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Cite as: [2012] EWHC 2184 (Admin), [2012] WLR(D) 241

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Neutral Citation Number: [2012] EWHC 2184 (Admin)
Case No: CO/3816/2011


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



R (on the application of Caron Foley)
- and -

(1) The Parole Board for England and Wales
(2) The Secretary of State for Justice


(Transcript of the Handed Down Judgment of
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Hugh Southey QC (instructed by Irwin Mitchell LLP Solicitors) for the Claimant
Sam Grodzinski QC (instructed by Treasury Solicitor) for the Defendants

Hearing dates: 15th May 2012



Crown Copyright ©

    Mr Justice Treacy :


  1. In this case the Claimant challenges the lawfulness of the Parole Board's decision dated 20th January 2011 in which the Board found her unsuitable for release on licence. The Claimant was at about the half way stage of a determinate sentence of eighteen years imprisonment imposed for offences including arson with intent to endanger life and manslaughter.
  2. In December 2001 the Claimant started two fires in a house belonging to an acquaintance of hers. In the course of the second fire a forty five year old man and his seven year old daughter were killed. The Claimant pleaded not guilty at trial. She denied that she had deliberately started the fires. The jury convicted her on counts of arson, arson with intent to endanger life, and two counts of manslaughter. She was sentenced by Sachs J on 1st November 2002 at Manchester Crown Court. In his sentencing remarks he referred to her having acted out "a bizarre charade of denial" and said that in his view she was a very dangerous and manipulative woman. This conviction was, of course, recorded before the dangerousness provisions of Chapter 5 of the Criminal Justice Act 2003 had been enacted. Accordingly the judge had a choice between the imposition of a life sentence and a long determinate sentence. The judge imposed the latter form of sentence.
  3. That being so, the Claimant's release is governed by the provisions of the Criminal Justice Act 1991. Section 33(5) of that Act defines a long term prisoner as "a person serving a sentence of imprisonment for a term of four years or more". The Criminal Justice Act 2003 has affected the release provisions of the 1991 Act. Because the Claimant's offences fall within a list of violent and sexual offences set out in Schedule 15 of the Criminal Justice Act 2003, her release is governed by Sections 33(2) and 35(1) of the 1991 Act. The effect of these provisions is that the Claimant was eligible for release upon reaching the half way point of her sentence if the Parole Board recommended such release, (Section 35(1)), and entitled to release at the two thirds point of her sentence, (Section 33(2)). The latter date would be on 10th January 2014.
  4. Section 32(6) of the 1991 Act provides as follows:
  5. "The Secretary of State may also give to the Board directions as to matters to be taken into account by it in discharging any functions under [this Part or Chapter II]; and in giving any such directions the Secretary of State shall in particular have regard to – (a) the need to protect the public from serious harm from offenders; and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."
  6. In May 2004 the Secretary of State issued directions pursuant to Section 32(6) of the 1991 Act in relation to determinate sentence prisoners. In contrast to the position in relation to indeterminate sentence prisoners, there is no statutory test for the release of determinate sentence prisoners.
  7. The May 2004 directions state that:
  8. "In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable."
  9. As already indicated the release regime for indeterminate sentence prisoners is somewhat different. Firstly, Section 28(6)(b) of the Crime (Sentences) Act 1997 provides a statutory test for the release of indeterminate sentence prisoners, namely that such prisoners should be released if:
  10. "the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
  11. In August 2004 the Secretary of State issued directions pursuant to Section 32(6) of the 1991 Act to the Parole Board. These directions state that:
  12. "The test to be applied by the Parole Board in satisfying itself that it is no longer necessary for the protection of the public that the prisoner should be confined, is whether the lifer's level of risk to the life and limb of others is considered to be more than minimal."

    This is sometimes referred to as "the life and limb test".

  13. The point at which a lifer or other person serving an indeterminate sentence may apply for release is at the expiry of their tariff. The tariff expires at the half way point of the notional determinate sentence which will have been identified by the court when sentencing the offender to an indeterminate term. That half way point, or tariff as it is commonly called, represents the punitive and deterrent element of a sentence passed. Time spent in custody after that point is not regarded as the punitive element of the sentence, but rather as the element necessary to manage the risk to life and limb which the offender poses to the public and which forms part of the rationale for the passing of an indeterminate sentence. This latter phase of the sentence which will continue until the Parole Board judges that the offender is safe to be released is in effect risk management by way of custody.
  14. It will be appreciated that there are differences between the two tests. In relation to determinate sentence prisoners the focus is on the risk to the public from any further offending (violent or otherwise) being committed at a time when the prisoner would otherwise be in prison. Moreover, the consideration is as to whether the risk is "acceptable". This latter aspect involves a balancing of benefits to public and offender of early release into the community under supervision which might help rehabilitation and thus lessen the risk of reoffending in the future against the benefits of safeguarding the public by continuing to detain the offender.
  15. In the case of indeterminate sentence prisoners the focus relates specifically to risk to the life and limb of others rather than from the commission of offences generally. In addition a different threshold is in place, namely whether the risk is considered to be "more than minimal" as opposed to "acceptable".
  16. Prior to the consideration of the Claimant's case by the Parole Board on 20th January 2011 her representatives had submitted that the test to be applied in determining whether she should be released after serving half her sentence was that which applied when consideration was given to release of those serving an indeterminate sentence. This submission was rejected by the Parole Board which commented that the panel had no discretion in relation to which test it applies. It applied the determinate prisoner's test as set out in the May 2004 direction.
  17. The Claimant asserts that the test applied to her is more onerous than that applied when the release of an indeterminate prisoner is considered. It is argued that this represents a violation of Article 14 of the European Convention on Human Rights. Article 14 provides:
  18. "Prohibition of discrimination
    The enjoyment of the rights and freedoms set out 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 an national minority, property, birth or other status."
  19. It is the last of those categories, "other status", with which we are concerned in this matter.
  20. Although the Parole Board made plain in its decision that it was applying the test applicable to determinate rather than indeterminate sentencing prisoners, it is clear that the risks about which the Board was concerned in this case included a risk of the Claimant committing further offences of a type similar to those for which she had been imprisoned. The panel was also concerned about the Claimant's ability to be able to manage "any risky situation that might arise should your life destabilise in future…". There would therefore be an argument available to the Defendants that even if the Board had applied the "life and limb" test applicable to the release of indeterminate sentence prisoners, it could not realistically be said that it would have reached a different conclusion in the Claimant's case. However, the Defendants recognise that the Claimant's argument raises a point of principle which, if not decided in the present case, is likely to arise in another one. Accordingly, this potential argument has not been pressed and the court has not been invited to dispose of the claim on the grounds that it is academic.
  21. The claim which is summarised at paragraph 13 above requires a court to consider a number of distinct questions. The answers to some of those questions are not in dispute between the parties. I will identify them and then move on to the two issues which the parties pose for the court's consideration.
  22. Firstly the court must ask whether the matters complained about come within the ambit of a right protected by the European Convention on Human Rights. The parties agree that this is the case, having regard to the decision of the House of Lords in R (Clift) v Secretary of State [2007] 1 AC 484, hereinafter referred to as "Clift (HL)". See for example paragraph 24 of Lord Bingham's speech with which other members of the House agreed.
  23. There is no need for a freestanding violation of an Article of the Convention other than Article 14, such as Article 5, to be established. No such breach is alleged in this case, but it is recognised that Article 14 is capable of being invoked in circumstances where the early release provisions engage Article 5 and where alleged discriminatory provisions as to such release exist.
  24. The second question is whether there is a difference in treatment between different classes of prisoner under consideration for release. There is no dispute that there is a difference between the test applied by the Parole Board when deciding on the early release of determinate sentence prisoners and the test to be applied when deciding on the release of lifers and other indeterminate sentence prisoners once their tariff has expired.
  25. The first issue: "other status"

  26. The next question to be addressed is whether the difference in treatment of which the Claimant complains was on the basis of any of the grounds specified in Article 14 (see Clift (HL) at paragraph 25). This question requires consideration of whether the difference in treatment is based upon a status coming within the scope of Article 14. Unless it does, the claim based on Article 14 must fail. It is at this point that the first matter for resolution by the court arises. It is common ground that the only matter within Article 14 upon which the Claimant could rely is "other status".
  27. The Defendants rely on the decision in Clift (HL) in which the House of Lords held that the classification of a prisoner serving a long determinate sentence of fifteen years or more as opposed to a life sentence or a shorter determinate sentence did not constitute "other status" for the purposes of Article 14. See Lord Bingham at paragraph 28 with whom the other members of the House agreed. Notwithstanding their Lordships' unanimity on the point, the conclusions appear to have been reached with a degree of reluctance or hesitation. However, their Lordships resolved the matter on the basis that Strasbourg jurisprudence had not yet recognised such a step, and that it was not for a national court to outpace the evolution of Strasbourg jurisprudence.
  28. The Claimant recognises the precedent in Clift (HL) but points to the fact that subsequently the European Court of Human Rights decided in Clift v United Kingdom [2010] ECHR 7205/07 BAILII: [2010] ECHR 1106, hereinafter "Clift (ECHR)", that Mr Clift did indeed enjoy "other status" for the purposes of Article 14. Thus the Strasbourg court came to the opposite conclusion to the House of Lords which, if applied by this court, would enable the Claimant to surmount the hurdle of the first contentious issue.
  29. Mr Southey argued that since the House of Lords' concern was the absence of European authority rather than any conflict with domestic law, the Strasbourg ruling should prevail in this court.
  30. He recognised that the issue of precedent had been considered by the House of Lords in Kay and Others v Lambeth LBC [2006] 2 AC 465. At paragraphs 43 and 44 Lord Bingham stated that the general rule is that adherence to precedent applies. However, at paragraph 45 Lord Bingham acknowledged "one partial exception" before going on to state that departure from precedent is not permissible save where the facts are of an "extreme character". Mr Southey submitted that this was an exceptional case.
  31. Mr Grodzinski disagreed. He observed that the facts of this case do not come anywhere near the type of partial exception identified in paragraph 45 of Kay. The situation considered in Kay was one where the effect of the Human Rights Act 1998 was to undermine the policy considerations that lay behind the House of Lords' decision. No such considerations applied in this case. Nor were there the additional considerations identified in paragraph 45 which could make this case a very exceptional one. We were additionally referred by Mr Grodzinski to R (Purdy) v DPP [2009] EWCA Civ 92 and in particular paragraphs 51 to 54, and GC v Commissioner of Police of the Metropolis [2010] EWHC 2225 (Admin) at paragraphs 31 to 35.
  32. I have no hesitation at all in concluding that Mr Grodzinski's submissions are correct, and that in the light of the authorities cited, we are bound by the decision of the House of Lords in Clift (HL) to conclude that the Claimant cannot bring herself within the "other status" provision of Article 14 and that her claim must fail on that basis.
  33. The second issue: objective justification

  34. Although the determination of that question dictates the decision in relation to this claim, it is appropriate to make findings in relation to the second contentious issue. Briefly put, the question is whether there is objective justification for the difference in release tests to be applied as between lifers or other indeterminate prisoners and prisoners serving determinate sentences. Neither Clift (HL) nor Clift (ECHR) was directly concerned with this specific issue. Both were concerned primarily with a different issue, namely whether there was objective justification for the Secretary of State to have the final say in release decisions for those serving determinate sentences of fifteen years or more when those serving indeterminate terms or determinate terms of less than fifteen years had their decisions on release made by the Parole Board. That was a distinction which each court concluded could not be objectively justified. As will be seen, the Claimant relies on observations made in Clift (ECHR) which she submits have a direct relevance to the question before this court.
  35. Characterising this second issue in terms of objective justification is convenient shorthand for tests proposed in slightly different ways in earlier authorities. Mr Southey favoured approaching the matter by reference to two steps, relying on Clift (ECHR). Firstly the court should ask whether the Claimant was in an analogous position to other prisoners treated more favourably. Then the court should ask whether the difference in treatment was objectively justified.
  36. Mr Grodzinski contended for a single question based on the observations of Maurice Kay LJ in R (The British Gurkha Welfare Society and Others) v Ministry of Defence [2010] EWCA Civ 1098. There Maurice Kay LJ proposed a single question, namely "Is there enough of a real difference between X and Y to justify different treatment?" This was a formulation proposed by Lord Hoffman in an earlier case. Maurice Kay LJ concluded that there was no difference between the two formulations. Counsel before us have not contended to the contrary, and it is those questions I have in mind when I refer to the issue as one of whether objective justification exists in this case.
  37. Objective justification: The Claimant's submissions

  38. Mr Southey begins by pointing out that under the 1991 Act long-term determinate prisoners (that is those serving a term of four years or more) are eligible for release at the half way stage of their sentence. (In the case of a long term prisoner such as this Claimant who is serving a sentence for a specified violence or sexual offence, there is no entitlement to release until two thirds of the sentence has been served.) At the half way stage the test to be applied by the Parole Board in considering early release is that set out at paragraph 6 above. The focus of the test is the risk of the offender committing a further offence of any sort.
  39. In the case of lifers and others serving indeterminate sentences, the Court of Appeal (Criminal Division) in R v Szczerba [2002] 2 Cr App R (S) 86 considered the relationship between the minimum term that should be imposed when a prisoner is being sentenced to life imprisonment and the notional determinate sentence that would have been imposed had no life sentence been passed. The court said that half of the notional determinate term should normally be taken as the minimum term to be served. Since Szczerba that is the minimum term or tariff which is set by judges in passing sentence in indeterminate cases. Once the half way period has been reached, that is recognised as being the point at which the offender has served the punitive and deterrent element of his or her sentence. Thereafter any further time spent in custody is seen as pertaining to the risk to the public posed by the offender. The indeterminate offender may seek release on licence at the half way stage of the sentence. The test to be applied is the life and limb test set out at paragraph 8 above.
  40. This test focuses solely on the risk of offences causing physical or serious psychological harm to others in the future.
  41. Thus, it is argued that the test for release applied to determinate sentence prisoners is more onerous than that applied to indeterminate sentence prisoners. It is said that both categories are in an analogous position because both undergo a process of risk assessment by the same body, the Parole Board, at a point which represents the expiry of the punitive and deterrent element of their sentences. Since those who are serving indeterminate sentences are serving them because the sentencing judge has determined that they represent a greater danger to the public than do those who qualify for determinate sentences, it is anomalous and unjust that a person serving a determinate sentence, and who is thus to be viewed as less dangerous than an indeterminate prisoner, should be subjected to a stiffer test which must be satisfied prior to gaining release.
  42. In argument Mr Southey posed a hypothetical case of a co-accused of this Claimant who had been sentenced alongside her in 2002. If the judge had viewed that co-accused as equally culpable, but had in the case of the co-accused because of dangerous mental instability imposed a life sentence with a notional determinate term of eighteen years, the same length as the determinate term imposed on this Claimant, that co-accused would be applying for release at the same time as this Claimant, but on more favourable terms.
  43. Mr Southey laid considerable emphasis on Clift (ECHR). He pointed out that the requirement to demonstrate an analogous position does not require that the comparator groups be identical. It is sufficient if a Claimant was in a relevantly similar situation to others treated differently. See paragraph 66 of Clift (ECHR).
  44. He asserted that long term determinate prisoners and those serving an indeterminate sentence were in an analogous position based on the court's assessment in paragraph 67.
  45. "In the present case, the Court notes that the applicant's complaint concerns provisions regulating the early release of prisoners. The decision whether to allow early release is a risk-assessment exercise: Failure to approve early release is not intended to constitute further punishment but to reflect the assessment of those qualified to conduct it that the prisoner in question poses any unacceptable risk upon release…The Court accordingly considers that, insofar as the assessment of the risk posed by a prisoner eligible for early release is concerned, there is no distinction to be drawn between long term prisoners serving less than fifteen years, long term prisoners serving fifteen years or more and life prisoners. The methods of assessing risk and the means of addressing any risk identified are in principle the same for all categories of prisoners."
  46. Thus the court concluded that Clift who was a long-term prisoner serving more than fifteen years was in an analogous position to long-term prisoners serving less than fifteen years and also to life prisoners.
  47. Mr Southey then argued that there was no justification for the difference in treatment, relying on paragraph 75 of Clift (ECHR).
  48. "In respect of the difference in treatment between prisoners serving determinate sentences of fifteen years or more and those serving indeterminate sentences, the Court observes that the imposition of a determinate sentence rather than an indeterminate sentence would appear to indicate that the individual in question poses a lower, and not a higher, risk upon release. The Court has found that only considerations of risk could justify the imposition of different early release requirements in the present case (see para 74 above). Given the apparently greater risk posed by life prisoners the Court is of the view that a system which imposes on them less stringent conditions for early release while prisoners serving fixed-term sentences of fifteen years or more are subject to more stringent conditions appears to lack any objective justification. In this regard, the requirements of Article 5(4) concerning the right of life prisoners to have their initial release determined by a judicial body cannot provide the justification for treating long-term prisoners less favourably."
  49. The court then, having noted Lord Bingham's observation at paragraph 33 of Clift (HL) that the differential treatment of prisoners serving fifteen years or more had become an indefensible anomaly by virtue of the role of the Secretary of State, itself concluded that the early release scheme to which Clift was subject lacked objective justification because of the additional requirement in the case of those serving fifteen years or more for the approval of the Secretary of State.
  50. Those findings are at the heart of Mr Southey's submissions. He recognises that Clift (ECHR) did not consider the substantive test to be applied on early release. However, he submits that the reasoning of the European Court is to the effect that given the greater risk posed by indeterminate prisoners, a system which imposes on them less stringent conditions for early release than prisoners serving a fixed term appears to lack any objective justification. He argues that the logic of Clift (ECHR) must apply to the release test as well as to the procedural complaint which was before the court. Given the importance attached to liberty within the ambit of Article 5 it would be odd if that were not the case.
  51. Mr Southey also drew attention to paragraph 79 of the speech of Lord Brown in Black v Secretary of State for Justice [2009] UKHL 1 where Lord Brown commented on the "incongruity" of the difference between the two types of directions given by the Secretary of State to the Parole Board in relation to release of determinate and indeterminate prisoners. Black, of course, was not concerned with the present point, but rather a different one as to whether Article 5(4) was engaged in relation to a decision to refuse early release to a prisoner serving a determinate term exceeding fifteen years.
  52. Mr Southey submitted that in looking at the question of more stringent conditions there were two possible routes by which conditions could be said to be "more stringent" in the case of determinate prisoners. Firstly, as already foreshadowed, he argued that the life and limb test does not apply to determinate prisoners with the result that they can be detained in relation to a risk which relates to a far wider range of offending. Mr Southey's second route was to assert that indeterminate prisoners can only be detained where there is sufficient causal connection between the conviction and the deprivation of liberty. See Weeks v UK [1998] 10 EHRR 293 and Stafford v UK [2002] 35 EHRR 32. However there is no such restriction in relation to determinate prisoners, thus providing an alternative, narrower way in which the claim is put.
  53. In Stafford the applicant had been convicted of murder and sentenced to mandatory life imprisonment. He was released on licence, but was subsequently convicted of offences of dishonesty and sentenced to six years imprisonment. His life licence was revoked at a time when he would normally have been released from prison on expiry of the sentence for fraud. The decision to detain Stafford further was justified on the basis that if released he might commit further offences of dishonesty. In finding for the applicant the court observed that there was no power under domestic law to impose indefinite detention to prevent future non-violent offending. It said it could not accept a decision to detain the applicant on the basis of perceived fears of future non-violent criminal conduct unrelated to his original murder conviction. Accordingly, it found a violation of Article 5(1).
  54. Mr Southey said that in the Claimant's case either route would demonstrate a violation of Article 14 because each route had the same effect. He said that in reality the life and limb test was the domestic application of Weeks and Stafford.
  55. There would, he said, be implications in a case where a prisoner was serving a Criminal Justice Act 1991 term for a non-violent offence. The broader first route would prevent detention on the basis of a risk of offences similar to those resulting in the initial sentence. However, he pointed out that this would be consistent with the present legislative scheme governing most determinate prisoners who are entitled to automatic release at the half way point. The narrower second route would address that issue. It would leave all prisoners in an identical position as their cases would be governed by Weeks and Stafford.
  56. Application of this second route would not mean that more serious offending resulted in a less onerous release test. The requirement that there must always be sufficient causal connection between the conviction and the deprivation of liberty (see paragraph 64 of Weeks), would amount to the application of the same test to all prisoners. It would be no less onerous for those serving indeterminate sentences than for those serving determinate terms.
  57. Objective justification: The Defendant's submissions

  58. Mr Grodzinski, for the Defendants, argued that it was in no way contrary to Article 5 for the Parole Board to take into account the risk of further non-violent offending even where the index conviction involved an offence of violence. He said it would also be contrary to common sense for the Parole Board, for example, to be obliged to release a fraudster at the half way stage of his sentence when it was clear that he intended to reoffend in the same way after release. He observed that in Black the House of Lords held that the requirements of Article 5 are satisfied by the original sentence until the non-parole release date, i.e. the two thirds point of the sentence.
  59. He accepted that the different tests to be applied by the Parole Board were potentially more onerous as far as a determinate term prisoner was concerned, but submitted that there was ample justification for this, based on important differences between determinate and indeterminate sentences. Mr Grodzinski submitted that a Criminal Justice Act 1991 long-term determinate sentence is punitive in effect even after the half way point has been reached. Accordingly, there is no true comparison between the half way point in a determinate sentence and the minimum term point of an indeterminate term. The half way point in a determinate sentence is not in Mr Grodzinski's submission the end of the punitive part of a determinate sentence.
  60. In support of this proposition he relied on Smith & West v Parole Board [2005] 1 WLR 350. At paragraph 22 of his speech Lord Bingham said this:
  61. "But the predominant purpose of the sentence will be punitive and the sentence which the Court imposes will represent the period which the Court considers that the Defendant should spend in custody as punishment for the crime or crimes of which he has been convicted."
  62. In addition he said the Claimant could point to no domestic or Strasbourg support for the argument that the only justification for detaining a Criminal Justice Act 1991 long-term determinate sentence prisoner beyond the half way point is risk. He said that the authorities show that for Article 5 purposes no issue of risk arises in the course of serving a determinate sentence. The whole of the sentence constitutes punishment. In support of this he cited Giles v Parole Board [2004] 1 AC 1, in particular paragraph 44; Black v Secretary of State for Justice [2009] 1 AC 949, in particular paragraph 84; and Brown v UK [2004] (App 968/04; decision 26.10.04) at paragraph 1. Thus even if the test for determinate term prisoners was more onerous, it did not inflict greater punishment upon them because the punitive element of their sentences lasted until the two thirds rather than the half way stage. By way of contrast, those serving indeterminate terms would remain in custody after the half way point, not as a further punishment but because of the risk they posed to the public. Thus there was good reason for distinguishing between them.
  63. As to the fixing of the half way point in Szczerba as the tariff for a prisoner serving an indeterminate sentence, Mr Grodzinski submitted that the rationale for the general rule should not be regarded as being that half represents the punitive element. Mr Grodzinski went back to R v Parole Board (Ex Parte Bradley) [1991] 1 WLR 134 as recognising the consideration that a life sentence "may well cause the accused to serve longer, and substantially longer, than his just desserts". He also took us to R v Secretary of State for the Home Department, (Ex Parte Furber) [1998] 1 Cr App R (S) 208 at page 213 where Simon Brown LJ said, concerning the regime in place when Furber was decided, that a lifer would ordinarily have to spend two years in open conditions before release which thus might delay eventual release. Having identified these two considerations Simon Brown LJ continued:
  64. "Given this in-built delay in the overall release process, ought not that process to start if anything earlier rather than later than in the case of determinate sentence prisoners whose eligibility for parole under statute starts at the half way point of their sentence and who must in any event be released after serving two thirds."
  65. On this basis it is argued that the claim must fail as the Claimant wrongly asserts that the half way point in a determinate sentence is relevantly similar to the tariff in a life sentence. If this contention by the Defendants is correct the case based on Article 14 must fail since it depends on such a comparison. As to the alternative routes put forward by the Claimant, the Defendants argue that each is based on what was said in Clift (ECHR) at paragraph 75. The Defendants assert that Clift (ECHR) was not concerned with the substantive level of risk to be assessed by the Parole Board. The issue was whether it was justifiable for the Secretary of State to have the final say on release for long-term determinate prisoners when he had no such power in relation to indeterminate prisoners or shorter-term determinate prisoners. The Court's finding on that issue should not be extrapolated to the current issue which is to be determined in a different context.
  66. It was also pointed out that in Black, in giving the leading opinion, Lord Brown expressly noted the difference between the two tests at paragraph 79, yet at paragraphs 84 and 85 explained the fundamentally different approach taken by the European Convention on Human Rights to indeterminate sentence cases and held that there was no basis for applying the same approach to the release of determinate sentence prisoners.
  67. Responding to the Claimant's proposed alternative routes, in relation to the life and limb route, the Defendants argue that, for example, in the case of a fraudster who had reached the half way point of his sentence and who was very likely to commit a further fraud offence if released, the Board would be required to release such a prisoner early because he did not pose a risk of violent offending. That would render largely nugatory the period of sentence between half way and two thirds. There would also be potential difficulties over recall to prison. Nothing in Clift requires this result. In the example of the fraudster there is no true comparison because the fraudster could never have received a life sentence for such an offence.
  68. As to the second route, Mr Grodzinski posed an example based on the Claimant's own case of having committed arson with intent to endanger life. If at the half way point her case came before the Parole Board and the evidence showed that she no longer presented a risk of arson with intent but did present a risk of simple arson, the Board would be required to release the Claimant because she would not present a risk to life and limb. As it happens this particular example is ill-chosen because simple arson is a scheduled offence under Schedule 15 of the Criminal Justice Act 2003. However, the Defendant has other points to make.
  69. Firstly, the point that the two types of sentence are not comparable because the half way point in a determinate sentence case does not mark the end of the punitive part of the sentence is repeated. Secondly, an indeterminate sentence prisoner is in a worse position than a determinate sentence prisoner in a number of ways. He faces the risk of never being released at all, whereas the Criminal Justice Act 1991 determinate prisoner has an absolute entitlement to release after two thirds of the sentence. A person released on life or I.P.P licence is at risk of recall for the rest of his or her life.
  70. Next, this route would permit the Parole Board in a case where the index offence was non-violent/non-sexual, (not within Schedule 15), to take into account at the half way point the risk of future non-violent/non-sexual offences. But this route, on the Claimant's case, would not permit the Board where the index offence was violent/sexual to take into account a risk of future non-violent/non-sexual offences. Thus the Claimant's second route must mean that the more serious the original index offence, the less onerous the test to be applied by the Board at the half way point. If Clift (ECHR) has any application at all to the issue before this court, it could not compel a conclusion by which Article 14 demanded this result.
  71. Finally in relation to the second route, there is no basis in Stafford, Clift (ECHR) or any other case which requires the same causal connection between the index offence and the risk of future offending, as is required in indeterminate sentence cases, to apply to determinate sentence prisoners. Stafford was dealing with post-tariff detention being justified in Article 5 terms by reference to dangerousness and not by reference to punishment. This analysis does not apply to a determinate sentence prisoner.
  72. Conclusions

  73. In my judgment the decision in Clift (ECHR) cannot simply be sidelined on the basis that there the court was addressing the point as to whether there was objective justification for the Secretary of State retaining the final say in relation to the release of those serving determinate terms of fifteen years or more. It is clear to me that the court's conclusion that the imposition of more stringent conditions for early release of those serving fixed term sentences lacked any objective justification is one which is of wider application than the point actually at issue in that case. Whether one is considering early release conditions or the role of the Secretary of State, both come within the rubric of "the imposition of different early release requirements". There is common ground in that both types of sentence involve a risk assessment exercise and consideration of risk by the same body. There are, however, significantly different approaches to the release test depending on the type of sentence imposed.
  74. This situation may well have evolved for historical reasons, not least because of the Secretary of State's tenacious hold over the last word in lifer cases which has been gradually eroded primarily by European litigation over the last quarter of a century. Whatever the history may demonstrate, we are where we are now, and the question is whether now there is objective justification for the difference in approach, and thus apparent discrimination, between long-term determinate and indeterminate prisoners.
  75. As Lord Bingham observed in paragraphs 17 and 18 of Clift UK the law provides in respect of long-term determinate prisoners for a time at which that prisoner must, as a matter of right be released, and an earlier time at which he might be released if it was judged safe to release him. The right to seek early release is clearly within the ambit of Article 5 and differential treatment of one prisoner as compared with another, otherwise than on the merits of their respective cases, gives rise to a potential complaint under Article 14. Accordingly, I do not consider that the Claimant's challenge must fail in limine on the grounds that Clift (ECHR) was concerned with a different issue. It seems to me that what the Claimant has described as "the logic" of Clift (ECHR) has a relevance to the present matter.
  76. Nor do I consider that the Defendants can draw support from the fact that in Black Lord Brown referred to the difference in release tests but did not ultimately find that there was anything unlawful about such a difference. Firstly, Black precedes Clift (ECHR) in time. Secondly, Black was concerned with Article 5 rather than Article 14 issues, and thirdly, Lord Brown expressly stated at paragraph 85 that he felt bound to leave any developments about assimilation of the two categories of prisoner to the European Court itself.
  77. Thus, it seems to me that in the light of Clift (ECHR) a closer scrutiny of the different release tests and the justification for them is required.
  78. In the case of an indeterminate sentence the punitive element is normally regarded as having been reached at the half way point of the sentence. That is the guidance given by Szczerba and which has been applied by judges up and down the country for the last decade. Although part of the rationale as explained by Simon Brown LJ in Furber no longer applies because of changes in practice, the rule provided by Szczerba remains in place in its own right. The recent amendment by the Criminal Justice and Immigration Act 2008 to Section 82A of the Powers of the Criminal Courts (Sentencing) Act 2000 is illustrative of this. Section 82A(3C) makes specific reference to "instead of reducing that period by one half", thus indicating that the Szczerba rule is the norm, subject only to the unusual situations identified in Section 82A(3A) and (3B).
  79. Moreover once the tariff period has expired, the Parole Board is considering further time in custody solely on the basis of risk. This is entirely consistent with the way in which the structure of the sentence is described to the offender and the public at the point of sentencing.
  80. In the case of a long-term determinate sentence the Defendants assert by reference to paragraph 22 of Smith and West that the punishment element of the sentence should be regarded as running up to the two thirds point of the sentence passed by the court rather than the half way stage. Thus they seek to distinguish between determinate long-term sentences and indeterminate sentences.
  81. However, reliance on the passage cited is overstated. Firstly, Lord Bingham refers to "the predominant purpose" of the sentence as punitive. Secondly, in the case of a determinate sentence, the sentence which the court imposes can never represent the period that a Defendant should spend in custody as punishment because every determinate sentence prisoner is entitled to release by the two thirds stage of the sentence at the latest. Moreover, the passage at paragraph 22 relied on by the Defendants is itself qualified by Lord Bingham's reference to early release in paragraphs 23 and 25, and his observations at paragraph 24:
  82. "Thus, thirdly, the sentence passed is not…a simple statement of the period the Defendant must spend in prison. The sentence is in reality a composite package, the legal implications of which are in large measure governed by the sentence passed."
  83. Accordingly I do not derive any real assistance from Smith and West. In my judgment the reality now in relation to determinate sentences is that the half way point represents the punitive element. Since the passing of the Criminal Justice Act 2003 all determinate sentences have proceeded on that basis. The overall effect of changes enacted by the 2003 Act and the Criminal Justice and Immigration Act 2008 is that the only determinate prisoners under the Criminal Justice Act 1991 who are not released automatically after they have served half of their sentence are long-term prisoners who offended before 4th April 2005 and who either (a) reached the half way point of their sentence before 9th June 2008; or (b) committed an offence listed within Schedule 15 to the 2003 Act; or (c) committed an offence to which the 2008 Act does not apply by reason of the Criminal Justice and Immigration Act 2008 (Commencement No. 1 and Transitional Provisions) Order 2008 (SI 2008/1466).
  84. Further, the fact that long-term determinate prisoners under Criminal Justice Act 1991 may apply for early release at the half way stage of their sentence and undergo a risk assessment for that purpose, is itself indicative that the punitive element of the sentence is in reality to be regarded as having been reached at that point. There seems to me to be no good reason why those who ex hypothesi are to be regarded as less dangerous because they have received a determinate rather than an indeterminate sentence, should be subject to greater punishment. Nor can I discern any good reason why both types of offender should not become eligible for release subject to questions of risk at the same point in their sentence.
  85. It seems to me that there is a proper distinction to be drawn between the court-mandated sentence recognised in the case law for Article 5 purposes, and the practical assessment which is necessary when Article 14 is in play, in considering whether or not a situation constitutes improper and unjustified discrimination. Whilst the court-mandated sentence still bites for the purposes of recall and for Article 5 purposes, it cannot determine the approach to Article 14.
  86. As to the contention that a indeterminate sentence is a different sort of sentence from a determinate one so that no true comparison can be made for the purposes of the matters in issue here, it is uncontroversial that there are differences. The important question is whether the differences are such as to prevent consideration of the two situations as analogous in relation to Article 14. Whilst it is obvious that an offender serving a determinate sentence has the benefit of having a finite limit on the reach of the law in relation to that sentence, I do not think that constitutes a material difference. Both types of sentence now in reality are divided into a punitive element which may be followed by a period of risk based detention. So, in my view, the identified differences between a determinate and an indeterminate sentence do not prevent their treatment as analogous. I note that in Clift (ECHR) the court was prepared to compare early release provisions relating to determinate prisoners with release for tariff-expired indeterminate prisoners notwithstanding the differences for Article 5 purposes between the two types of offender.
  87. As to the two possible routes posited by the Claimant by which it may be said that release conditions in the case of determinate prisoners are more stringent than in the case of those serving indeterminate sentences it is not in fact necessary in the Claimant's case to determine which route applies in order to find a violation of Article 14. In the Claimant's case because of the nature of the crimes of which she was convicted, the application of either of the two routes, life and limb or causal connection, would have the same result. That is because the application of the current Parole Board test for a determinate prisoner would be more onerous than the test indicated in either of the two routes put forward by the Claimant. In the case of a person serving an indeterminate sentence, the life and limb test and the causal connection test are likely in reality to amount to the same thing.
  88. That said, I have my doubts as to whether the causal connection test, (the Claimant's second route), is one which can be applied in the case of a prisoner serving a determinate rather than an indeterminate term. Stafford was concerned with an indeterminate sentence and whether indefinite post-tariff detention was justified by reference to Article 5 by reference to dangerousness. Different considerations apply to those serving determinate terms. Moreover, the causal connection test is not the formulation applied by the Parole Board to early release in the case of either determinate or indeterminate prisoners.
  89. In the event that the Claimant's second route applies, I do not accept the Defendant's argument summarised at paragraph 57 above. Rather, I accept and agree with the analysis on that particular point as advanced by Mr Southey at paragraph 46.
  90. An example put forward by the Defendants in relation to the Claimant's first proposed route concerned a fraudster who was likely to commit further similar offences. Of course, under the Criminal Justice Act 2003 he would be entitled to release at the half way stage of his sentence even if that risk was demonstrated. As far as the Criminal Justice Act 1991 is concerned, since fraud is not a Schedule 15 offence I think it highly unlikely, in the light of the position set out at paragraph 67 above, that there are now in the prison population any or any significant number of persons serving sentences for fraud from which they are not entitled to release until the two thirds point. In the absence of any material to the contrary I do not regard the example as one which is of assistance.
  91. In the end this issue comes back to the question of whether the different tests applied by the Parole Board to the two classes of prisoner under the Criminal Justice Act 1991 can be objectively justified. In my judgment the two classes of case are sufficiently analogous in the context of early release provisions to justify comparison. When in each case what is under consideration at the early release stage relates to the risk of future offending I can see no basis upon which the present situation which exposes those subject to determinate sentences to a stiffer release test than those who must be taken to represent a greater risk to the safety of others can be objectively justified.
  92. Thus were it not for the point in relation to precedent which I have determined against the Claimant, I would hold that this claim should succeed and that there has been a violation of Article 14. However, in the circumstances of my finding on the first disputed issue, this claim must be dismissed.
  93. Lord Justice Thomas:

  94. I agree. It is important to consider the issues in relation to the test applied by the Parole Board to long term prisoners serving a determinate sentence of 15 years or more in the light of the present position. The value of the history is simply to explain how the present position has been reached, but it cannot assist in the assessment of objective justification. That has to be done, as Treacy J has so clearly set out, on the basis of the entire legislative framework as it now stands, the current case law and the current practice. So judged there can no longer be any objective justification for the different tests applied by the Parole Board to those serving indeterminate sentences and those serving determinate sentences of fifteen years or more

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