R (on the application of Stott) v Secretary of State for Justice [2018] UKSC 59

Frank Stott, sentenced to an extended determinate sentence (EDS) for serious sexual offences including child rape, challenged the early release provisions requiring him to serve two-thirds of his custodial term before parole eligibility, arguing this discriminated against him under Article 14 ECHR. The Supreme Court dismissed his appeal by majority.

Facts

The appellant, Frank Stott, was convicted in May 2013 of 20 offences, including multiple counts of raping an eight-year-old child, and pleaded guilty to offences relating to indecent photography of a child. He was sentenced under section 226A of the Criminal Justice Act 2003 to an extended determinate sentence (EDS) comprising an appropriate custodial term of 21 years and an extension period of four years on licence.

Under section 246A of the 2003 Act, Mr Stott would not be eligible for parole consideration until he had served two-thirds of his custodial term (14 years), in contrast to standard determinate sentence prisoners (eligible at the halfway point), prisoners serving special custodial sentences for offenders of particular concern under section 236A (eligible at the halfway point of the appropriate custodial term), and discretionary life sentence prisoners (typically eligible after serving a minimum term equivalent to half the notional determinate sentence).

Mr Stott brought judicial review proceedings contending that this differential treatment was unlawful discrimination contrary to Article 14 ECHR taken with Article 5. The Divisional Court dismissed his claim, considering itself bound by R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, but indicated that, but for that authority, it would have found section 246A incompatible with Article 14.

Issues

The Supreme Court identified two principal issues:

Issue 1: Status

Whether the differential treatment of Mr Stott was on a ground falling within the meaning of “other status” in Article 14 ECHR, requiring the Court to determine whether the House of Lords’ decision in R (Clift) should continue to be followed in light of the contrary decision of the ECtHR in Clift v United Kingdom (2010).

Issue 2: Analogous situation and justification

Whether EDS prisoners are in an analogous situation to indeterminate sentence prisoners or other determinate sentence prisoners, and if so, whether there is objective justification for the difference in treatment.

Arguments

Appellant

Mr Southey QC submitted that R (Clift) should no longer be followed, that “other status” should be given a generous meaning, and that EDS prisoners had a relevant status. He argued that the period before parole eligibility represents the punitive and deterrent element of a sentence, and there was no justification for requiring EDS prisoners to wait longer than comparable prisoners, particularly given that release in any event depended on Parole Board risk assessment.

Respondent

Sir James Eadie QC submitted that Mr Stott did not possess a relevant status, that EDS prisoners were not in an analogous situation to other prisoners because each sentencing regime was a tailored “package” with distinct characteristics, and that any differential treatment was justified by the dangerousness finding required for an EDS and the legitimate aims of public protection and maintaining public confidence in sentencing.

Judgment

The Supreme Court dismissed the appeal by a majority (Lady Black, Lord Carnwath and Lord Hodge; Lady Hale and Lord Mance dissenting).

Status

The majority (other than Lord Carnwath) held that Mr Stott did possess “other status” for Article 14 purposes. Lady Black concluded that the Court should depart from R (Clift) in light of the ECtHR’s reasoned decision in Clift v United Kingdom, noting the hesitation evident in the House of Lords’ speeches and the subsequent expansion of the concept of status. She rejected the proposition that the status must exist independently of the treatment complained of as a strict requirement, and held that the difference in treatment of EDS prisoners regarding early release fell within the scope of Article 14.

Lord Carnwath dissented on this point, considering that the Fourth Section’s reasoning in Clift v United Kingdom was unconvincing and that the more restrictive approach in R (RJM) should prevail.

Analogous situation and justification

The majority held that EDS prisoners were not in an analogous situation to other prisoners and, in any event, the differential treatment was justified. Lady Black emphasised that the various sentencing regimes had to be viewed as complete entities, each with its own particular mix of ingredients designed for particular circumstances. She rejected the “two-component” analysis (treating determinate sentences as having a punitive part followed by a risk-based part), noting that Strasbourg jurisprudence treats the whole of a determinate sentence as punishment.

Lord Hodge similarly held that the EDS regime had to be assessed holistically. He emphasised that section 142(1) of the 2003 Act sets out multiple purposes of sentencing which apply throughout the custodial term. The EDS prisoner’s longer wait for parole eligibility was counter-balanced by the certainty of release at the end of the custodial term and a defined licence period, in contrast to indeterminate sentence prisoners.

Lady Hale dissented, holding that while the aim of public protection was legitimate, no convincing justification had been demonstrated for treating EDS prisoners more severely than discretionary life prisoners regarding parole eligibility, given that release in all cases depended on Parole Board assessment of safety.

Lord Mance also dissented, concluding that EDS prisoners were in a significantly worse position than discretionary life prisoners as regards eligibility for parole consideration, with no convincing justification, and would have made a declaration of incompatibility in respect of section 246A(8)(a).

Implications

The decision has several important implications. First, the Court formally departed from the House of Lords’ decision in R (Clift) on the status issue, aligning domestic law with the ECtHR’s approach in Clift v United Kingdom. The concept of “other status” under Article 14 is to be given a generous interpretation and may extend to prisoners subject to particular sentencing regimes.

Second, the judgment confirms that, in considering whether differential treatment of prisoners is justified, courts should consider sentencing regimes holistically rather than focusing solely on individual features such as early release provisions. Each regime is treated as a tailored package with its own combination of advantages and disadvantages.

Third, the majority’s rejection of the “two-component” analysis of determinate sentences (separating punishment from risk-based detention) is significant for the proper understanding of how determinate sentences operate. As Lord Hodge observed, the multiple purposes of sentencing set out in section 142(1) apply throughout the custodial term.

Fourth, the dissenting judgments of Lady Hale and Lord Mance highlight an unresolved tension: the apparent anomaly that an EDS prisoner may have to wait longer for parole consideration than a discretionary life prisoner whose offending was, by definition, more serious. While the majority found this justified by the differing characteristics of the regimes, the issue may continue to attract scrutiny.

The decision matters principally to prisoners serving extended determinate sentences and their advisers, but also more broadly to the development of Article 14 jurisprudence in the prison context. The judgment confirms that wide margins of appreciation apply to sentencing and penal policy, while careful scrutiny is required where differential treatment falls within the ambit of Article 5.

Verdict: The appeal was dismissed by a majority (Lady Black, Lord Carnwath and Lord Hodge; Lady Hale and Lord Mance dissenting). The Supreme Court held that, although Mr Stott had “other status” for the purposes of Article 14 ECHR (departing from R (Clift) in this respect), EDS prisoners were not in an analogous situation to other prisoners and any differential treatment in early release provisions was objectively justified. Section 246A of the Criminal Justice Act 2003 was therefore not incompatible with Article 14 read with Article 5.

Source: R (on the application of Stott) v Secretary of State for Justice [2018] UKSC 59