In 2018 the release rules for an extended determinate sentence required Mr Stott to serve two-thirds of his custodial term before he could be considered for parole. He challenged the difference between that threshold and those for other sentences under articles 14 and 5 of the European Convention on Human Rights.
Mr Stott’s sentence comprised a custodial term of 21 years and a four-year extension period on licence. The Parole Board could first consider him after 14 years. He argued that the difference from prisoners eligible at the halfway point was unjustified.
The Divisional Court dismissed the claim. It considered itself bound by the House of Lords in R (Clift) to hold that the classification did not amount to “other status”, although it would otherwise have found the provisions incompatible with Article 14. It certified a leapfrog appeal, which the Supreme Court heard.
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The Convention questions
It was accepted that a domestic right to seek early release falls within the ambit of Article 5, even though the Convention does not itself require early release. The dispute concerned Article 14. Lady Black identified the familiar four elements: ambit, “other status”, analogous situations, and the absence of objective justification. The live issues were whether treatment as an extended determinate sentence prisoner was on the ground of “other status”, and, if so, whether such prisoners were in an analogous position to determinate or indeterminate sentence prisoners and whether any difference was justified.
Status
The House of Lords in R (Clift) had held, with hesitation and in the absence of Strasbourg authority, that classification by length of determinate sentence was not “other status”. The European Court of Human Rights later reached the opposite conclusion in Clift v United Kingdom. Lady Black considered that the Supreme Court should depart from the result in R (Clift). She treated the grounds in Article 14 as broad but not unlimited, rejected any rigid requirement that the characteristic exist wholly independently of the complaint, and held that an extended determinate sentence was an acquired status comparable to the sentence length accepted in Clift. Lord Hodge agreed that status was established. Lord Carnwath would not have departed from the more restrictive domestic approach and would have held that no relevant status arose. Lady Hale and Lord Mance also considered that status was made out: extended determinate sentence prisoners form an identifiable group defined by more than the release rule alone.
Analogy and justification
Lady Black held that the comparison could not be confined to the early-release fraction. Each sentencing regime is a distinct package. An extended determinate sentence requires a finding of significant risk of serious harm from further specified offences, guarantees release at the end of the custodial term, and is followed by a finite licence. A discretionary life sentence may mean detention for life and a licence lasting for life; its minimum term is not invariably half a notional determinate sentence. Ordinary determinate sentences do not require the same dangerousness finding and carry automatic release at halfway, subject to recall until the sentence ends. Viewing the regimes as wholes, she concluded that extended determinate sentence prisoners were not in an analogous situation. She also held that, if analogy were assumed, the two-thirds rule was a proportionate means of pursuing the legitimate aim of public protection and confidence in sentencing, within the wide margin appropriate to penal policy. Lord Hodge agreed both that the regimes were not analogous and that the difference was justified. Lord Carnwath agreed that the appeal failed on analogy and justification, the extended determinate sentence having to be assessed as a whole.
Lady Hale and Lord Mance dissented on the outcome. They accepted that a tougher regime than an ordinary determinate sentence might be explained by the dangerousness finding required for an extended determinate sentence. They considered, however, that the comparison with discretionary life prisoners was decisive: those prisoners, generally at least as dangerous, are ordinarily eligible for Parole Board consideration at half the notional determinate term, with public protection secured by the Board’s risk assessment and by the possibility of indefinite detention and a life licence. No adequate justification had been shown for requiring extended determinate sentence prisoners to wait until two-thirds. They would have allowed the appeal and declared the relevant release provision incompatible with Article 14 read with Article 5, leaving any remedy to Parliament.
Verdict: By three votes to two, the Court dismissed the appeal. It held that the release rule challenged by Mr Stott did not violate article 14 read with article 5. Lady Hale and Lord Mance would have declared the legislation incompatible.
Source: R (Stott) v Secretary of State for Justice [2018] UKSC 59
