In the matter of an application by Stephen Hilland for Judicial Review [2024] UKSC 4

Stephen Hilland, a prisoner serving a determinate custodial sentence, challenged the Department of Justice's practice of applying different recall tests based on sentence type. DCS prisoners could be recalled for posing a risk of 'harm', while ICS and ECS prisoners required a risk of 'serious harm'. The Supreme Court held this difference was not discriminatory as prisoners under different sentencing regimes are not in analogous situations.

Facts

Stephen Hilland was sentenced to consecutive 12-month determinate custodial sentences (DCS) for vehicle-related offences and assault. He was automatically released on licence in February 2016. Following allegations of further offences in September 2016, including driving whilst disqualified and aggravated vehicle taking, the Probation Board requested his recall. A Parole Commissioner recommended revocation based on the risk of ‘harm’ to the public (rather than ‘serious harm’), and the Offender Recall Unit revoked his licence and recalled him to prison.

The Complaint

Hilland challenged this decision by judicial review, arguing that the Department of Justice’s practice discriminated against DCS prisoners. The practice required only a risk of ‘harm’ for recall of DCS prisoners, whereas indeterminate custodial sentence (ICS) and extended custodial sentence (ECS) prisoners could only be recalled if they posed a risk of ‘serious harm’. Hilland argued this violated Article 14 ECHR (prohibition of discrimination) read with Article 5 (right to liberty).

Issues

The key issues before the Supreme Court were:

1. Whether the courts below erred in addressing the ‘analogous situation’ element before ‘objective justification’ in the Article 14 analysis;

2. Whether DCS prisoners are in an analogous situation to ICS and ECS prisoners for the purposes of Article 14;

3. Whether, if analogous, there was objective justification for the difference in treatment.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Stephens delivered the sole judgment, with which all other Justices agreed.

Sequence of Analysis

On the first ground, Lord Stephens rejected the submission that courts must determine justification before analogous situation. He confirmed there is discretion in the approach taken:

“The wise advice of Lord Nicholls remains advice which may be followed by a court but there is no requirement for a court to determine the question of justification before the question of analogous situation.”

Analogous Situation

The Court applied the principles from R (Stott) v Secretary of State for Justice and the subsequent ECtHR decision in Stott v UK, holding that sentencing regimes must be viewed holistically. Lord Stephens stated:

“I consider that looking at the regimes holistically, as R (Stott) and Stott v UK require, the regimes applying to DCS prisoners are not analogous to the regimes applying to ECS and ICS prisoners. The difference in relation to revocation and recall simply represents another facet of the overall different regimes.”

The Court emphasised that each sentence has its own detailed rules regarding imposition, early release, licence conditions, and recall provisions. DCS prisoners ordinarily do not pose a risk of serious harm; requiring ‘serious harm’ for their recall would mean they would rarely, if ever, be recalled.

Objective Justification

Although not strictly necessary given the finding on analogous situation, Lord Stephens addressed justification. The aim of different sentencing regimes was held to be legitimate—to cater for different combinations of offending and risk. The difference in recall practices was proportionate when viewed within the context of each sentencing package as a whole.

“The objective justification for the difference in treatment in relation to revocation of their licence and their recall to prison as between DCS prisoners and ICS and ECS prisoners is the particular characteristic of the offenders.”

Implications

This judgment reinforces the principle established in R (Stott) that different sentencing regimes constitute distinct packages of measures designed for different categories of offenders. Courts should adopt a holistic approach when assessing discrimination claims in this context, rather than isolating individual provisions for comparison. The decision confirms that prisoners sentenced under different regimes are not in analogous situations simply because they share one characteristic (being prisoners on licence). The ruling has significant implications for challenges to penal policy based on Article 14, affirming that Parliament and relevant authorities have considerable latitude in designing differentiated sentencing and release frameworks.

Verdict: Appeal dismissed. The Supreme Court held that DCS prisoners are not in an analogous situation to ICS and ECS prisoners, and in any event, the difference in treatment regarding recall to prison was objectively justified. There was no violation of Article 14 ECHR read with Article 5.

Source: In the matter of an application by Stephen Hilland for Judicial Review [2024] UKSC 4