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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ryder, R (on the application of) v The Lord Chancellor [2015] EWHC 1857 (Admin) (30 June 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/1857.html Cite as: [2015] EWHC 1857 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE STEWART
____________________
R (ON THE APPLICATION OF STEPHEN CHARLES RYDER) |
Claimant |
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- and - |
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THE LORD CHANCELLOR |
Defendant |
____________________
MARTIN CHAMBERLAIN QC and RICHARD O'BRIEN (instructed by the Treasury Solicitor) for the Defendant.
Hearing dates: 13 & 14 May 2015
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Crown Copyright ©
Lord Justice Davis:
Introduction
The statutory framework
"15. Advice and assistance for criminal proceedings
(1) Regulations may provide that prescribed advice and assistance is to be available under this Part to an individual described in subsection (2) if—
(a) prescribed conditions are met, and
(b) the Director has determined that the individual qualifies for such advice and assistance in accordance with the regulations (and has not withdrawn the determination).
(2) Those individuals are—
(a) individuals who are involved in investigations which may lead to criminal proceedings (other than individuals arrested and held in custody at a police station or other premises),
(b) individuals who are before a court, tribunal or other person in criminal proceedings, and
(c) individuals who have been the subject of criminal proceedings.
(3) When making the regulations, the Lord Chancellor must have regard, in particular, to the interests of justice.
(4) The regulations must require the Director to make determinations under the regulations having regard, in particular, to the interests of justice."
"In making these Regulations, in accordance with s.15(3) of [LASPO], the Lord Chancellor has had regard in particular to the interests of justice."
"…be the subject of proceedings before the Parole Board."
"(2) It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners."
It was agreed before us that the oral hearing before the Parole Board in this case is "to do with" the early release of the claimant: because a transfer to open conditions would potentially tend to facilitate release once the minimum term had expired. But there is no obligation on the Secretary of State to follow such advice as is given by the Parole Board (although he often will); and Regulation 12(2)(g) of the Regulations as amended by the Amending Regulations accordingly precludes the grant of legal aid to the claimant for the purpose of the oral review hearing.
The submissions and disposition
(1) The ultra vires argument
(2) Discrimination
"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 argument also brought into play Article 5 of the Convention. That, in the relevant respects, provides as follows:
"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;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
….
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."
"Any discriminatory measure inevitably affects a smaller rather than a larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another."
"42. Based on the approach of Brooke LJ in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, 625, para 20, as amplified in R (Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin), para 52 and [2003] EWCA Civ 797, [2003] 3 All ER 577, five questions can be posed as a framework for considering the question of discrimination:
(1) Do the facts fall within the ambit of one or more of the Convention rights?
(2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison?
(3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14?
(4) Were those others in an analogous situation?
(5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?"
In point of practice, these stages – in particular stages (4) and (5) – involve a degree of overlap; and ultimately the position has to be looked at as a whole: see paragraph 43 of the speech of Lord Steyn. Nevertheless, I think it convenient to follow the approach of counsel before us and to address matters by reference to these identified stages.
(a) First question
"During the currency of a lawful sentence, Article 5.4 has no part to play."
Mr Southey conceded that Article 5.4 was not engaged in the present case (a concession reflecting that also made in The Howard League case: see paragraph 37).
"I accordingly find that the right to seek early release, where domestic law provides for such a right, 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."
And at paragraph 23 he said:
"But in any event I consider the right to seek the early release recommendation of an independent, court-like, body, expert in the assessment of risk and immunised against external pressure, to be a right of sufficient value to engage, potentially, the application of Article 5."
"Particularly where a tariff is of a relatively long period, a prisoner's progression towards release through courses and experience in open conditions should, where and to the extent feasible, be facilitated not merely after but also in advance of the tariff period, so as to keep open the possibility of release on or shortly after its expiry. That is indeed Mr Haney's complaint in the present case. Yet, on the European court's approach, treating the present issue as falling within the text of Article 5.1(a), no complaint can apparently arise until the expiry of the tariff period, and any complaint can then only arise if the failure to provide courses, etc continues after the expiry of the tariff period."
It was further stated that it was implicit in the scheme of Article 5 that the State is under a duty – an "analogous" or "ancillary duty" – to provide a reasonable opportunity for a prisoner to rehabilitate himself and to show that he no longer poses a danger, even if not within the express language of Article 5; and this was so as much before as after the expiry of the tariff period: see paragraphs 36, 38 and 48 of the judgment. I can therefore see that these statements do lend some potential support to Mr Southey's argument. But in making those statements the Supreme Court also stressed that the ancillary duty thus arising did not directly impact on the lawfulness of the prisoner's detention as such and thereby give rise to a duty to release: the remedy, indeed, in that case was a (modest) award of compensation for the frustration occasioned. Moreover, Kaiyam & Haney was concerned with cases where prisoners were, so it was said, not given a reasonable opportunity of rehabilitation with a view to persuading the Parole Board in due course that they did not represent a danger to the public. But that cannot be said in this case: for here the claimant has been given the relevant opportunity, by being granted an oral pre-tariff review hearing. And for that (whether under the Convention or otherwise) there is no necessary right to legal aid.
(b) Second question
(c) Third question
(d) Fourth and fifth questions
"There is a single question: is there enough of a relevant difference between x and y to justify different treatment?"
"57. The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, a court will conclude that the policy is unjustifiable. However, this is not such a case, in my judgment."
(3) Common law consistency
Conclusion
Mr Justice Stewart: