Prisoner serving sentence of 18 years' imprisonment - home secretary's refusal to release on licence following favourable recommendation by Parole Board - not infringing convention right not to be discriminated against

R (Clift) v Secretary of State for the Home Department: QBD (Mr Justice Hooper): 13 June 2003

The claimant was sentenced to a total of 18 years' imprisonment.

On qualifying for parole, the secretary of state decided that the claimant was not suitable for release from prison, under section 35(1) of the Criminal Justice Act 1991, notwithstanding a favourable recommendation from the Parole Board for his release.

The Parole Board (Transfer of Functions) Order (SI 3218 of 1998) provided that, in the case of long-term prisoners serving sentences of less than 15 years, the decision to release on licence was made by the Parole Board alone.

The claimant sought judicial review on the ground that it was a breach of article 5, taken together with article 14 of the European Convention on Human Rights, that the home secretary should retain the power to determine the release on parole licence of only one group of prisoners, those serving determinate terms of 15 years or more.

Tim Owen QC and Kris Gledhill (instructed by Pattersons, Halifax) for the claimant; Jonathan Crow and Steven Kovats (instructed by the Treasury Solicitor) for the secretary of state.

Held, dismissing the application that the relevant comparators to those serving 15 years and more were those serving between about 12 years and less than 15 years; that Parliament had given the secretary of state power to review and reconsider a positive recommendation from the Parole Board, since prisoners serving long determinate sentences and indeterminate sentences of imprisonment were likely to pose particular problems for public safety and order; that given that the secretary of state had to apply the same test as the Parole Board to the same, or the same kind of, material, and that his decision was open to challenge by way of judicial review, the aim was legitimate; that the only sensible way of achieving the aim was to choose a period of years, even though the result might, in certain cases, be arbitrary; and that, accordingly, any discrimination there might be against those whose sentence was in the region of 15 years or more was justified.