Information Note on the Court’s case-law No. 132
July 2010
Clift v. the United Kingdom - 7205/07
Judgment 13.7.2010 [Section IV]
Article 14
Discrimination
Differences in procedural requirements for early release depending on length of sentence: violation
Facts – The applicant was sentenced to eighteen years’ imprisonment in April 1994 for serious crimes including attempted murder. In March 2002 he became eligible for release on parole and the Parole Board recommended his release. Under the legislation applicable at the time, prisoners serving fixed-term sentences of imprisonment of fifteen years or more were required to secure, in addition to a positive recommendation from the Parole Board, the approval of the Secretary of State for early release, whereas no such approval was required in the case of prisoners serving fixed-term sentences of less than fifteen years or life sentences. The Secretary of State rejected the Parole Board’s recommendation in the applicant’s case on the grounds that his release would pose an unacceptable risk to the public. The applicant sought judicial review, but the divisional court dismissed his claim in a decision that was upheld by the Court of Appeal. His further appeal to the House of Lords was dismissed on the grounds that the difference in treatment was not the result of the applicant’s “status” and so did not fall within the prohibition on discrimination in Article 14. The applicant had by then been released on licence.
Law – Article 14 in conjunction with Article 5
(a) “Other status” – The first issue was whether the applicant enjoyed some “other status” that would bring him within the protection of Article 14. Those words had generally been given a wide meaning in the Court’s case-law and were not limited to different treatment based on characteristics which were personal in the sense of being innate or inherently linked to the identity or personality of the individual. Although the Court had held in Gerger v. Turkey ([GC], no. 24919/94, 8 July 1999) that differences in treatment between prisoners in relation to parole did not confer on them “other status” as the distinction was made not between different groups of people, but between different types of offence, according to their gravity, the applicant in the instant case alleged a difference of treatment based not on the gravity of the offence, but on his position as a prisoner serving a determinate sentence of more than fifteen years. While sentence length bore some relationship to the perceived gravity of the offence, a number of other factors could also be relevant, including the sentencing judge’s assessment of the risk the prisoner posed to the public. Where an early-release scheme applied differently to prisoners depending on the length of their sentences, there was a risk that, unless objectively justified, it would run counter to the need to ensure protection from arbitrary detention under Article 5. Accordingly, the applicant enjoyed “other status” for the purposes of Article 14.
(b) Analogous position – As to whether the applicant was in an analogous position to other prisoners who had been treated more favourably, the Court noted that a decision not to approve the early release of a prisoner was not intended to constitute further punishment but to reflect the assessment that the prisoner posed an unacceptable risk upon release. The methods of assessing risk were in principle the same for all categories of prisoners and no distinction could be drawn between long-term prisoners serving less than fifteen years, long-term prisoners serving fifteen years or more and life prisoners. The applicant could therefore claim to be in an analogous position to long-term prisoners serving less than fifteen years and life prisoners.
(c) Objective and reasonable justification – Differences in treatment between groups of prisoners might be justified in principle if they pursued the legitimate aim of protecting the public, provided that it could be demonstrated that those to whom more stringent early release regimes applied posed a higher risk upon release. Given the apparently greater risk posed by life prisoners, a system which imposed on them less stringent conditions for early release than prisoners serving fixed-term sentences of fifteen years or more appeared to lack any objective justification. As regards the difference in treatment between those serving more and those serving less than fifteen years, while such a distinction did not of itself suggest unlawful discrimination, it nevertheless would only be justified where it achieved the legitimate aim pursued. In that connection, the Government had failed to demonstrate how the approval of the Secretary of State required for certain groups of prisoners addressed concerns regarding the perceived higher risk posed by certain prisoners on release. Indeed, as Lord Bingham, sitting in the House of Lords, had observed, that system had become an indefensible anomaly. The early-release scheme to which the applicant had been subject had thus lacked objective justification.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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