In this post, Christiane Sungu, Associate at CMS, previews the decision awaited from the Supreme Court in the case of Stephen Hilland for Judicial Review (Northern Ireland).


Following a decision by the Department of Justice (“DoJ”) to recall a prisoner Stephen Hilland (“Mr Hilland”), questions were raised to the courts as to whether it was (a) discriminatory and (b) a breach of human rights to apply a lower threshold test to a prisoner on licence subject to a determinate custodial sentence, in comparison to the threshold used on prisoners subject to a different type of sentence.

The Facts

In this case, Mr Hilland was convicted of two offences and sentenced on 26 May 2015 to two determinate custodial sentences (“DCS”) with his two sentences to run concurrently, combined to be one year in custody, and one year on licence.

In the second year of his sentence, Mr Hilland was released from prison on licence. During his time on licence, Mr Hilland was arrested on suspicion of involvement in a number of driving related offences and in breach of his licence conditions. It follows that prisoners who spend their licence periods in the community are subject to recall.

As a result, the Probation Board for Northern Ireland wrote to the Parole Commissioners seeking that they provide a recommendation to the DoJ for Mr Hilland’s recall on the basis that he was a prolific offender who was likely to re-offend and presented as a danger to the public given his continued disregard of the law. Despite the initial recall decision being quashed, and after a series of legal proceedings, Mr Hilland was recalled on 21 October 2016 and remained in prison until 3 February 2017, when he was released.

In response to this, Mr Hilland decided to raise a challenge that the recall had the effect of breaching his human rights on the basis of the combined effects of ECHR, art 5 (the right to liberty and security), read with ECHR art 14 (the prohibition of discrimination), as incorporated by the Human Rights Act 1998. This argument was based on the fact that prisoners on Indeterminate Custodial Sentences (“ICS”) and Extended Custodial Sentences (“ECS”) were treated differently to Mr Hilland (who had a DCS).

The Thresholds for Recall

The recall process is governed by the Criminal Justice (Northern Ireland) Order 2008 (“the 2008 Order”), art 28; and it provides the framework for the range of recalls and the conditions for the DoJ to prove. Once recalled by the DoJ, the DoJ must refer this to the Parole Commissioners whose role is to decide whether they are satisfied for the protection of the public that the prisoner should be confined.

When considering prisoners under DCS who have a fixed term, a decision to recall will likely only arise if it is believed that there is an increase in the risk of harm to the public.

On the other hand, looking at those under an ICS, the key question will be whether they are within the category of a dangerous offender by reference to the 2008 Order, art 15. Someone under an ICS after an initial release on licence, may be in and out of prison during periods on licence.

For prisoners under an ECS, similarly they will be judged on a finding of dangerousness and will be given a custodial term along with an extension period subject to licence. A prisoner under an ECS can be recalled under the 2008 Order, art 28, and will be released administratively when the aggregate sentence is completed.

The wording of the two tests applied under art 28(6) contains a slight change in language between the two subsections. DCS prisoners are tested against it being no longer necessary for the protection of the public that the prisoner should be confined (art 28(6)(b)) whereas for ICS or ECS, the assessment is of there no longer being a risk of protection of the public from “serious harm” as per art 28(6)(a).

Therefore, Mr Hilland argued that the assessment of his risk under a DCS was harsher than that applied to prisoners serving under an ICS or DCS and that this difference in treatment amounted to unlawful discrimination.

Decision of the Lower Court

In considering this, Colton J decided that art 28 generally provided the DoJ with a broad discretion when dealing with recall cases and that recall usually occurred when there has been an increase in the risk represented by the prisoner.

Using Lady Black’s four-part test established in the case of R (Stott) v Secretary of State for Justice [2018] 3 WLR 1831 (“Stott”), Colton J found that Mr Hilland’s circumstances did in fact (1) fall within the ambit of  ECHR, art 5; (2) meet the criteria of “other status” and was protected under ECHR, art 14; however (3) could not be found to be in an analogous situation as his comparators under an ICS or DCS and; (4) even if it was analogous, the difference in treatment could be justified. The slight difference in language between the two sub-sections indicated that two separate and distinct regimes were in contemplation, and rightly so as there was a clear difference between the position of a standard form of offender, a DCS prisoner, and that of a dangerous offender.

The Appeal

Mr Hilland appealed on the basis that the decisions of recall, application of the 2008 Order, art  28 and the DoJ’s policies which underpinned their decision-making breached his human rights and that Colton J’s judgment should be set aside as he had erred in dismissing the  case.

The Court of Appeal considered the same case law as the lower courts, with the addition of SC, CB and 8 children v Secretary of State for Work and Pensions and others [2021] UKSC 26. The court accepted the findings by Colton J and added that there must be flexibility in application. The court considered that Colton J did not act wrongly or illegally in approaching this matter in the way that he did regarding the four-part test established in the case of Stott.

It was further established that there had been no evidence of substance to show that prisoners under an ECS or ICS had been treated more favourably than those under a DCS historically. There was no evidence of discrimination or arbitrary treatment.

The court stated along with other justifications that the case was evidentially weak, that the instrument under consideration was the product of a democratic legislature, and a wide margin of appreciation had to be considered.

The court dismissed the appeal and affirmed Colton J’s judgment that the situation was in fact not analogous to his ICS and ECS comparators. The court ultimately agreed with the Colton J’s conclusion that the arrangements at issue served a legitimate aim and were proportionate and justifiable for public protection.


The case demonstrates the importance that judges will place in interpreting statutory provisions with the draftsperson’s intentions in mind. It showed that the slight change of wording between the thresholds of the 2008 Order, arts 28(6)(a) and 28(6)(b) was clearly deliberate to distinguish between the different prisoner groups, and that it was right to treat it as such without it being a cause for discrimination. Furthermore, the appeal demonstrated the importance that appeal judges will place in awarding flexibility to the manner in which trial judges interpret and apply case law without much interference or push for a more stringent applications at appeal.

The Supreme Court will now consider whether applying a different threshold test for the recall of prisoners on licence who are subject to a DCS is discriminatory and a breach of a prisoner’s rights under ECHR, arts 5 and 14.