Public law analysis: The Supreme Court in R (on the application of Stott) v Secretary of State for Justice [2018] UKSC 59, [2018] All ER (D) 142 has ruled that the extended determinate sentence (EDS) scheme, under which a dangerous prisoner becomes eligible for parole after two-thirds of the custodial  term rather than after half of the term, did not constitute unlawful discrimination contrary to Article 14 of the European Convention on Human Rights (ECHR), combined with Article 5 (the right to liberty).  

What are the practical implications of the judgment?

Article 14 ECHR prohibits discrimination on any ground such as sex, race, etc or ‘other status’. The main aspect of the judgment likely to be of practical benefit to practitioners relates to the way in which the Supreme Court approached the question of ‘other status’. The respondent Secretary of State for Justice had argued that there must be some limit to the type of status that could fall within Article 14 ECHR, otherwise the requirement to demonstrate a status at all would be meaningless. Up until this case, that position had support in domestic law (see AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42, [2008] 4 All ER 1127; R (on the application of Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29, [2006] 1 All ER 487; and R (on the application of S) v Chief Constable of South Yorkshire [2004] UKHL 39, [2004] 4 All ER 193).

In Stott, the majority decisions on this issue (Lady Black, Lady Hale, Lord Hodge and Lord Mance) took a wide approach to the question of status, finding that the status did not have to exist independently of the treatment complained of, and either doubting or rejecting the respondent’s ejusdem generis submission that ‘other status’ should be interpreted in line with the other characteristics listed in Article 14 ECHR.

It is likely to be easier for claimants to establish that they have an ‘other status’ for the purpose of Article 14 ECHR

The practical effect of the judgment in Stott is that it is likely to be easier for claimants to establish that they have an ‘other status’ for the purpose of Article 14 ECHR. Several of the majority decisions in Stott endorsed Lord Walker’s analysis in R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 2 All ER 556 that the characteristics which fell within Article 14 ECHR were like a series of concentric circles: with the most personal innate characteristics being at the centre and requiring a high level of justification for differential treatment, and acquired characteristics (which are more concerned with what people do, or what happens to them, than with what people are) occupying the outer circles where differential treatment may be easier to justify. It follows that, while it may be easier to satisfy the ‘other status’ criterion under Article 14 ECHR, the more tenuous the status relied upon, the more difficult it will be to establish that any differential treatment was not justified.

Finally, there are two points that may be of practical interest to criminal practitioners. The first is in relation to the components of a special custodial sentence for certain offenders of particular concern (SOPC) under section 236A of the Criminal Justice Act 2003 (CJA 2003). Prior to Stott, the Court of Appeal had interpreted these sentences as being a new type of extended sentence where the court was required to determine the length of the sentence that was commensurate with the offence, and then add a year to the licence period (see for example R v Fruen [2016] EWCA Crim 561, [2016] All ER (D) 157 (May)). In Stott, Lady Black and Lord Hodge found that it was the overall sentence (the custodial term plus the licence period) that was required to be commensurate with the seriousness of the offence. The practical effect of this approach is that practitioners whose clients are at risk of an SOPC can argue for a shorter custodial term than was previously the case.

The second point of potential practical interest to criminal practitioners is the suggestion by Lord Hodge that there may be grounds for creating an exception to the principle in R v Round [2009] EWCA Crim 2667, [2009] All ER (D) 158 (Dec) that a sentencing judge should ignore any release provisions when considering the appropriate determinate sentence to impose. Lord Hodge envisaged that such an exception might apply where it was necessary to prevent injustice arising as between co-defendants as a result of being subject to different release regimes. For example, this might arise where two defendants were sentenced in respect of the same conduct but one received a life sentence, and the other was sentenced to an extended determinate sentence, such that their parole eligibility dates would be very different.

What was the background?

The appellant is a serving prisoner who was sentenced to an EDS under the CJA 2003, s 226A. His sentence comprised a custodial term of 21 years, and a four-year extension to his licence period. Under the release provisions contained in CJA 2003, s 246A, he will not be eligible to apply to the parole board for early release until he has served two-thirds of his custodial term. He argued that CJA 2003, s 246A was discriminatory and in violation of Article 14 ECHR, read together with Article 5, because other comparable prisoners serving life sentences or standard determinate sentences were eligible for early release (or at least to apply for early release) at the half-way point of their sentences. He sought a declaration of incompatibility under section 4 of the Human Rights Act 1998.

In February 2017, the Divisional Court had ruled that the appellant’s claim would have succeeded, but for the decision of the House of Lords in R (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 2 All ER 1 in which it was held that a prisoner serving a particular type of sentence did not have an ‘other status’ for the purpose of Article 14 ECHR. In view of the fact that, in Clift v United Kingdom (Application 7205/07), the European Court of Human Rights had taken a different view to the House of Lords and had found that the prisoner did have a relevant status, the Divisional Court in Stott granted the appellant a ‘leapfrog’ certificate enabling him to seek leave to appeal directly from the Supreme Court.

What did the Supreme Court decide?

The Supreme Court decided by a majority (Lord Carnwath dissenting) that the decision of the House of Lords in Clift was wrongly decided and that a prisoner serving a particular type of sentence (in this case, an EDS) did have an ‘other status’ within the meaning of Article 14 ECHR.

A different majority of the Supreme Court (this time, Lady Hale and Lord Mance dissenting) went on to disagree with the Divisional Court on the question of whether treating EDS prisoners differently from standard determinate and life sentence prisoners was justified. A key aspect of the majority reasoning was the conclusion that the Divisional Court in Stott was wrong to proceed on the basis that, like life sentences, standard determinate sentences were comprised of a penal element and a risk-based element. The majority in the Supreme Court held that the whole of a standard determinate sentence was imposed for the purposes of punishment. This undermined a key plank of the Divisional Court’s reasoning that the release provisions in an EDS amounted to an unlawful difference in treatment because it was the only sentence at which automatic release, or parole eligibility, did not arise at the half-way point.


Rosemary Davidson appeared with James Eadie QC and Jason Pobjoy for the respondent Secretary of State in this case.

This article was first published on LexisPSL on 13th December 2018

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