A determinate custodial sentence prisoner challenged the Department of Justice's practice of applying a 'risk of harm' test for licence revocation and recall, rather than the 'risk of serious harm' test applied to indeterminate and extended custodial sentence prisoners, alleging unjustifiable discrimination under Article 14 ECHR read with Article 5. The Supreme Court dismissed the appeal.
Background
Stephen Hilland was sentenced on 26 May 2015 to two consecutive 12-month determinate custodial sentences (DCS) under Article 7 of the Criminal Justice (Northern Ireland) Order 2008 (‘the 2008 Order’) for offences including aggravated vehicle taking, driving whilst disqualified, driving without insurance, and assault occasioning actual bodily harm. He was automatically released on licence on 4 February 2016 having served half his sentences in custody. The licence contained several conditions including drug/alcohol counselling, a curfew, and a prohibition on driving without approval.
On 8 September 2016, Mr Hilland was arrested after driving a stolen vehicle on a dual carriageway whilst disqualified, uninsured, and unfit through drugs, in breach of multiple licence conditions. The Probation Board for Northern Ireland (PBNI) provided a Recall Report noting he presented ‘a real danger to the public’ and a ‘high likelihood of re-offending’ but did not meet PBNI’s threshold for a ‘significant risk of serious harm’. A Parole Commissioner recommended revocation based on a risk of harm (as opposed to serious harm), and on 21 October 2016 the Offender Recall Unit (ORU) of the Department of Justice revoked Mr Hilland’s licence and recalled him to prison.
The practice adopted by the ORU was that when considering whether to revoke a DCS prisoner’s licence, it assessed whether revocation was necessary for the protection of the public from harm. In contrast, for higher-risk prisoners serving indeterminate custodial sentences (ICS) or extended custodial sentences (ECS), the test required a risk of serious harm, defined as ‘death or serious personal injury, whether physical or psychological’.
The Issue(s)
The central issue was whether the ORU’s practice of applying a less stringent test (risk of harm) for revoking DCS prisoners’ licences, compared to the more stringent test (risk of serious harm) applied to ICS and ECS prisoners, constituted unjustifiable discrimination against DCS prisoners in the enjoyment of their right to liberty, contrary to Article 14 ECHR read with Article 5.
The appeal raised three grounds:
Ground One
Whether the courts below erred in failing to address the justification element of the Article 14 claim before the analogous situation element, or alternatively in failing to address them holistically.
Ground Two
Whether Mr Hilland as a DCS prisoner was in an analogous situation to ICS and ECS prisoners.
Ground Three
Whether objective justification existed for the difference in treatment.
The Court’s Reasoning
The Four-Element Framework
Lord Stephens, delivering the unanimous judgment, applied the four-element test for Article 14 claims as formulated by Lady Black in R (Stott) v Secretary of State for Justice [2018] UKSC 59:
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.
The respondent conceded the first two elements. The appeal therefore turned on whether DCS prisoners were in an analogous situation to ICS and ECS prisoners, and whether any difference in treatment was objectively justified.
Ground One: Sequence of Analysis
The appellant argued that courts should determine justification before the analogous situation question. Lord Stephens rejected this, holding there is no requirement to adopt any particular sequence. He noted that Lady Black in R (Stott) stated only that ‘it may be best’ to consider justification first in that case, not that courts must do so. Lord Hodge in the same case addressed the analogous situation element first. Lord Stephens also cited Lord Nicholls in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37:
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.
Lord Stephens concluded that neither Colton J nor the Court of Appeal had erred in their approach.
Ground Two: Analogous Situation
This was the determinative ground. Lord Stephens undertook an exhaustive analysis of the different sentencing regimes under the 2008 Order, examining DCS, ICS, ECS, and life sentences as whole entities. He emphasised the approach mandated by R (Stott) and endorsed by the European Court of Human Rights in Stott v United Kingdom (Application No 26104/19, 31 October 2023):
… rather than focusing entirely upon the early release provisions, the various sentencing regimes have to be viewed as whole entities, each with its own particular, different, mix of ingredients, designed for a particular set of circumstances.
The Court identified critical structural differences between the regimes:
- DCS prisoners are not ‘dangerous offenders’ and ordinarily do not pose a risk of serious harm. Their release on licence is automatic.
- ICS prisoners can only be released on licence when the Parole Commissioners are satisfied it is no longer necessary for the protection of the public from serious harm that they remain confined. They may never be released and remain on licence for life.
- ECS prisoners are subject to extended licence periods and may be incarcerated for the entirety of the appropriate custodial period.
Lord Stephens powerfully demonstrated the incoherence of the appellant’s position:
Ordinarily a DCS prisoner does not pose a risk of serious harm which means that the appellant’s proposed practice of requiring a risk of serious harm before recalling a DCS prisoner would have the consequence that ordinarily they would never be recalled to prison.
He further observed that the revocation and recall practice for DCS prisoners had ‘symmetry’ with other elements of the DCS regime, including the purposes of post-release supervision and the obligation to comply with licence conditions. Importing the serious harm test from the ICS/ECS regime would undermine the statutory scheme.
Drawing on Stott v UK, Lord Stephens endorsed the ECtHR’s reasoning:
… having regard to the complexity of the sentencing regimes in England … and the variations in terms of the criteria for their imposition, eligibility for early release, the extent of licence provisions, entitlement to release and arrangements for release after recall, the Court is not persuaded that it is appropriate to single out the early release provisions and to seek to make a comparison across the different groups, in respect of whom the other criteria also vary.
Lord Stephens concluded:
… the reality of the appellant’s argument is that he was sentenced under one regime, and it is incoherent then to allege discrimination when compared to other offenders sentenced under a different regime. They are not in an analogous situation precisely because they were sentenced under a different regime.
Ground Three: Objective Justification
Although strictly unnecessary, Lord Stephens addressed justification in the alternative. He held that the different treatment was objectively justified for several reasons: the aim of the different sentencing regimes was to cater for different combinations of offending and risk; the DCS regime’s recall practice was appropriate for offenders who ordinarily do not present a risk of serious harm; higher-risk ICS and ECS offenders were subject to other more stringent conditions (indeterminate sentences, potential lifelong licence, no guarantee of release) that counterbalanced the more stringent recall threshold; and the practice fell well within the margin of appreciation afforded to the relevant authorities.
Practical Significance
This decision confirms and extends the holistic approach to Article 14 discrimination claims in the context of sentencing regimes established in R (Stott). It establishes that different sentencing regimes cannot meaningfully be compared by isolating a single feature — such as the recall test — from the overall framework. The judgment reinforces that each sentencing regime constitutes a distinct package, and prisoners sentenced under one regime are not in an analogous situation to those sentenced under a different regime simply because one discrete element differs. The decision is significant for Northern Ireland’s sentencing and recall framework under the 2008 Order and has broader implications for discrimination challenges to penal policy across the United Kingdom. It also demonstrates the growing alignment between this court and the ECtHR on prisoner classification issues, as the Supreme Court expressly relied upon and applied the reasoning in Stott v UK.
Verdict: The Supreme Court unanimously dismissed the appeal. The practice of the Department of Justice in applying a ‘risk of harm’ test for the revocation of DCS prisoners’ licences and their recall to prison, as opposed to the ‘risk of serious harm’ test applied to ICS and ECS prisoners, did not constitute unjustifiable discrimination under Article 14 ECHR read with Article 5. DCS prisoners were not in an analogous situation to ICS and ECS prisoners, and in any event the difference in treatment was objectively justified.
Source: In the matter of an application by Stephen Hilland for Judicial Review [2024] UKSC 4
