R (on the application of Stott) (Appellant) v Secretary of State for Justice (Respondent) [2018] UKSC 59, [2019] AC 51

Key case

R (on the application of Stott) v Secretary of State for Justice [2018] UKSC 59; [2019] AC 51 concerns an appeal by Mr Frank Stott, who was sentenced in May 2013 to an extended determinate sentence (“EDS”) for sexual offences against a child. The Supreme Court dismissed the appeal by a majority of four to one, holding that whilst prisoners subject to an EDS have a relevant “other status” under article 14 of the European Convention on Human Rights, the difference in their early release provisions compared with other prisoners either does not place them in an analogous situation or, if it does, is objectively justified.

Mr Stott had been convicted at trial of 20 offences including multiple counts of rape of an eight‑year‑old child. He received an EDS in respect of ten rape counts, with an appropriate custodial term of 21 years and an extension period of four years. Under section 246A of the Criminal Justice Act 2003, a prisoner serving an EDS becomes eligible to apply for release on licence after serving two‑thirds of the appropriate custodial term, meaning Mr Stott would have to serve 14 years before approaching the Parole Board. Had the parole provisions for determinate sentence prisoners applied, eligibility would have arisen at the halfway point, after ten and a half years. Mr Stott brought judicial review proceedings contending that this differential treatment was discriminatory and violated article 14 read with article 5 of the Convention. The Divisional Court, bound by R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, dismissed the claim on the ground that the difference in treatment was not on the basis of “other status”, though it would otherwise have found the provisions incompatible with article 14. Permission to appeal directly to the Supreme Court was granted.

Two central issues arose: first, whether the differential treatment was on a ground within the meaning of “other status” in article 14; secondly (if so), whether EDS prisoners were in an analogous situation to either determinate or indeterminate sentence prisoners, and if so whether the difference in treatment was objectively justified. The first issue required reconsideration of R (Clift) in the light of the later judgment of the Fourth Section of the European Court of Human Rights in Clift v United Kingdom (Application No 7205/07), which held that a prisoner’s sentence length could constitute an “other status” and that differential early release arrangements lacked justification. The House of Lords in R (Clift) had rejected the status claim, influenced by the absence of Strasbourg authority recognising such a status and by the view that a personal characteristic could not be defined by the treatment about which complaint was made.

On the first issue, a majority (Lady Black, with whom Lord Hodge and Lady Hale agreed) held that Mr Stott had the requisite status under article 14 by virtue of being sentenced to an EDS. Lady Black reviewed the case law in detail, noting that both the Strasbourg court and the domestic authorities supported a generous meaning for “other status”, which extended to acquired characteristics and not only innate ones. She concluded that the differential treatment of extended sentence prisoners was on a ground within the scope of article 14, emphasising the ECtHR’s rejection in Clift v United Kingdom of the argument that the treatment complained of must exist independently of the status relied upon, and its explanation that any exception to the protection of article 14 should be narrowly construed. The ECtHR had distinguished cases such as Gerger v Turkey, which concerned differential treatment based on the gravity of offence, observing that the category to which a prisoner belonged (defined by sentence length or type) could be a relevant status requiring justification for differences in treatment. Lord Hodge agreed on status on the basis that article 14 is to be construed broadly, the ECtHR has given “other status” a wide meaning, and that the Supreme Court in Mathieson v Secretary of State for Health [2015] 1 WLR 3250 had accepted the approach in Clift v United Kingdom. Lady Hale also agreed that prisoners under different sentences have different statuses and that the status is defined by much more than the early release regime alone. Lord Mance likewise considered Mr Stott to possess a relevant status independent of the difference in treatment, the EDS being a distinct sentence with different characteristics. Lord Carnwath dissented on this issue, preferring the reasoning of the House of Lords in R (Clift) and expressing the view that the Fourth Section’s judgment in Clift v United Kingdom was not convincing and should not, absent confirmation by the Grand Chamber, require departure from the more restrictive domestic approach.

On the second issue, the court divided, ultimately dismissing the appeal because a majority held that prisoners under different sentences are not in an analogous situation or that, if they are, the difference is justified. Lady Black concluded that the two‑component analysis—splitting a determinate sentence into a punitive period and a risk‑management period at the point of parole eligibility—was not supported by the authorities. She noted that all purposes of sentencing under section 142(1) of the 2003 Act, including punishment and deterrence, may operate throughout the term. It followed that the complaint should be viewed holistically, considering the characteristics of the various sentencing regimes as complete packages. Viewed in that way, EDS prisoners were not in an analogous situation to other prisoners. Even if they were, the difference was justified because, whilst the EDS prisoner must wait longer for parole eligibility, he benefits from a fixed custodial term and a finite licence period, in contrast to the indeterminate and life licence of a life sentence prisoner. Lord Hodge agreed substantially with Lady Black, emphasising that each sentencing regime is tailored to a particular combination of offending and risk, that there is no universal halfway rule for parole eligibility, and that differences in the overall sentencing packages justified the early release differences. Lord Carnwath also agreed that even assuming status, there was no analogous situation because the EDS regime differs in purpose and characteristics from other regimes, and in any event the difference was justified by the wide margin of appreciation afforded to the legislature in sentencing policy. Lady Hale and Lord Mance dissented, holding that EDS prisoners were in an analogous situation to other prisoners eligible for parole, that the essence of the complaint related to eligibility for consideration of release (a significant question from the prisoner’s perspective), and that the difference lacked justification. Lady Hale considered that whilst public protection is a legitimate aim, the requirement that an EDS prisoner serve two‑thirds of his term before Parole Board consideration was harder to justify when a discretionary life prisoner—likely to be more dangerous—could be considered at halfway through the notional determinate term. The involvement of the Parole Board in both cases meant that risk was equally addressed, and the “package” argument did not adequately explain why EDS prisoners should wait longer. Lord Mance agreed, concluding that no convincing justification had been shown and that prisoners serving an EDS were treated more stringently than discretionary lifers without adequate reason, and that section 246A was therefore incompatible with article 14 read with article 5.

In short, whilst the Supreme Court accepted (by a majority of four to one) that a prisoner serving an EDS has a status for article 14 purposes, overruling the House of Lords in R (Clift), it dismissed the appeal by a majority of three to two, holding either that EDS prisoners are not in an analogous situation to other prisoners or that the difference in treatment is objectively justified when the complete sentencing regimes are considered in the round.

R v Stott [2016] EWCA Crim 172
R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173
R (Clift) v Secretary of State for the Home Department [2007] 1 AC 4
R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196
R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681
R (Haney; Kaiyam and others) v Secretary of State for Justice and others [2014] UKSC 66, [2015] 2 WLR 76, [2015] 2 All ER 822, [2015] AC 1344
Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47
Clift [2006] UKHL 54, [2007] 1 AC 484
R (RJM) v Secretary of State for Work and Pensions [2009] AC 311
R v Szczerba [2002] 2 Cr App R (S) 86
Round [2009] EWCA Crim 2667
R (Foley) v Parole Board [2012] EWHC 2184 (Admin)

Rossi [2014] EWCA Crim 2081, [2015] 1 Cr App R (S) 15
Burinskas and Others [2014] EWCA Crim 334, [2014] 1 WLR 4209, [2014] 2 Cr App R (S) 45
Docherty [2016] UKSC 62, [2017] 1 WLR 181

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Also cited as: [2018] 3 WLR 1831 · [2019] 1 Cr App R (S) 47 · [2019] 2 All ER 351 · [2019] Crim LR 251 · [2020] AC 51