclusion of “property”

as one of the grounds, and observed that it was a ground which had been construed broadly by the court as demonstrated by James v United Kingdom (1986) 8 EHRR 123 (difference in treatment between different categories of property owners) and Chassagnou v France (1999) 29 EHRR 615, paras 90 and 95, (distinction between large and small landowners).

25. It went on, at para 58, to give a list of other cases in which a violation of article 14 had been found because of different treatment based on characteristics which were not personal in the sense of being innate or inherent, namely: Engel v The Netherlands (1976) 1 EHRR 647 (distinction based on military rank), Pine Valley Developments Ltd v Ireland (1991) 14 EHRR 319 (distinction between those who held outline planning permission and benefited from new legislation and those who held outline planning permission but did not), Larkos v Cyprus (1999) 30 EHRR 597, para 21 (distinction between tenants of the State and tenants of private landlords), Shelley v United Kingdom (2008) 46 EHRR SE16 (being a convicted prisoner could be an “other status”), Sidabras and Dziautas v Lithuania (2004) 42

EHRR 104 (implicitly accepted that status as a former KGB officer fell within article 14), and Paulík v Slovakia (2006) 46 EHRR 10 (a father whose paternity had been established by judicial determination had a status which could be compared to putative fathers and mothers in situations where paternity was legally presumed but not judicially determined). Accordingly, the court concluded (para 59), even if the

Government’s ejusdem generis argument was correct (upon which no

pronouncement was made either way), it would not necessarily preclude Mr Clift’s

claim.

26.       The argument that the treatment of which the applicant complains must exist

independently of the “other status” upon which it is based was advanced, but the

court rejected it, citing Paulík (2008) 46 EHRR 10 as undermining it. It said:

“60. Further, the court is not persuaded that the

Government’s argument that the treatment of which the

applicant complains must exist independently of the ‘other status’ upon which it is based finds any clear support in its case

law. In Paulík, cited above, there was no suggestion that the distinction relied upon had any relevance outside the

applicant’s complaint but this did not prevent the court from

finding a violation of article 14. The question whether there is a difference of treatment based on a personal or identifiable characteristic in any given case is a matter to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Artico v Italy, 13 May 1980, para 33, Series A no 37; and Cudak v Lithuania [GC], no 15869/02, para 36, 23 March 2010). It should be recalled in this regards that the general purpose of article 14 is to ensure that where a state provides for rights falling within the ambit of the Convention which go beyond the minimum guarantees set out therein, those supplementary rights are applied fairly and consistently to all those within its jurisdiction unless a

difference of treatment is objectively justified.”

27.       The court was not impressed, either, with the Government’s argument that,

as in Gerger (above), the distinction was between different types of offence,

according to the legislature’s view of their gravity, observing that the cases in which

the approach in Gerger had been followed all concerned special court procedures or provisions on early release for those accused or convicted of terrorism offences in Turkey. It continued (para 61):

“Thus while Gerger made it clear that there may be

circumstances in which it is not appropriate to categorise an impugned difference of treatment as one made between groups of people, any exception to the protection offered by article 14 of the Convention should be narrowly construed. In the present case the applicant does not allege a difference of treatment based on the gravity of the offence he committed, but one based on his position as a prisoner serving a determinate sentence of more than 15 years. While sentence length bears some relationship to the perceived gravity of the offence, a number of other factors may also be relevant, including the sentencing

judge’s assessment of the risk posed by the applicant to the

public.”

28.       At para 62, the court said:

“The court has frequently emphasised the fundamental

importance of the guarantees contained in article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities (see, for example, Çakıcı v Turkey [GC], no 23657/94, para 104, ECHR 1999 IV).

Where an early release scheme applies differently to prisoners depending on the length of their sentences, there is a risk that, unless the difference in treatment is objectively justified, it will run counter to the very purpose of article 5, namely to protect the individual from arbitrary detention. Accordingly, there is a need for careful scrutiny of differences of treatment in this

field.”

29.       It concluded that in the light of all the considerations it had set out, Mr Clift

did enjoy “other status” for the purposes of article 14.

30. At paras 66 and 67, the court addressed the issue of whether Mr Clift was in an analogous position to the other prisoners with whom he compared himself, observing that what is required is that the applicant should demonstrate that, having

regard to the particular nature of the complaint, his situation was “analogous, or

relevantly similar”; it need not be identical. Mr Clift was in an analogous position

to long-term prisoners serving less than 15 years and life prisoners, as the methods of assessing the risk posed by a prisoner eligible for early release, and the means of addressing any risk identified, were in principle the same for all categories of prisoner.

31.       The court went on to find that the differential treatment of prisoners in Mr

Clift’s position lacked objective justification. The Government had argued that it

was justified on the basis of the risk posed by the category of prisoners in question, and by the need to maintain public confidence in the justice system. As to the first basis, the court accepted in principle that more stringent early release provisions could be justified on the basis that a group of prisoners posed a higher risk, but there had not been shown to be higher risk here. As to the second basis, it had not been demonstrated that requiring the approval of the Secretary of State would address concerns about risk on release, given that the assessment of the risk posed by an individual prisoner was a task without political content and one to which the Secretary of State could bring no superior expertise.

1. There is much in the ECtHR’s decision which is in harmony with the

approach taken by the House of Lords in R (Clift). But it can be seen that there are respects in which the ECtHR either went further than the House of Lords or differed from its approach.

33. It differed in that it was not persuaded that there was any support for the argument that the treatment of which the applicant complains must exist independently of the other status; on the contrary, the matter had to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention was to guarantee rights which are practical and effective.

34.       It also differed from the House of Lords in rejecting the idea that Mr Clift’s

complaint was about a difference in treatment based on the gravity of his offence, observing that a number of factors may be relevant to sentence length, as well as the perceived gravity of the offence. It also emphasised the particular context for the decision in Gerger and other cases in which the Gerger approach had been taken. And it stressed that any exception to the protection offered by article 14 should be narrowly construed, and that there needed to be careful scrutiny of differences of treatment where an early release scheme applied differently to prisoners depending on the length of their sentence, given that there was a risk that unless the difference was objectively justified it would run counter to the very purpose of article 5.

35. It possibly went further than the House of Lords in relation to the nature of the characteristics which would be recognised, in that it observed that not all the grounds could be said to be inherently linked to the identity or personality of the individual, highlighting the inclusion of property as a specified ground, and giving examples of characteristics which had sufficed, but were not innate or inherent.

ECtHR decisions other than Clift v United Kingdom

36. There have been many decisions of the ECtHR in relation to article 14 and it is unnecessary to refer to more than a few of them. The way in which that court is

presently approaching the question of “other status” can be seen from three recent

decisions, one in 2016 and two in 2017. They demonstrate, I think, that the approach has been relatively consistent over the years, and that there has been little change to the approach exhibited in Clift v United Kingdom.

37. The 2016 decision is Biao v Denmark (2016) 64 EHRR 1 (“Biao”). This concerned the Danish provisions for family reunion which treated Danish born nationals differently from those who acquired Danish nationality later in life, a majority of whom were of foreign ethnic origin. This was said to amount to a violation of article 14 read with article 8. Citing earlier decisions of its own, including Kjeldsen, Carson v United Kingdom 51 EHRR 13, and Clift v United Kingdom, the court said:

“89. The court has established in its case law that only

differences in treatment based on an identifiable characteristic,

or ‘status’, are capable of amounting to discrimination within

the meaning of article 14. Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.

Article 14 lists specific grounds which constitute ‘status’

including, inter alia, race, national or social origin and birth. However, the list is illustrative and not exhaustive, as is shown

by the words ‘any ground such as’ and the inclusion in the list of the phrase ‘any other status’. The words ‘other status’ have

generally been given a wide meaning and their interpretation has not been limited to characteristics which are personal in the

sense that they are innate or inherent.”

38.       The first of the 2017 decisions is Khamtokhu and Aksenchik v Russia

(Applications Nos 60367/08 and 961/11) (“Khamtokhu”), which concerned

applicants who were sentenced to life imprisonment. They complained of discriminatory treatment, in violation of article 14 taken in conjunction with article 5, because they were treated less favourably than other categories of convicted offenders (women, juveniles, and men over 65) who were exempt from life imprisonment.

39.       The court said:

“61. Article 14 does not prohibit all differences in treatment, but only those differences based on an identifiable, objective or

personal characteristic, or ‘status’, by which individuals or

groups are distinguishable from one another. It lists specific

grounds which constitute ‘status’ including, inter alia, sex, race

and property. However, the list set out in article 14 is

illustrative and not exhaustive, as is shown by the words ‘any

ground such as’ (in French ‘notamment’) and the inclusion in

the list of the phrase ‘any other status’ (in French ‘toute autre situation’). The words ‘other status’ have generally been given

a wide meaning, and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Clift, cited above, paras 56-58; Carson v United Kingdom [GC], no 42184/05, paras 61 and 70, ECHR 2010; and Kjeldsen, Busk Madsen and Pedersen v Denmark, 7

December 1976, para 56, Series A no 23).”

40.       There was no need, in Khamtokhu to labour over the question of status, as

“sex” is explicitly mentioned in article 14 as a prohibited ground of discrimination,

and the court had accepted in an earlier case that “age” was a concept also covered

by the provision. Article 14, taken with article 5, was accordingly applicable. The applicants were in an analogous situation to other offenders convicted of the same

or comparable offences, but their complaint failed because the government’s

sentencing provisions had a legitimate aim and were proportionate.

41.       The second 2017 case is Minter v United Kingdom (2017) 65 EHRR SE6

(“Minter”). Mr Minter was sentenced to an extended sentence for sexual offences.

This meant that he was subject to an extended licence period, and thus to a requirement to notify the police of various personal details indefinitely. Mr Minter complained that the application of the indefinite notification period was in breach of article 8 of the ECHR, either read alone or in conjunction with article 14. Although the notification requirement was an interference with his article 8 rights, it was not disproportionate, and the article 8 claim was manifestly ill-founded. However, Mr Minter argued that, by virtue of a change in the law, if he had been sentenced later, he would not have received an extended sentence and would not therefore have been subject to the indefinite notification period at all. That, he submitted, amounted to

an unjustified difference in treatment based on “other status”, and to a violation of

article 14 taken with article 8.

42.       The court rejected the article 14 complaint as manifestly ill-founded too. On

the facts, it considered Mr Minter’s assertion that no indefinite notification

requirement would have been imposed if he had been sentenced later to be entirely speculative. But even had there not been that obstacle, his claim would have failed. The court began its assessment of the issue in this way:

“66. In order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see Khamtokhu and Aksenchik v Russia (60367/08 and 961/11) 24 January 2017 at para 64). As

established in the court’s case law, only differences in treatment based on an identifiable characteristic, or ‘status’, are

capable of amounting to discrimination within the meaning of article 14 (see Khamtokhu and Aksenchik (60367/08 and 961/11) 24 January 2017 at para 61). Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, 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 (Khamtokhu and Aksenchik (60367/08

and 961/11) 24 January 2017 at para 64).”

43. The court was not persuaded by the applicant’s reliance on the Clift v United Kingdom decision. In a passage which exhibits, to my mind, the tendency (also seen elsewhere in the Strasbourg jurisprudence on article 14) for consideration of the

issue of whether a difference in treatment is on the ground of “other status” to

convert, almost seamlessly, into consideration of whether the applicant is in an analogous situation and/or whether the difference is justified, it distinguished the situation in Clift v United Kingdom:

“68. Furthermore, the court does not consider that Clift

(7205/07) 13 July 2010 supports the applicant’s claim. It is true

that in Clift the court accepted that the different treatment of different categories of prisoners depending on the sentences

imposed was based on ‘other status’ within the meaning of

article 14 of the Convention. However, in the present case the different treatment complained of did not concern the length of

the applicant’s sentence but rather the different sentencing

regime applied to him as a consequence of a new legislation. As such, his article 14 complaint is indistinguishable from that which was declared inadmissible as manifestly ill-founded in Massey. Although Massey (14399/02) 8 April 2003 pre-dated Clift (7205/07) 13 July 2010, in Zammit and Attard Cassar (1046/12) 30 July 2015, a case which post-dated Clift by some four-and-a-half years, the court reaffirmed that no discrimination was disclosed by the selection of a particular

date for the commencement of a new legislative regime.”

44. Although the approach taken in the three cases can properly be described as consistent, in my view, it is interesting to note that Biao and Minter refer to “identifiable characteristic, or ‘status’”, whereas Khamtokhu is slightly more

expansive, speaking of “identifiable, objective or personal characteristic, or ‘status’,

by which individuals or groups are distinguishable from one another”. Biao and

Khamtokhu both stress that the list in article 14 is “illustrative and not exhaustive”, and that the words “other status” have generally been given a wide meaning and

their interpretation has not been limited to characteristics which are personal in the
sense that they are innate or inherent.
The domestic case law on article 14 and status

45.       Article 14 has regularly been the subject of consideration in the Supreme

Court and, before that, in the House of Lords. The House of Lords’ decisions pre-

date the ECtHR’s decision in Clift v United Kingdom, of course, but are important

in understanding how the approach to article 14 has evolved. After a review of them, I summarise, at para 56 below, the position that the domestic case law seems to have reached on “other status” by the time of the ECtHR’s Clift decision.

46. R (S) v Chief Constable of the South Yorkshire Police (2004, above) was the case concerning fingerprints and DNA samples. Lord Steyn, with whom I do not think there was significant disagreement on this point, worked on the basis that the proscribed grounds in article 14 were not unlimited and was guided by Kjeldsen. Perhaps foreshadowing the ejusdem generis argument advanced in Clift, in

summarising his conclusion that the requisite “status” had not been established, he

observed (para 51) that the “difference in treatment is not analogous to any of the

expressly proscribed grounds”.

47. R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681 concerned widowers who claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and

article 8 of the ECHR. The decision is of interest for Lord Hoffmann’s treatment of

the question of whether article 14 was infringed. He considered whether being a person who has started legal proceedings qualified as a status, and was not persuaded that it did. In explaining why, at para 65, he appeared to adopt and develop Lord

Steyn’s “analogous” approach which he described as being “that article 14 required

discrimination to be by reference to some status analogous with those expressly

mentioned, such as sex, race or colour”.

48. R (Carson) v Secretary of State for Work and Pensions (above), is an often- cited House of Lords decision. Each of the two claimants complained of a violation of their rights under article 14, read with article 1 of the First Protocol to the ECHR. One claimant complained of discrimination on the basis of country of residence, and the other on the basis of age. The first was entitled to a retirement pension, but, because she was resident in South Africa, was precluded from receiving the normal annual cost of living increase. The second received state benefits at a lower rate because she was under 25. Their claims failed because the differential treatment of them was rationally justified. However, they did manage to establish that they came

within the scope of “other status” in article 14. In the case of the claimant who was

resident in South Africa, this is of note because she succeeded in establishing that this was a personal characteristic, notwithstanding that it was in principle a matter of choice and was not immutable. This result was reached through the application

of what Lord Walker of Gestingthorpe described as “the Kjeldsen test of looking for
a personal characteristic” (para 54).

49. In AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434, Baroness Hale described Carson as unusual, commenting (para 26) that:

“In general, the list concentrates on personal characteristics

which the complainant did not choose and either cannot or should not be expected to change. The Carson case is therefore unusual, because it concerned discrimination on the ground of habitual residence, which is a matter of personal choice and can

be changed.”

But the ECtHR subsequently confirmed, in Carson v the United Kingdom (2008) 48
EHRR 41, that ordinary residence should be seen as an aspect of personal status.

50. R (RJM) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2009] AC 311 might also be considered to take a

more expansive view of “status”. It merits rather more detailed review because there

was considerable discussion of the subject.

1. The claimant’s disability premium in his income support, which he received

by reason of his incapacity for work through mental health problems, was stopped because he had become homeless. He claimed that the premium was a possession within article 1 of the First Protocol to the ECHR and that he had been discriminated against contrary to article 14. One of the questions for determination was whether

homelessness fell within “other status” for the purposes of article 14. There was an

argument as to whether it was necessary to show that it was a “personal

characteristic” at all, and, if so, whether it was properly so described. It was held

that it was indeed “a personal characteristic” and within the article, even if adopted

by choice, although the claim failed because the regulation in question was justified.

52. Lord Neuberger of Abbotsbury discussed whether “other status” must necessarily be based upon a “personal characteristic”. He said (para 36) that there

was no doubt that the House of Lords had consistently proceeded upon the assumption that that was required, basing that approach primarily on the Kjeldsen case. There was also, in his view, a strong case for saying that as a matter of

language, article 14 (or at least the English version of it) “appears to envisage

precisely this, given the specific grounds on which unjustifiable discrimination is

prohibited” (para 37). No case to which the court had been taken supported an

argument to the contrary. However, before ultimately adopting that approach himself, Lord Neuberger did acknowledge that there may be a case for another interpretation, saying:

“39. None the less, it is fair to refer to the fact that the French version of article 14 (which has equal status with the English

version - see article 59) ends with the words ‘ou toute autre situation’, which may suggest a rather wider scope than ‘or

other status’. Further, while the ECtHR judgments relied on by

RJM do not establish that no consideration need be given in an article 14 case to the issue of whether the discrimination is by

reference to a ‘status’ which can be characterised as a ‘personal

characteristic’, some of those judgments could be read as

suggesting a rather less structured approach than that which has been adopted by this House. In particular, in an allegation of article 14 infringement, the ECtHR may not always consider

whether the alleged discrimination is on the ground of ‘other status’ as an entirely free-standing question: it sometimes

appears to approach the overall allegation of infringement on a

more holistic or ‘broad brush’ basis: see, for instance, the

reasoning in Kjeldsen 1 EHRR 711, para 56, and Kafkaris 12 February 2008, paras 163-165, as well as Stubbings v United

Kingdom (1996) 23 EHRR 213, paras 70-73.”

1. In deciding that homelessness could fairly be described as a “personal

characteristic”, Lord Neuberger proceeded upon the basis that a generous meaning

should be given to “or other status”, as would be expected in “enforcing anti-

discrimination legislation in a democratic state” (para 42), and that “other status”

“should not be too closely limited by the grounds which are specifically prohibited

by the article” (para 43). He said (para 45) that “while reformulations are

dangerous”, he considered that the concept of “personal characteristics” “generally

requires one to concentrate on what somebody is, rather than what he is doing or

what is being done to him”, and that, on that approach, homelessness was an “other

status”. He considered (para 46) that this characterisation also fitted with Lord

Bingham’s view in Clift that the personal characteristic could not be defined by the

differential treatment of which the person complains. He considered (para 47) that the fact that homelessness was a voluntary choice (if it was) was not of much, if any, significance in determining whether it was a status for article 14; some of the specified grounds in the article were matters of choice too. Nor was it telling that homelessness was not a legal status.

1. Lord Walker’s observations about “personal characteristics” are also

instructive:

“5.	The other point on which I would comment is the

expression ‘personal characteristics’ used by the European

Court of Human Rights in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, and repeated in

some later cases. ‘Personal characteristics’ is not a precise

expression and to my mind a binary approach to its meaning is

unhelpful. ‘Personal characteristics’ are more like a series of

concentric circles. The most personal characteristics are those which are innate, largely immutable, and closely connected

with an individual’s personality: gender, sexual orientation,

pigmentation of skin, hair and eyes, congenital disabilities. Nationality, language, religion and politics may be almost

innate (depending on a person’s family circumstances at birth)

or may be acquired (though some religions do not countenance either apostates or converts); but all are regarded as important

to the development of an individual’s personality (they reflect,

it might be said, important values protected by articles 8, 9 and 10 of the Convention). Other acquired characteristics are further out in the concentric circles; they are more concerned with what people do, or with what happens to them, than with who they are; but they may still come within article 14 (Lord Neuberger instances military status, residence or domicile, and past employment in the KGB). Like him, I would include homelessness as falling within that range, whether or not it is regarded as a matter of choice (it is often the culmination of a series of misfortunes that overwhelm an individual so that he or she can no longer cope). The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify. There is an illuminating discussion of these points (contrasting Strasbourg jurisprudence with the American approach to the Fourteenth Amendment) in the speech of Baroness Hale of Richmond in

AL (Serbia) v Secretary of State for the Home Department

[2008] 1 WLR 1434, paras 20-35.”

55. It looks from this passage as if Lord Walker was perhaps slightly more ready than Lord Neuberger to accept that what someone was doing, or what was being

done to him, could be a personal characteristic, although observing that the “more peripheral or debateable” the characteristic, the easier it would be to justify

differential treatment.

56. Reviewing these decisions, together with R (Clift), I think it can be said (although acknowledging the danger of over-simplification) that prior to the decision in Clift v United Kingdom in 2010, the House of Lords had adopted the

following position on “other status”.

i) The possible grounds for discrimination under article 14 were not unlimited but a generous meaning ought to be given to “other status”;

ii) The Kjeldsen test of looking for a “personal characteristic” by which

persons or groups of persons were distinguishable from each other was to be
applied;

iii) Personal characteristics need not be innate, and the fact that a characteristic was a matter of personal choice did not rule it out as a possible

“other status”;

iv) There was support for the view that the personal characteristic could not be defined by the differential treatment of which the person complained;

v)         There was a hint of a requirement that to qualify the characteristic

needed to be “analogous” to those listed in article 14, but it was not consistent

(see, for example, Lord Neuberger’s comment at para 43 of R (RJM)) and it

was not really borne out by the substance of the decisions;

vi) There was some support for the idea that if the real reason for differential treatment was what someone had done, rather than who or what he was, that would not be a personal characteristic, but it was not universal;

vii) The more personal the characteristic in question, the more closely

connected with the individual’s personality, the more difficult it would be to

justify discrimination, with justification becoming increasingly less difficult
as the characteristic became more peripheral.

57. Following the decision of the ECtHR in Clift v United Kingdom, there has been further consideration, in the Supreme Court, of the issue of status in article 14.

The issue of how R (Clift) should be viewed in the light of the ECtHR’s different

view has not been directly confronted, although the court made some comment on the ECtHR decision in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66; [2015] AC 1344. Apart from that case, of the cases singled out for mention below, it could be said that Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250 is the one which deals most fully with the question of status.

58. In R (Kaiyam) v Secretary of State for Justice, the issue was what duty the Secretary of State had to provide prisoners serving indeterminate sentences with opportunities for rehabilitation in order to facilitate their release. As part of his claim, one of the appellants, Mr Haney, invoked article 14, claiming that he had been discriminated against by the prison authorities in that they prioritised the movement to open prisons of prisoners whose tariff periods had already expired, whereas his had not. The Supreme Court had to decide whether it should recognise the difference between those whose tariff periods had and had not expired as a difference of status for the purposes of article 14. At para 52, Lord Mance and Lord Hughes, with whom there was unanimous agreement, noted the decision of the House of Lords in R (Clift), and the different view taken by the ECtHR in that case. They observed:

“53.	In the light of the European court’s decision, we see

some force in the submission that the difference between pre- and post-tariff prisoners should now be taken to represent a

relevant difference in status.”

But they did not need to determine the question of Mr Haney’s status finally because

the difference in treatment was clearly justified.

59. Para 52 suggests that they might have felt a degree of caution about Clift v

United Kingdom (see para 26 above for the passage from para 60 of Clift v United
Kingdom to which reference is made):

“52.	… The question of law is whether the Supreme Court

should recognise the difference between those whose tariff periods had and had not expired as a difference of status for the purposes of article 14 of the Convention. The House in R (Clift) v Secretary of State of the Home Department [2007] 1 AC 484 was, in the absence of clear Strasbourg authority, not prepared to accept the difference between prisoners serving determinate sentences over 15 years and life prisoners or prisoners serving determinate sentences of less than 15 years as a difference in status. The European court in Clift v United Kingdom (Application No 7205/07) given 13 July 2010 took a different view, and expressed itself at one point (at the end of para 60) in terms which might, literally read, eliminate any

consideration of status.”

60. Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250 concerned a child with disabilities whose parents received disability living allowance until he had been an in-patient in a National Health Service hospital for more than 84 days. He appealed against the suspension of the benefit on the ground that it was in breach of his right not to be discriminated against under article 14 read with article 1 of the First Protocol to the ECHR. One of the arguments in the Supreme Court was as to whether, if there was discrimination in

the treatment of him, it was on the ground of “other status”. It was held that this

ground was applicable either by virtue of his status as “a severely disabled child in need of lengthy in-patient hospital treatment” (para 23), or by virtue of his status as “a child hospitalised free of charge … in a NHS … hospital … for a period longer

than 84 days” (para 60). At para 21, Lord Wilson said that the prohibited grounds in

article 14 extend well beyond innate characteristics, as demonstrated by R (RJM) v Secretary of State for Work and Pensions [2009] AC 311. Looking at the approach

of the ECtHR in Clift, Lord Wilson considered it “clear that, if the alleged

discrimination falls within the scope of a Convention right, the Court of Human

Rights is reluctant to conclude that nevertheless the applicant has no relevant status”

(para 22).

61. In R (Tigere) v Secretary of State for Business, Innovation and Skills (Just for Kids Law intervening) [2015] 1 WLR 3820, immigration status was recognised as

an “other status” within article 14, (consistently with the decision of the ECtHR in

Bah v United Kingdom (2011) 54 EHRR 773), but as the point was conceded, there was no discussion about it in the judgments.

62. R v Docherty (Shaun) [2016] UKSC 62; [2017] 1 WLR 181 concerned a prisoner who was sentenced on 20 December 2012 to imprisonment for public protection for offences to which he had pleaded guilty in November 2012. Imprisonment for public protection had been abolished prior to him being sentenced, but not for those convicted before 3 December 2012. Amongst other things, he claimed that the differentiation between him and a person convicted of an identical offence on 4 December 2012 was unlawful under article 14. At para 63, Lord Hughes dealt with the question of status and, as will be seen, returned to the idea that it will not be possible to bring oneself within article 14 unless the proposed status exists independently of the treatment about which complaint is made:

“The appellant submits that this discriminates objectionably

against him on grounds of ‘other status’, namely either (i) his

status as a convicted person prior to 3 December or (ii) his status as a prisoner who is subject to an indeterminate sentence. Assuming for the sake of argument that status as a prisoner subject to a particular regime can in some circumstances amount to sufficient status to bring article 14 into question (Clift v United Kingdom (Application No 7205/07) The Times, 21 July 2005), it cannot do so if the suggested status is defined entirely by the alleged discrimination; that was not the case in Clift. For that reason, the second suggested status cannot

suffice. As to the first, even if it be assumed in the appellant’s

favour that the mere date of conviction can amount to a sufficient status, which is doubtful, the differential in treatment is clearly justified. All changes in sentencing law have to start somewhere. It will inevitably be possible in every case of such a change to find a difference in treatment as between a defendant sentenced on the day before the change is effective and a defendant sentenced on the day after it. The difference of treatment is inherent in the change in the law. If it were to be objectionable discrimination, it would be impossible to change the law. There are any number of points which may be taken as triggering the change of regime. The point of conviction is clearly one, and the point of sentence is another. Neither is, by

itself, irrational or unjustified.”

1. Returning to the list of propositions derived from the House of Lords’

decisions which is to be found at para 56 above, it seems to me that the subsequent authorities in the Supreme Court could be said to have continued to proceed upon the basis of propositions (i) to (iii), which have also continued to be reflected in the jurisprudence of the ECtHR. Proposition (iv) lives on, in R v Docherty, but perhaps needs to be considered further, in the light of its rejection in Clift v United Kingdom

(see further, below). The “analogous” point, which features at proposition (v), is

reminiscent of the ejiusdem generis argument advanced in Clift v United Kingdom,

but not addressed head-on by the ECtHR. That court’s answer to the argument was,

it will be recalled, to give quite wide-ranging examples of situations in which a violation of article 14 had been found. With the continued expansion of the range of

cases in which “other status” has been found, in domestic and Strasbourg decisions,

the search for analogy with the grounds expressly set out in article 14 might be thought to be becoming both more difficult and less profitable. However, that should not, of course, undermine the assistance that can be gained from reference to the

listed grounds, taken with examples of “other status” derived from the case law. It

may not be helpful to pursue proposition (vi) abstract; whether it assists will depend upon the facts of a particular case. Proposition (vii) comes into play when considering whether differential treatment is justified, rather than in considering the

“other status” question, and need not be further considered at this stage.

Submissions in relation to status

64. Mr Southey QC and Mr Bunting for the appellant submit that the decision of the House of Lords in Clift can no longer be considered a reliable guide to the

meaning of “other status” in article 14. The words should be given a generous

meaning, they submit. They invite attention to the range of situations which have been held, either by the ECtHR or by the domestic courts, to be within the category. Legally acquired statuses have been accepted as sufficient, as demonstrated, for example, by Larkos v Cyprus and Pine Valley Developments Ltd v Ireland, Bah v United Kingdom (all above) and Krajisnik v United Kingdom (2012) 56 EHRR SE7 (status as a prisoner convicted by the International Criminal Tribunal for former Yugoslavia). They also invite attention to the fact that homelessness has been held to be covered, even if it is a matter of choice, (R (RJM) v Secretary of State for Work and Pensions above), and to the status recognised in Mathieson v Secretary of State

Work & Pensions (above). And, of course, they rely on the ECtHR’s decision in

Clift itself.

65. It is submitted that there has been nothing in the decisions of the Supreme Court post-dating the ECtHR’s decision in Clift (particularly R (Kaiyam) v Secretary

of State for Justice, R v Docherty, and Mathieson) which has undermined the authority of that judgment, and the approach which is there set out should be followed. Thus, life sentences, extended sentences and determinate sentences can

all be considered to give rise to “other status”.

66.       For the Secretary of State, Sir James Eadie QC, Ms Davidson and Mr Pobjoy

recognise that the court is bound to take into account the ECtHR’s decision in Clift

and to consider whether to depart from the House of Lords’ decision in that case.

However, this should not, in their submission, lead to the conclusion that Mr Stott

can lay claim to “other status”.

67.       They invite the court to consider the scope of Clift against the background of

the other cases in which the “other status” category has been considered by the

ECtHR, the House of Lords and the Supreme Court. Whilst this collection of authority establishes that a generous meaning should be given to the words, it also

establishes that “other status” is not a catch-all category, see most recently para 61

of Khamtokhu. The central question, so the Secretary of State submits, is whether

the basis or reason for the differential treatment is a “personal characteristic by

which persons or groups of persons are distinguishable from each other”. In the

Secretary of State’s submission, article 14 protects “personal characteristics” which

are analogous to those expressly mentioned in the article, see para 65 of R (Hooper) v Secretary of State for Work and Pensions and para 51 of R (S) v Chief Constable of the South Yorkshire Police. And, it is said, although the concept of a personal characteristic is not a precise one, and is not limited to something innate or inherent, it will typically be more concerned with who a person is, than with what he or she does, see paras 5 and 45 of RJM. Furthermore, the personal characteristic must be independent of the treatment about which complaint is made (para 28 and 45 of Clift in the House of Lords, and para 63 of R v Docherty).

68. It is further submitted, on behalf of the Secretary of State, that Clift is distinguishable from the present case. The classification of Mr Clift was based upon the length of his sentence, not the nature or gravity of his offence. That set his case

apart from cases such as Gerger v Turkey and Budak v Turkey. Mr Stott’s case is

different, it is said, because he is not relying on the length of his sentence but on the fact that he is subject to a particular sentencing regime in light of the gravity of his crime and the risk he poses to the community. It is said that the importance of this distinction was affirmed in Minter. Furthermore, unlike with Mr Clift, the treatment of which Mr Stott complains does not exist independently of the characteristic on which he bases his complaint of discrimination, because the release conditions about which he complains flow from his status as a prisoner serving an extended determinate sentence. Mr Clift had already been sentenced, and had thus already acquired his status, before the order was made which led to the different treatment of his group for the purposes of release.

1. Furthermore, the Secretary of State submits that “there is no authority for the

proposition that any form of sentencing regime constitutes an ‘other status’ for the purposes of article 14” and says that the implication of such a finding would be that

every convicted prisoner would automatically fall within the scope of article 14, and

authority establishes that that is not the case.

Conclusions in relation to status

70. The different view taken by the ECtHR in Clift v United Kingdom has to be taken into account when considering whether R (Clift) should continue to influence the approach to article 14 status in cases such as the present. For my part, I would now depart from the determination, in R (Clift), that different treatment on the basis that a prisoner was serving imprisonment of 15 years or more could not be said to

be on the ground of “other status”. I am influenced by the ECtHR’s reasoned

decision to the contrary, notwithstanding that it was not a decision of the Grand Chamber, but of a section of the court. I am also influenced by the hesitation apparent in the speeches of the House of Lords in R (Clift), which disclose the constraint that was felt in the absence of any recognition by the ECtHR of a status such as that for which Mr Clift contended. Although one can only speculate as to how the decision would have gone if the ECtHR had already led the way, it is clear

that the House could see the force of arguments advanced in Mr Clift’s favour.

71.       If R (Clift) is left to one side, at least as to its result, that does not mean that

the question of how to approach “other status” is free of domestic authority. In

considering the decisions of the House of Lords which pre-date Clift v United Kingdom, it is necessary to keep in mind the ways in which the ECtHR ultimately differed from the House, which I have attempted to set out, commencing at para 33 above. The Supreme Court authorities can be taken to have been decided with Clift v United Kingdom in mind.

72. Perhaps the clearest difference between R (Clift) and Clift v United Kingdom was in relation to whether the treatment of which the applicant complains must exist independently of the other status. Counsel for the Secretary of State continue to rely upon this as part of their argument, and they are correct to point out that it features as part of Lord Hughes’ analysis in R v Docherty. The first difficulty about the

independent existence condition is the uncompromising rejection of it by the ECtHR, which went on to say that, on the contrary, the matter had to be assessed taking into consideration all the circumstances of the case and bearing in mind that the aim of the Convention was to guarantee practical and effective rights. It cited Paulík in support of its stance. The applicant in Paulík was a man who, in 1970, was found by a court to be the father of a girl, paternity then being disproved by a DNA test in 2004. He wanted the finding of paternity overturned, but, unlike fathers whose paternity had been established otherwise than through a court, and mothers, he had no means to achieve this under domestic law. He complained of various breaches of the ECHR, including that he had been discriminated against in the enjoyment of his article 8 and article 6 rights. There was found to be a violation of article 14 taken with article 8. It seems there was no dispute as to the applicability of article 14 (para 51), the dispute having centred on whether the various categories of people were in analogous situations, and whether the difference was justified. Nonetheless, in light of the specific endorsement, in Clift v United Kingdom, of Paulík on the question of status, it is clear that the ECtHR saw the case as an example of a characteristic which did not exist independently of the treatment complained of and yet approved of its

categorisation as an “other status”.

73. The second difficulty with the independent existence condition is that it made its appearance in R (Clift) unsupported by much, if anything, by way of explanation or supportive authority. Lord Hope might have been building upon his observation, at para 45, that the specific grounds all existed independently of the treatment of which complaint was made. However, whilst some of the grounds named in article 14 clearly will always exist independently of the complaint, I am not at all sure that

the same can be said of all of them. “Property” might be a ground which would not

always exist independently, and I think there are probably other examples.

74. The third difficulty is that the independent existence condition is not at all easy to grasp. Mr Clift satisfied it, because he relied upon being a prisoner serving a determinate term of 15 years or more, and his complaint was about the fact that,

by virtue of a subsequent Order, he required the Secretary of State’s approval for his

release, rather than automatically being released if the Parole Board recommended it. The homeless person in RJM, who complained about losing his benefits, also satisfied it. However, it was not satisfied, according to Docherty, where the prisoner was relying upon being a prisoner subject to an indeterminate sentence, and complained that he had been discriminated against by virtue of the fact that he could not have been given that sentence had he been convicted after 3 December 2012. Even with these practical examples, it is a challenge to make general sense of the concept, and things do not improve when one takes into account the width of the approach taken in Strasbourg to the ambit of article 14.

75. In all these circumstances, I would be cautious about spending too much time on an analysis of whether the proposed status has an independent existence, as opposed to considering the situation as a whole, as encouraged by the ECtHR in Clift v United Kingdom. In any event, it can properly be said that the status upon which Mr Stott relies exists independently of his complaint, which is about the provisions concerning his early release. By way of example, his extended determinate term of imprisonment does not only dictate the point at which he is eligible for release on parole; it dictates the period he will spend in prison if parole is not granted, and it brings with it also a licence extension.

76.       A second respect in which the ECtHR differed from the House of Lords was

as to whether Mr Clift’s complaint was based upon the gravity of his offence; it said

not. The Secretary of State argues that Mr Stott’s case is not the same as Mr Clift’s, as Mr Stott’s complaint is not based on length of sentence, as in Mr Clift’s case, but

on his particular sentencing regime, which is dictated by the seriousness of what he
did and the risk he poses.

77.       I am not persuaded by the Secretary of State’s attempt to liken the case to

Gerger and Budak, rather than Clift v United Kingdom, and to exclude the extended determinate term prisoner on the basis that the differential treatment in his case is because of what he has done and the risk he poses. The ECtHR dealt with the Gerger cases in para 61 of Clift v United Kingdom, and explained them as all being concerned with special provisions for those accused or convicted of terrorism offences. They also stressed that any exception to the protection offered by article 14 should be narrowly construed. True it is that an extended determinate sentence will only be imposed where there is a particular combination of gravity of offence and risk, but within the category of those serving extended determinate sentences, there will be various types of offence of varying seriousness. Putting it another way, what Mr Stott did has led to him receiving an extended determinate sentence, but, once imposed, that extended determinate sentence exists independently of what he

did. If a life sentence is capable of constituting an “acquired personal status”, as

Lord Bingham was understandably disposed to think it was (para 28 of R (Clift)), and a determinate term of 15 years is also (Clift v United Kingdom), it is difficult to see why an extended determinate sentence should be viewed differently.

78. I do not think that reliance on Minter assists the Secretary of State in relation to this issue. The complaint in Minter related to a new legislative regime being introduced, which did not benefit the applicant. The selection of a particular date for the commencement of a new legislative regime did not give rise to discrimination when those who were covered by it were treated differently from those who were subject to the old regime. Given the conflating of the various issues of status, analogous situation and justification, in the passage in Minter to which reference is

made, it is difficult to be sure whether, in fact, the ECtHR was rejecting the “other status” argument or not, but in any event, the present case does not involve the

commencement of a new sentencing regime.

79. So, whilst the attributes of the sentencing regime to which Mr Stott is subject will be of central relevance to Issue 2 in due course, for the purposes of determining status, in my view the distinction that the Secretary of State seeks to make between Mr Clift as a prisoner serving 15 years or more and Mr Stott as a prisoner serving an extended determinate term is not a real one. It follows that the decision of the ECtHR in Clift v United Kingdom is potentially influential in evaluating the present case.

80.       As to the argument that the characteristic needs to be analogous to those listed

in article 14, this is difficult to pursue too far in the light of the ECtHR’s acceptance

that a prison sentence of a particular length can be within the article. I have no difficulty in accepting that when considering an as yet unconsidered characteristic, a court will have in mind the nature of the grounds it was thought right to list specifically, but the case law that the court cited in Clift v United Kingdom demonstrates that a strict ejusdem generis interpretation would be unduly restrictive.

81. Bearing in mind that, although not open-ended, the grounds within article 14 are to be given a generous meaning, bearing in mind the warning of the ECtHR that there is a need for careful scrutiny of differential early release schemes, lest they run counter to the very purpose of article 5, and considering all of the case law, I would conclude that the difference in the treatment of extended determinate sentence prisoners in relation to early release is a difference within the scope of article 14,

being on the ground of “other status”.

Issue 2: Analogous situation and justification

82. In order to address the issues concerning the third and fourth elements of the article 14 claim (see para 8 above), it is necessary to understand the sentencing regime to which Mr Stott is subject, and also the other sentences with which he invites comparison. Some of the fine detail of the sentencing regimes is irrelevant for present purposes and has been omitted. Unless otherwise specified, in what follows, references to statute are to the 2003 Act.

The sentencing framework: general

83. Section 142(1) sets out the purposes of sentencing adult offenders, applicable

fairly generally except in relation to life sentences. It provides that a sentencing court
must have regard to:

“(a)	the punishment of offenders,
(b)	the reduction of crime (including its reduction by

deterrence),

(c)	the reform and rehabilitation of offenders,
(d)	the protection of the public, and

(e) the making of reparation by offenders to persons affected by their offences.”

The sentencing framework: EDS

84. The EDS was introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012, as one of the sentences for dangerous offenders replacing the sentence of Imprisonment for Public Protection, and is to be found in section 226A, which was added to the 2003 Act.

85.       Section 226A provides (in the version relevant to this case):

226A	Extended sentence for certain violent or sexual offences:

persons 18 or over

“(1)	This section applies where -
(a) a person aged 18 or over is convicted of a specified offence (whether the offence was committed before or after this section comes into force),
(b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences,
(c) the court is not required by section 224A or 225(2) to impose a sentence of imprisonment for life, and
(d) condition A or B is met.

(2) Condition A is that, at the time the offence was committed, the offender had been convicted of an offence listed in Schedule 15B.

(3) Condition B is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least four years.

the court’s scrutiny may best be directed at considering

whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not

disproportionate in its adverse impact.”

1. There is no such “obvious, relevant difference” here. The three groups in

question are all prisoners serving sentences of imprisonment. From their point of

view, the most important question in their lives is “when will I get out?” Allied to

that may be two subsidiary questions, “who will decide when I get out - will it be

automatic or will I have to go before the Parole Board?” and “if I am let out, what will be the consequences of that?” Each group of prisoners under discussion here is

subject to a different package of answers to those questions. But we must beware of

treating the “package” which means that each of these groups has a different status

as meaning that their situations are not analogous for the purpose of needing a justification for the difference in their treatment. To take an obvious example, women have a different status from men for the purpose of article 14. But the obvious physical differences between men and women do not mean that their situations are not relevantly similar, for the purpose, for example, of their right to liberty or to respect for their family lives. We have to look to the essence of the right in question to ask whether men and women prisoners are in a relevantly similar situation. The essence of the right in question here is liberty. It would obviously be discriminatory to make one sex serve longer sentences for the same crime simply because of their gender (as opposed to other factors which might justify a difference in treatment).

215. The real question in this case has always been whether the difference in treatment can be justified as a proportionate means of achieving a legitimate aim. The background is important here. The EDS was introduced in its current form when the indefinite sentence for public protection (IPP) was abolished. It was considered necessary to replace IPP with a sentence, reserved for those who posed a particular risk to the public, which was demonstrably tougher than an ordinary determinate sentence. As Alison Foulds, policy lead on adult custodial sentencing policy in the Ministry of Justice, explained in her witness statement:

“This was a measure designed to enhance public protection and

maintain public confidence in the sentencing framework. Offenders eligible for an EDS have committed serious offences and been found to be dangerous, and would previously have been eligible for an indefinite sentence, an IPP, but not necessarily a life sentence. The longer period to be served in prison under the EDS is justified on these grounds, and distinguishes the sentence from a standard determinate sentence, and a special determinate sentence for offenders of particular concern, which provide for automatic release at the half way point, or discretionary release from the half way point,

as appropriate.”

216. Protecting the public is undoubtedly a legitimate aim. Furthermore, the

criteria for imposing an EDS include that there is “a significant risk to members of

the public of serious harm occasioned by the commission by the offender of further

specified offences” (Criminal Justice Act 2003, section 226A(1)(b)). The public will

be better protected if he is required to serve more of his sentence in prison and can only be released during the rest of his custodial term if the Parole Board determines that this will be safe. The criterion for imposing the sentence would therefore appear to justify the difference in treatment between an EDS prisoner and a prisoner serving a standard determinate term, even though their actual offences may be commensurate.

217.     The same could be said of offenders serving a special custodial sentence for

“certain offenders of particular concern” (Criminal Justice Act 2003, section 236A).

Here the criterion is not the dangerousness of the particular offender, but the dangerousness of the offence which he has committed: if he is convicted of an offence listed in Schedule 18A, and the court does not impose a life sentence or an

EDS, the court must impose a special sentence which consists of the “appropriate

custodial term” plus an extra year for which he is subject to a licence (section

236A(1), (2)). These prisoners may be let out at half time, but only if the Parole Board decides that this will be safe. These prisoners have not been held to be dangerous in themselves in the same way that prisoners sentenced to an EDS have been held to be dangerous. Nevertheless, this comparison is getting closer to the bone, given the intrinsically dangerous nature of the offences listed in Schedule 18A (most of which have a terrorist connection).

218. The comparison with a discretionary life sentence is more difficult to understand. It is well-established that, in the absence of exceptional circumstances, the specified period which the prisoner must serve before he can be considered for release on licence should be fixed at half of the notional determinate sentence which he would have received for the offence had he not been subject to a life sentence because of his dangerousness: see R v Szczerba [2002] 2 Cr App R(S) 86. Given that a discretionary life sentence prisoner is even more dangerous than an EDS prisoner, how can it be justified that the former can be considered for release on licence after serving half of what would have been an appropriate determinate sentence, whereas the latter must wait until he has served two thirds of the appropriate determinate

sentence? The public’s need for protection is likely to be greater in the case of the

“lifer” than in the case of the EDS prisoner. But in any event, neither can be released

on licence until the Parole Board has determined that it will be safe to do so. The
public is equally well protected in each case.

219.     It is, of course, the case that there are ways in which the EDS prisoner is

better off than the “lifer”. He must be released on licence at the end of his appropriate

custodial term, even if the Parole Board has not determined that this would be safe,

whereas the “lifer” must only be released if this is adjudged safe. Once released on

licence, he can only be returned to prison during the period of his extended sentence,

whereas the “lifer” will remain on licence, and thus subject to return to prison, for

the whole of his natural life. This is the essence of the “package” element which was

pressed on us as a justification for the difference in their early release regimes. The

package should not be “salami sliced” into its component parts for the purpose of

deciding whether each difference in treatment can be justified.

220.     In the end, however, it is easy to see how the additional disadvantages (from

the prisoner’s point of view) of a discretionary life sentence are justified by the

considerations which led the court to impose the sentence in the first place. It is hard to see how, alone of all four types of prisoner considered here, it is thought necessary to insist that an EDS prisoner stays in prison for more than half the custodial term appropriate to the seriousness of his offending. One would have thought that, if anything, a discretionary life prisoner would be even less likely to be fit for release at the half way point. But the speed of rehabilitation is notoriously difficult to predict at the outset. That is why the decision is left to the Parole Board when the time comes to consider release. And the protection which the Parole Board offers to the public is the reason why it is not necessary, for that purpose, to insist that EDS prisoners spend a larger proportion of the appropriate term in prison.

221. That conclusion is to my mind strengthened by the fact that, had he not been bound by the decision of the House of Lords in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, it would also have been the conclusion of Sir

Brian Leveson, President of the Queen’s Bench Division, who has unrivalled

experience in penal matters and would have recognised a justification if there was
one.

222. I would therefore allow this appeal and make a declaration of incompatibility. It would then be for Parliament to decide how, if at all, that incompatibility is to be rectified.

LORD MANCE:

Introduction

223. I have had the advantage of reading in draft the judgments prepared by Lady Black and Lord Carnwath. They reach different conclusions on the issue whether a

prisoner on whom an extended determinate sentence (“EDS”) has been passed under section 226A of the Criminal Justice Act 2003 (“the 2003 Act”) acquires a status on

which he may rely for the purposes of a complaint about alleged discrimination

under article 14 of the European Convention on Human Rights (“ECHR”).

224.     An EDS consists of the appropriate custodial terms, specified in Mr Stott’s

case as 21 years, and a further extension period, specified in his case as four years, during which he was to be subject to a licence. The discrimination alleged is that, under section 246A of the 2003 Act, as introduced by section 125 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 and amended by section 4 of the Criminal Justice and Courts Act 2015, a prisoner subject to an EDS of ten years or

more must serve a “requisite custodial term” of normally two-thirds of his specified

appropriate custodial term, before being eligible for consideration by the Parole Board for release on licence. Serving an EDS of less than ten years, imposed prior to 13 April 2015, and not in respect of an offence listed in Parts 1 to 3 of Schedule 15B to the Criminal Justice Act 2003, are automatically released once they have served two-thirds of the requisite custodial period (section 246A(2) of the 2003 Act). Under his EDS, Mr Stott would thus have to serve 14 years, before being eligible for referral to the Parole Board for consideration.

225. The comparisons which Mr Stott seeks to draw are with prisoners sentenced to both determinate and indeterminate sentences. The former (determinate sentence prisoners) are, as Lady Black explains (para 90), entitled to be released on licence

automatically, once they have served a “requisite custodial sentence”, which is in

their case one-half of their sentence.

226. It is worth noting, in parenthesis, that under the régime of extended sentences which was introduced by section 227 of the 2003 Act, was in force until 3 December 2003 and was the precursor of the régime presently in issue, a prisoner was also entitled to automatic release on licence once he had served half of the requisite custodial sentence. Further, under the special custodial sentence regime introduced by Schedule 1 to the Criminal Justice and Courts Act 2015 as amended by section 236A of the 2003 Act, whereby a court could impose the appropriate custodial sentence plus a further period on licence of one year, a prisoner was entitled to have his suitability for release on licence considered by the Parole Board after serving half such sentence. The special custodial regime was available for inter alia an offender who had raped a child under 13, which it happens was also offending for which Mr Stott was sentenced.

227. In respect of prisoners serving indeterminate sentences, the judge will determine a minimum custodial sentence which the offender must serve before being eligible to apply for early release, although the court may disapply this provision if the seriousness of the offending justifies this course. In the case of a mandatory life sentence, the minimum custodial sentence must take account of various factors, none expressly linked with any notional determinate term. In the case of a discretionary life sentence, the court must, under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, identify what sentence would have been appropriate had a determinate sentence been imposed and take account of the fact that the offender would then have been entitled to early release: see Lady Black, para 103. In practice,

this normally leads to a “tariff” period of half the notional determinate period

although, in exceptional circumstances requiring the giving of proper reasons, the sentencing judge may as a matter of discretion fix the tariff at half or two-thirds or somewhere in between: R v Szczerba [2002] 2 Cr App R(S) 86; R v Jarvis [2006] EWCA Crim 1985; R v Rossi [2015] 1 Cr App R(S) 15.

Status

228.     The first question in these circumstances is whether Mr Stott can claim to

have an “other status” for the purposes of invoking article 14 of the ECHR. I agree

with Lady Black that he can. I accept that the requirement of an “other status” cannot

simply be ignored, or subsumed in the question whether any discrimination is unjustified. This is for at least three reasons. First, the language of article 14 states

that there must be discrimination on a ground “such as” those specified, the last being “other status”. There would be no point in this language, if the only question

was whether there was discrimination.

229. Secondly, the ECtHR has expressly accepted as much in Clift v United Kingdom (Application No 7205/07), paras 55 to 56, while at the same time stating,

at para 61, that “any exception to the protection offered by article 14 ... should be narrowly construed”. While it may be odd to speak of a criterion for the application

of article 14 as an exception, the general idea is clear enough: (a) the concept of

“status” should be construed broadly, but (b) not every difference in treatment is on

the ground of status.

230. Thus, a difference in treatment regarding automatic parole between terrorism-related and other offences was held not to be on the ground of status in Gerger v Turkey (Application No 24919/94). It was a difference based on the differing gravity of the offence, rather than on any status. For the same reason, a mere difference in the sentence imposed cannot of itself amount to a difference in status. This also explains the difference in treatment by Lord Hughes of the two arguments raised in favour of the existence of a status in R v Docherty (Shaun) [2016] UKSC 62; [2017] 1 WLR 181, para 63. As to the second argument, the mere imposition of an indeterminate sentence under the appropriate sentencing regime could not give the offender a different status. As to the first, however, Lord Hughes left open the possibility that the offender had a different status because he had been convicted prior to 3 December 2012, when the appropriate sentencing regime provided for an indeterminate sentence, rather than after 3 December 2012, when indeterminate sentences for public protection were abolished. He held instead that any discrimination on the ground of status was justified.

231. That a mere difference in treatment does not by itself constitute a difference in status is a proposition which is difficult to fault in the light of Gerger and what I have already said. But problems have arisen from attempts to extend the application of such a proposition to cases beyond its scope. This is, I think, the root of the third difficulty expressed by Lady Black in the first sentence of para 74 of her judgment. There is no reason why a person may not be identified as having a particular status when the or an aim is to discriminate against him in some respect on the ground of that status. Thus, in Clift the categorisation of Mr Clift as a prisoner serving a

sentence of more than 15 years’ imprisonment (a bright-line distinction clearly

associated in the legislature’s mind with a significantly higher level of risk) was with

a view to the discriminatory treatment about which Mr Clift complained, since it meant that he would receive less favourable treatment (a) as regards early release, than life prisoners presenting on their face an even greater risk, and also (b) as regards prisoners serving sentences of less than 15 years, since his release would be subject to approval by the Secretary of State who could contribute nothing relevant to any evaluation of continuing risk. It is to my mind unsurprising that such categorisation was in these circumstances regarded as giving Mr Clift a relevant status. It was common ground in Clift that being a prisoner was a status, and it was a short step from that in the circumstances to accepting that being a particular type of prisoner, namely one serving a determinate sentence of 15 years of more and viewed accordingly as presenting a particular risk (which was however addressed in a discriminatory fashion), could also be identified as a status.

232. Similarly, it is difficult to see any real problem about attributing a relevant status to the complainant in Paulík v Slovakia (2006) 46 EHRR 10. He had the status of a father whose paternity had been established by judicial determination, in contrast with the different status of a parent whose paternity was legally presumed without judicial determination. The discrimination between these two statuses was that in the latter case paternity could subsequently be disproved by a DNA test, whereas in the former case no such procedure existed under domestic law.

233.     The ECtHR in para 60 of its judgment in Clift rejected “the Government’s

argument that the treatment of which the applicant complains must exist

independently of the ‘other status’ upon which it is based”. It reasoned that in Paulík

“there was no suggestion that the distinction relied upon had any relevance outside

the applicant’s complaint”. One might question if that could really have been so: it

seems, self-evidently, one thing to have to prove paternity in court and thereafter, whenever the need arose, to have to identify a valid and enforceable court decision establishing paternity, and another matter to be able simply to rely on a factual presumption. Leaving that thought on one side, however, Clift suggests that a difference in the basis of established paternity represented a sufficient difference in status, even though the only continuing effect of the distinction consisted in the discriminatory possibility in the one case and impossibility in the other of subsequent disproof of paternity by a DNA test.

234. The same point can be tested by supposing a person who was discriminated against on the ground of some previously held, but now abandoned, religious belief or political or other opinion. That would surely be discrimination on an illegitimate ground within the language of article 14. It is likewise notable that article 14

expressly identifies “national or social origin” and “birth” as a prohibited ground of

discrimination.

235. Thirdly, article 14 addresses discrimination, whether deliberate or

unconscious, having a “systematic” nature in the sense that it occurs on the ground

of a characteristic or characteristics in some sense attributed to the victim, whether innately or as a matter of choice or against their will: see the discussion in Clift at

paras 56 to 59; and see also Lady Black’s judgment at para 56(i) to (iii) and 63.

Article 14 is not targeted at achieving complete equality of treatment. A firm which haphazardly treated different customers with different standards of attention because its different employees were not consistently trained to perform to the same standards could not be said to be discriminating on the ground of any status possessed by any of its customers. A person who refused to serve a customer within ordinary hours (or to stay open late out of hours, when normally he would have been prepared to do so) because he had a headache could not be said to be discriminating on the ground of any status possessed by the or any customer. There would be no question of him having to justify his conduct by reference to the severity of his headache.

236. In the present case, I conclude without hesitation that Mr Stott possesses a relevant status, independent of the difference in treatment about which he is complaining. He is subject to an EDS, which is a sentence distinct from and has characteristics differing from those of any ordinary determinate or indeterminate sentence. The difference of treatment about which he complains consists in one consequence of his being given an EDS, namely that he was and is subject to a different regime as regards eligibility for consideration for parole.

237. Mr Southey QC representing Mr Stott felt, rightly, obliged to concede that the claim must fail before the Administrative Court on the issue of status, because of the decision of the House of Lords in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 1 AC 484. It follows from what I have already said that, in my opinion, the Supreme Court should now depart from that decision, and follow the clear guidance given by the ECtHR in Clift v United Kingdom. I should add that, in reaching this conclusion, I have benefitted substantially from

Lady Black’s comprehensive analysis of the authorities on status. Save to the limited

extent that appears from what I have said above, I have no comment on and see no

reason to disagree with that analysis.

Analogous position and justification

238. The decisive questions are therefore whether an offender like Mr Stott serving an EDS is in an analogous position to an offender serving a determinate or indeterminate sentence, and, if so, whether the difference in treatment of an EDS offender as regards parole is objectively justified. In this connection, I have come ultimately to a different conclusion to Lady Black and Lord Carnwath.

239.     First, the ECtHR in Clift had no difficulty in treating prisoners serving more

and less than 15 years’ imprisonment and life prisoners as all being in an analogous

position, “insofar as the assessment of the risk posed by a prisoner eligible for early

release is concerned”: para 67. On this basis, the question is whether the differences

in their treatment as regards release on licence are justified. Like Lady Black, I do not consider that this question is avoided by the argument, advanced by the Secretary of State, that the whole of all such sentences should be seen as imposed as punishment for the offences committed, rather than as having two components, a punitive part followed by a preventive part. However such sentences may in other contexts be analysed, it remains the case that the differences between them regarding early release have significant advantages or disadvantages for the relevant prisoners, which once identified call for examination and justification.

240. Second, as regards justification, the ECtHR accepted in Clift that more stringent early release provisions could be justified where a particular group of prisoners could be demonstrated to pose a higher risk to the public upon release: para 74. On that basis, it accepted in principle that the application of more stringent

early release provisions might “have to be dependent on a bright-line cut-off point”

and considered “that such a bright-line distinction will not of itself fall foul of the

Convention”; accordingly, the fact that different early release provisions applied to

those serving determinate sentences of 15 years or more, compared to those serving
less than 15 years, did not of itself suggest unlawful discrimination: para 76.

241. The reason the ECtHR regarded the difference in Clift between treatment of, on the one hand, prisoners serving more than 15 years’ imprisonment and, on the other hand, prisoners serving less than 15 years’ imprisonment or serving

indeterminate sentences as unjustifiable was the requirement for the Secretary of State to consent to implementation of any Parole Board recommendation for release in the case of the former: paras 77 to 78. The ECtHR said in this connection that:

“The differential treatment of prisoners serving 15 years or

more, whose release continued to be dependent on the decision of the Secretary of State, had become an indefensible anomaly, as the assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task which was at the relevant time recognised to have no political content and one to which the Secretary of State could not, and did not claim to, bring any superior expertise

…”

242.     The ECtHR also held the difference in treatment in Clift between prisoners

serving in excess of 15 years’ imprisonment and life prisoners to be unjustified for

a further reason. Life prisoners apparently presented a greater risk than a prisoner on whom a determinate sentence had been passed. Yet there was in their case no requirement that the Secretary of State consent to their release. Once release was

recommended by the Parole Board, it was the Secretary of State’s duty to direct their

release on licence.

243. By the same token, in the present case, a more stringent release regime for prisoners sentenced to an EDS could be regarded as justified, when compared with that applicable to prisoners sentenced to an ordinary determinate sentence. Any

ordinary determinate sentence and the “appropriate” custodial term to be served

under an EDS fall to be determined on the principle set out in section 153(2) of the

Criminal Justice Act 2003, that they:

“must be for the shortest term (not exceeding the permitted

maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the

offence and one or more offences associated with it.”

One pre-condition to the imposition of an EDS is, however, that “the court considers

that there is a significant risk to members of the public of serious harm occasioned

by the commission by the offender of further specified offences”: section

226A(1)(b) of the 2003 Act. Another (at the relevant time) was that the court was

“not required by section 224A or 225(2) to impose a sentence of imprisonment for

life”: section 226A(1)(c).

244. Applying similar reasoning to that of the ECtHR in Clift, Parliament could be taken to have considered that this risk was in the case of an EDS prisoner sufficiently significant (a) to require release on licence during the currency of the appropriate custodial term to depend on a Parole Board recommendation, (b) to require two-thirds of such term to have run, before the Parole Board considered whether to make such a recommendation and (c) to require an extended period on licence after expiry of the appropriate custodial term. In contrast, release on licence is, in the case of an ordinary determinate prisoner, automatic once he has served the

“requisite custodial period” consisting of half their nominal sentence: section 244.

The Administrative Court in Sir Brian Leveson, President of the Queen’s Bench Division’s full and helpful judgment, was not persuaded that there was any

justification for a distinction which necessarily assumes that EDS prisoners remain as a class a significant risk until the two-thirds point, depriving them of even the chance of demonstrating their safety for release on licence until that point, whereas all ordinary determinate prisoners are assumed to be safe for automatic release at the

half way stage. I see the force of the Administrative Court’s view, but in the light of

the ECtHR’s approach in Clift and my conclusions regarding the comparison with

indeterminate prisoners in the ensuing paragraphs, I do not base my judgment on it.

245. It is, on any view, even more difficult to understand the logic of an apparently more stringent regime for EDS prisoners, when compared with discretionary life prisoners, in circumstances where the offending was, by definition, not of such a seriousness as to attract a life sentence. The tariff period for a discretionary life prisoner is, barring exceptional circumstances, set at half the notional determinate period. Once that tariff period has expired, the life prisoner has a right to require the Secretary of State to refer his case to the Parole Board, and to be released on licence if the Parole Board is satisfied that such release is, in short, safe: Crime (Sentences) Act 1997, section 28(5).

246. A prisoner serving an EDS, therefore, is likely to be in a significantly worse position, as regards consideration by the Parole Board and release on licence, than a discretionary life prisoner, although the latter is likely to have committed a more serious, or no less serious, offence. It is true that in other respects a life prisoner is treated more severely: if the Parole Board is not satisfied as to the safety of his release, he may remain in prison indefinitely and, if he is released, he remains on licence and may be recalled throughout his life. But this is inherent in the nature of a discretionary life sentence, and, if anything, suggests that one would expect a more, rather than less, severe regime of review for release on licence to apply to life prisoners. It is also the case that some life prisoners may be less dangerous and safer at an earlier stage for release than some prisoners serving an EDS. But that is not the general position. None of these factors explains why life prisoners are in the great generality of cases likely to be eligible for consideration of their safety for release on licence by the Parole Board at a considerably earlier point than prisoners serving an EDS can hope for. Eligibility for consideration for release is merely the gateway to consideration by the Parole Board of safety for release on licence. It does not prejudge that question. No real explanation or justification has been given for a difference in treatment, which has important practical consequences for the prisoners affected and must seem a palpable anomaly.

247. The position regarding mandatory life prisoners is less easy to compare with that of prisoners serving an EDS. As Lady Black explains in para 102, the sentencing judge determines, in the light of the seriousness of the offence and other circumstances, a minimum custodial period after the expiry of which the prisoner has a right to require the Secretary of State to refer him to the Parole Board and a right to be released on licence if the Parole Board so recommends. But there appears to be no general or normal rule as to the length of this period, as there is in the case of discretionary life sentences: see R v Szczerba, cited above.

248. In the event, I conclude that prisoners serving an EDS are in a significantly worse position as regards eligibility for consideration by the Parole Board and release on licence, when compared with discretionary life prisoners, that no convincing explanation or justification for this difference has been shown and that section 246A(8)(a) of the Criminal Justice Act 2003 is for this reason incompatible with article 14 read with article 5 of the ECHR, in so far as it requires two-thirds of the relevant custodial period to have expired before any such eligibility arises. Since preparing this judgment on the issues of analogous situation and justification, I have also had the advantage of reading what Lady Hale says in her paras 213 to 222, with which I find myself in agreement on these issues. It follows that, in my opinion, the appeal succeeds, and Mr Stott is entitled to succeed to a corresponding declaration of incompatibility.