On appeal from: [2017] EWCH 214 (Admin)

This appeal considered whether, but for the House of Lords decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, the statutory provisions on release of extended determinate sentence (EDS) prisoners are discriminatory and incompatible with ECHR, art 14.

The Supreme Court dismissed the appeal, by a majority of three to two, holding that the EDS scheme does not breach ECHR art 14 with art 5.

The Court held that they should depart from the decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484. This is because, for the purposes of determining status, there is no real distinction between Mr Clift as a prisoner serving 15 years or more and Mr Stott as a prisoner serving an EDS, and the difference in treatment of EDS prisoners in relation to early release is a difference within the scope of art 14, on the ground of “other status”. The majority of the Court held that EDS prisoners are not in an analogous situation to other prisoners as  prisoners serving sentences under different regimes are not in analogous situations. This majority also concluded that, if EDS prisoners were in an analogous situation, the difference of treatment would be objectively justified. This is because the aim of the EDS provisions, which includes public protection, is legitimate. The Court considered that the EDS is better compared to an indeterminate sentence, rather than to other types of determinate sentence. Counter-balancing the indeterminate prisoner’s earlier eligibility for parole is the lack of any guaranteed end to his incarceration, and the life licence to which he is subjected, meaning the difference in treatment in relation to early release is not disproportionate or unfair. Therefore the Court concluded that the EDS is a separate sentencing regime that is neither arbitrary nor unlawful.

Dissenting, Lady Hale and Lord Mance considered that EDS prisoners are in an analogous situation to other prisoners serving determinate sentences and prisoners serving discretionary life sentences. Therefore they considered  that there is no justification for insisting that an EDS prisoner stay in prison for two thirds of the custodial term appropriate to the seriousness of his offending, while a discretionary life sentence prisoner, who is likely to be even more dangerous than an EDS prisoner, would be considered for release after half of what would have been an appropriate determinate sentence.

For judgment, please download: [2018] UKSC 59
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (18 Jan 2018 morning session) (18 Jan 2018 afternoon session)